12652 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Rules and Regulations 

1See 40 CFR part 51, subpart X and 69 FR 23951 

(April 30, 2004) and 70 FR 71612 (November 29, 

2005). 

2These five SIP submittals are: 

1. SJVUAPCD, 2007 Ozone Plan, adopted on 

April 30, 2007 by the SJVUAPCD and on June 14, 

2007 by CARB, submitted on November 16, 2007. 

2. CARB, Proposed State Strategy for California’s 

2007 State Implementation Plan, amended and 

adopted on September 27, 2007 by CARB, 

submitted on November 16, 2007. 

3. CARB, Status Report on the State Strategy for 

California’s 2007 State Implementation Plan (SIP) 

and Proposed Revisions to the SIP Reflecting 

Implementation of the 2007 State Strategy (pages 

11–27 only), adopted on April 24, 2009, submitted 

on August 12, 2009. (‘‘2009 State Strategy Status 

Report’’) 

4. SJVUAPCD, Amendments to the 2007 Ozone 

Plan (amending the rulemaking schedule for 

Measure S–GOV–5 Organic Waste Operations) 

adopted on December 18, 2008 by the SJVUAPCD, 

submitted on April 24, 2009. 

5. CARB, 8-Hour Ozone State Implementation 

Plan Revisions and Technical Revisions to the PM2.5

State Implementation Plan Transportation 

Conformity Budgets for the South Coast and San 

Joaquin Valley Air Basins,’’ adopted on July 21, 

2011, submitted July 29, 2011. ‘‘2011 Ozone SIP 

Revisions.’’ 

3See letter, James Goldstene, Executive Officer, 

CARB, to Jared Blumenfeld, Regional 

Administrator, EPA Region 9, dated November 18, 

2011. 

4We also proposed in the alternative to 

disapprove the SIP with respect to certain 

provisions in CAA section 182(d)(1)(A) for 

transportation control strategies and measures 

sufficient to offset any growth in emissions from 

growth in vehicle miles traveled or the number of 

vehicle trips. In Association of Irritated Residents 

v. EPA, 632 F.3d 584 (9th Cir. 2011) (AIR), the U.S. 

Court of Appeals for the Ninth Circuit held that, 

with respect to the first element, section 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0589; FRL–9624–5] 

Approval of Air Quality Implementation 

Plans; California; San Joaquin Valley; 

Attainment Plan for 1997 8-Hour Ozone 

Standards 

AGENCY: U.S. Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving state 

implementation plan (SIP) revisions 

submitted by California to provide for 

attainment of the 1997 8-hour ozone 

national ambient air quality standards 

in the San Joaquin Valley (SJV). These 

SIP revisions are the 2007 Ozone Plan 

(revised 2008 and 2011) and SJV-related 

portions of the 2007 State Strategy 

(revised 2009 and 2011). EPA is 

approving the base year emissions 

inventory, reasonably available control 

measures demonstration, provisions for 

transportation control strategies and 

measures, provisions for advanced 

technology/clean fuels for boilers, 

reasonable further progress (RFP) and 

attainment demonstrations, 

transportation conformity motor vehicle 

emissions budgets for all RFP milestone 

years and the attainment year, 

contingency measures for failure to 

make RFP or attain, and Clean Air Act 

section 182(e)(5) new technologies 

provisions and associated commitment 

to adopt contingency measures. EPA is 

also approving commitments to 

measures and reductions by the SJV Air 

Pollution Control District and the 

California Air Resources Board. 

DATES: The rule is effective April 30, 

2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2011–0589 for 

this action. The index to the docket is 

available electronically at 

www.regulations.gov and in hard copy 

at EPA Region 9, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some may be publicly 

available only at the hard copy location 

(e.g., copyrighted material) and some 

may not be publicly available at either 

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

copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section 

below. 

Copies of the SIP materials are also 

available for inspection at the following 

locations: 

• California Air Resources Board, 

1001 I Street, Sacramento, California 

95812. 

• San Joaquin Valley Air Pollution 

Control District, 1990 E. Gettysburg, 

Fresno, California 93726. 

The SIP materials are also 

electronically available at: http://

www.valleyair.org/Air_Quality_Plans/ 

Ozone_Plans.htm and www.arb.ca.gov/

planning/sip/sip.htm. 

FOR FURTHER INFORMATION CONTACT: 

Frances Wicher, Air Planning Office 

(AIR–2), U.S. Environmental Protection 

Agency, Region 9, (415) 972–3957, 

wicher.frances@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Summary of EPA’s Proposed and Final 

Actions on the 2007 State 

Implementation Plan for Attainment of 

the 1997 8-Hour Ozone Standards in the 

San Joaquin Valley 

II. Response to Public Comments Received on 

the Proposal 

III. Approval Status of the Control Strategy 

Measures and Final Actions on the 

Attainment Demonstration and 

Enforceable Commitments 

IV. Approval of the Motor Vehicle Emissions 

Budgets for Transportation Conformity 

V. Final Actions 

VI. Statutory and Executive Order Reviews 

I. Summary of EPA’s Proposed and 

Final Actions on the 2007 State 

Implementation Plan for Attainment of 

the 1997 8-Hour Ozone Standards in 

the San Joaquin Valley 

On September 16, 2011, EPA 

proposed to approve California’s state 

implementation plan (SIP) for attaining 

the 1997 8-hour ozone national ambient 

air quality standards (NAAQS) in the 

San Joaquin Valley (SJV). See 76 FR 

57846. California developed this SIP to 

provide for expeditious attainment of 

the 1997 8-hour ozone standards in the 

SJV and to meet other applicable ozone 

planning requirements in Clean Air Act 

(CAA) sections 172(c) and 182 and 

EPA’s 8-hour ozone implementation 

rule.1

California has made five SIP 

submittals to address the CAA’s 

planning requirements for attaining the 

1997 8-hour ozone standard in the San 

Joaquin Valley. We refer to these 

submittals collectively as the ‘‘[SJV] 

2007 8-hour Ozone SIP.’’ The two 

principal ones are the San Joaquin 

Valley Unified Air Pollution Control 

District’s (SJVUAPCD) 2007 Ozone Plan 

(also Plan) and the California Air 

Resources Board’s (CARB) State Strategy 

for California’s 2007 State 

Implementation Plan (2007 State 

Strategy).2

Together, the 2007 Ozone Plan and 

the 2007 State Strategy present a 

comprehensive and innovative strategy 

for attaining the 1997 8-hour ozone 

standards in the SJV. 

In our September 2011 notice, EPA 

proposed to approve as meeting the 

applicable requirements of the CAA the 

SJV 2007 8-hour Ozone SIP’s base year 

emissions inventory, reasonably 

available control measures 

demonstration, provisions for 

transportation control strategies and 

measures, provisions for advanced 

technology/clean fuels for boilers, 

reasonable further progress (RFP) and 

attainment demonstrations, 

transportation conformity motor vehicle 

emissions budgets (MVEB) for all RFP 

milestone years and the attainment year, 

contingency measures for failure to 

make RFP or attain, and CAA section 

182(e)(5) provisions for new 

technologies and the associated 

commitment to adopt contingency 

measures.3 EPA also proposed to 

approve commitments to measures and 

reductions by the District and CARB.4

76 FR 57846, 57867. 


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Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Rules and Regulations 12653 

182(d)(1)(A) of the CAA requires States to adopt 

transportation control measures and strategies 

whenever vehicle emissions are projected to be 

higher than they would have been had vehicle 

miles traveled not increased, even when aggregate 

vehicle emissions are actually decreasing. EPA has 

filed a petition for rehearing on this issue. Docket 

Nos. 09–71383 and 09–71404 (consolidated), 

Docket Entry 41–1, Petition for Panel Rehearing. 

At the time of our September proposal, the Ninth 

Circuit had not yet issued its mandate in the AIR 

case, and EPA had not adopted the court’s 

interpretation for the reasons set forth in the 

Agency’s petition for rehearing, pending a final 

decision by the court. We stated in our proposed 

rule that if the court denied the Agency’s petition 

for rehearing and issued its mandate before EPA 

issued a final rule on the SJV 2007 8-hour Ozone 

SIP, then we anticipated that we would not be able 

to finalize approval of the SJV 2007 8-hour Ozone 

SIP with respect to the first element (i.e., offsetting 

emissions growth) of section 182(d)(1)(A). See 76 

FR 57846, 57863. Therefore, we proposed in the 

alternative to disapprove the SJV 2007 8-hour 

Ozone SIP with respect to the first element of 

section 182(d)(1)(A) based on the plan’s failure to 

include sufficient transportation control strategies 

and TCM to offset the emissions from growth in 

VMT. Id. The court has still not issued its mandate; 

therefore, we are approving the SJV 2007 8-hour 

Ozone SIP as meeting the requirements of CAA 

section 182(d)(1)(A). 

5 ‘‘Technical Support Document and Response to 

Comments Final Rule on the San Joaquin Valley 

2007 8-hour State Implementation Plan,’’ Air 

Division, U.S. EPA Region 9, September 30, 2011. 

The TSD can be found in the docket for this 

rulemaking. 

A more detailed discussion of each of 

California’s SIP submittals for the SJV 

area, the CAA and EPA requirements 

applicable to them, and our evaluation 

and proposed actions can be found in 

our September 2011 proposed rule (76 

FR 57846) and the technical support 

document (TSD) for this final action.5

EPA is today approving all elements 

of the SJV 2007 8-hour Ozone SIP based 

on our conclusion that they comply 

with applicable CAA requirements and 

provide for expeditious attainment of 

the 1997 8-hour ozone standards in the 

San Joaquin Valley. 

