Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 66759 

E. Executive Order 13211 (Energy 

Effects) 

This rulemaking is not a significant 

energy action under Executive Order 

13211 because this rulemaking is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Therefore, a Statement of Energy 

Effects is not required under Executive 

Order 13211 (May 18, 2001). 

F. Executive Order 12988 (Civil Justice 

Reform) 

This rulemaking meets applicable 

standards to minimize litigation, 

eliminate ambiguity, and reduce burden 

as set forth in sections 3(a) and 3(b)(2) 

of Executive Order 12988 (Feb. 5, 1996). 

G. Executive Order 13045 (Protection of 

Children) 

This rulemaking does not concern an 

environmental risk to health or safety 

that may disproportionately affect 

children under Executive Order 13045 

(Apr. 21, 1997). 

H. Executive Order 12630 (Taking of 

Private Property) 

This rulemaking will not effect a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630 (Mar. 15, 1988). 

I. Congressional Review Act 

Under the Congressional Review Act 

provisions of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (5 U.S.C. 801 et seq.), prior to 

issuing any final rule, the United States 

Patent and Trademark Office will 

submit a report containing this final rule 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives and the Comptroller 

General of the Government 

Accountability Office. The changes in 

this final rule are not expected to result 

in an annual effect on the economy of 

100 million dollars or more, a major 

increase in costs or prices, or significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of United 

States-based enterprises to compete 

with foreign-based enterprises in 

domestic and export markets. Therefore, 

this final rule is not a ‘‘major rule’’ as 

defined in 5 U.S.C. 804(2). 

J. Unfunded Mandates Reform Act of 

1995 

The changes in this final rule do not 

involve a Federal intergovernmental 

mandate that will result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, of 100 

million dollars (as adjusted) or more in 

any one year, or a Federal private sector 

mandate that will result in the 

expenditure by the private sector of 100 

million dollars (as adjusted) or more in 

any one year, and will not significantly 

or uniquely affect small governments. 

Therefore, no actions are necessary 

under the provisions of the Unfunded 

Mandates Reform Act of 1995. See 2 

U.S.C. 1501 et seq. 

K. National Environmental Policy Act 

This rulemaking will not have any 

effect on the quality of environment and 

is thus categorically excluded from 

review under the National 

Environmental Policy Act of 1969. See 

42 U.S.C. 4321 et seq. 

L. National Technology Transfer and 

Advancement Act 

The requirements of section 12(d) of 

the National Technology Transfer and 

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

272 note) are inapplicable because this 

rulemaking does not contain provisions 

which involve the use of technical 

standards. 

M. Paperwork Reduction Act 

The changes in this final rule involve 

information collection requirements 

which are subject to review by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). The 

collection of information involved in 

this notice has been reviewed and 

approved by OMB under OMB control 

number 0651–0021. The Office did not 

resubmit an information collection 

package to OMB for its review and 

approval because the changes in this 

final rule concern revised fees for 

existing information collection 

requirements associated with the 

information collection under OMB 

control number 0651–0021. The Office 

will submit fee revision changes to the 

inventory of the information collection 

under OMB control number 0651–0021. 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act unless that collection of 

information displays a currently valid 

OMB control number. 

List of Subjects 

37 CFR Part 1 

Administrative practice and 

procedure, Courts, Freedom of 

Information, Inventions and patents, 

Reporting and record keeping 

requirements, Small Businesses. 

PART 1—RULES OF PRACTICE IN 

PATENT CASES 

■ 1. The authority citation for 37 CFR 

Part 1 continues to read as follows: 

Authority: 35 U.S.C. 2(b)(2). 

■ 2. The authority citation for subpart is 

revised to read as follows: 

Authority: Secs. 1.401 to 1.499 also issued 

under 35 U.S.C. 41 and 351 through 376. 

■ 3. Section 1.445 is amended by 

revising paragraphs (a)(1), (a)(2) and 

(a)(3) to read as follows: 

§ 1.445 International application filing, 

processing and search fees. 

(a) * * * 

(1) A transmittal fee (see 35 

U.S.C. 361(d) and PCT Rule 

14) ............................................. $240.00 

(2) A search fee (see 35 U.S.C. 

361(d) and PCT Rule 16) ......... $2,080.00 

(3) A supplemental search fee 

when required, per additional 

invention .................................. $2,080.00 

* * * * * 

Dated: October 21, 2008. 

Jon W. Dudas, 

Under Secretary of Commerce for Intellectual 

Property and Director of the United States 

Patent and Trademark Office. 

[FR Doc. E8–26711 Filed 11–10–08; 8:45 am] 

BILLING CODE 3510–16–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R09–OAR–2008–0306; FRL–8724–7] 

Approval and Promulgation of 

Implementation Plans; Designation of 

Areas for Air Quality Planning 

Purposes; State of California; PM–10; 

Revision of Designation; 

Redesignation of the San Joaquin 

Valley Air Basin PM–10 Nonattainment 

Area to Attainment; Approval of PM–10 

Maintenance Plan for the San Joaquin 

Valley Air Basin; Approval of 

Commitments for the East Kern PM–10 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the State of 

California’s request under the Clean Air 

Act (CAA or the Act) to revise the 

designation for the San Joaquin Valley 

(SJV) serious nonattainment area for 

particulate matter of ten microns or less 

(PM–10) (SJV nonattainment area) by 

splitting the area into two separate 

nonattainment areas: The San Joaquin 

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66760 Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 

1Boundary changes are an inherent part of a 

designation or redesignation of an area under the 

CAA. See CAA section 107(d)(1)(B)(ii). 

Valley Air Basin (SJVAB) serious PM–10 

nonattainment area and the East Kern 

serious PM–10 nonattainment area. EPA 

is also redesignating the SJVAB 

nonattainment area to attainment for the 

PM–10 national ambient air quality 

standard (NAAQS) and approving the 

PM–10 maintenance plan, motor vehicle 

emissions budgets and conformity 

trading mechanism for the area. EPA is 

also excluding from use in determining 

that the area has attained the standard 

exceedances on July 4, 2007, and 

January 4, 2008, that EPA has concluded 

were caused by exceptional events. 

Finally, EPA is approving enforceable 

commitments by the Kern County Air 

Pollution Control District and the 

California Air Resources Board to install 

a PM–10 monitor in the East Kern 

nonattainment area and to address CAA 

requirements under section 189(d) as 

necessary for the area. 

DATE: This rule is effective on December 

12, 2008. The motor vehicle emission 

budgets are applicable as of November 

12, 2008. 

ADDRESSES: EPA has established docket 

number EPA-R09–OAR–2008–0306 for 

this action. 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: 

Doris Lo, EPA Region IX, (415) 972– 

3959, lo.doris@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

II. Public Comments and EPA Responses 

A. Area Has Attained 

B. Fully Approved SIP 

C. Improvements in Air Quality are Due to 

Permanent and Enforceable Emission 

Reductions 

D. Area Has Met All Applicable CAA 

Section 110 and Part D Requirements 

E. Maintenance Plan 

F. Revision of Boundary Designation 

G. Miscellaneous Comments 

III. Final Actions 

IV. Statutory and Executive Order Reviews 

I. Background 

On April 25, 2008 (73 FR 22307), EPA 

proposed the following actions: 

• Approval of the State of California’s 

request to revise the designation for the 

SJV serious PM–10 nonattainment area 

by splitting the area into two separate 

nonattainment areas, the SJVAB serious 

PM–10 nonattainment area and the East 

Kern serious PM–10 nonattainment 

area. 

• Redesignation of the SJVAB 

nonattainment area to attainment for the 

PM–10 NAAQS and approval of the 

maintenance plan, motor vehicle 

emissions budgets and conformity 

trading mechanism for the SJVAB area. 

• Exclusion from use in determining 

that the SJVAB area has attained the 

standard two exceedances that EPA has 

concluded were caused by exceptional 

events that occurred on July 4, 2007, 

and January 4, 2008. 

• Approval of enforceable 

commitments by the Kern County Air 

Pollution Control District (KCAPCD) 

and the California Air Resources Board 

(CARB) to install a PM–10 monitor in 

the East Kern nonattainment area and to 

address CAA requirements under 

section 189(d) as necessary for the East 

Kern area. 

Subsequently, On May 23, 2008, EPA 

extended the public comment period for 

two weeks, until June 10, 2008. 73 FR 

30029. EPA issued the extension in 

order to notify the public of a minor 

change in the motor vehicle emissions 

budgets and to provide the public with 

the opportunity to consider these 

technical corrections. 

Under section 107(d)(3)(D) of the 

CAA, the Governor of any state may, on 

the Governor’s own motion, submit to 

EPA a revised designation of any area or 

portion thereof within the state.1 EPA is 

required to approve or deny the revised 

designation within 18 months of receipt. 

On January 31, 2008, the State 

submitted to EPA a revised designation 

that involves a boundary change only 

and not a change in status (e.g., from 

‘‘nonattainment,’’ to ‘‘attainment’’ or 

‘‘unclassifiable’’) of any area. 

Section 107(d)(3)(E) of the CAA states 

that an area can be redesignated to 

attainment if the following conditions 

are met: 

(1) EPA has determined that the area 

has attained the NAAQS. 

(2) The applicable implementation 

plan has been fully approved by EPA 

under section 110(k) of the CAA. 

(3) EPA has determined that the 

improvement in air quality is due to 

permanent and enforceable reductions 

in emissions. 

(4) The State has met all applicable 

requirements for the area under section 

110 and Part D of the CAA. 

(5) EPA has fully approved a 

maintenance plan, including a 

contingency plan, for the area under 

section 175A of the CAA. These 

requirements are discussed in more 

detail in a September 4, 1992, EPA 

memorandum, ‘‘Procedures for 

Processing Request To Redesignate 

Areas to Attainment,’’ John Calcagni, 

Director, Air Quality Management 

Division (Calcagni memorandum). 

The proposed rule provides a more 

detailed discussion of the background 

pertinent to this final action. 

II. Public Comments and EPA 

Responses 

EPA received one letter in support of 

EPA’s proposed actions from the San 

Joaquin Valley Air Pollution Control 

District (SJVAPCD or the District) and 

two letters with adverse comments. As 

EPA sets forth in detail in its responses 

to comments below, in taking final 

action EPA has fully considered all data 

pertinent for regulatory use in 

determining attainment in the SJVAB 

area and EPA continues to believe that 

the area has attained the PM–10 

standard. EPA has also determined that 

the State’s request for redesignation and 

the maintenance plan for the SJVAB 

area meet the applicable requirements of 

the CAA. In addition, EPA is granting 

the State’s request for a boundary 

revision for the area based on a 

multiplicity of factors. The available 

monitoring data for the East Kern area, 

while limited, also indicate that 

concentrations are well below the 

NAAQS. Thus, for the reasons set forth 

in the responses to comments below, as 

well as in the proposed rule, EPA is 

finalizing its proposed determinations 

as fully meeting the requirements of the 

CAA. 

A. Area Has Attained 

Comment 1: Earthjustice (EJ) states 

that the first condition that a 

nonattainment area must meet in order 

to be redesignated to attainment under 

CAA section 107(d)(3)(E) is that EPA 

has determined that the area has 

actually attained the NAAQS. EJ alleges 

that the SJV nonattainment area has 

recorded multiple exceedances of the 

standard during the period that EPA is 

relying on to demonstrate attainment 

and that EPA is thus ignoring a serious 

air quality problem and the health 

impacts associated with it. EJ 

incorporates by reference and attaches 

its previous comments on EPA’s 

attainment determination that claim the 

problem EPA is ignoring has existed for 

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Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 66761 

2The Ninth Circuit has consolidated the two 

petitions for review. 

3Note that the Corcoran FRM operates on a onein-three day schedule and that EPA does not 

combine PM–10 data collected with different 

monitoring methods, i.e., FRMs and FEMs. See 

Memorandum from Gerald A. Emison, EPA, to EPA 

Regional Division Directors, ‘‘Revision to Policy on 

the Use of PM–10 Measurement Data,’’ November 

21, 1988 at 3. 

4 ‘‘2003 PM10 Plan, San Joaquin Valley Plan to 

Attain Federal Standards for Particulate Matter 10 

Microns and Smaller’’ (2003 PM–10 Plan). 

many years, is part of what led EPA to 

designate the SJV area nonattainment in 

the first place and is caused by ongoing 

human activity that is not reasonably 

controlled. 

Response 1: The previous comments 

to which EJ refers in its June 10, 2008 

comment letter on the proposed rule are 

contained in its August 18, 2006 

comment letter with attachments A–H, 

October 26, 2007 comment letter, 

December 29, 2006 Petition for 

Reconsideration and March 21, 2007 

Petition for Withdrawal, with attached 

declarations from Sarah Jackson and Jan 

Null. EJ raised the same issues as it 

raises here during EPA’s rulemakings 

regarding the 2006 determination of 

attainment for the SJV nonattainment 

area and 2008 affirmation of that 

determination. EPA fully responded to 

EJ’s comments at that time. See the final 

rules at 71 FR 63642 (October 30, 2006) 

and 73 FR 14687 (March 19, 2008). See 

also the proposed rules for these actions 

at 71 FR 40952 (July 19, 2006) and 72 

FR 49046 (August 27, 2007). As we 

explained in our responses to EJ’s 

comments in the final rules, EPA 

believes that the SJV area has attained 

the PM–10 NAAQS and that the 

exceedances noted by EJ were properly 

excluded from consideration under the 

Agency’s Exceptional Events Rule 

(EER)(72 FR 13560; March 22, 2007). 