II. Response to Public Comments 

Received on the Proposals 

EPA provided the public an 

opportunity to comment on its proposed 

approval of the SJV 2007 8-hour ozone 

SIP for 30 days following the proposed 

rule’s September 16, 2011 publication in 

the Federal Register. We received two 

comment letters on the proposed rule. 

The first letter came from CARB who 

requested that we limit the approval of 

the SIP’s MVEB until such time as the 

State submits and EPA finds adequate 

new budgets. We address CARB’s 

request in Section IV below. The second 

letter was submitted jointly by the 

Center on Race, Poverty and the 

Environment; Earthjustice; and the 

Natural Resources Defense Council on 

behalf of themselves, the Association of 

Irritated Residents (AIR) and other San 

Joaquin Valley-based environmental and 

community organizations (collectively 

‘‘AIR’’). See letter Brent Newell, General 

Counsel, Center on Race, Poverty & the 

Environment, October 17, 2011. We 

respond to AIR’s main comments below. 

The entire Response to Comments 

document received can be found section 

III of the TSD. A copy of the comment 

letters can be found in the docket for 

this rule. 

A. Enforceable Commitments 

Comment: AIR characterizes CARB’s 

and the District’s commitments to 

achieve aggregate emissions reductions 

in specific years as ‘‘global 

commitments’’ and argues that they 

could be interpreted as ‘‘goals’’ 

unenforceable by citizens under Ninth 

Circuit precedent rather than 

enforceable ‘‘strategies’’ to achieve those 

goals, citing Bayview Hunters Point 

Community Advocates v. Metropolitan 

Transp. Comm’n, 366 F.3d 692, 701 (9th 

Cir. 2004) and El Comite Para El 

Bienstar de Earlimart v. Warmerdam, 

539 F.3d 1062, 1067 (9th Cir. 2008). 

AIR argues that the plans’ global 

commitments are not enforceable for 

two reasons. First, AIR claims that 

enforcement is not practical because it 

is not possible for citizens or EPA to 

determine whether the CARB and the 

District have met the global 

commitments. AIR argues further that 

because no measures are submitted to 

EPA for inclusion into the SIP citizens 

have no idea which measures CARB has 

used to satisfy the total tonnage 

commitments. AIR also argues that there 

are no provisions for CARB and the 

District to report to EPA and the public 

what actions they have taken to comply 

with the tonnage commitments and thus 

EPA and citizens are left to determine, 

based on information exclusively held 

and maintained by CARB and the 

District, whether the commitments have 

in fact been met. 

Second, AIR claims that because 

‘‘enforcing the global commitment 

ultimately turns on how the ARB and 

the District calculate emissions 

reductions achieved through the 

measures,’’ CARB’s and the District’s 

emissions reduction commitments are 

not enforceable unless the methodology 

for calculating the reductions is also 

enforceable. Otherwise, AIR argues, the 

manner in which CARB and the District 

determine compliance with the tonnage 

target is left to their discretion, and 

citizens and EPA would be placed in the 

situation held by the plaintiffs in 

Warmerdam. In conclusion, AIR asserts 

that the CAA ‘‘does not condone a 

discretionary commitment and EPA 

should not approve the ARB’s latest 

attempt to achieve a reduction target 

based on discretionary actions.’’ 

Response: Under CAA section 

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

enforceable emissions limitations and 

other control measures, means or 

techniques as necessary to meet the 

requirements of the Act, as well as 

timetables for compliance. Similarly, 

section 172(c)(6) provides that 

nonattainment area SIPs must include 

enforceable emission limitations and 

such other control measures, means or 

techniques ‘‘as may be necessary or 

appropriate to provide for attainment’’ 

of the NAAQS by the applicable 

attainment date. 

Control measures, including 

commitments in SIPs, are enforced 

directly by EPA under CAA section 113 

and also through CAA section 304(a) 

which provides for citizen suits to be 

brought against any person who is 

alleged ‘‘to be in violation of * * * an 

emission standard or limitation * * *.’’ 

‘‘Emission standard or limitation’’ is 

defined in subsection (f) of section 304. 

As observed in Conservation Law 

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

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

Courts interpreting citizen suit jurisdiction 

have largely focused on whether the 

particular standard or requirement plaintiffs 

sought to enforce was sufficiently specific. 

Thus, interpreting citizen suit jurisdiction is 

limited to claims ‘‘for violations of specific 

provisions of the act or specific provisions of 

an applicable implementation plan,’’ the 

Second Circuit held that suits can be brought 

to enforce specific measures, strategies, or 

commitments designed to ensure compliance 

with the NAAQS, but not to enforce the 

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

at 613–14. Courts have repeatedly applied 

this test as the linchpin of citizen suit 

jurisdiction. See, e.g., Coalition Against 

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

764, 769–71 (2d Cir. 1992); Cate v. 

Transcontinental Gas Pipe Line Corp., 904 F. 

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

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

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

746 F. Supp. 976 (1990). 

Thus courts have found that the 

citizen suit provision cannot be used to 

enforce the aspirational goal of attaining 

the NAAQS, but can be used to enforce 

specific strategies to achieve that goal, 

including enforceable commitments to 

develop future emissions controls. 

We describe CARB’s and the District’s 

commitments in the 2007 State Strategy 

(revised in 2009 and 2011) and the 2007 

Ozone Plan in detail in our proposed 

rule. See 76 FR 57846, 57851–57856 and 

57857–57860. The 2007 State Strategy 

includes commitments to propose 

defined new measures and an 

enforceable commitment for emissions 

reductions sufficient, in combination 


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with existing measures, the District’s 

commitments, and the new technology 

provisions to attain the 1997 8-hour 

ozone NAAQS in the SJV by June 15, 

2024. See CARB Resolution 07–28, 

Attachment B at pp. 3 and 6 and 2009 

State Strategy Status Report, p. 21. For 

the SJV, CARB’s emissions reductions 

commitments as submitted in 2007 and 

2009 are to specific reductions of NOX

and VOC in 2014, 2017, 2020, and 2023 

as well as additional reductions from 

CAA section 182(e)(5) measures in 2023. 

These commitments are shown in Table 

8 of the proposed rule (76 FR 57846, 

57854) and Table D–6 of the TSD. 

SJVUAPCD’s commitments as 

submitted in 2007 are also to specific 

reductions of NOX and VOC in 2008, 

2011, 2012, 2014, 2017, 2020 and 2023 

and are shown Table 6–1 of the 2007 

Ozone Plan (as revised in 2008). These 

commitments are also shown (for all 

years except for 2008) on Table 3 of the 

proposed rule (76 FR 57846, 578524) 

and Table D–2 of the TSD. The language 

used in the Board’s resolution adopting 

the 2007 8-hour Ozone Plan at page 5 

to describe its commitment is 

mandatory and unequivocal in nature: 

10. The District Governing Board commits 

to adopt and implement the rules and 

measures in the 2007 Ozone Plan by the 

dates specified in Chapter 6 to achieve the 

emissions reductions shown in Chapter 6, 

and to submit these rules and measures to the 

ARB within one month of adoption for 

transmittal to EPA as a revision to the State 

Implementation Plan. If the total emissions 

reductions from the adopted rules are less 

than those committed to in the Plan, the 

District Governing Board commits to adopt, 

submit, and implement substitute rules and 

measures that will achieve equivalent 

reductions in emissions of ozone precursors 

in the same adoption and implementation 

timeframes or in the timeframes needed to 

meet CAA milestones. 

SJVUAPCD Board Resolution No. 07– 

04–11a, p. 6. (Emphasis added). 

Thus, CARB’s and the District’s 

commitments here are to adopt and 

implement measures that will achieve 

specific amounts of NOX and VOC 

emissions reductions by specific years. 

These are not mere aspirational goals to 

ultimately achieve the standards. 

Rather, the State and District have 

committed to adopt enforceable 

measures that will achieve these 

specific amounts of emissions 

reductions by specified milestone years 

and ultimately by the attainment year 

(2023). See 70 FR 71612, 71633 

(November 29, 2005) and 40 CFR 

51.910(a)(1) and 51.908(d) (requiring 

implementation of all control measures 

needed for expeditious attainment no 

later than the beginning of the year prior 

to the attainment date). All of these 

control measures are subject to State 

and local rulemaking procedures and 

public participation requirements, 

through which EPA and the public may 

track the State/District’s progress in 

achieving the requisite emissions 

reductions. EPA and citizens may 

enforce these commitments under CAA 

sections 113 and 304(a), respectively, 

should the State/District fail to adopt 

measures that achieve the requisite 

amounts of emissions reductions by 

each specified year. We conclude that 

these enforceable commitments to adopt 

and implement additional control 

measures to achieve aggregate emissions 

reductions on a fixed schedule are 

appropriate means, techniques, or 

schedules for compliance under 

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

the Act. 

AIR cites Bayview as support for their 

contention that the SIP’s commitments 

are unenforceable aspirational goals. 

Bayview does not, however, provide any 

such support. That case involved a 

provision of the 1982 Bay Area 1-hour 

ozone SIP, known as TCM 2, which 

states in pertinent part: 

Support post-1983 improvements 

identified in transit operator’s 5-year plans, 

after consultation with the operators adopt 

ridership increase target for 1983–1987. 

EMISSION REDUCTION ESTIMATES: 

These emission reduction estimates are 

predicated on a 15% ridership increase. The 

actual target would be determined after 

consultation with the transit operators. 

Following a table listing these estimates, 

TCM 2 provided that ‘‘[r]idership increases 

would come from productivity improvements 

* * *.’’ 