EJ subsequently filed petitions for 

review of the October 2006 and March 

2008 final rules in the U.S. Court of 

Appeals for the Ninth Circuit. Latino 

Issues Forum, et al. v. EPA, Nos. 06– 

75831 and 08–71238.2 In its opening 

brief in these cases, filed on June 16, 

2008, EJ again raises these issues. In its 

brief in opposition, filed on September 

3, 2008, EPA again responds to EJ’s 

arguments. EJ was required to raise any 

issues regarding the 2006 attainment 

determination and 2008 affirmation of 

that determination during those 

rulemakings and in the Ninth Circuit in 

Latino Issues Forum and cannot 

relitigate the same issues here. 

Moreover, in the proposed rule for 

today’s final action we proposed to 

exclude under the EER data showing 

exceedances in the SJV nonattainment 

area on July 4, 2007 and January 8, 

2008, and concluded that the area 

continued to attain the PM–10 standard 

through February 2008. We did not 

receive any adverse comments on this 

aspect of our proposed rule. In this final 

action, for the reasons set forth in the 

proposed rule and in EPA’s concurrence 

letters to which it refers, we are 

concurring with the State’s flagging of 

those data as caused by fireworks and 

high wind exceptional events, and 

excluding those data from consideration 

in determining that the SJVAB area 

continues to attain the standard. 

Finally, EPA is aware of PM–10 

exceedances recorded on May 21, 2008 

at the Corcoran and Bakersfield Federal 

Equivalent Method (FEM) monitors and 

the Corcoran Federal Reference Method 

(FRM) monitor, and on May 22, 2008 at 

the Corcoran FEM. On June 24, 2008, 

the District posted on its website 

documentation that these exceedances 

were caused by a natural event, i.e., 

high winds. The comment period ended 

on July 24, 2008 and no public 

comments were received. The 

documentation was submitted to EPA 

on August 12, 2008 and EPA has 

concurred that these exceedances 

should be flagged as exceptional events. 

Letter from Wayne Nastri, EPA to Mary 

D. Nichols, CARB, September 24, 2008. 

EPA is not taking comment on 

whether the May 2008 exceedances 

should be excluded from the 

determination in this final rule that the 

SJVAB area continues to attain the PM– 

10 standard. The determination of 

whether an area has attained the PM–10 

standard is based on the most recent 

three consecutive calendar years of data. 

As mentioned above and in other EPA 

actions, the SJVAB area has attained the 

PM–10 standard based on data for the 

three-year period from 2003 through 

2005 and the three-year period from 

2005 through 2007. See 71 FR 63642 

and 73 FR 14687. Because 2008 has not 

ended, EPA cannot determine whether 

the area has attained the standard based 

on the three-year period from 2006 

through 2008. We can, however, 

determine with less than three years of 

data whether the SJVAB area has failed 

to attain in the period from 2006 to date. 

See 40 CFR part 50, appendix K, section 

2.3(c) and 71 FR 63642, footnote 26. 

Because the May 21 and 22, 2008 

exceedances are the only exceedances at 

the Corcoran monitors since 2006 not 

excluded through notice and comment 

rulemaking from regulatory 

consideration, the expected number of 

exceedances recorded at the FRM 

monitor, based on the May 21 

exceedance, is three and the expected 

number of exceedances recorded at the 

FEM monitor on May 21 and May 22 is 

two.3 Similarly, because the May 21, 

2008 exceedance is the only exceedance 

recorded at the Bakersfield monitor 

since 2006 not excluded from regulatory 

consideration through notice and 

comment rulemaking, the expected 

number of exceedances at the 

Bakersfield monitor is one. Thus, even 

if EPA does not exclude the May 21 and 

22, 2008 exceedances from regulatory 

consideration, the SJVAB area continues 

to attain the PM–10 NAAQS to date 

because both Corcoran and Bakersfield 

have an expected number of 

exceedances of less than or equal to one 

per year, averaged over the three year 

period 2005–2007 and through 2008 to 

date. All other monitors in the SJV area 

had an expected number of exceedances 

of less than or equal to one per year 

during these periods. EPA thus 

determines that the SJVAB area has 

attained the PM–10 NAAQS as required 

by section 107(d)(3)(E)(i). 

B. Fully Approved SIP 

Comment 2: EJ states that the second 

condition for redesignation under 

section CAA section 107(d)(3)(E) is that 

an area seeking redesignation must have 

a fully approved state implementation 

plan (SIP) and must satisfy all 

requirements that apply to the area and 

that the SJV nonattainment area does 

not have such a SIP. EJ argues that while 

EPA concedes that it has never 

approved contingency measures for the 

area and has instead suspended this 

requirement under the Agency’s Clean 

Data Policy, neither the policy nor the 

cases EPA cites addresses PM–10 

nonattainment areas and therefore do 

not square EPA’s action with the 

mandate under CAA section 189(c) that 

such areas continue to achieve the 

milestones for emission reductions in 

order to demonstrate reasonable further 

progress (RFP) ‘‘until the area is 

redesignated to attainment.’’ EJ believes 

that because contingency measures are 

also necessary to ensure this progress is 

achieved, EPA cannot suspend the 

requirement for these measures. Citing 

Engine Mfrs. Ass’n v. EPA, 88 F.3d 

1075, 1089 (D.C. Cir. 1996), EJ asserts 

that EPA does not have the authority to 

waive statutory requirements and 

circumvent redesignation provisions 

because it believes compliance with 

those requirements is unnecessary. 

Response 2: In 2006 EPA approved 

the entire nonattainment plan for the 

SJV area,4 including the CAA section 

189(c)(1) reasonable further progress 

milestones, except for the CAA section 

172(c)(9) contingency measures, on 

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66762 Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 

5EPA has long interpreted the CAA to provide 

that certain nonattainment area requirements, the 

purpose of which are to ensure attainment of the 

relevant NAAQS by the applicable deadline, will no 

longer apply once an area has attained that NAAQS, 

and for as long it continues to do so until it is 

redesignated to attainment status. While referred to 

as the Clean Data Policy, it is more accurately 

described as EPA’s interpretations of the relevant 

provisions of Title I, Part D of the CAA. See Sierra 

Club v. EPA, 375 F.3d 537, 541–42 (7th Cir. 2004); 

Sierra Club v. EPA, 99 F.3d 1551, 1156–57 (10th 

Cir. 1996). EPA first set forth this interpretation in 

its ‘‘General Preamble for the Interpretation of Title 

I of the Clean Air Act Amendments of 1990,’’ 

(General Preamble) thereafter reiterated it in several 

policy memoranda and since codified the policy 

with respect to ozone and PM–2.5 nonattainment 

areas. 57 FR 13498, 13564 (April 16, 1992), 40 CFR 

51.918 (ozone) and 51.1004(c) (PM2.5). EPA has 

applied the policy to numerous PM–10 

nonattainment areas, including the SJV area. For an 

expanded description of the policy and our 

application of it, see Respondent EPA’s Merits Brief 

in Latino Issues Forum at 7–8, 71 FR 40952, 40954 

and 71 FR 63642, 63644. 

which EPA deferred action. 69 FR 30006 

(May 26, 2004). EPA subsequently 

determined that the contingency 

measures requirement for the SJV area 

was suspended as a result of its October 

2006 determination that the area has 

attained the PM–10 standard. 71 FR 

63642, 63663. During that rulemaking, 

EJ raised the same issues with regard to 

EPA’s Clean Data Policy 5 and statutory 

construction as it raises here. EPA 

responded to EJ’s arguments in the final 

rule. See id. at 63643–63647. EJ again 

raises these issues in its opening brief in 

Latino Issues Forum. EPA again 

responds to EJ’s arguments in its brief in 

opposition. EJ was required to raise any 

issues regarding the suspension of the 

contingency measures requirement 

during EPA’s 2006 attainment 

determination rulemaking and in Latino 

Issues Forum. EJ did so and cannot 

relitigate the same issues here. Because 

EPA has approved SIP provisions 

submitted by California for the SJVAB 

area that address all applicable CAA 

requirements, EPA has concluded that 

the CAA section 107(d)(3)(E) 

requirement for a fully approved SIP has 

been met. 

In addition, in the context of 

evaluating the area’s eligibility for 

redesignation, there is a separate and 

additional justification for finding that 

the section 172(c)(9) contingency 

measures are not an applicable SIP 

requirement for purposes of 

redesignation. Prior to and 

independently of that policy, and 

specifically in the context of 

redesignations, EPA interpreted the 

contingency measure requirement as not 

applicable for purposes of 

redesignation. In the General Preamble 

EPA stated that: 

[t]he section 172(c)(9) requirements are 

directed at ensuring RFP and attainment by 

the applicable date. These requirements no 

longer apply when an area has attained the 

standard and is eligible for redesignation. 

Furthermore, section 175A for maintenance 

plans * * * provides specific requirements 

for contingency measures that effectively 

supersede the requirements of section 

172(c)(9) for these areas. 

See also Calcagni memorandum at 6 

(‘‘The requirements for reasonable 

further progress and other measures 

needed for attainment will not apply for 

redesignations because they only have 

meaning for areas not attaining the 

standard.’’). Thus, even if the 

contingency measure requirement had 

not previously been suspended, it 

would not apply for purposes of 

evaluating whether an area that has 

attained the standard qualifies for 

redesignation. EPA has enunciated and 

held this position since the General 

Preamble was published more than 

sixteen years ago and represents the 

Agency’s interpretation of what 

constitutes applicable requirements 

under section 107(d)(3)(E). The Courts 

have recognized the scope of EPA’s 

authority to interpret ‘‘applicable 

requirements’’ in the redesignation 

context. See Sierra Club v. EPA, 375 

F.3d 537 (7th Cir. 2004). 

C. Improvements in Air Quality Must Be 

Due to Permanent and Enforceable 

Emission Reductions 

Comment 3: EJ states that a 1992 

guidance memorandum from John 

Calcagni lays out the steps that an area 

must take to show that the improvement 

in air quality is attributable to 

permanent and enforceable reductions 

in emissions, the third condition for 

redesignation to attainment under CAA 

section 107(d)(3)(E). EJ claims that this 

analysis should include estimating the 

percentage reductions achieved from the 

federal and state controls implemented 

in the area, taking into account 

permitted emission rates, production 

capacities and other related information. 

EJ states that EPA, banking on its waiver 

of all the violations during the period of 

interest, neglected to perform the proper 

analyses in the Calcagni memorandum 

and merely repeats the District’s belief, 

based on four observations (comments 4 

through 7 below), that the area is 

attaining the standard. 

Response 3: As discussed in our 

proposed rule, the Calcagni 

memorandum states that the state must 

be able to reasonably attribute the 

improvement in air quality to emission 

reductions which are permanent and 

enforceable, and the improvement 

should not be a result of temporary 

reductions (e.g., economic downturns or 

shutdowns) or unusually favorable 

meteorology. The Calcagni 

memorandum also states that in making 

this showing the state should estimate 

the emission reductions from adopted 

and implemented federal, state and 

local control measures, and consider the 

emission rates, production capacities, 

and other related information to show 

that the air quality improvements are 

the result of implemented controls. Our 

proposed rule discusses how each of 

these factors is addressed by the State in 

the ‘‘2007 PM10 Maintenance Plan and 

Request for Redesignation,’’ September 

20, 2007, SJVAPCD (2007 Plan). 73 FR 

22307; 2008, footnote 8; 22311–22312. 

In general, the 2007 Plan shows that 

there has been a significant 

improvement in PM–10 air quality since 

1990, noting that there were 33 

estimated exceedance days during 

1990–1992 and 2.9 exceedance days 

during 2002–2004. This decrease in 

exceedance days (and emissions) 

occurred during a period of rapid 

economic growth in the SJVAB area as 

indicated by the increases in population 

and vehicle miles traveled (VMT). The 

2007 Plan did not find any evidence of 

significant shutdowns that would cause 

the decline in exceedance days. The 

2007 Plan analyzed the meteorology in 

the SJVAB area during 2003–2006 by 

comparing the average annual wind 

speeds, precipitation levels and stability 

levels to long-term averages and found 

that there was no consistent pattern to 

show that there was favorable 

meteorology leading to the improvement 

in PM–10 levels during 2003–2006. 

The 2007 Plan states that over 500 

new rules and rule amendments have 

been adopted, reducing NOX and PM–10 

emissions from a wide range of source 

categories, and it shows decreases in the 

overall emissions of NOX and PM–10 

(which include all emissions from area 

sources as well as from permitted major 

sources) since 2000. A more detailed 

discussion of these analyses can be 

found in our proposed rule and in the 

2007 Plan. EPA’s analysis is based on 

the State’s assessment and EPA 

continues to believe that the State has 

demonstrated that the improvement in 

PM–10 air quality in the SJVAB area is 

a result of permanent and enforceable 

reductions in emissions and has 

adequately addressed the provisions of 

the Calcagni memorandum. 

Finally, as discussed in the response 

to comment 1 above, EPA has 

determined that the SJV area has 

attained the PM–10 standard. 71 FR 

63642; 73 FR 14687. These 

determinations included EPA’s 

concurrence with the State’s and Santa 

Rosa Rancheria Tribe’s conclusion that 

a number of exceedances were caused 

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by exceptional events and thus should 

be excluded from regulatory 

consideration. Id. EJ seems to suggest 

that EPA’s analyses should include 

these exceedances even though they 

have been properly excluded from 

regulatory consideration. EPA disagrees. 

Comment 4: EJ claims that the District 

provides a chart (2007 Plan at 24, Figure 

2) showing a downward trend in air 

pollution levels that is completely 

misleading because it does not include 

EPA-acknowledged exceedances in 2004 

and 2005, let alone the many 

exceedances EPA has ignored in its 

attainment determination. 

Response 4: The District’s chart (2007 

Plan at 24, Figure 2) shows a long-term 

downward PM–10 trend from 1990 to 

2006 for the SJVAB area by plotting the 

estimated exceedance days over the 

NAAQS. The estimated exceedance 

days in this chart are based on 

exceedances recorded with FRMs and 

not FEMs such as continuous beta 

attenuation monitors (BAMs). EPA 

believes that the District’s chart is not 

misleading and provides a general 

picture of the long-term trend for PM– 

10 and that 1990 is a reasonable year to 

begin the analysis because that was the 

year the CAA was amended. 

EJ’s comment letter (page 4) includes 

a chart, ‘‘PM–10 Trend,’’ that appears to 

revise the 2007 Plan’s chart by adding 

the exceedances from BAMs that 

occurred in 2004 and 2005 and by 

removing the data for 1990 in order to 

show a less precipitous decline in PM– 

10 levels. However, even with the 

exclusion of the 1990 data and the 

addition of the exceedances from the 

BAMs, EJ’s ‘‘PM–10 Trend’’ chart still 

shows a decline in PM–10 levels. 

Moreover, the 2007 Plan provides a 

summary in Table 10 of the declining 

annual average emissions inventories 

from 1990 through 2005 which is 

consistent with the District’s trends 

chart. Table 10 shows PM–10 emissions 

decreasing by 46 tons per day (tpd) and 

NOX emissions decreasing by 228 tpd 

during this time period. 

Finally, as discussed above, EPA has 

not ignored any recorded exceedances 

but rather has followed its regulations to 

exclude from regulatory consideration 

any exceedances that are caused by 

exceptional events. 73 FR 14687; 

response to comment 3 above. EPA also 

set forth in its 2006 attainment 

determination its conclusions as to prior 

monitored data. 71 FR 63642. 

Comment 5: EJ claims that while the 

District asserts that growth in the SJV 

nonattainment area has been rapid since 

1990 but that emissions have decreased, 

the sources of these claimed reductions 

do not support redesignation. 

Response 5: See responses to 

comments 1, 3 and 4 above, and 7 and 

8 below. 

Comment 6: EJ alleges that the District 

and EPA conclude without justification 

that the District’s meteorological 

analysis shows that favorable 

meteorology did not lead to the 

improvements in air quality. Instead, EJ 

argues, the analysis shows that from 

2004 to 2006, the SJV nonattainment 

area experienced some of the wettest 

years on record and that 2003 through 

2006 experienced lower than average 

stability levels, which EPA and the 

District concede would lead to better 

dispersion conditions and lower PM–10 

levels. As a result, EJ claims the data 

provided undercut any claim that the 

alleged air quality improvement is likely 

to be maintained. 

Response 6: Our proposed rule 

summarizes the meteorological analysis 

provided in the 2007 Plan which 

includes an examination of the 

precipitation, temperature wind speeds 

and atmospheric stability during the 

period 2003 through 2006. The 

summary was based on data presented 

in Appendix C to the 2007 Plan. As EJ 

comments, there were some conditions 

that favored lower PM–10 levels; 

however, there were also conditions that 

favored higher PM–10 levels. 

Conditions that favored higher PM–10 

levels included no variation in annual 

average wind speeds (which are 

generally quite low for the SJV area), 

warmer than average temperatures and 

two dry years ranking 98th and 112th in 

wetness (with the 1st year being the 

wettest year) during a 128 year period. 

Since there were conditions that both 

favored and did not favor higher PM–10 

levels, the conclusion of the 2007 Plan 

and EPA’s analysis is that there was no 

consistent pattern to show that 

attainment was a result of unusually 

favorable meteorology. 73 FR 22307, 

22312. 

Finally we note that the Calcagni 

memorandum makes clear that 

‘‘[a]ttainment resulting from * * * 

unusually favorable meteorology would 

not qualify as an air quality 

improvement due to permanent and 

enforceable emission reductions.’’ 

Calcagni memorandum at 4. Therefore 

EPA disagrees with EJ’s comment that 

the meteorological data indicate that the 

air quality improvement will not likely 

be maintained. 

In addition, EPA obtained available 

information on precipitation, average 

monthly temperatures and wind speeds 

for 2007 and compared the 2007 data to 

the averages presented in Appendix C to 

the 2007 Plan at Tables C–1, C–2 and C– 

3. (Atmospheric stability data for 2007 

was not available.) The total 

precipitation for 2007 was 7.03 inches 

(http://www.wrh.noaa.gov/hnx/fat/ 

normals/fatrnyr.htm) which is lower 

than the average precipitation of 10.13 

inches for 1878 through 2006 (2007 Plan 

at Table C–1) and would favor higher 

PM–10 levels. The average monthly 

temperatures in degrees Celcius for 2007 

were 4.6 for January, 9.5 for February, 

14.3 for March, 15.9 for April, 20.7 for 

May, 24 for June, 26.3 for July, 26.3 for 

August, 21.7 for September, 16.1 for 

October, 11.9 for November and 5.5 for 

December. (http://www.weather.gov/ 

climate/xmacis.php?wfo=hnx) When 

compared to the average monthly 

temperatures from 1900 through 2005 

(2007 Plan at Table C–2), the average 

temperatures for the months of March, 

May, June and August were higher in 

2007 than average and would favor 

higher PM–10 levels. Finally, the 

average wind speed for 2007 was 3.7 

miles per hour (mph) (http:// 

www.cimis.water.ca.gov) which is 

consistent with the average wind speed 

of 3.72 mph for 1984 through 2006 

(2007 Plan at Table C–3) and would 

favor high PM–10 levels. Since the 

available 2007 meteorological data favor 

higher PM–10 levels, EPA continues to 

believe that there is no consistent 

pattern that would establish that 

attainment has resulted from unusually 

favorable meteorology. 

Comment 7: EJ disputes EPA’s 

conclusion that improvements in air 

quality are the result of permanent and 

enforceable reductions in emissions 

from rules adopted by the District since 

1992. EJ claims that most of these rules 

were adopted only in the last few years 

and therefore any trend in emission 

reductions that can be inferred from the 

chart provided by the District (2007 

Plan at 24, Figure 2) cannot be 

attributed to these rules. EJ suggests that 

the drop in exceedance days between 

1990 and 1992 might be due to a 

difference in the methodologies for 

measuring exceedances for the TSP and 

PM–10 standards. EJ provides its own 

chart, ‘‘PM–10 Trend,’’ adjusted to 

include the exceedance days that it says 

EPA has acknowledged, that purports to 

show only minimal changes in the 

recurring pattern of PM–10 violations 

over the last 15 years. 

Response 7: On July 1, 1987, EPA 

revised the NAAQS for particulate 

matter by replacing the standards for 

total suspended particulate matter (TSP) 

with new standards applying only to 

PM–10. 52 FR 24672. While PM–10 

monitoring data have been collected 

since 1987 (see 71 FR 63642, 63653), the 

District and CARB have not reported 

TSP data to EPA’s Air Quality System 

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6See footnote 2 of the proposed rule. 73 FR 

22307, 22308. 

(AQS) database since 1989. Therefore 

any difference in measurement 

methodologies for the two pollutants 

could not be the cause of the drop in 

exceedance days between 1990 and 

1992. 

Since enactment of the 1990 CAA 

Amendments, the State has adopted and 

submitted several PM–10 plans. These 

include a moderate area plan under 

CAA section 189(a), a serious area plan 

under section 189(b) and a serious area 

plan under section 189(d) (i.e., the 2003 

PM–10 Plan approved by EPA in 2004 

and discussed above). The 2003 PM–10 

Plan provides a summary of the many 

State, District and EPA rules adopted 

from 1990 through 2003. See 2003 PM– 

10 Plan at Tables 4–1, 4–2, 4–3 and 4– 

4. The 2003 PM–10 Plan also includes 

commitments for additional PM–10 and 

NOX measures, all of which were 

adopted by the District and State after 

2003 and most of which have been 

approved by EPA. See response to 

comment 8 below. 

The District’s chart (2007 Plan, Figure 

2) shows that PM–10 levels have 

declined from 1990 through 2006 while 

these PM–10 plans and rules have been 

adopted and implemented. We note that 

even EJ’s own ‘‘PM–10 Trend’’ chart 

shows a general decrease in PM–10 

levels since 1992 and since early 2000. 

Furthermore, the 2007 Plan shows 

that significant reductions in PM–10 

and NOX emissions occurred from the 

year 2000 to the year 2005, the time 

period during which the SJV area 

attained the PM–10 standard. NOX

emissions have declined from 673 tpd 

in 2000 to 606 tpd in 2005 and PM–10 

emissions have declined from 324 tpd 

in 2000 to 284 tpd in 2005. 2007 Plan; 

Staff Report, Air Resources Board, 

‘‘Analysis of the San Joaquin Valley 

2007 PM10 Maintenance Plan,’’ (ARB 

Staff Report for 2007 Plan) Appendix 

B.6

As can be seen from the above 

discussion and our responses to 

previous comments, PM–10 exceedance 

days and PM–10 and NOX emission 

levels have declined while at the same 

time the SJV area has exhibited 

significant growth in population and 

vehicle miles traveled. 2007 Plan at 24, 

Figure 2 and at 26, Figures 3 and 4. 

Thus EPA continues to believe that it is 

reasonable to attribute the improvement 

in PM–10 air quality to the emission 

reductions from adopted rules that are 

permanent and enforceable. 

Comment 8: EJ argues that the 

District’s failure to estimate the tons or 

percent reduction from the baseline year 

achieved by its PM–10 control measures 

makes it difficult to assert that any 

improvements in air quality are the 

result of such controls. Further, while 

EPA claims that the District has adopted 

all of its rule commitments in the 2003 

PM–10 Plan, only 2 of the 14 

commitments have received EPA 

approval according to EJ. The 

maintenance plan identifies 8 additional 

rules, only 3 of which have been 

approved by EPA. EJ states that of the 

22 rules the District identified during its 

PM–10 planning process to help reduce 

PM–10 in the SJV nonattainment area, 

only 5 are enforceable elements of the 

SIP. 

Response 8: The 2007 Plan provides 

a summary of overall NOX and PM–10 

emissions and shows that emissions 

have decreased from approximately 

1177 tpd in 1990 to approximately 1000 

tpd in 2000 to approximately 900 tpd in 

2005 and estimates that they will 

continue to decrease to approximately 

800 tpd in 2010. 2007 Plan at Table 10 

and 73 FR 22307, 22312. These 

declining emissions levels have 

occurred as population and VMT have 

increased and are due to the emissions 

reductions from rules and control 

measures that have been adopted and 

implemented since 1990. 2007 Plan at 

26 through 27 and 2003 PM–10 Plan at 

Tables 4–1, 4–2, 4–3 and 4–9. 

The 2003 PM–10 Plan summarizes the 

numerous rules and control measures 

adopted by the SJVAPCD, the State and 

EPA prior to 2003. 2003 PM–10 Plan at 

Tables 4–1, 4–2 and 4–3. The 2003 PM– 

10 Plan also includes District 

commitments to achieve additional 

reductions. 2003 PM–10 Plan at Table 

4–9. As discussed below, the 

commitments have all been converted to 

adopted rules. The emissions reductions 

from all of the 2003 PM–10 Plan’s rules, 

control measures and adopted 

commitments are reflected in the 2007 

Plan’s emissions inventory. ARB Staff 

Report for 2007 Plan at Appendix B. 

It is not clear what year EJ considers 

to be the baseline year; however, the 

2007 Plan provides emissions 

inventories for the years 1990, 2000, 

2005 and 2010 which include the 

estimated tpd of reductions achieved by 

the PM–10 rules, control measures and 

rules adopted pursuant to commitments. 

2007 Plan at Table 10 and ARB Staff 

Report for 2007 Plan at Appendix B. 

Thus, EPA believes that the State and 

District have estimated the tpd 

reductions from several baseline years 

(1990, 2000 and 2005) achieved by its 

PM–10 control measures and have 

shown that the improvements in air 

quality are the result of such controls. 

Regarding EJ’s comment that only five 

of the 22 rules the District identified 

during its PM–10 planning process are 

enforceable elements of the SIP, EPA 

notes that this information was updated 

in the 2007 Plan. See ‘‘Errata, 2007 

PM10 Maintenance Plan and Request for 

Redesignation,’’ October 9, 2007, 

included in the 2007 Plan submittal to 

EPA. Table 1 below summarizes the 

EPA-approved rules from the 2003 PM– 

10 Plan commitments and provides the 

EPA approval dates for these rules as 

applicable. EPA has approved all but 

three of the submitted rules (Rules 4694, 

4401 and 9510). 