Ultimately, the 15 percent ridership 

estimate was adopted by the 

Metropolitan Transportation 

Commission (MTC), the implementing 

agency, as the actual target. Plaintiffs 

subsequently attempted to enforce the 

15 percent ridership increase. The court 

found that the 15 percent ridership 

increase was an unenforceable estimate 

or goal. In reaching that conclusion, the 

court considered multiple factors, 

including the plain language of TCM 2 

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

‘target’ is simply not the same as 

promising to attain that target,’’ Bayview 

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

drafters of TCM 2 were careful not to 

characterize any given increase as an 

obligation because the TCM was 

contingent on a number of factors 

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

the fact that TCM 2 was an extension of 

TCM 1 that had as an enforceable 

strategy the improvement of transit 

services, specifically through 

productivity improvements in transit 

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

a result of all of these factors, the Ninth 

Circuit found that TCM 2 clearly 

designated the productivity 

improvements as the only enforceable 

strategy. Id. at 703. 

The commitments in the 2007 State 

Strategy (revised in 2009 and 2011) and 

2007 Ozone Plan are in stark contrast to 

the ridership target that was deemed 

unenforceable in Bayview. The language 

in CARB’s and the District’s 

commitments, as stated multiple times 

in multiple documents, is specific; the 

intent of the commitments is clear; and 

the strategy of adopting measures to 

achieve the required reductions is 

completely within CARB’s and the 

District’s control. Furthermore, as stated 

previously, CARB and the District 

identify specific emissions reductions 

that they will achieve, how they could 

be achieved and the time by which 

these reductions will be achieved. See 

76 FR 57846, 57854 (Table 8) (listing 

CARB’s commitments) 57852 (Table 3) 

(listing the District’s commitments). 

CARB’s and the District’s 

commitments here are analogous to the 

terms of the contingency measures for 

the transportation sector in the 1982 Bay 

Area 1-hour ozone SIP in Citizens for a 

Better Environment v. Deukmejian, 731 

F.Supp. 1448 (N.D. Cal. 1990) (known as 

CBE I.) The provision states: ‘‘If a 

determination is made that RFP is not 

being met for the transportation sector, 

MTC will adopt additional TCMs within 

6 months of the determination. These 

TCMs will be designed to bring the 

region back within the RFP line.’’ The 

court found that ‘‘[o]n its face, this 

language is both specific and 

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

and MTC argued that TCM 2 could not 

constitute an enforceable strategy 

because the provision fails to specify 

exactly what TCMs must be adopted. 

The court rejected this argument, 

finding that ‘‘[w]e discern no principled 

basis, consistent with the Clean Air Act, 

for disregarding this unequivocal 

commitment simply because the 

particulars of the contingency measures 

are not provided. Thus we hold that the 

basic commitment to adopt and 

implement additional measures, should 

the identified conditions occur, 

constitutes a specific strategy, fully 

enforceable in a citizen’s action, 

although the exact contours of those 

measures are not spelled out.’’ Id. at 

1457. In concluding that the 

transportation and stationary source 

contingency provisions were 

enforceable, the court stated: ‘‘Thus, 

while this Court is not empowered to 

enforce the Plan’s overall objectives 

[footnote omitted; attainment of the 

NAAQS]—or NAAQS—directly, it can 


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6For ozone nonattainment areas, a State that 

satisfies the specific inventory requirements of CAA 

section 182(a)(1) also satisfies the general inventory 

requirements of CAA section 172(c)(3). See General 

Preamble at 13503 (April 16, 1992). 

and indeed, must, enforce specific 

strategies committed to in the Plan.’’ Id. 

at 1454; see also Citizens for a Better 

Environment v. Metropolitan Tranp. 

Comm’n, 746 F. Supp. 976, 980 

(N.D.Cal. 1990) [known as CBE II] 

(rejecting defendants’ argument that 

RFP and the NAAQS are coincident and 

stating that the court’s enforcement of 

the contingency plan, an express 

strategy for attaining NAAQS, is distinct 

from simply ordering that NAAQS be 

achieved). 

As in the CBE cases, CARB and the 

District commit to propose or adopt 

measures, which are not specifically 

identified, to achieve a specific tonnage 

of emissions reductions by specific 

years. Thus, the commitment to a 

specific tonnage reduction is 

comparable to a commitment to achieve 

RFP. Similarly, a commitment to 

achieve a specific amount of emissions 

reductions through adoption and 

implementation of unidentified 

measures is comparable to the 

commitments to adopt unspecified 

TCMs and stationary source measures. 

The key is that the commitment must be 

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

a specified amount of emissions 

reductions or the achievement of a 

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

CARB’s and the District’s commitments 

are thus a specific enforceable strategy 

rather than an unenforceable 

aspirational goal. 

AIR’s reliance on El Comite (also 

referred to as Warmerdam) to argue that 

CARB’s commitments are not 

enforceable is also misplaced. In El 

Comite, the plaintiffs in the district 

court attempted to enforce a provision 

of the 1994 California 1-hour ozone SIP 

known as the Pesticide Element. The 

Pesticide Element relied on an 

inventory of pesticide VOC emissions to 

provide the basis to determine whether 

additional regulatory measures would 

be needed to meet the SIP’s pesticides 

emissions target. To this end, the 

Pesticide Element provided that ‘‘ARB 

will develop a baseline inventory of 

estimated 1990 pesticidal VOC 

emissions based on 1991 pesticide use 

data * * *.’’ El Comite Para El 

Bienestar de Earlimart v. Helliker, 416 

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

CARB subsequently employed a 

different methodology that it deemed 

more accurate to calculate the baseline 

inventory. The plaintiffs sought to 

enforce the commitment to use the 

original methodology, claiming that the 

calculation of the baseline inventory 

constitutes an ‘‘emission standard or 

limitation.’’ The district court disagreed: 

By its own terms, the baseline identifies 

emission sources and then quantifies the 

amount of emissions attributed to those 

sources. As defendants argue, once the 

sources of air pollution are identified, control 

strategies can then be formulated to control 

emissions entering the air from those sources. 

From all the above, I must conclude that the 

baseline is not an emission ‘‘standard’’ or 

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

7604(f)(1)–(4). 

Id. at 928. In its opinion, the court 

distinguished Bayview and CBE I, 

pointing out that in those cases ‘‘the 

measures at issue were designed to 

reduce emissions.’’ Id. 

On appeal, the plaintiffs shifted their 

argument to claim that the baseline 

inventory and the calculation 

methodology were necessary elements 

of the overall enforceable commitment 

to reduce emissions in nonattainment 

areas. The Ninth Circuit agreed with the 

district court’s conclusion that the 

baseline inventory was not an emission 

standard or limitation and rejected 

plaintiffs’ arguments attempting ‘‘to 

transform the baseline inventory into an 

enforceable emission standard or 

limitation by bootstrapping it to the 

commitment to decide to adopt 

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

While AIR cites the Ninth Circuit’s El 

Comite opinion, its utility in analyzing 

the CARB and District commitments 

here is limited to that court’s agreement 

with the district court’s conclusion that 

neither the baseline nor the 

methodology qualifies as an 

independently enforceable aspect of the 

SIP. Rather, it is the district court’s 

opinion, in distinguishing the 

commitments in CBE and Bayview, that 

provides insight into the situation at 

issue in our action. As the court 

recognized, a baseline inventory or the 

methodology used to calculate it, is not 

a measure to reduce emissions. It 

instead ‘‘identifies emission sources and 

then quantifies the amount of emissions 

attributed to those sources.’’ In contrast, 

as stated previously, in the 2007 State 

Strategy (revised 2009 and 2011) and 

SJV 2007 Ozone Plan, CARB and the 

District commits to adopt and 

implement measures sufficient to 

achieve specified amounts of emissions 

reductions by specified dates. As 

described above, a number of courts 

have found commitments substantially 

similar to CARB’s here to be enforceable 

under CAA section 304(a). 

B. Baseline Measures, Baseline 

Inventories, and Attainment 

Demonstration 

Comment: AIR asserts that EPA’s 

approval of the inventory in the Plan 

would violate CAA sections 172(c)(3) 

and 182(a)(1) because the baseline 

inventory includes emissions reduction 

credit for both ‘‘waiver measures’’ and 

‘‘non-waiver measures’’ adopted before 

2007 (together referred to as ‘‘baseline 

measures’’) that have not been approved 

into the SIP. AIR argues that EPA has 

not evaluated each of these baseline 

measures to determine if they are 

creditable or quantified the emissions 

reductions attributed to each of these 

measures. Additionally, AIR asserts that 

EPA should disapprove the attainment 

demonstration because EPA has 

approved neither mobile source baseline 

measures nor pesticide measures as part 

of the SIP. AIR asserts that ‘‘[t]he total 

tonnage attributed to these unsubmitted 

and non-SIP approved measures in the 

attainment demonstration is not clear, 

because EPA does not differentiate 

between reductions from SIP-approved 

measures, waiver measures, and those 

that have not received EPA approval.’’ 

Thus, AIR argues, ‘‘a significant amount 

of emission reductions claimed in the 

attainment demonstration are not SIP 

creditable, a finding that EPA must 

make before approving the attainment 

demonstration.’’ AIR references CAA 

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

support of these assertions and argues 

that ‘‘EPA has failed to find that the 

reductions from the unsubmitted rules 

have occurred, are enforceable, or are 

otherwise consistent with the Act, 

EPA’s implementing regulations, and 

the General Preamble.’’ 