TABLE 1—SUMMARY OF EPA ACTIONS ON 2003 PM–10 PLAN COMMITMENTS

2003 PM–10 plan commitment 7 (pollutants 

covered by commitment) Adopted rule number and title EPA action 

A. Agriculture (Conservation Management 

Practice Program) (PM–10, VOC).

4550—Conservation Management Practices ... Approved 2/14/06, 71 FR 7683. 

B. Cotton Gins (PM–10) .................................... 4204—Cotton Gins ........................................... Approved 11/9/06, 71 FR 65740. 

C. Dryers (NOX) ................................................ 4309—Dryers, Dehydrators, and Ovens .......... Approved 5/30/07, 72 FR 29886. 

D. Fugitive PM–10 (Regulation VIII) (PM–10) .. 8011—General Requirements ..........................

8021—Construction, Demo, Excavation 

8031—Bulk Materials. 

8041—Carryout and Trackout. 

Approved 2/17/06, 71 FR 8461. 

8051—Open Areas.

8061—Paved and Unpaved Roads.

8071—Unpaved Vehicle/Equip Traffic Areas.

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TABLE 1—SUMMARY OF EPA ACTIONS ON 2003 PM–10 PLAN COMMITMENTS—Continued 

2003 PM–10 plan commitment 7 (pollutants 

covered by commitment) Adopted rule number and title EPA action 

8081—Agricultural Sources.

E. Glass-Melting Furnaces (SOX) ..................... 4354—Glass Melting Furnaces ........................ Approved 8/1/07, 72 FR 41894. 

F. Gas-Fired Oilfield Steam Generators (SOX) 4406—Sulfur Compounds From Oilfield Steam 

Generators—Kern County.

Not adopted by District. 

G. Indirect Source Review, and Indirect Source 

Mitigation Fee (NOX, PM–10).

9510—Indirect Source Review ......................... Under EPA Review. 

H. Solid Fuel Boilers, Steam Generators, and 

Process Heaters (NOX, SOX).

4352—Solid Fuel Fired Boilers, Steam Generators, and Process Heaters.Approved 5/30/07, 72 FR 29886. 

I. Small Boilers, Steam Generators, and Process Heaters (NOX, SOX).4307—Boilers, Steam Generators, and Process Heaters 2.0 to 5.0 mmBtu.Approved 5/30/07, 72 FR 29886. 

J. Water Heaters (Industrial, Commercial, and 

Institutional) (NOX).

4308—Boilers, Steam Generators, and Process Heaters 0.075 to 2.0 mmBtu.Approved 5/30/07, 72 FR 29886. 

K. Wineries (VOC) ............................................. 4694—Wineries ................................................ Under EPA Review. 

L. Steam Enhanced Crude Oil Production Well 

Vents (VOC).

4401—Steam Enhanced Crude Oil Production 

Well Vents.

Under EPA Review. 

M. Residential Space Heating (NOX) ................ 4905—Natural Gas Fired, Fan-type, Residential Central Furnaces.Approved 5/30/07, 72 FR 29886. 

N. Agricultural Internal Combustion Engines 

(PM–10, NOX).

4702—Internal Combustion Engines Phase 2 Approved 1/10/08, 73 FR 1819. 

Residential Wood Combustion 8 ........................ 4901—Residential Wood Burning .................... Approved 9/30/03, 68 FR 56181. 

7On May 26, 2004, EPA approved the 2003 PM–10 Plan including commitments for new District rules. See 2003 PM–10 Plan, Table 4–9 List 

of New District Commitments. The commitments for PM–10 and NOX reductions were approved as meeting BACM and the commitments for 

other pollutants (SOX, VOC) were approved as SIP strengthenings. See 69 FR 30006, 30035 and 69 FR 5412, 5423. The District subsequently 

amended the 2003 PM–10 Plan and revised Chapter 4 Control Strategy in May 2005; however, the amendments were not submitted to EPA. 

The EPA-approved commitments are those found in the version of the 2003 PM–10 Plan adopted by the District on December 18, 2003. 8 In its comment letter, EJ lists Residential Wood Combustion as a commitment from the 2003 PM–10 Plan; however, it was an adopted measure and not a commitment. We have included it in our Table for completeness in addressing EJ’s comments. 

In addition to the rules in Table 1, the 

2007 Plan cites reductions from 

additional rules that were not included 

in the 2003 PM–10 Plan’s commitments. 

All of these additional rules have been 

adopted and submitted to EPA by the 

State and most have been approved by 

EPA. Table 2 below provides a summary 

of EPA actions on these additional rules 

based on the ‘‘Errata, 2007 PM–10 

Maintenance Plan and Request for 

Redesignation.’’ 

TABLE 2—SUMMARY OF EPA ACTION ON ADDITIONAL RULES IDENTIFIED BY 2007 PLAN

Rule # Rule title EPA action 

4103 ............................. Open Burning (VOC & NOX) ....................................................................................................... Approved 4/11/06, 71 

FR 18216. 

4305 ............................. Boilers, Steam Generators, and Process Heaters (NOX) ........................................................... Approved 5/18/04, 69 

FR 28061. 

4409 ............................. Components Serving Light Crude Oil or Gases at Production Facilities (VOC) ........................ Approved 3/23/06, 71 

FR 14652. 

4451 & 4452 ................ Components at Petroleum Refineries (VOC).

4570 ............................. Confined Animal Feeding Operations (VOC) .............................................................................. Under EPA Review. 

4604 ............................. Can and Coil Coating Operations (VOC) .................................................................................... Approved 5/19/06, 70 

FR 28826. 

9310 ............................. School Bus Fleets (NOX) ............................................................................................................ Under EPA Review. 

Thus, contrary to EJ’s comment, most 

of the rules identified in the 2007 Plan 

have been approved by EPA as federally 

enforceable elements of the SIP. EPA is 

continuing to process the remainder of 

the State’s submitted rules. 

Comment 9: EJ concludes that because 

the air quality improvements are 

premised on ignoring multiple 

violations of the PM–10 standard and 

fewer than one quarter of the rules the 

District relies on for reductions are an 

enforceable part of the SIP, EPA cannot 

reasonably attribute air quality 

improvements to permanent and 

enforceable emission reductions. 

Response 9: See above responses to 

comments 1, 3, 4, 6, 7 and 8. 

D. Area Has Met All Applicable CAA 

Section 110 and Part D Requirements 

Comment 10: EJ asserts that the 

District fails to comply with CAA 

section 107(d)(3)(E) because it has not 

met all applicable requirements under 

section 110 and part D. EJ says that in 

addition to the contingency measure 

requirement, the District has not met the 

section 189(b)(1)(B) BACM requirement 

because BACM were required to be 

implemented by January 8, 1993 and 

EPA has still not approved most of the 

PM–10 rules relied on (as a result of the 

2003 PM–10 Plan commitments) as 

being BACM-level controls. 

Response 10: As noted above, in its 

October 30, 2006 attainment 

determination EPA suspended the 

172(c)(9) contingency measure 

requirement and as a result it is no 

longer an applicable part D requirement. 

71 FR 63642, 63663; 73 FR 22307, 

22313. In any event, as set forth above 

(see response to comment 2), 

independent of its suspension, the 

contingency measure requirement is not 

an applicable requirement for purposes 

of redesignation. 

With respect to the section 

189(b)(1)(B) BACM requirement, as 

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discussed in our proposed rule, EPA 

determined that this requirement was 

met for the SJV nonattainment area in 

our approval of the 2003 PM–10 Plan. 

See 69 FR 30006, 30035. (‘‘EPA is 

approving the RACM/BACM 

demonstration for all significant PM–10 

and NOX sources in the SJV as meeting 

the requirements of sections 189(a)(1)(C) 

and 189(b)(1)(B)’’). In the 2003 PM–10 

Plan the District addressed the BACM 

requirement by providing enforceable 

commitments to implement BACM rules 

in the future rather than already 

adopted rules. During the rulemaking on 

the 2003 PM–10 Plan, EJ argued that 

until the relevant BACM requirements 

are adopted and no longer subject to 

change in the rule development process 

for each of these source categories, EPA 

could not conclusively determine that 

the plan provides for the 

implementation of BACM/BACT for all 

significant sources of PM–10 and PM– 

10 precursors. In rejecting that argument 

we stated that: 

[s]ection 189(b)(1)(B) requires that serious 

area PM–10 plans include ‘[p]rovisions to 

assure that the best available control 

measures for the control of PM–10 shall be 

implemented no later than 4 years after the 

date the area is classified (or reclassified) as 

a Serious Area.’ Nothing in this language 

either requires a state to have adopted 

controls in place before a SIP revision can be 

approved into its PM–10 plan or forbids the 

adoption of an enforceable commitment to 

meet the statute’s BACM [footnote omitted] 

requirement. 

Id. at 30013. We further stated, in fully 

approving commitments as meeting the 

Act’s BACM requirement that: 

[c]onsistent with this statutory language, 

EPA has historically determined that an 

enforceable commitment to adopt and 

implement BACM in a SIP meets this 

statutory requirement since it constitutes a 

‘provision to assure that BACM is 

implemented’ by a fixed deadline. As a 

result, the commenters’ complaint that ‘[b]y 

definition the plan fails to implement BACM/ 

BACT for all source categories for which no 

developed control measures exist’ has no 

merit since the statute itself does not impose 

such a requirement. Because the statute does 

not define what is a ‘provision to assure 

BACM is implemented,’ EPA may adopt an 

interpretation reasonably accommodated to 

the purpose of the statutory provision. 

Chevron U.S.A., Inc. v. Natural Resources 

Defense Council, 467 U.S. at 842–44. 

Id. at 30013–30014. In conclusion we 

stated that: 

In accepting enforceable commitments to 

meet the requirements of section 189(b)(1)(B), 

however, EPA has required states to 

undertake an analysis to ensure that the 

regulation ultimately adopted pursuant to the 

commitment will represent a BACM level of 

control. As we describe in our proposed rule, 

a state must determine the technical and 

economic feasibility of potential control 

measures for each of the significant source 

categories. 69 FR 5412, 5418. Thus the 

measure that is the subject of a commitment 

must describe generally the type and level of 

control to be adopted. 

Moreover, once the ultimate control 

measure is adopted and submitted to EPA, 

the Agency undertakes an additional 

evaluation to ensure that that measure meets 

the statute’s BACM requirements. See, e.g., 

the Arizona rulemakings in which EPA 

initially approved as RACM [footnote 

omitted] a requirement in a state statute to 

adopt and implement best management 

practices for agricultural operations and 

subsequently determined that the rules 

adopted pursuant to the statute represented 

RACM/BACM. 64 FR 34726 (June 29, 1999); 

66 FR 51869 (October 11, 2001); 67 FR 48718 

(July 25, 2002). 

Id. at 30014. EPA’s interpretation and its 

full SIP approval of the BACM 

requirement was not challenged. EPA 

may rely on prior SIP approvals in 

approving a redesignation request. 

Calcagni memorandum at 3; 

Southwestern Pennsylvania Growth 

Alliance v. Browner, 144 F.3d. 984. 989– 

990 (6th Cir. 1998); and Wall v. EPA, 

265 F.3d 526 (6th Cir. 2001). Finally we 

note that EPA has approved many of the 

rules submitted by the State as meeting 

a BACM level of control. See the Federal 

Register notices listed in Tables 1 and 

2 above in which we approve SJVAPCD 

PM–10 and NOX rules. 

Comment 11: EJ also claims that the 

District has failed to submit to EPA a 

demonstration that the quantitative 

milestones as required by CAA section 

189(c)(1) and (c)(2) and the section 

189(d) 5 percent requirement have been 

met. EJ also claims that the District has 

not met its commitment to update and 

improve the 2003 PM–10 Plan by March 

2006. 

Response 11: CAA section 

107(d)(3)(E)(v) requires that a state 

seeking redesignation of an area to 

attainment must have met all 

requirements applicable to the area 

under section 110 and part D. In 

interpreting this requirement EPA has 

stated that ‘‘any requirements that came 

due prior to submittal of the 

redesignation request must be fully 

approved into the plan at or before the 

time EPA redesignates the area.’’ 

Calcagni memorandum at 5. Sierra Club 

v. EPA, 375 F.3d 537 (7th Cir. 2004). 

EPA has approved the 2003 PM–10 

Plan’s RFP demonstration as meeting 

the requirements of 172(c)(2) and 

189(c)(1) and has approved the plan as 

meeting the quantitative milestones 

requirement in section 189(c)(1). 69 FR 

30006, 30034. Also, as we explained in 

our 2006 attainment finding, we believe 

that once an area attains the NAAQS the 

requirements of section 189(c)(2) with 

respect to milestones no longer applies 

under the Agency’s Clean Data Policy. 

71 FR 63642, 63646–63647. We also 

explained in that rulemaking the 

application of the Clean Data Policy to 

PM–10. See 71 FR 40952, 40954–40955 

and 71 FR 63642, 63643–63645. Apart 

from the Clean Data Policy, for an area 

that has attained the standard and is 

eligible for redesignation, the 

requirements for milestone 

demonstrations under section 189(c) 

have no further meaning or function. 

Therefore the District was not required 

to submit milestone demonstrations 

pursuant to section 189(c). 

In addition, EPA approved a 

commitment in the 2003 PM–10 Plan by 

the State to submit a SIP revision by 

March 31, 2006 based on a mid-course 

review to determine whether the level of 

emission reductions in the plan is 

sufficient to attain the PM–10 standards. 

69 FR 30006, 30035. EPA approved this 

commitment as part of the Plan’s 

attainment demonstration. See 69 FR 

5412, 5429. While the SJVAPCD 

adopted a mid-course review SIP 

addressing the quantitative milestone 

reporting requirement and mid-course 

review SIP commitment and submitted 

the SIP to the State, the State has not 

submitted the mid-course review SIP to 

EPA. Nevertheless, EPA’s full approval 

of the attainment demonstration in the 

2003 PM–10 Plan fully satisfies the 

requirement of CAA section 

107(d)(3)(E)(v). 

Moreover, EPA has determined that 

the SJV area attained the PM–10 

standard in 2005, and continues to 

attain the standard. The mid-course 

review requirement is not a requirement 

under section 110 or Part D, and 

therefore is not an applicable CAA 

requirement for purposes of 

redesignation. Furthermore, even if it 

were, the requirement for a mid-course 

review was approved as part of the 

attainment demonstration. Therefore, 

because EPA has determined that the 

SJV area is attaining the PM–10 

standard, a submission under the midcourse review provision would not be 

required for purposes of redesignation. 

57 FR 13498, 13564; Clean Data Policy. 

Comment 12: EJ claims that EPA 

misinterprets an October 14, 1994 

memorandum from Mary Nichols, EPA, 

entitled ‘‘Part D NSR Requirements for 

Areas Requesting Redesignation to 

Attainment’’ as allowing the District to 

replace its new source review (NSR) 

program with a prevention of significant 

deterioration (PSD) program. EJ quotes 

the memorandum as saying that ‘‘the 

part D program may be replaced by the 

corollary PSD program, if it is shown 

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9As discussed in our attainment affirmation and 

proposed rule, unusually high winds can also cause 

exceedances. 73 FR 14687 and 73 FR 22307, 22311. 

through the maintenance demonstration 

that the area will maintain without part 

D NSR.’’ EJ asserts that here neither EPA 

nor the District has made any such 

demonstration and claims that this is 

especially worrisome in light of EPA’s 

recent proposed approval of revisions to 

the District’s NSR program exempting 

‘‘so-called minor agricultural sources 

such as industrial dairy operations.’’ 

Response 12: First, the commenter 

overlooks the fact, enunciated in our 

proposed rule, that EPA has previously 

fully approved the NSR program for the 

SJV area. We also noted that EPA has 

recently proposed approval of some 

revisions to the NSR rule. 73 FR 22307, 

22313. EJ’s citation to the October 14, 

1994 memorandum from Mary Nichols, 

EPA, entitled ‘‘Part D NSR 

Requirements for Areas Requesting 

Redesignation to Attainment’’ (Nichols 

memorandum) is misdirected. The 

Nichols memorandum’s discussion of 

the need to demonstrate maintenance 

without fully approved NSR addressed 

the situation, not the case here, where 

an area’s NSR rule has not been 

approved. Moreover, as our proposed 

rule explained, even though EPA 

previously approved the NSR rule, such 

approval is not a prerequisite to 

finalizing our approval of the State’s 

redesignation request. Id. If an area does 

not have a fully approved NSR program, 

it can still be redesignated if it shows 

maintenance without NSR in effect. The 

2003 PM–10 Plan and 2007 Plan do not 

rely on reductions from the area’s NSR 

program. Nothing in the plans’ 

inventories or estimated emissions 

reductions indicates any reliance on 

NSR program reductions. Thus, the 

SJVAB area will maintain the NAAQS 

without NSR. This is consistent with the 

provisions of the Nichols memorandum. 

Finally, we note that while the PSD 

requirements will apply once the area 

has been redesignated to attainment, the 

District’s SIP-approved NSR rule will 

continue to apply with respect to PM– 

10 until EPA approves a revised NSR 

rule. 

E. Maintenance Plan 

Comment 13: EJ maintains that even 

if all of the other issues it has raised 

with respect to the redesignation were 

remedied, EPA cannot approve the 

redesignation request because the 

maintenance plan is flawed and cannot 

be approved. EJ concludes that EPA’s 

decision to approve the maintenance 

plan without the requisite analysis and 

without meeting the basic requirements 

laid out in the Calcagni memorandum 

leaves little for EJ to comment upon 

and, as such, is the very definition of 

arbitrary and capricious. EJ believes that 

EPA’s obligation is to provide not just 

its legal conclusions but the facts and 

rationale that support them. 

Response 13: EPA disagrees. Our 

proposed rule lays out all of the 

requirements for maintenance plans 

found under the CAA and the Calcagni 

memorandum and sets forth the 

Agency’s analysis of how the 2007 Plan 

meets each of those requirements. 73 FR 

22307, 22313–22315. In addition, the 

2007 Plan itself addresses in detail the 

requirements in the Calcagni 

memorandum. Thus EJ’s contention that 

EPA’s discussion of the maintenance 

plan left them ‘‘very little’’ to comment 

on is without basis. 

Comment 14: EJ asserts that the 2005 

emissions inventory is insufficient to 

identify the level of emissions in the 

area because the continuing PM–10 

problem is the result of direct PM–10 

emissions during the fall rather than 

secondary wintertime NOX emissions 

and the direct PM–10 inventory is 

expected to increase over the next 10 

years. EJ states that EPA’s claim that 

increasing direct PM–10 emissions are 

offset by a larger decrease in the NOX

inventory demonstrates a lack of 

understanding of the PM–10 problem in 

the SJV nonattainment area because 

reducing secondarily formed PM–10 

does nothing to reduce the ongoing 

direct PM–10 problems. EJ concludes 

that since the maintenance 

demonstration is based on an inventory 

that is insufficient to attain the NAAQS, 

EPA cannot find that the plan will 

maintain healthful air for 10 years 

following redesignation. 

In a footnote to its comment above 

regarding the emissions inventory for 

the maintenance plan, EJ claims that 

prior to 2004 the District had never 

asked EPA to waive PM–10 data but in 

the past 4 years it has been asked to 

waive 11 separate events, 10 of them 

after the Agency’s original attainment 

finding. EJ states that if windy days are 

this common EPA and the District must 

accept that the SJV nonattainment area 

has a windblown dust problem and they 

must do more to control it. EJ states that 

an event is only exceptional if it is not 

expected to recur on a regular basis. 

Response 14: As discussed in our 

proposed rule, the Calcagni 

memorandum provides that a state 

should provide an attainment emissions 

inventory to identify the level of 

emissions in the area sufficient to attain 

the NAAQS and, where the state as here 

has made an adequate demonstration 

that air quality has improved as a result 

of the SIP (see above responses to 

comments 3 through 4 and 6 through 8), 

the attainment inventory will generally 

be an inventory of actual emissions at 

the time the area attained. 

The 2007 Plan does exactly what the 

Calcagni memorandum recommends 

and selects the 2005 PM–10 and NOX

inventories as the attainment emission 

inventories because the SJV area 

attained the standard in 2005. 73 FR 

22307, 22314 and 71 FR 63642. The SJV 

area relies on reductions of both NOX (a 

PM–10 precursor) and directly emitted 

PM–10 sources to achieve attainment. 

2003 PM–10 Plan at ES–9 through ES– 

10, Chapters 2, 4 and 5; 69 FR 5412, 

5414 and 69 FR 30006, 30007. Analysis 

of ambient air quality data for the SJV 

area shows that it experiences the most 

frequent and severe exceedances from 

October through January during 

stagnant weather conditions (i.e., low 

wind speeds that are unable to disperse 

the PM–10).9 Both direct PM–10 and 

secondary PM–10 (formed by reactions 

with NOX ) occur during this time. 

October and November exceedances are 

dominated by direct PM–10 emissions 

and December and January are 

dominated by secondary PM–10 such as 

ammonium nitrate (formed when NOX

reacts with ammonia and other 

components); however, the reduction of 

both direct PM–10 and NOX is necessary 

for reducing ambient PM–10 levels 

throughout the year. 2003 PM–10 Plan 

at ES–9 through ES–10 and 5–6 through 

5–7. Thus, EPA’s belief that the slight 

increase in PM–10 emissions of 284 tpd 

in 2005 to 290 tpd in 2020 is 

insignificant when compared to the 

substantial NOX decreases of 606 tpd in 

2005 to 328 tpd in 2020 is based on an 

understanding that high PM–10 levels 

in the SJV area are caused by both direct 

PM–10 and precursor NOX emissions. In 

addition, consistent with the Calcagni 

memorandum, the modeled 

maintenance demonstration is primarily 

based on modeling similar to the 

modeling used for the 2003 PM–10 Plan. 

73 FR 22307, 22314. Finally, contrary to 

EJ’s comments, there is no ongoing 

direct PM–10 problem in the SJVAB as 

we have determined that the area has 

attained the PM–10 standard. 71 FR 

63642 and 73 FR 14687. See also 

response to comment 1. 

EJ’s comment in footnote 3 of its letter 

does not appear to be related to the 

inventory or any other provision of the 

maintenance plan in the 2007 Plan or 

the maintenance plan requirement of 

CAA section 107(d)(3)(E)(iv). Rather it 

appears to be an expansion of EJ’s 

argument that the SJV area has not in 

fact attained the PM–10 standard. In this 

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10 If we assume that the September 2004 

exceedance is not flagged, the highest recorded PM– 

10 values from 2004 through 2006 are: (1) 217 μg/ 

m3 on September 3, 2004; (2) 140 μg/m3 on October 

26, 2006; and (3) 139 μg/m3 on October 15, 2004. 

Since the Corcoran FRM operates on a one-in-three 

day schedule, the design value is based on the 

second highest recorded PM–10 value, or 140 μg/ 

m3. 

11The design value for Bakersfield is calculated 

using the FRM data set from 2004–2006. The design 

value in this case would be the highest non-flagged 

value for the three year period, 154 μg/m3 measured 

on December 7, 2006. 

regard, see response to comment 1 

above. Notwithstanding , EPA notes that 

not all of the exceptional event days in 

the past five years in the SJV area have 

been due to high winds. Of the eleven 

exceptional event days, seven were 

caused by high wind events and the 

remaining four by construction, 

improper monitor siting and fireworks. 

Comment 15: EJ states that it is not 

clear whether the modeling takes into 

account the September 2004 and 

November 2005 exceedances EPA has 

conceded but if it does not then the 

modeling for the maintenance plan is 

flawed because it fails to include these 

higher values in its projections. 

Response 15: As discussed in our 

proposed rule, a state may generally 

demonstrate maintenance of the 

NAAQS by either showing that future 

emissions of a pollutant or its 

precursors will not exceed the level of 

the attainment inventory, or by 

modeling to show that the future 

anticipated mix of sources and emission 

rates will not cause a violation of the 

NAAQS. 73 FR 22307, 22314–22315. 

See also Calcagni memorandum at 9 and 

Wall v. EPA, 265 F.3d 426 (6th Cir. 

2001). While only required to use one of 

these methods, the SJVAPCD showed 

both with emissions inventory and 

modeling that the area would maintain 

the standard for at least ten years after 

redesignation, in accordance with 

section 175A. For areas such as the SJV 

that used modeling for their attainment 

demonstrations, the same level of 

modeling should be used for the 

maintenance demonstrations. The 2007 

Plan uses Chemical Mass Balance (CMB) 

and rollback to demonstrate 

maintenance of the 24-hour PM–10 

standard until 2020 which is consistent 

with the modeling performed for the 

2003 PM–10 Plan. 73 FR 22307, 22314; 

2007 Plan at 6–11. The modeling 

involves selecting a representative day 

for each location, determining the 

speciation data for the site based on 

analysis of the monitoring filters and 

sources in the area and determining the 

emissions reductions that are necessary 

or that will be achieved due to 

emissions reductions from implemented 

rules. 

The 2007 Plan’s maintenance 

demonstration modeling was based on 

the highest episodes during the most 

recent attainment year at the time, 2006. 

The District selected representative peak 

winter days for each of the monitors in 

the SJVAB for modeling, and used the 

observed values from those days as the 

basis of its modeling exercise. In 

addition, fall episode days were 

included for several monitors. Table 2 of 

the 2007 Plan summarizes the episode 

values and the 2020 projections. 

One of the objectives in determining 

appropriate representative episodes is to 

choose those days that are 

approximately as severe as the design 

value for the modeled pollutant. The 

design value is based on three years of 

monitoring data, or in this case, 2004 

through 2006, and depends on the 

frequency and completeness of recorded 

values. In addition, for PM–10, the 

design values are generally based on 

FRM data, but FEM data can also be 

used; however, as noted in footnote 3 

above, data from different monitoring 

instruments are not combined. 

The representative days selected for 

modeling are consistent with the design 

values for the Corcoran and Bakersfield 

sites where the September 2004 and 

November 2005 values were measured. 