Response: We disagree with these 

assertions. We explained in our 

Proposal TSD (section II.A.3.) our 

reasons for concluding both that the 

2002 base year inventory in the SIP is 

comprehensive, accurate, and current as 

required by CAA section 182(a)(1) and 

that the projected baseline inventories 

provide adequate bases and support for 

the RFP and attainment demonstrations 

in the SJV 2007 8-hour Ozone SIP.6

Specifically, with respect to mobile 

source emissions, we believe that credit 

for emissions reductions from 

implementation of California mobile 

source rules that are subject to CAA 

section 209 waivers (‘‘waiver 

measures’’) is appropriate in the 

attainment and RFP demonstrations and 

for other SIP purposes notwithstanding 

the fact that such rules are not approved 

as part of the California SIP. In the 

Proposal TSD, we explained why we 

believe such credit is appropriate. See 

Proposal TSD at section II.D.3.a.i. 

Historically, EPA has granted credit for 


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7MOVES replaced the MOBILE model as EPA’s 

on-road mobile source emission estimation model 

for use in SIPs and conformity in 2010. 

8 Information about CARB’s emissions inventories 

for on-road and non-road mobile sources, and the 

EMFAC and OFFROAD models used to project 

changes in future inventories, is available at 

http://www.arb.ca.gov/msei/msei.htm. 

9 Information on base year emissions from 

stationary point sources is obtained primarily from 

the districts, while CARB and the districts share 

responsibility for developing and updating 

information on emissions from various area source 

categories. See 2007 State Strategy, Appendix F 

at 21. 

the waiver measures because of special 

Congressional recognition, in 

establishing the waiver process in the 

first place, of the pioneering California 

motor vehicle control program and 

because amendments to the CAA (in 

1977) expanded the flexibility granted 

to California in order ‘‘to afford 

California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare’’ (H.R. Rep. No. 294, 95th 

Congr., 1st Sess. 301–2 (1977)). In 

allowing California to take credit for the 

waiver measures notwithstanding the 

fact that the underlying rules are not 

part of the California SIP, EPA treated 

the waiver measures similarly to the 

Federal motor vehicle control 

requirements, which EPA has always 

allowed States to credit in their SIPs 

without submitting the program as a SIP 

revision. 

EPA’s historical practice has been to 

give SIP credit for motor-vehicle-related 

waiver measures in attainment and RFP 

demonstrations and for other SIP 

purposes by allowing California to 

include motor vehicle emissions 

estimates made by using California’s 

EMFAC (and its predecessors) motor 

vehicle emissions factor model in SIP 

inventories. EPA verifies the emissions 

reductions from motor-vehicle-related 

waiver measures through review and 

approval of EMFAC, which is updated 

from time to time by California to reflect 

updated methods and data, as well as 

newly-established emissions standards. 

(Emissions reductions from EPA’s motor 

vehicle standards are reflected in an 

analogous model known as MOVES.7) 

The SJV 2007 8-hour Ozone SIP was 

developed using a version of the 

EMFAC model referred to as 

EMFAC2007, which EPA has approved 

for use in SIP development in 

California. See 73 FR 3464 (January 18, 

2008). Thus, the emissions reductions 

that are from the California on-road 

‘‘waiver measures’’ and that are 

estimated through use of EMFAC are as 

verifiable as are the emissions 

reductions relied upon by states other 

than California in developing their SIPs 

based on estimates of motor vehicle 

emissions made through the use of the 

MOVES model. All other states use the 

MOVES model (and prior to release of 

MOVES, the MOBILE model) in their 

baseline inventories without submitting 

the federal motor vehicle regulations for 

incorporation into their SIPs. 

Similarly, emissions reductions that 

are from California’s waiver measures 

for non-road engines and vehicles (e.g., 

agricultural, construction, lawn and 

garden and off-road recreation 

equipment) are estimated through use of 

CARB’s OFFROAD emissions factor 

model.8 (Emissions reductions from 

EPA’s non-road engine and vehicle 

standards are reflected in an analogous 

model known as NONROAD). Since 

1990, EPA has treated California nonroad standards for which EPA has 

issued waivers in the same manner as 

California motor vehicle standards, i.e., 

allowing credit for standards subject to 

the waiver process without requiring 

submittal of the standards as part of the 

SIP. In so doing, EPA has treated the 

California non-road standards similarly 

to the Federal non-road standards, 

which are relied upon, but not included 

in, various SIPs. See generally TSD at 

section II.D.3.a.i. 

CARB’s EMFAC and OFFROAD 

models employ complex routines that 

predict vehicle fleet turnover by vehicle 

model years and include control 

algorithms that account for all adopted 

regulatory actions which, when 

combined with the fleet turnover 

algorithms, provide future baseline 

projections. See 2007 State Strategy, 

Appendix F at 7–8. For stationary 

sources, the California Emission 

Forecasting System (CEFS) projects 

future emissions from stationary and 

area sources (in addition to aircraft and 

ships) using a forecasting algorithm that 

applies growth factors and control 

profiles to the base year inventory.9See 

id. at 7. The CEFS model integrates the 

projected inventories for both stationary 

and mobile sources into a single 

database to provide a comprehensive 

statewide forecast inventory, from 

which nonattainment area inventories 

are extracted for use in establishing 

future baseline planning inventories. 

See id. In 2011, CARB updated the 

baseline emissions projections for 

several source categories to account for, 

among other things, more recent 

economic forecasts and improved 

methodologies for estimating emissions 

from the heavy duty truck and 

construction source categories. See 2011 

Ozone SIP Revisions, Appendix B. 

These methodologies for projecting 

future emissions based on growth 

factors and existing Federal, State, and 

local controls were consistent with EPA 

guidance on developing projected 

baseline inventories. See TSD at section 

II.A; see also ‘‘Procedures for Preparing 

Emissions Projections,’’ EPA Office of 

Air Quality Planning and Standards, 

EPA–450/4–91–019, July 1991; 

‘‘Emission Projections,’’ STAPPA/ 

ALAPCO/EPA Emission Inventory 

Improvement Project, Volume X, 

December 1999 (available at http://www.

epa.gov/ttnchie1/eiip/techreport/

volume10/x01.pdf). 

In sum, the 2002 base year and future 

projected baseline inventories in the SJV 

2007 8-hour Ozone SIP were prepared 

using a complex set of CARB 

methodologies to estimate and project 

emissions from stationary sources, in 

addition to the most recent emissions 

factors and models and updated activity 

levels for emissions associated with 

mobile sources, including: (1) The latest 

EPA-approved California motor vehicle 

emissions factor model (EMFAC2007) 

and the most recent motor vehicle 

activity data from each of the MPOs in 

the San Joaquin Valley; (2) improved 

methodologies for estimating emissions 

from specific source categories; and (3) 

CARB’s non-road mobile source model 

(the OFFROAD model). See TSD, 

section II.A. (referencing, inter alia, 

2007 State Strategy at Appendix F) and 

2011 Ozone SIP Revisions. EPA has 

approved numerous California SIPs that 

rely on base year and projected baseline 

inventories including emissions 

estimates derived from the EMFAC, 

OFFROAD, and CEFS models. See, e.g., 

65 FR 6091 (February 8, 2000) 

(proposed rule to approve 1-hour ozone 

plan for South Coast) and 65 FR 18903 

(April 10, 2000) (final rule); 70 FR 

43663 (July 28, 2005) (proposed rule to 

approve PM–10 plan for South Coast 

and Coachella Valley) and 70 FR 69081 

(November 14, 2005) (final rule); 74 FR 

66916 (December 17, 2009) (direct final 

rule to approve ozone plan for Monterey 

Bay); 76 FR 41338 (July 13, 2011) 

(proposed rule to approve in part and 

disapprove in part the PM2.5 plan for the 

San Joaquin Valley) and 76 FR 69896 

(November 9, 2011) (final rule); and 76 

FR 41562), (July 14, 2011) (proposed 

rule to approve in part and disapprove 

in part the PM2.5 plan for the South 

Coast Air Basin) and 76 FR 69928 

(November 9, 2011) (final rule). The 

commenter has provided no information 

to support a claim that these 

methodologies for developing base year 

inventories and projecting future 

emissions in the SJV are inadequate to 

support the RFP and attainment 


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demonstrations in the SJV 2007 8-hour 

Ozone SIP. 

For all of these reasons and as 

discussed in our proposed rule (76 FR 

57846, 57850), we conclude that the 

2002 base year inventory in the 2007 

8-hour Ozone SIP is a ‘‘comprehensive, 

accurate, current inventory of actual 

emissions from all sources of the 

relevant pollutant or pollutants’’ in the 

SJV area, consistent with the 

requirements for emissions inventories 

in CAA section 182(a)(1), 40 CFR 

51.915, and 40 CFR part 51, subpart A. 

In addition, we conclude that the 

projected future year baseline 

inventories were prepared consistent 

with EPA’s guidance on development of 

emissions inventories and attainment 

demonstrations and, therefore, provide 

an adequate basis for the RFP and 

attainment demonstrations in the SIP 

under CAA sections 172(c)(2), 182(a), 

and 182(c)(2). See TSD at section II.A.3. 

Finally, we disagree with AIR’s 

assertion that EPA has not identified the 

total amount of emissions reductions 

attributed to baseline measures in the 

projected inventories. The total amounts 

of emissions reductions attributed to 

baseline measures in the 2007 8-hour 

Ozone SIP, as revised in 2011, are 54.2 

tpd of VOC and 338.6 tpd of NOX. See 

76 FR 57846, 57858, table 9 at line E; 

see also TSD, Table F–4 at line D. 

Comment: AIR asserts that EPA has 

not approved any CARB mobile source 

baseline measures as part of the SIP or 

reviewed those measures to consider 

whether they achieve the reductions 

claimed by CARB, and that EPA cannot 

approve the SJV 2007 8-hour Ozone SIP 

when such a ‘‘huge component of the 

control strategy’’ has not been SIPapproved. AIR also asserts that CARB 

has not submitted copies of its mobile 

source baseline measures to EPA as part 

of this plan. AIR also asserts that waiver 

measures may not be used in attainment 

demonstrations because EPA makes no 

finding during the waiver process that 

the rules achieve the reductions claimed 

or that the measures are SIP creditable. 