For the Corcoran FRM, the design value 

is 140 μg/m3, based on a calculation that 

includes and explicitly accounts for the 

217 μg/m3 measured in September 

2004.10 This value is very close to, and 

supports the selection of, the two 

representative high episode values in 

the 2007 Plan for Corcoran: A 136 μg/ 

m3 for the winter episode and a 137 μg/ 

m3 for the fall episode. The small 

differences between the design value of 

140 μg/m3 and the selected winter and 

fall episode values is not an issue 

because the projected maintenance 

levels are well below the 24-hour PM– 

10 standard of 150 μg/m3. 2007 Plan at 

Table 2. The Bakersfield FEM does not 

have a complete set of data from 2004 

through 2006, and therefore a design 

value for this time period cannot be 

calculated based on the FEM data. 

However, the 2004–2006 PM–10 design 

value for Bakersfield using the data 

collected with the FRM monitor would 

be 154 ug/m3.11 This concentration is 

consistent with the values of 153 ug/m3

and 154 μg/m3 measured during the 

representative modeled episodes 

included in the 2007 Plan for 

Bakersfield. Therefore, the September 

2004 and November 2005 exceedances 

to which EJ refers in its comment were 

taken into account in the 2007 Plan’s 

maintenance demonstration modeling. 

Comment 16: While EJ is glad that the 

District plans to continue operation of 

its PM–10 monitoring network, EJ is 

troubled that the District suggests in its 

2008 ‘‘Ambient Air Monitoring Network 

Plan’’ that it may reduce the frequency 

of its monitoring. EJ hopes that the 

District will strengthen its network 

because EJ continues to believe that the 

current network does not adequately 

represent the west side communities 

and the near-highway areas of high 

concentration and that more monitoring 

is required. 

Response 16: In 2003, EPA evaluated 

the adequacy of the monitoring network 

for the SJV area and concluded that it 

meets all the applicable statutory and 

regulatory requirements. See 69 FR 

30006, 30033 and ‘‘Evaluation of the 

Adequacy of the Monitoring Network 

for the San Joaquin Valley, California for 

the Annual and 24–Hour PM–10 

Standards,’’ Bob Pallarino, EPA, 

September 22, 2003. We reaffirmed the 

adequacy of the network in our 2006 

determination of attainment for the SJV 

area. 71 FR 63642, 63648–63658. 

With regard specifically to monitoring 

frequency, EPA regulations require 

minimum frequencies for manual PM– 

10 and PM–2.5 samplers at designated 

state or local air monitoring stations 

(SLAMS) sites. See 40 CFR 58.12. On 

October 17, 2006 EPA revised its 

monitoring regulations to require air 

monitoring agencies to perform an 

assessment of their monitoring networks 

every five years according to guidance 

issued by EPA. See 71 FR 61299 and 40 

CFR 58.10(d). The first monitoring 

network assessment required by this 

regulation must be submitted to EPA by 

July 1, 2010. Agencies are directed to 

make changes to their monitoring 

networks based in part on the results of 

these network assessments. Such an 

assessment in the SJVAB area may 

result in a requirement that the District 

increase the sampling frequency of 

certain PM–10 monitors sited to record 

the maximum concentrations of PM–10 

pollution. See 40 CFR 58.12(e). 

Most manual PM–10 samplers in the 

SJV monitoring network currently 

operate at the minimum required 

frequency of once every six days, except 

for Corcoran which operates manual 

PM–10 samplers once every three days. 

The District has exceeded this required 

sampling frequency by operating 

continuous FEM monitors, which 

produce a 24-hour average PM–10 

concentration every day, at three 

locations in the SJVAB area, Tracy, 

Corcoran and Bakersfield. According to 

the District’s 2008 ‘‘Ambient Air 

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12The other two sites are the Fresno-First Street 

site and the Stockton-Hazelton site. 

13An exceedance is defined as a daily value that 

is above the level of the 24-hour standard (150 μg/ 

m3) after rounding to the nearest 10 μg/m3 (i.e. 

values ending in 5 or greater are to be rounded up). 

Thus, a recorded value of 154 μg/m3 would not be 

an exceedance since it would be rounded to 150 μg/ 

m3 whereas a recorded value of 155 μg/m3 would 

be an exceedance since it would be rounded to 160 

μg/m3. See 40 CFR part 50, appendix K, section 1.0. 

Monitoring Network Plan,’’ the 

Corcoran and Bakersfield-Golden State 

Highway sites are two of the four PM– 

10 monitoring sites located to record the 

highest PM–10 concentrations in the 

SJVAB area.12 Therefore, the District has 

already proactively increased the 

sampling frequency at two high 

concentration sites to the maximum 

frequency possible. 

Comment 17: EJ believes that the 

contingency measure provision in the 

maintenance plan is much too weak and 

cannot be approved. EJ states that the 

provision relies first and foremost on 

trying to excuse any future violation 

under the EER and then, in the event of 

any post-redesignation violations, on 

seeing if there are any estimated 

reductions achieved that were not 

counted towards the attainment 

demonstration that can be used to 

‘‘cover’’ the violation. EJ does not 

believe this approach makes sense 

because if an area is violating the 

standard, there are no ‘‘extra’’ 

reductions because all of the reductions 

are by definition not working. EJ 

believes that while EPA may accept this 

gaming in the context of RFP 

demonstrations such an approach 

would be illegal and arbitrary when real 

ambient violations are being monitored. 

EJ believes that the District should 

adopt the approach suggested in the 

Calcagni memorandum which sets 

indicators that trigger contingency 

provisions before a violation occurs 

which would avoid NAAQS violations 

and not just come up with on-paper 

‘‘covers’’ for those violations. 

Response 17: Under CAA section 

175A(d), maintenance plans must 

contain ‘‘such contingency provisions as 

the Administrator deems necessary to 

assure that the State will promptly 

correct any violation of the standard.’’ 

The Calcagni memorandum states that 

‘‘EPA will review what constitutes a 

contingency plan on a case-by-case 

basis. At a minimum, it must require 

that the State will implement all 

measures contained in the Part D 

nonattainment plan for the area prior to 

redesignation. * * * ’’ Calcagni 

memorandum at 12–13. The 

memorandum also makes clear that a 

monitored violation of the standard is 

appropriate to serve as the indicator or 

trigger for contingency measures. 

Id. at 12. 

EJ’s statement that the contingency 

provisions of the 2007 Plan ‘‘relies first 

and foremost’’ on trying to excuse any 

future violation under the EER is 

misleading. The 2007 Plan selects an 

action level or trigger based on an 

exceedance of the PM–10 NAAQS of 

155 micrograms per cubic meter (μg/ 

m3).13 2007 Plan at 16. In addition, the 

District may also consider other factors 

such as a succession of values just 

below but near the level of the PM–10 

standard. In our proposed rule we 

explained why we believe that an 

exceedance of 155 μg/m3 is an 

appropriate trigger: 

The SJVAB has several continuous PM–10 

monitors, and a single measurement of 155 

μg/m3 at one of these monitors would not 

constitute a violation of the PM–10 NAAQS. 

Even if a measurement of 155 μg/m3 is 

recorded at a one-in-six day FEM, a violation 

is not necessarily being recorded as the State 

might need to evaluate the possibility that 

the measurement is due to an exceptional 

event. 

73 FR 22307, 22315. Thus the 

contingency plan makes clear that 

determining whether an exceedance of 

the PM–10 standard is due to an 

exceptional event is part of determining 

whether a violation of the standard 

actually occurred, which would require 

corrective actions. In other words, we 

concluded that the 2007 Plan’s action 

level or trigger, including the exclusion 

of exceedances caused by exceptional 

events, meets the statutory mandate that 

the contingency provisions ‘‘correct any 

violation of the standard.’’ Because it is 

clearly part of the action level or trigger, 

and not the corrective actions to be 

undertaken in the event of a violation, 

it is not accurate to conclude, as EJ does, 

that the contingency plan relies ‘‘first 

and foremost’’ on the use of the EER. 

Moreover, since an exceedance, which 

is not necessarily a violation, triggers 

the contingency measure provision, the 

provision may also be used to prevent 

violations of the NAAQS, and at a 

minimum provides for a violation that 

is determined not to be due to an 

exceptional event to trigger a measure. 

Once the contingency plan is 

triggered, the District would determine 

the possible causes of the exceedance 

and determine if emissions reductions 

from adopted measures that are not 

needed to maintain the PM–10 NAAQS 

are available to serve as contingency 

measures. 2007 Plan at 16. EJ objects to 

the use of these excess reductions (i.e., 

those not relied on in the maintenance 

demonstration) when ambient 

concentrations are being monitored. 

Initially we note that EPA has long 

approved contingency provisions that 

rely on reductions from measures that 

are already in place but are over and 

above those relied on in the attainment 

and RFP demonstrations under CAA 

section 172(c)(9). See, e.g., 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). We discussed this interpretation 

of section 172(c)(9) in our final PM–2.5 

implementation rule. See 72 FR 20586, 

20642–20643 (April 25, 2007). This 

interpretation has also been upheld in 

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

2004), and the court in that case set 

forth in detail the reasoning for 

accepting excess reductions from 

already adopted measures as 

contingency measures. 

In addition to being triggered by a 

failure to meet RFP, contingency 

measures under section 172(c)(9) are 

triggered when EPA determines that an 

area has failed to attain a NAAQS. 

Determinations of whether an area has 

attained a NAAQS (see, e.g., section 

188(b)(2); 71 FR 40952) are based on 

monitored concentrations. Likewise, 

here, a determination of whether the 

action level has been reached is based 

on monitored concentrations. Therefore 

our interpretation that excess emission 

reductions can appropriately serve as 

section 172(c)(9) contingency measures 

is equally applicable to section 175A(d) 

contingency measures. 

Furthermore, section 172(c)(9) is 

considerably less flexible than section 

175A(d) in that under the former 

provision contingency measures are 

required to be fully adopted measures 

that will take effect without further 

action by the state, whereas this is not 

a requirement in order for the 

maintenance plan to be approved. 

Moreover, section 175A(d) grants 

considerably more discretion to EPA in 

determining whether to accept 

contingency provisions in maintenance 

plans (maintenance plans must contain 

‘‘such contingency provisions as the 

Administrator deems necessary to 

assure that the State will promptly 

correct any violation of the standard.’’ 

(Emphasis added). In addition, the 

Calcagni memorandum at 12–13 states 

that a contingency plan under section 

175A(d) ‘‘[a]t a minimum must require 

that the State will implement all 

measures contained in the Part D 

nonattainment plan for the area prior to 

redesignation. * * * ’’ The 2007 Plan so 

provides and goes well beyond this 

minimum threshold. 

The U.S. Court of Appeals for the 

Sixth Circuit addressed the issue of the 

adequacy of reductions from already 

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14As early as 1995, EPA approved a maintenance 

plan under section 175A that included contingency 

provisions that relied in part on measures to be 

implemented prior to any post-redesignation 

NAAQS violation. See 60 FR 27028, 27029 (May 22, 

1995). 

15The 2008 PM2.5 Plan was adopted by the 

District on April 30, 2008, approved by the State on 

May 22, 2008, and submitted to EPA on June 30, 

2008. 

adopted measures in the context of 

section 175A(d) contingency measures 

in a maintenance plan for Cuyahoga 

County, Ohio. Greenbaum v. EPA, 370 

F.3d 527 (6th Cir. 2004).14 There EPA 

had approved section 172(c)(9) 

contingency measures into the SIP in 

1996 as part of the State’s moderate area 

PM–10 nonattainment plan. In 

approving these measures EPA found 

that they provided for emission 

reductions following any prospective 

determination that the SIP failed to 

provide for timely attainment of the 

NAAQS. In 2000, Ohio submitted a 

redesignation request with a 

maintenance plan that included as 

section 175A(d) contingency provisions 

the already approved section 172(c)(9) 

contingency measures. Among other 

things, the petitioners argued that the 

CAA does not authorize EPA to use 

other measures outside the maintenance 

plan to assure correction of a violation. 

In upholding EPA’s approval of the 

redesignation, the court found that: 

[t]he Administrator has been granted broad 

discretion by Congress in determining what 

is ‘necessary to assure’ prompt correction. 

The EPA has approved Ohio’s maintenance 

plan, concluding that its contingency 

measures provide a means to deal with likely 

violations. We do not believe that this 

determination is ‘arbitrary, capricious, or 

manifestly contrary to the statute.’ Chevron, 

467 U.S. at 844. 

The Sixth Circuit in Greenbaum further 

noted that Congress contemplated that 

contingency measures need not be 

sufficient to correct all violations and 

that EPA and the state could rely on a 

combination of factors to correct 

violations. See the extensive discussion 

of contingency measures in Greenbaum. 

Here, the 2007 Plan looks first to 

emission reductions from adopted 

measures that are not needed to 

maintain the PM–10 NAAQS to serve as 

section 175A(d) contingency measures. 

If these emission reductions prove to be 

insufficient to correct the violation, the 

District commits to proceed with 

identifying control measures from 

feasibility studies such as those found 

in its 2007 Ozone Plan and Proposed 

2008 PM2.5 Plan 15 (see 2007 Ozone 

Plan at Table 6–2 and 2008 PM2.5 Plan 

at Table 6–4) and with prioritizing 

measures most relevant for reducing 

PM–10 emissions. 2007 Plan at 16–17. 

The SJVAPCD has also provided 

clarification that if additional control 

measures are necessary, the SJVAPCD 

will adopt and implement such 

measures. Letter from Seyed Sadredin, 

SJVAPCD, to Deborah Jordan, EPA, 

April 17, 2008. EPA believes that the 

2007 Plan’s contingency provisions 

which rely in part on emissions 

reductions from adopted measures not 

needed to maintain the PM–10 NAAQS 

to correct any PM–10 violation are 

consistent with the Agency’s policies 

and with the statute. As the court in 

Greenbaum observed, Congress has 

expressly delegated to EPA the authority 

to determine what contingency 

measures are necessary. Here, EPA has 

determined that the contingency 

measures, which include both the 

potential for emission reductions from 

already adopted measures and from 

measures to be adopted, clearly are 

sufficient. 

Finally, with respect to EJ’s 

preference, suggested in the Calcagni 

memorandum, that the contingency 

plan for the SJVAB area set indicators 

that trigger contingency provisions 

before a violation occurs, we note again 

that the memorandum provides that 

contingency provisions are to be judged 

on a case by case basis. See also 

Greenbaum. With the exception of the 

minimum requirement mentioned 

above, the Calcagni memorandum is not 

prescriptive and allows for considerable 

latitude as to what constitutes an 

adequate contingency plan. The 

Calcagni memorandum itself provides 

that a violation of the standard is an 

appropriate trigger for contingency 

measures. Calcagni memorandum at 12. 

See also Greenbaum. It is a common 

practice in maintenance plans to 

provide that a violation will trigger the 

requirement for a contingency measure 

to be implemented. Moreover, as 

pointed out above, under the 

contingency measure provisions, a 

monitored exceedance of the standard 

that does not itself constitute a violation 

(e.g., at a continuous monitor or a onein-three day FRM monitor) could trigger 

a contingency measure prior to a 

violation occurring. 

F. Revision of Boundary Designation 

Comment 18: EJ maintains that the 

portion of the San Joaquin Valley that 

EPA now proposes to split off was 

designated as part of the SJV 

nonattainment area because, as 

provided in CAA section 107(d)(1)(A), it 

was part of the geographic area ‘‘that 

does not meet (or that contributes to 

ambient air quality in a nearby area that 

does not meet) the national primary or 

secondary air quality standard for that 

pollutant.’’ EJ states that EPA makes no 

attempt to explain how circumstances 

have changed to justify the removal of 

this portion of the designated 

nonattainment area. EJ notes that the 

SJV area includes other high-elevation 

areas that are located above the 

inversion layer and that whether a 

community is above or below the 

inversion layer is irrelevant because 

these areas are part of the Valley and 

part of the same air basin polluted by 

emissions generated in the Valley. 

Response 18: As discussed in our 

proposed rule, on January 31, 2008 

California requested a boundary 

redesignation splitting the SJV 

nonattainment area into two separate 

nonattainment areas, the SJVAB and 

East Kern. Section 107(d)(3)(D) of the 

CAA authorizes the State to submit to 

EPA a revised designation of any area 

and EPA is required to approve or deny 

it within 18 months of receipt of a 

complete State submittal. The type of 

revised designation that the State of 

California requested involves a 

boundary change only and does not 

involve a change in status (e.g., from 

‘‘nonattainment’’ to ‘‘attainment’’ or 

‘‘unclassifiable’’) of any area. Our 

criteria for evaluating the State’s request 

are discussed in our proposed rule. 

In general, the State has provided a 

compelling technical justification for 

splitting the nonattainment area which 

includes an evaluation of the differences 

in jurisdiction, geography, population 

and degree of urbanization, employment 

and traffic/commuting patterns, 

emissions and air quality. 73 FR 22307, 

22308–22310. EJ notes that there are 

other high elevation areas in the SJV 

nonattainment area; however, the State 

has not made a request to revise any 

other boundaries. In addition, as 

discussed in our proposed rule, the 

SJVAB and East Kern areas are in 

separate air basins and do not have the 

same mix of air pollution sources. Id. 

EPA continues to believe that it should 

grant the State’s request for a revised 

designation splitting the SJV 

nonattainment area into two PM–10 

nonattainment areas, the SJVAB area 

and the East Kern area for the reasons 

set forth in the proposed rule and in this 

response. 

Comment 19: A commenter states that 

while the proposal to separate the 

western portion of the KCAPCD is clear 

and compelling, the commenter is 

concerned about environmental justice 

issues for the East Kern area. The 

commenter states that if the purpose of 

the separation is to clean-up one area 

and ignore the other industrialized area 

with the State prison, then EPA is not 

following its ethics concerning 

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Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 66771 

16Currently there is no FRM or FEM monitoring 

of PM–10 in the East Kern area. However, there is 

an Interagency Monitoring of Protected Visual 

Environments (IMPROVE) monitor located in the 

Kern River Valley. Pursuant to its commitment, 

CARB has purchased the new monitor and has 

secured permission from the Bureau of Land 

Management to install it next to the existing 

IMPROVE monitor. 

environmental justice. The commenter 

states that communities with prisons 

serve as a target of environmental 

neglect and should not be abandoned 

from environmental laws and 

attainment requirements and should not 

be forgotten by EPA. 

Response 19: EPA’s final action to 

split the SJV nonattainment area into 

two nonattainment areas does not relax 

any requirements. EPA is also approving 

enforceable commitments for the East 

Kern area that will ensure progress in 

meeting CAA requirements for the area. 

These commitments include the 

installation of a FRM/FEM 16 and 

submittal of a SIP addressing applicable 

CAA requirements if the monitor 

violates the PM–10 standard. 73 FR 

22307, 22317. In the meantime, the 

existing data from the IMPROVE 

monitor, although not a FRM or FEM, 

do not indicate an air quality problem 

in East Kern—rather they show levels 

that are consistently significantly below 

the standard. See id. at 22310 (‘‘* * * 

IMPROVE monitor has, since February 

2000, consistently measured PM–10 

concentrations far below the PM–10 

standard.’’). 

With respect to the commenter’s 

concerns for fair treatment of the 

inhabitants of East Kern, EPA is taking 

steps to assure that the East Kern area 

will not be forgotten by EPA, and no 

community in that area will be 

‘‘abandoned from environmental laws 

and attainment requirements.’’ EPA is 

committed to meeting the goals of 

environmental justice and is equally 

concerned for the populations of both 

the SJVAB and East Kern areas. There is 

no basis for concluding that the 

population of East Kern is exposed to 

ongoing levels above the standard, and 

EPA and the State have worked to 

provide assurances that the area will be 

required to conduct more 

comprehensive monitoring and to adopt 

additional requirements if needed. Thus 

EPA recognizes the role of 

environmental justice and is observing 

its principles. 

Comment 20: A commenter disagrees 

with the proposed rule’s statement that 

the boundary redesignation makes sense 

because of the difference in chemical 

composition of PM–10 between the two 

areas. The commenter believes this is 

not a valid statement because there are 

no FRMs or FEMs in the East Kern area. 

Furthermore, the commenter states that 

the one IMPROVE monitor in the East 

Kern area is inadequate and the 

chemical composition of the SJVAB and 

East Kern should not be compared until 

there is an adequate monitoring system 

in East Kern. In addition, the 

commenter concludes that a reanalysis 

of reported data must be performed 

before considering attainment for the 

SJVAB. 

Response 20: We based our 

conclusion that the SJVAB and East 

Kern should be separate nonattainment 

areas on multiple factors, only one of 

which relates to the difference in the 

types of air pollutants in the two areas. 

See 73 FR 22307, 22310. While the 

commenter is correct that there is no 

FRM or FEM in the East Kern area, as 

stated above, the State and the District 

have committed to install an FRM/FEM 

in the East Kern area. Pending data from 

this new monitor, the IMPROVE 

monitor does provide useful 

information regarding the composition 

of PM–10 in the area. See id. and 

Attachments B and C to letter from 

James N. Goldstene, CARB, to Deborah 

Jordan, EPA, January 31, 2008. See also 

response to comment 19. The newly 

created East Kern area will retain its 

nonattainment designation until the 

State can demonstrate, following 

assessment of data from the new 

monitor, that all the applicable CAA 

requirements for redesignation of the 

East Kern area are met. 

EPA does not agree that a reanalysis 

of the reported data must be performed 

before considering whether the SJVAB 

area has attained the PM–10 standard. 

As noted above, EPA has found that the 

SJVAB area has an adequate monitoring 

system on which to base such a 

determination. See 69 FR 30006, 30033, 

71 FR 63642, 63648 and ‘‘Evaluation of 

the Adequacy of the Monitoring 

Network for the San Joaquin Valley, 

California for the Annual and 24–Hour 

PM–10 Standards,’’ Bob Pallarino, EPA, 

September 22, 2003. To demonstrate 

attainment, an area must show that it 

meets the standard over a three-year 

period. The SJVAB area has 

demonstrated attainment over three 

separate 3-year periods—2003–2005, 

2004–2006, and 2005–2007, and it 

continues to attain the standard. 

G. Miscellaneous Comments 

Comment 21: A commenter states that 

there are several gaps in evaluating the 

PM–10 data for the SJVAB from 1990 to 

2004 and that given the cyclical nature 

of PM–10 the downward trend should 

be considered inconclusive until all 

yearly averages are taken into account as 

well as seasonally weighted averages. 

The commenter also states that in the 

proposed rule’s discussion of 

meteorological conditions a lower 

stability level would more likely lead to 

less dispersion and higher PM–10 

values. The commenter believes the 

lower stability means the PM–10 levels 

were overestimated and provides 

information as to the unequal 

distribution in the surrounding 

community and who is bearing the 

brunt of the higher exposures. 

Response 21: In our proposed rule we 

reference the expected PM–10 

exceedances from 1990–1992, 1998– 

2000 and 2002–2004 to show that there 

has been a significant decline in 

NAAQS exceedances over the past 17 

years, i.e., from 1990 through 2006. 

There are no data gaps; the 2007 Plan 

includes data for each year. 2007 Plan 

at 23–24, Figure 2. EPA believes that a 

17 year period is sufficient to establish 

a trend that accounts for any cyclical 

changes in PM–10 data. In addition, an 

evaluation of the seasonal conditions 

causing PM–10 is provided in the 2003 

PM–10 Plan. 2003 PM–10 Plan at ES–4 

to ES–10 and Chapter 2. 

EPA examined meteorological data, 

including information about 

atmospheric stability, wind speeds, 

precipitation and temperature in order 

to determine if there were any 

unusually favorable meteorological 

conditions that would cause PM–10 

exceedances. EPA determined that 

overall there was no consistent pattern 

of favorable meteorology. 73 FR 22307, 

22312; responses to comments 3 and 6 

above. 

For the SJVAB area, it has been 

determined that on an annual average 

basis, unstable conditions (or low 

stability) result in dispersion of 

pollutants and lower PM–10 levels and 

stable conditions (or high stability) 

result in a temperature inversion which 

keeps emissions at the surface and leads 

to higher PM–10 levels. 2007 Plan at 

Appendix C. During the attainment 

period of 2003 through 2006, the SJVAB 

area experienced somewhat low 

stability which allowed for dispersion of 

pollutants and lower PM–10 levels; 

however, as discussed in response to 

comment 6 above, based on the analysis 

of all the meteorological parameters, 

EPA determined that there was no 

overall pattern which favored improved 

PM–10 levels. 

It is not completely clear to EPA what 

point the commenter is trying to make 

regarding stability. EPA acknowledges, 

however, that unstable conditions 

combined with other factors (e.g., 

emissions) in the SJV area can lead to 

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66772 Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 

17 40 CFR 93.118(f)(2) applies when EPA reviews 

the adequacy of an implementation plan 

simultaneously with EPA’s approval or disapproval 

of the implementation plan, as is the case here. 

Subsection (f)(2)(iii) provides that ‘‘[i]f EPA makes 

an adequacy finding through a final rulemaking that 

approves the implementation plan submission, 

such a finding will become effective upon the 

publication date of EPA’s approval in the Federal 

Register.’’ 

high PM–10 levels on a daily basis, as 

has been seen with exceedances that 

occur during high wind events. Such 

exceedances however have been 

excluded from regulatory consideration 

under EPA’s Exceptional Events Rule. 

73 FR 22307, 22310–22311 and 73 FR 

14687. 

Comment 22: The SJVAPCD provided 

comments supporting EPA’s proposed 

actions and also notes a minor 

typographical error for the proposed 

transportation conformity budgets found 

in Table 4 for Merced County for 2005. 

The SJVAPCD states that the budget 

should read 39.4 tons per day and not 

39.2 tons per day. 

Response 22: EPA appreciates the 

comments and has made the correction 

in today’s final action. 

III. Final Actions 

For the reasons set forth in the 

proposed rule and in the responses to 

comments above, EPA is taking the final 

actions summarized below: 

Having concluded that the State has 

addressed all the necessary 

requirements for a revised boundary 

designation, EPA is approving the 

State’s request under section 

107(d)(3)(D) to revise the boundary 

designation for the SJV PM–10 

nonattainment area by splitting the area 

into two separate serious PM–10 

nonattainment areas, the SJVAB PM–10 

nonattainment area and the East Kern 

PM–10 nonattainment area. 