AIR also notes that these issues are the 

subject of litigation in the 9th Circuit 

U.S. Court of Appeals in Sierra Club v. 

EPA, Consolidated Case Nos. 10–71457 

and 10–71458. 

Response: We continue to believe that 

credit for emissions reductions from 

implementation of California mobile 

source rules that are subject to CAA 

section 209 waivers (‘‘waiver 

measures’’) is appropriate 

notwithstanding the fact that such rules 

are not approved as part of the 

California SIP. In our September 16, 

2011 proposed rule and the technical 

support document (TSD) for that 

proposal, we explained why we believe 

such credit is appropriate. See 76 FR 

57872, at 57879–57880 and the Proposal 

TSD, pp. 86–90. Historically, EPA has 

granted credit for the waiver measures 

because of special Congressional 

recognition, in establishing the waiver 

process in the first place, of the 

pioneering California motor vehicle 

control program and because 

amendments to the CAA (in 1977) 

expanded the flexibility granted to 

California in order ‘‘to afford California 

the broadest possible discretion in 

selecting the best means to protect the 

health of its citizens and the public 

welfare,’’ (H.R. Rep. No. 294, 95th 

Congr., 1st Sess. 301–2 (1977)). In 

allowing California to take credit for the 

waiver measures notwithstanding the 

fact that the underlying rules are not 

part of the California SIP, EPA treated 

the waiver measures similarly to the 

Federal motor vehicle control 

requirements, which EPA has always 

allowed States to credit in their SIPs 

without submitting the program as a SIP 

revision. As we explained in the 

Proposal TSD (p. 87), credit for Federal 

measures, including those that establish 

on-road and nonroad standards, 

notwithstanding their absence in the 

SIP, is justified by reference to CAA 

section 110(a)(2)(A), which establishes 

the following content requirements for 

SIPs: ‘‘* * * enforceable emission 

limitations and other control measures, 

means, or techniques (including 

economic incentives such as fees, 

marketable permits, and auctions of 

emissions rights), * * * as may be 

necessary or appropriate to meet the 

applicable requirements of this 

chapter.’’ (emphasis added). Federal 

measures are permanent, independently 

enforceable (by EPA and citizens), and 

quantifiable without regard to whether 

they are approved into a SIP, and thus 

EPA has never found such measures to 

be ‘‘necessary or appropriate’’ for 

inclusion in SIPs to meet the applicable 

requirements of the Act. Section 209 of 

the CAA establishes a process under 

which EPA allows California’s waiver 

measures to substitute for Federal 

measures, and like the Federal measures 

for which they substitute, EPA has 

historically found, and continues to 

find, based on considerations of 

permanence, enforceability, and 

quantifiability, that such measures are 

not ‘‘necessary or appropriate’’ for 

California to include in its SIP to meet 

the applicable requirements of the Act. 

First, with respect to permanence, we 

note that, to maintain a waiver, CARB’s 

on-road waiver measures can be relaxed 

only to a level of aggregate equivalence 

to the Federal Motor Vehicle Control 

Program (FMVCP). See section 

209(b)(1). In this respect, the FMVCP 

acts as a partial backstop to California’s 

on-road waiver measures (i.e., absent a 

waiver, the FMVCP would apply in 

California). Likewise, Federal nonroad 

vehicle and engine standards act as a 

partial backstop for corresponding 

California nonroad waiver measures. 

The constraints of the waiver process 

thus serve to limit the extent to which 

CARB can relax the waiver measures for 

which there are corresponding EPA 

standards, and thereby serve an antibacksliding function similar in 

substance to those established for SIP 

revisions in CAA sections 110(l) and 

193. Meanwhile, the growing 

convergence between California and 

EPA mobile source standards 

diminishes the difference in the 

emissions reductions reasonably 

attributed to the two programs and 

strengthens the role of the Federal 

program in serving as an effective 

backstop to the State program. In other 

words, with the harmonization of EPA 

mobile source standards with the 

corresponding State standards, the 

Federal program is becoming essentially 

a full backstop to most parts of the 

California program. 

Second, as to enforceability, we note 

that the waiver process itself bestows 

enforceability onto California to enforce 

the on-road or nonroad standards for 

which EPA has issued the waiver. CARB 

has as long a history of enforcement of 

vehicle/engine emissions standards as 

EPA, and CARB’s enforcement program 

is equally as rigorous as the 

corresponding EPA program. The 

history and rigor of CARB’s enforcement 

program lends assurance to California 

SIP revisions that rely on the emissions 

reductions from CARB’s rules in the 

same manner as EPA’s mobile source 

enforcement program lends assurance to 

other state’s SIPs in their reliance on 

emissions reductions from the FMVCP. 

While it is true that citizens and EPA 

are not authorized to enforce California 

waiver measures under the Clean Air 

Act (i.e., because they are not in the 

SIP), citizens and EPA are authorized to 

enforce EPA standards in the event that 

vehicles operate in California without 

either California or EPA certification. 

As to quantifiability, EPA’s historical 

practice has been to give SIP credit for 

motor-vehicle-related waiver measures 

by allowing California to include motor 

vehicle emissions estimates made by 

using California’s EMFAC (and its 

predecessors) motor vehicle emissions 

factor model in SIP inventories. EPA 

verifies the emissions reductions from 

motor-vehicle-related waiver measures 


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10EPA’s historical practice in allowing California 

credit for waiver measures notwithstanding the 

absence of the underlying rules in the SIP is further 

documented by reference to EPA’s review and 

approval of a May 1979 revision to the California 

SIP entitled, ‘‘Chapter 4, California Air Quality 

Control Strategies.’’ In our proposed approval of the 

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

describe the SIP revision as outlining California’s 

overall control strategy, which the State had 

divided into vehicular sources and non-vehicular 

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

SIP revision discusses vehicular control measures 

as including technical control measures and 

transportation control measures. The former refers 

to the types of measures we refer to herein as 

waiver measures, as well as fuel content limitations, 

and a vehicle inspection and maintenance program. 

The 1979 SIP revision included several appendices, 

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

vehicle emission controls included in title 13, 

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

including the types of vehicle emission standards 

we refer to herein as waiver measures; however, 

California did not submit the related portions of the 

California Administrative Code (CAC) to EPA as 

part of the 1979 SIP revision submittal. With 

respect to the CAC, the 1979 SIP revision states: 

‘‘The following appendices are portions of the 

California Administrative Code. Persons interested 

in these appendices should refer directly to the 

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

intention to rely on the California motor vehicle 

control program but not to submit the underlying 

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

our approval as proposed. See 45 FR 63843 

(September 28, 1980). 

11 In this regard, we disagree that we are treating 

the waiver measures inconsistently with other 

California control measures, such as consumer 

products and fuels rules, for the simple reason that, 

unlike the waiver measures, there is no history of 

past practice or legislative history supporting 

treatment of other California measures, such as 

consumer products rules and fuels rules, in any 

manner differently than is required as a general rule 

through review and approval of EMFAC, 

which is updated from time to time by 

California to reflect updated methods 

and data, as well as newly-established 

emissions standards. (Emissions 

reductions from EPA’s motor vehicle 

standards are reflected in an analogous 

model known as MOVES.) The EMFAC 

model is based on the motor vehicle 

emissions standards for which 

California has received waivers from 

EPA but accounts for vehicle 

deterioration and many other factors. 

The motor vehicle emissions estimates 

themselves combine EMFAC results 

with vehicle activity estimates, among 

other considerations. See the 1982 Bay 

Area Air Quality Plan, and the related 

EPA rulemakings approving the plan 

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

the proposed rule and 48 FR 57130 

(December 28, 1983) for the final rule) 

as an example of how the waiver 

measures have been treated historically 

by EPA in California SIP actions.10 The 

South Coast 8-hour ozone plan was 

developed using a version of the 

EMFAC model referred to as 

EMFAC2007, which EPA has approved 

for use in SIP development in 

California. See 73 FR 3464 (January 18, 

2008). Thus, the emissions reductions 

that are from the California on-road 

‘‘waiver measures’’ and that are 

estimated through use of EMFAC are as 

verifiable as are the emissions 

reductions relied upon by states other 

than California in developing their SIPs 

based on estimates of motor vehicle 

emissions made through the use of the 

MOVES model. 

Moreover, EPA’s waiver review and 

approval process is analogous to the SIP 

approval process. First, CARB adopts its 

emissions standards following notice 

and comment procedures at the state 

level, and then submits the rules to EPA 

as part of its waiver request. When EPA 

receives new waiver requests from 

CARB, EPA publishes a notice of 

opportunity for public hearing and 

comment and then publishes a decision 

in the Federal Register following the 

public comment period. Once again, in 

substance, the process is similar to that 

for SIP approval and supports the 

argument that one hurdle (the waiver 

process) is all Congress intended for 

California standards, not two (waiver 

process plus SIP approval process). 

Second, just as SIP revisions are not 

effective until approved by EPA, 

changes to CARB’s rules (for which a 

waiver has been granted) are not 

effective until EPA grants a new waiver, 

unless the changes are ‘‘within the 

scope’’ of a prior waiver and no new 

waiver is needed. Third, both types of 

final actions by EPA—i.e., final actions 

on California requests for waivers and 

final actions on state submittals of SIPs 

and SIP revisions may be challenged 

under section 307(b)(1) of the CAA in 

the appropriate United States Court of 

Appeals. 

AIR correctly notes that EPA’s 

treatment of California waiver measures 

in SIP actions is the subject of current 

litigation in Sierra Club v. EPA, 

Consolidated Case Nos. 10–71457 and 

10–71458 (9th Circuit). 

Comment: AIR argues that our 

reliance on the general savings clause in 

CAA section 193 for the proposal to 

grant emissions reduction credit to 

California’s waiver measures without 

first having California submit and EPA 

approve them into the SIP is 

inappropriate for two reasons. First, AIR 

argues that CAA section 193 only saves 

those ‘‘formal rules, notices, or guidance 

documents’’ promulgated before the 

effective date of the 1990 amendment 

that are not inconsistent with the CAA. 

It asserts that the plain language of the 

CAA requires that California submit the 

control measures, rules and regulations 

used to meet CAA requirements as part 

of the SIP and that nothing in CAA title 

II or section 209 provide a basis for 

EPA’s position. Second, AIR argues that 

there is no automatic presumption that 

Congress is aware of an agency’s 

interpretations and we have not 

provided any evidence that Congress 

was aware of our interpretation 

regarding the SIP treatment of 

California’s mobile source control 

measures. AIR also argues that our 

positions that Congress must expressly 

disapprove of EPA’s long-standing 

interpretation and Congressional silence 

equates to a ratification of EPA’s 

interpretation are incorrect. 

Response: In the Proposal TSD (pp. 

89–90), we indicated that we believe 

that section 193 of the CAA, the general 

savings clause added by Congress in 

1990, effectively ratified our longstanding practice of granting credit for 

the California waiver rules because 

Congress did not insert any language 

into the statute rendering EPA’s 

treatment of California’s motor vehicle 

standards inconsistent with the Act. 

Rather, Congress extended the 

California waiver provisions to most 

types of nonroad vehicles and engines, 

once again reflecting Congressional 

intent to provide California with the 

broadest possible discretion in selecting 

the best means to protect the health of 

its citizens and the public welfare. 

Requiring the waiver measures to 

undergo SIP review in addition to the 

statutory waiver process is not 

consistent with providing California 

with the broadest possible discretion as 

to on-road and nonroad vehicle and 

engine standards, but rather, would add 

to the regulatory burden California faces 

in establishing and modifying such 

standards, and thus would not be 

consistent with Congressional intent. In 

short, we believe that Congress intended 

California’s mobile source rules to 

undergo only one EPA review process 

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

In summary, we disagree that our 

interpretation of CAA section 193 is 

fundamentally flawed. EPA has 

historically given SIP credit for waiver 

measures in our approval of attainment 

demonstrations and other planning 

requirements such as reasonable further 

progress and contingency measures 

submitted by California. We continue to 

believe that section 193 ratifies our 

long-standing practice of allowing credit 

for California’s waiver measures 

notwithstanding the fact they are not 

approved into the SIP, and correctly 

reflects Congressional intent to provide 

California with the broadest possible 

discretion in the development and 

promulgation of on-road and nonroad 

vehicle and engine standards.11


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

measures that are relied upon for SIP purposes must 

be approved into the SIP. 

12The ‘‘General Preamble for the Implementation 

of Title I of the Clean Air Act Amendments of 

1990,’’ published at 57 FR 13498 on April 16, 1992, 

describes EPA’s preliminary view on how we 

would interpret various SIP planning provisions in 

title I of the CAA as amended in 1990, including 

those planning provisions applicable to the 1-hour 

ozone standard. EPA continues to rely on certain 

guidance in the General Preamble to implement the 

8-hour ozone standard under title I. 

13EPA also believes it is not reasonable to require 

the adoption of measures that are absurd, 

unenforceable, or impracticable. See General 

Preamble at 13560; see also 55 FR 38236 

(September 18, 1990) (revoking prior EPA guidance 

to the extent it suggested or stated that areas with 

severe pollution problems must implement every 

conceivable control measure including those that 

would cause severe socioeconomic disruption. 

14The term ‘‘reasonably available control 

measures’’ is not specifically defined in the CAA. 

EPA first interpreted the term in guidance issued 

in 1979. See 44 FR 20,372 (April 4, 1979). That 

guidance established the principle that RACM is 

determined based on evaluation of a collection of 

control measures submitted as part of the 

reasonable further progress (RFP) plan and 

attainment demonstration for a particular NAAQS. 

See id. at 20, 375; see also id. at 20,373 (noting that 

‘‘states often have flexibility to obtain more or less 

emission reduction from any one measure, as long 

as a group of measures in the plan is adequate’’). 

15Section 172(b) of the 1977 CAA stated, in 

relevant part, as follows: ‘‘The plan provisions 

required by subsection (a) of this section [for 

nonattainment areas] shall— (2) provide for the 

implementation of all reasonably available control 

measures as expeditiously as practicable; [and] (3) 

require, in the interim, reasonable further progress 

* * * including such reduction in emissions from 

existing sources in the area as may be obtained 

through the adoption, at a minimum, of reasonably 

available control technology; * * *’’ 

C. Reasonably Available Control 

Measures 

Comment: AIR takes issue with EPA’s 

policy interpretation of the RACM 

requirement in CAA section 172(c)(1) 

that a SIP meets the RACM requirement 

if it includes all reasonably available 

measures that individually or in 

combination with other such measures 

can advance attainment of the relevant 

standard by at least one year. The 

commenter claims this interpretation is 

‘‘not based on the language of the statute 

and is irrational and perverse in the 

context of the SIP approval here.’’ 

Specifically, AIR argues that because the 

2007 8-hour Ozone SIP includes a 

‘‘black box,’’ under EPA’s reasoning no 

controls would need to be adopted as 

RACM because even the controls that 

the District and State have identified as 

RACM would not advance attainment 

by a year. 

In addition, AIR claims that the 2007 

8-hour Ozone SIP neither provides for 

attainment nor identifies the controls 

needed to attain, and that it is not 

rational to suggest that additional, 

feasible controls need not be adopted. 

AIR asserts that if a control is 

economically and technically feasible, 

then it is reasonably available and must 

be adopted. Finally, AIR argues that 

such controls could advance attainment 

and that ‘‘[a]s technology is developed, 

it very well could allow for earlier 

attainment, especially if the Plan 

minimizes the magnitude of emissions 

reductions put into the ‘black box.’ ’’’ 

Response: Section 172(c)(1) of the Act 

requires that each attainment plan 

‘‘provide for the implementation of all 

reasonably available control measures as 

expeditiously as practicable (including 

such reductions in emissions from 

existing sources in the area as may be 

obtained through the adoption, at a 

minimum, of reasonably available 

control technology), and shall provide 

for attainment of the national primary 

ambient air quality standards.’’ For over 

30 years, EPA has consistently 

interpreted this provision to require that 

States adopt only those ‘‘reasonably 

available’’ measures necessary for 

expeditious attainment and to meet RFP 

requirements. See 40 CFR 51.912(d) and 

51.1010; 44 FR 20372 (April 4, 1979) 

(Part D of title I of the CAA ‘‘does not 

require that all sources apply RACM if 

less than all RACM will suffice for [RFP] 

and attainment’’); General Preamble 12 at 

13560 (‘‘where measures that might in 

fact be available for implementation in 

the nonattainment area could not be 

implemented on a schedule that would 

advance the date for attainment in the 

area, EPA would not consider it 

reasonable to require implementation of 

such measures’’) 13; ‘‘Guidance on the 

Reasonably Available Control Measures 

(RACM) Requirement and Attainment 

Demonstration Submissions for Ozone 

Nonattainment Areas,’’ November 30, 

1999 (1999 Seitz Memo) (a State may 

justify rejection of a measure as not 

‘‘reasonably available’’ for that area 

based on technological or economic 

grounds); and 70 FR 71612 (November 

29, 2005) at 71660, 71661 (noting that 

‘‘to require areas to adopt and 

implement as RACM every control 

technology or measure that obtains a 

small amount of emissions reductions— 

even if such measure would not 

advance the attainment date or is not 

required to meet RFP requirements—is 

not justified’’ as it ‘‘would be extremely 

burdensome to planning agencies, 

would detract from the effort to develop 

more reasonable and effective controls 

to meet the NAAQS, and would not be 

necessary to meet the statutory goal of 

expediting attainment’’); see also 

preamble to PM2.5 Implementation Rule, 

72 FR 20586 at 20613, 20615 (April 25, 

2007) (stating that a RACM 

demonstration should ‘‘focus on the 

most effective measures with the 

greatest possibility for significant air 

quality improvements’’). EPA’s 

interpretation of section 172(c)(1) has 

been upheld by several courts. See, e.g., 

Sierra Club v. EPA, et al., 294 F. 3d 

155l(DC Cir. 2002); Sierra Club v. EPA, 

314 F.3d 735 (5th Cir. 2002). 

Second, we disagree with AIR’s 

assertion that our approach to RACM is 

‘‘irrational’’ or ‘‘perverse’’ in the context 

of a plan that includes a ‘‘black box,’’— 

i.e., an attainment demonstration that 

relies to some extent on the 

development of new control techniques 

or improvement of existing control 

technologies in accordance with CAA 

section 182(e)(5). Congress first enacted 

the RACM requirement as part of the 

CAA Amendments of 1977, which 

required SIPs for all nonattainment 

areas to provide for application of all 

‘‘reasonably available control 

measures,’’ 14 including RACT for all 

stationary sources. See 44 FR 53761 at 

53762 (September 17, 1979) (citing 

sections 172(b)(2) and (b)(3) of the 1977 

CAA).15 As part of the 1990 

Amendments to the CAA, Congress 

created specific nonattainment area 

planning requirements for ozone, 

including section 182(e)(5) of the Act, 

which allows for approval of a plan for 

an extreme ozone nonattainment area 

that relies in part on the development of 

new control techniques or 

improvements to existing technologies. 