Having concluded that the CAA 

requirements of section 107(d)(3)(E) for 

redesignations and section 175A for 

maintenance plans have been met for 

the SJVAB area, EPA is approving the 

State’s request to redesignate the newly 

created serious SJVAB nonattainment 

area to attainment for the PM–10 

NAAQS and approving the 2007 

maintenance plan for the area. 

EPA is also approving the conformity 

trading mechanism for the SJVAB area 

and the motor vehicle emissions subarea 

budgets for the attainment year, 2005, 

and the maintenance year, 2020, found 

in Table 3 below. The 2005 attainment 

year budget replaces the current 

attainment budgets from the approved 

2003 PM–10 Plan. These budgets are 

approved as of November 12, 2008 

pursuant to section 93.118(f)(2)(iii).17

TABLE 3—MOTOR VEHICLE EMISSIONS SUBAREA BUDGETS 2007 PLAN * 

[Tons per day] 

County 

2005 2020 

PM–10 NOX PM–10 NOX

Fresno .............................................................................................................................. 13.5 59.2 16.1 23.2 

Kern ** .............................................................................................................................. 12.1 88.3 14.7 39.5 

Kings ................................................................................................................................ 3.1 16.7 3.6 6.8 

Madera ............................................................................................................................. 3.6 13.9 4.7 6.5 

Merced *** ........................................................................................................................ 6.2 39.4 6.4 12.9 

San Joaquin ..................................................................................................................... 9.1 42.6 10.6 17.0 

Stanislaus ........................................................................................................................ 5.6 29.7 6.7 10.8 

Tulare ............................................................................................................................... 7.3 25.1 9.4 10.9 

Total .......................................................................................................................... 60.5 314.9 72.2 127.6 

* The budgets are based on attainment and maintenance of the 24-hour PM–10 NAAQS. The annual standard was revoked on December 18, 

2006. See 71 FR 61144. 

** MVEBs in Table 3 are only for the SJVAB portion of Kern County. 

*** EPA’s April 25 and May 23, 2008 proposed rules (73 FR 22307 and 73 FR 30029) incorrectly include 39.2 tons per day for the Merced 

2005 NOX subarea budget. This was a typographical error. The number provided in the State’s submittal of the 2007 Plan is 39.4 tons per day, 

which is reflected in Table 3 above. 

EPA is excluding from use in 

determining that the SJVAB area has 

attained the PM–10 NAAQS two 

exceedances that it has concluded were 

caused by exceptional events on July 4, 

2007 and January 4, 2008, and is 

determining that the SJVAB area 

continues to attain the PM–10 standard. 

Finally, EPA is approving 

commitments from KCAPCD and CARB 

to install a FRM or FEM in the newly 

created East Kern serious PM–10 

nonattainment area and to address 

section 189(d) CAA requirements for the 

area in a SIP revision in the event the 

FRM or FEM records a violation of the 

PM–10 standard. 

IV. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

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

22, 2001). This action merely approves 

a revised boundary designation, a 

redesignation to attainment for the 

SJVAB, a maintenance plan for the 

SJVAB area, motor vehicle emissions 

budgets and conformity trading 

mechanism for the area and 

commitments for the East Kern area, all 

of which were either requested or 

submitted by the State. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

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

rule does not impose any additional 

enforceable duty, it 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). 

Executive Order 13175 (65 FR 67249, 

November 9, 2000) requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ Seven Indian tribes have 

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Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 66773 

reservations located within the 

boundaries of the SJVAB. EPA has 

consulted with representatives of the 

tribes and will continue to work with 

the tribes as provided for in Executive 

Order 13175. Accordingly, EPA has 

addressed Executive Order 13175 to the 

extent that it applies to this action. This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves requests or submittals from the 

State and does not alter the relationship 

or the distribution of power and 

responsibilities established in the Clean 

Air Act. 

Executive Order 12898 establishes a 

Federal policy for incorporating 

environmental justice into Federal 

agency actions by directing agencies to 

identify and address, as appropriate, 

disproportionately high and adverse 

human health or environmental effects 

of their programs, policies, and 

activities on minority and low-income 

populations. Today’s action involves 

approvals of a revised boundary 

designation, a redesignation to 

attainment for the SJVAB area, a 

maintenance plan for the SJVAB area, 

motor vehicle emissions budgets and 

conformity trading mechanism for the 

area and commitments for the East Kern 

area. It will not have disproportionately 

high and adverse effects on any 

communities in the area, including 

minority and low-income communities. 

This rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. The 

requirements of section 12(d) of the 

National Technology Transfer and 

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

272 note) do not apply because it would 

be inconsistent with applicable law for 

EPA, when determining the attainment 

status of an area, to use voluntary 

consensus standards in place of 

promulgated air quality standards and 

monitoring procedures that otherwise 

satisfy the provisions of the Clean Air. 

This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 12, 2009. 

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 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

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

Dated: September 24, 2008. 

Wayne Nastri, 

Regional Administrator, Region IX. 

■ Parts 52 and 81 of Chapter I, Title 40 

of the Code of Federal Regulations are 

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)(356) and (357) to 

read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(356) The following plan was 

submitted on November 16, 2007, by the 

Governor’s Designee. 

(i) Incorporation by reference. 

(A) San Joaquin Valley Air Pollution 

Control District. 

(1) 2007 PM10 Maintenance Plan and 

Request for Redesignation, adopted by 

the San Joaquin Valley Air Pollution 

Control District on September 20, 2007, 

section 6. Contingency Plan on pages 16 

to 17. 

(ii) Additional materials. 

(A) San Joaquin Valley Air Pollution 

Control District. 

(1) 2007 PM10 Maintenance Plan and 

Request for Redesignation, adopted by 

the San Joaquin Valley Air Pollution 

Control District on September 20, 2007, 

except for Appendices A through F. 

(2) State of California, Air Resources 

Board, Staff Report, Analysis of the San 

Joaquin Valley 2007 PM10 Maintenance 

Plan, Release Date: October 12, 2007, 

Appendix B Emission Inventory. 

(3) Letter dated May 13, 2008, from 

James N. Goldstene, California Air 

Resources Board, to Wayne Nastri, EPA, 

providing revised motor vehicle 

emission budgets for the 2007 San 

Joaquin Valley PM10 Maintenance Plan. 

(357) The following commitments 

were submitted on February 29, 2008, 

by the Governor’s Designee: 

(i) Incorporation by reference. 

(A) Commitments for the installation 

and operation of a FRM or FEM PM–10 

monitor and SIP development and 

submittal. 

(1 ) Resolution No. 2008–001–02, 

adopted by the Air Pollution Control 

Board, Kern County Air Pollution 

Control District on February 27, 2008. 

(2 ) Executive Order S–08–004, 

adopted by the California Air Resources 

Board on March 3, 2008. 

* * * * * 

PART 81—[AMENDED] 

■ 3. The authority citation for Part 81 

continues to read as follows: 

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

■ 4. In § 81.305 the ‘‘California—PM– 

10’’ table is amended under Fresno, 

Kern, Kings, Madera, Merced, San 

Joaquin, Stanislaus, Tulare Counties by 

revising the entry for the ‘‘San Joaquin 

Valley planning area’’ to read as follows: 

§ 81.305 California. 

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66774 Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 

CALIFORNIA—PM–10 

Designated Area 

Designation Classification 

Date Type Date Type 

* * * * * * * 

Fresno, Kern, Kings, Madera, Merced, San Joaquin, Stanislaus, Tulare 

Counties: 

* * * * * * * 

East Kern; that portion of Kern County which lies between the following 

two lines (with the exception of that portion in Hydrologic Unit Number 

18090205—the Indian Wells Valley): 

11/15/1990 ........... Nonattainment ..... 11/15/1990 Serious. 

(1) West and north of a line described as follows: Beginning at the 

southwest corner of section 31, T. 10 N. 16 W. and running east to 

the northwest boundary of the Rancho La Liebre Land Grant; then 

running north and east along the northwest boundary of the Rancho 

La Liebre Land Grant to the point of intersection with the range line 

common to R. 15 W. and R. 16 W., San Bernardino Base and Meridian; then north along the range line to the northwest corner of 

section 2, T. 32 S., R. 32 E., Mount Diablo Base and Meridian; then 

east along the township line common to T. 32 S. and T. 31 S.; then 

north along the range line common to R. 35 E. and R. 34 E.; then 

east along the township line common to T. 29 S. and T. 28 S.; then 

north along the range line common to R. 36 E. and R. 35 E.; then 

east along the township line common to T. 28 S. and T. 27 S.; then 

north along the range line common to R. 37 E. and R. 36 E. to the 

Kern-Tulare County boundary.

(2) East and south of a line of a line described as follows: Beginning 

at the southwest corner of section 31, T. 10 N. 16 W. and running 

north along the range line common to R. 16 W. and R. 17 W., San 

Bernardino Base and Meridian; north along the range line to the 

point of intersection with the Rancho El Tejon Land Grant boundary; 

then southeast, northeast, and northwest along the boundary of the 

Rancho El Tejon Land Grant to the northwest corner of S. 3, T. 11 

N., R. 17 W.; then west 1.2 miles; then north to the Rancho El 

Tejon Land Grant boundary; then northwest along the Rancho El 

Tejon line to the southeast corner of S. 34, T. 32 S., R. 30 E., 

Mount Diablo Base and Meridian; then north to the northwest corner 

of S. 35, T. 31 S., R. 30 E.; then northeast along the boundary of 

the Rancho El Tejon Land Grant to the southwest corner of S. 18, 

T. 31 S., R. 31 E.; then east to the southeast corner of S. 13, T. 31 

S., R. 31 E.; then north along the range line common to R. 31 E. 

and R. 32 E., Mount Diablo Base and Meridian, to the northwest 

corner of S. 6, T. 29 S., R. 32 E.; then east to the southwest corner 

of S. 31, T. 28 S., R. 32 E.; then north along the range line common to R. 31 E. and R. 32 E. to the northwest corner of S. 6, T. 28 

S., R. 32 E., then west to the southeast corner of S. 36, T. 27 S., R. 

31 E., then north along the range line common to R. 31 E. and R. 

32 E. to the Kern-Tulare County boundary.

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Federal Register / Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 66775 

CALIFORNIA—PM–10—Continued 

Designated Area 

Designation Classification 

Date Type Date Type 

San Joaquin Valley Air Basin; Fresno County, Kings County, Madera 

County, Merced County, San Joaquin County, Stanislaus County, Tulare 

County, and that portion of Kern County which lies west and north of a 

line described as follows: Beginning at the Kern-Los Angeles County 

boundary and running north and east along the northwest boundary of 

the Rancho La Libre Land Grant to the point of intersection with the 

range line common to R. 16 W. and R. 17 W., San Bernardino Base and 

Meridian; north along the range line to the point of intersection with the 

Rancho El Tejon Land Grant boundary; then southeast, northeast, and 

northwest along the boundary of the Rancho El Tejon Land Grant to the 

northwest corner of S. 3, T. 11 N., R. 17 W.; then west 1.2 miles; then 

north to the Rancho El Tejon Land Grant boundary; then northwest 

along the Rancho El Tejon line to the southeast corner of S. 34, T. 32 

S., R. 30 E., Mount Diablo Base and Meridian; then north to the northwest corner of S. 35, T. 31 S., R. 30 E.; then northeast along the 

boundary of the Rancho El Tejon Land Grant to the southwest corner of 

S. 18, T. 31 S., R. 31 E.; then east to the southeast corner of S. 13, T. 

31 S., R. 31 E.; then north along the range line common to R. 31 E. and 

R. 32 E., Mount Diablo Base and Meridian, to the northwest corner of S. 

6, T. 29 S., R. 32 E.; then east to the southwest corner of S. 31, T. 28 

S., R. 32 E.; then north along the range line common to R. 31 E. and R. 

32 E. to the northwest corner of S. 6, T. 28 S., R. 32 E., then west to 

the southeast corner of S. 36, T. 27 S., R. 31 E., then north along the 

range line common to R. 31 E. and R. 32 E. to the Kern-Tulare County 

boundary.

December 12, 

2008.

Attainment.

* * * * * * * 

[FR Doc. E8–26500 Filed 11–10–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2008–0175; FRL–8387–8] 

Avermectin; Pesticide Tolerances for 

Emergency Exemptions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes a 

time-limited tolerance for combined 

residues of the insecticide avermectin 

B1 and its delta-8,9-isomer in or on 

bean, lima, seed. This action is in 

response to EPA’s granting of an 

emergency exemption under section 18 

of the Federal Insecticide, Fungicide, 

and Rodenticide Act (FIFRA) 

authorizing use of the pesticide on large 

lima beans. This regulation establishes a 

maximum permissible level for residues 

of avermectin in this food commodity. 

The time-limited tolerance expires and 

is revoked on December 31, 2010. 

DATES: This regulation is effective 

November 12, 2008. Objections and 

requests for hearings must be received 

on or before January 12, 2009, and must 

be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION. 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2008–0175. All documents in the 

docket are listed in the docket index 

available in http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Ertman, Registration Division 

(7505P), Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–9367; e-mail address: 

ertman.andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

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