Notably, however, Congress did not 

substantively alter the RACM 

requirement, although it moved the 

provision from section 172(b)(2) to 

section 172(c)(1) of the amended Act. 

Following the 1990 Amendments, EPA 

has consistently reaffirmed its preexisting interpretation of the RACM 

requirement, i.e., that only those 

measures that would advance 

attainment or that are needed to meet 

reasonable further progress 

requirements are ‘‘reasonably available’’ 

within the meaning of section 172(c)(1). 

See, e.g., 57 FR 13498 at 13560 (April 

16, 1992); 1999 Seitz Memo; 40 CFR 

51.912(d) and 70 FR 71612 at 71660, 

71661 (November 29, 2005); see also 

Sierra Club v. EPA, 314 F.3d 735 (5th 

Cir. 2002) (concluding that section 193 

of the 1990 CAA expresses Congress’ 

intent to preserve EPA’s pre-1990 

interpretation of the RACM 

requirement). 

Thus, the CAA explicitly 

contemplates that, for an extreme ozone 

nonattainment area, even where all 

RACM necessary for expeditious 

attainment and RFP are implemented, 

additional control measures based on 


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16The one measure that the SJVUAPCD has not 

adopted is a measure regulating aviation fuel 

storage (Control Measure S–PET–3), which the 

District determined was infeasible. See SJVUAPCD, 

‘‘Final Draft Staff Report, Revised Proposed 

Amendments to Rules 2020, 4621, 4622, and 4624,’’ 

December 20, 2007, p. 2. 

17The California Bureau of Automotive Repair, 

which implements California’s SmogCheck 

program, and the California Department of 

Pesticides also have adopted measures as part of the 

2007 State Strategy. See 2009 State Strategy Status 

Report, p. 4. 

18Neither the District nor CARB rejected any 

potential RACM based on a finding that it would 

not advance attainment (alone or in combination 

with other potential measures), and AIR has not 

identified any such measures. 

19 In the Supplement to the General Preamble, 

EPA stated that ‘‘[c]ost effectiveness provides a 

value for each emission reduction option that is 

comparable with other options and other facilities’’ 

but also stated that companies may provide other 

source-specific information about costs for 

consideration in an economic feasibility analysis: 

If a company contends that it cannot afford the 

technology that appears to be RACT for that source 

or group of sources, the claim should be supported 

with such information as impact on: 

1. Fixed and variable production cost ($/unit), 

2. Product supply and demand elasticity, 

new or improved control techniques 

(i.e., control measures yet to be defined) 

may be necessary to attain the ozone 

NAAQS. These new or improved 

control techniques are, by definition, 

not reasonably available for current 

implementation in the nonattainment 

area. AIR’s comment suggests that our 

approval of a plan containing only those 

RACM necessary for expeditious 

attainment and RFP under CAA section 

172(c)(1), together with new technology 

provisions under CAA section 182(e)(5) 

and other plan elements required under 

subpart 2 of part D, is somehow absurd. 

For the reasons discussed above, 

however, we believe Congress intended 

to allow for approval of both those 

reasonably available measures that 

contribute to expeditious attainment 

and new technology provisions as 

elements of a reasonable strategy for 

attaining the ozone NAAQS in the SJV 

area. We therefore disagree with AIR’s 

claim that the 2007 8-hour Ozone SIP 

fails to provide for attainment of the 

1997 8-hour ozone standard. 

As explained in our proposed rule, 

the 2007 Ozone Plan includes an 

enforceable commitment by the 

SJVUAPCD to adopt 19 control 

measures in the near term, all but one 

of which the District has since adopted. 

See 2007 Ozone Plan, Table 6–1 and 76 

FR 57846, 57851 (Table 2).16 Also as 

part of the near term emissions 

reductions, CARB committed to bring 11 

measures to its Board that would 

contribute emissions reductions to the 

SJV and now has completed rulemaking 

on many of them including 

requirements for in-use off-road 

equipment and in-use heavy duty diesel 

trucks that are the first of their kind 

nationwide. See 76 FR 57846, 57853 

(Table 5). We anticipate that these 

measures will accelerate introduction of 

the most stringent currently available 

new engine and retrofit technologies for 

these sources and result in almost full 

deployment of these technologies by 

2023.17 These new measures are in 

addition to the many rules and 

regulations adopted by the District and 

State prior to the development of the 

SJV 8-Hour Ozone SIP (baseline 

measures), which collectively achieve 

more than 80 percent of NOX and 47 

percent of VOC reductions needed to 

attain the 8-hour ozone standard. See 76 

FR 57846, 87859 (Table 10); see also 

Appendices A and B of TSD. Thus, 

contrary to the implication of AIR’s 

argument, this is not a situation where 

the area is not adopting and 

implementing a variety of control 

measures that have been determined 

reasonable for other areas. In fact, 

SJVUAPCD is on the cutting edge of the 

type and level of controls it has required 

for sources in the area.18

Finally, we do not dispute AIR’s 

statement that ‘‘[a]s technology is 

developed, it very well could allow for 

earlier attainment’’ and reduce the 

magnitude of emissions reductions put 

into the ‘‘black box’’—i.e., attributed to 

the plan provisions for new and 

improved technologies. At this time, 

however, we are not aware of currently 

available technologies or control 

measures that would achieve emissions 

reductions sufficient to advance 

attainment of the ozone NAAQS in the 

SJV, and AIR has not identified any 

such measures. 

Comment: AIR disputes EPA’s 

statement that the process and criteria 

the District used to select certain 

measures and reject others are 

consistent with EPA’s RACM guidance, 

asserting that the District’s approach to 

evaluating economic feasibility is not 

consistent with EPA guidance because 

the District rejects control options based 

on the ‘‘affordability’’ of controls for a 

particular industry. Citing, for example, 

the District’s ‘‘Revised Proposed Staff 

Report and Recommendations on 

Agricultural Burning,’’ at p. 1–4 (May 

20, 2010), AIR states that the District 

rejects controls ‘‘not based solely on the 

cost-effectiveness of controls but based 

on an overly simplistic ratio of costs to 

profits for the industry,’’ referred to as 

the ‘‘ ‘10 percent of profits’ test, to 

determine whether controls are 

economically feasible.’’ AIR also asserts 

that this 10-percent-of-profits test ‘‘has 

no connection to whether an industry is 

actually capable of bearing the costs of 

control, let alone whether the control 

should be considered cost-effective on a 

dollars per ton of emission reduction 

basis.’’ 

In support of these assertions, AIR 

quotes from EPA’s Supplement to the 

General Preamble (57 FR 18070, 18074 

(April 28, 1992)) and states that EPA 

‘‘presumes that it is reasonable for 

similar sources to bear similar costs of 

emission reductions’’ because 

‘‘[e]conomic feasibility rests very little 

on the ability of a particular source to 

‘afford’ to reduce emissions to the level 

of similar sources.’’ AIR further quotes 

from this same document to assert that 

‘‘capital costs, annualized costs, and 

cost effectiveness * * * should be 

determined for all technologically 

feasible emissions reduction options’’ 

and notes that cost effectiveness is the 

cost per amount of emissions reduction 

(in tons) per year. 

Response: We agree generally that an 

economic feasibility analysis based on 

the use of a ‘‘10 percent of profits’’ test 

is not a sufficient basis for rejecting a 

control option from consideration as 

RACM under CAA section 172(c)(1). As 

AIR correctly notes, under EPA’s longstanding guidance on evaluating 

economic feasibility for RACM/RACT 

under CAA section 172(c)(1), EPA 

presumes that the cost of using a control 

measure is reasonable if those same 

costs are borne by other comparable 

facilities. See, e.g., 57 FR 18070, 18074 

(April 28, 1992) and 59 FR 41998, 42009 

(August 16, 1994). EPA guidance 

provides that economic feasibility is 

largely determined by evidence that 

other sources in a source category have 

in fact applied the control technology in 

question and may also be based on cost 

effectiveness (i.e., calculation of the cost 

per amount of emissions reduction in $/ 

ton). Id. However, we note that our 

policy merely establishes a presumption 

and RACT is determined based on a 

source category or single source 

analysis; therefore, states can present 

additional or other evidence of what 

constitutes RACT for a source category 

or a single source. 

For that reason, we disagree, with 

AIR’s suggestion that cost effectiveness 

must be the sole criterion for evaluating 

economic feasibility. EPA’s Supplement 

to the General Preamble (57 FR 18070, 

April 28, 1992), which AIR quotes from, 

provides that a state ‘‘may give 

substantial weight to cost effectiveness 

in evaluating the economic feasibility of 

an emissions reduction technology’’ but 

does not indicate that cost effectiveness 

is the only acceptable criterion.19 See 


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3. Product prices (cost absorption vs cost passthrough), 

4. Expected costs incurred by competitors, 

5. Company profits, and 

6. Employment. 

57 FR 18070, 18074. 

20EPA also included guidance on economic 

feasibility determinations in the preamble to its 

2007 PM2.5 Implementation Rule. See 72 FR 20586, 

20619–20620 (April 25, 2007). In June 2007, a 

petition to the EPA Administrator was filed on 

behalf of several public health and environmental 

groups requesting, among other things, 

reconsideration of elements of this economic 

feasibility guidance. See Earthjustice, Petition for 

Reconsideration, ‘‘In the Matter of Final Clean Air 

Fine Particle Implementation Rule,’’ June 25, 2007. 

On April 25, 2011, EPA granted this petition. See 

Letter, Lisa P. Jackson, EPA, to Paul Cort, 

Earthjustice, April 25, 2011. EPA did not rely on 

the economic feasibility guidance in the PM2.5

implementation rule preamble in its review of the 

SJV 2007 8-hour Ozone Plan. 

21The SJVUAPCD’s ‘‘percent of profits’’ 

evaluation considers the economic impact of a rule 

or rule revision on the industries located within SJV 

as a whole rather than the economic impact for any 

particular source. See, for examples, the 

socioeconomic studies prepared for Rule 4570 

found in Appendix D of the District’s Final Staff 

Report, Revised Proposed Amendments to Rule 

4570 (Confined Animal Facilities), October 21, and 

for Rule 4311 found in Appendix D to SJVUAPCD, 

Final Draft Staff Report, Revised Proposed 

Amendments to Rule 4311 (‘‘Flares’’), June 18, 

2009. 

22See ‘‘Partial Approval and Partial Disapproval 

of Air Quality Implementation Plans; California; 

San Joaquin Valley; Reasonably Available Control 

Technology for Ozone;’’ Final rule, pre-publication 

notice signed December 15, 2011, Response to 

Comment #4 (‘‘SJV 2009 RACT SIP final action’’). 

The 2009 RACT SIP is SJVUAPCD’s ‘‘Reasonably 

Available Control Technology (RACT) 

Demonstration for Ozone State Implementation 

Plans (SIP), April 16, 2009, which was adopted by 

the SJVUAPCD on April 16, 2009 and submitted to 

EPA on June 18, 2009.) 

23EPA approved Rule 4311 at 76 FR 68106 

(November 3, 2011); proposed a limited approval/ 

limited disapproval of Rule 4682 at 76 FR 41745 

(July 15, 2011); and approved Rule 4570 on 

December 13, 2011. See Revisions to the California 

State Implementation Plan, San Joaquin Valley 

Unified Air Pollution Control District; Final rule. 

Pre-publication version signed December 13, 2011. 

57 FR 18070, 18074 (emphasis added). 

To the contrary, in numerous guidance 

documents EPA has identified cost 

effectiveness as one of several factors 

that states may consider in evaluating 

the economic feasibility of an available 

control option. See, e.g., 57 FR at 18074 

(‘‘[t]he capital costs, annualized costs, 

and cost effectiveness of an emissions 

reduction technology should be 

considered in determining its economic 

feasibility’’) (emphasis added); 57 FR 

55620 at 55625 (November 25, 1992) 

(‘‘NOX Supplement to General 

Preamble’’) (‘‘comparability’’ of a NOX

RACT control level ‘‘shall be 

determined on the basis of several 

factors including, for example, cost, 

cost-effectiveness, and emission 

reductions’’); 59 FR 41998 at 42013 

(August 16, 1994) (‘‘PM–10 Addendum 

to General Preamble’’) (‘‘capital costs, 

annualized costs, and cost effectiveness 

of an emission reduction technology 

should be considered in determining its 

economic feasibility’’); and 

Memorandum from D. Kent Berry, EPA, 

Air Quality Management Division, to 

Air Division Directors, EPA Regions I— 

X, ‘‘Cost-Effective Nitrogen Oxides 

(NOX) Reasonably Available Control 

Technology (RACT)’’ (‘‘[w]hile cost 

effectiveness * * * is an important 

consideration, it must be noted that 

other factors should be integrated into a 

RACT analysis [such as] emissions 

reductions and environmental impact 

* * *’’).20

We also disagree with AIR’s 

suggestion that the ‘‘affordability’’ of 

controls for a particular industry cannot 

play any role as part of an economic 

feasibility analysis. Although EPA has 

stated that ‘‘[e]conomic feasibility rests 

very little on the ability of a particular 

source to ‘afford’ to reduce emissions to 

the level of similar sources’’ (57 FR at 

18074) (emphasis added), this does not 

mean that affordability on an industrywide basis may not be considered as 

part of an economic feasibility analysis, 

among other factors.21

As we explained in our SJV 2009 

RACT SIP final action,22 the District 

generally considers multiple factors in 

evaluating the economic feasibility of 

available control options during its rule 

development processes, including 

capital costs, annualized costs, costeffectiveness, and compliance costs as a 

percentage of profits. Given EPA’s longstanding position that states may justify 

rejection of a control measure as not 

‘‘reasonably available’’ based on the 

technical and economic circumstances 

of the particular sources being 

regulated, it is appropriate for the 

District to consider multiple factors in 

evaluating the costs of potential control 

options to determine if they are 

economically feasible for sources 

located within the SJV. With respect to 

SJVUAPCD Rule 4103 (Open Burning), 

which AIR references as an example of 

the District’s use of a ‘‘10 percent of 

profits’’ test to evaluate economic 

feasibility, EPA previously reviewed the 

District’s analyses and explained our 

bases for concluding that the rule 

requires all control measures for open 

burning that are technically and 

economically feasible for 

implementation in the SJV area. See 

‘‘Revisions to the California State 

Implementation Plan, San Joaquin 

Valley Unified Air Pollution Control 

District;’’ final rule, pre-publication 

notice signed September 30, 2011 (Rule 

4103). 

Comment: AIR asserts that EPA 

cannot defend the cost-effectiveness 

criteria used by the District because the 

criteria have not been justified based on 

the attainment needs of the area. AIR 

further asserts that ‘‘EPA’s cursory and 

conclusory analysis of the District’s 

RACM demonstration is not sufficient to 

comply with the requirements and 

objectives of the [CAA],’’ and that it not 

possible to make a RACM 

demonstration for the SJV without 

explaining what is needed for 

attainment and using the attainment 

need to justify the thresholds used to 

accept or eliminate available control 

options. AIR cites EPA’s 1992 General 

Preamble at 13541 in support of these 

assertions. 

Response: It is not clear what AIR is 

referring to by ‘‘cost-effectiveness 

criteria used by the District.’’ We are not 

aware of a specific dollar per ton 

threshold that the District routinely uses 

to reject control options during its rule 

development processes and AIR does 

not provide one. 

To the extent AIR intended to object 

to the District’s use of a ‘‘10 percent of 

profits’’ test, rather than to any 

particular ‘‘cost-effectiveness’’ criteria, 

we have responded to that concern 

above. We note also that since the 

District’s submittal of the 8-hour ozone 

plan in 2007, EPA has SIP-approved a 

number of rules that the District 

adopted despite cost estimates 

exceeding the ‘‘10 percent of profits’’ 

threshold for one or more industries 

subject to the rule, including Rule 

4311—Flares (June 18, 2009); Rule 

4682—Polystyrene Foam, Polyethylene 

and Polypropylene Manufacturing 

(September 20, 2007); and Rule 4570— 

Confined Animal Facilities (October 21, 

2010).23

We agree with AIR’s position that it 

is not possible to make a RACM 

demonstration for the 1997 8-hour 

ozone standard in the SJV without 

explaining what is needed to attain that 

standard in the area. This explanation is 

provided in both the 2007 Ozone Plan 

and EPA’s proposed approval of the 

Plan. See 2007 Ozone Plan, Chapter 3 

(‘‘What is Needed To Demonstrate 

Attainment?’’) and 76 FR 57846, 57857 

(September 16, 2011). See also 2007 

State Strategy, p. 33 and EPA’s TSD, 

section II.F. To provide the emissions 

reductions needed to attain, the State 

and District developed a four part 

control strategy which is described in 

the Plan. See 2007 Ozone Plan at 

Chapter 4 (‘‘Strategy’’), Chapter 6 

(‘‘District Regulatory Control Measures 

for Stationary Sources’’), Chapter 7 

(‘‘Action Plan for Reducing Emissions 


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24The detailed evaluation of each potential 

controls is found in Appendix I of the 2007 Ozone 

Plan. 

25SJVUAPCD, Final Draft Staff Report, Proposed 

Amendments to Rule 4306, Proposed Amendments 

to Rule 4307, and Proposed New Rule 4320, 

October 16, 2008 (Rule 4320 SJV Staff Report). 

26Most if not all District staff reports on proposed 

rule adoptions or amendments include a section 

discussing the reasons for rule develop and 

implementation. This section generally list the CAA 

provisions applicable to the rule (e.g., section 

182(b)(2) RACT) and identifies whether the 

rulemaking project is part of the area’s ozone and/ 

or PM2.5 control strategy and the reductions from 

the rule called for in the plan. 

27A major stationary source in an ozone 

nonattainment area classified as extreme is any 

stationary facility or source of air pollutant which 

directly emits or has the potential to emit 10 tons 

of VOC or 10 tons of NOX per year. See CAA 

sections 302(j) and 182(e). 

28We have identified only seven District 

prohibitory rules (of the approximately 60 District 

rules that regulate NOX and/or VOC) which apply 

only to units at major sources: Rule 4354—Solid 

Fuel Boilers (NOX); Rule 4356—Glass Melting 

Furnaces (NOX and VOC); Rule 4311—Flares (SOX, 

NOX, and VOC); Rule 4610—Glass Coating 

Operations (VOC); Rule 4693—Bakeries (VOC); Rule 

4694—Wine Fermentation and Storage Tanks 

(VOC); and Rule 4695—Brandy and Wine Aging 

(VOC). 

29We assume here that AIR intended to refer to 

the SJV 2009 RACT SIP. 

with Incentive Funds’’), Chapter 8 

(‘‘Innovative Strategies and Programs’’), 

and Chapter 9 (‘‘Local, State, and 

Federal Controls’’). See also 2007 State 

Strategy, Chapter 3 (‘‘ARB’s 2007 SIP 

State Strategy’’). 

Chapter 6 of the Plan describes the 

process the District undertook to 

identify potential stationary source 

control measures for adoption; that is, to 

identify potential RACM within its 

jurisdiction.24 This measure 

identification process resulted in the 

development of a stationary source 

regulatory implementation schedule 

which lists not only the specific control 

measures that the District committed to 

adopt but also the schedule for their 

adoption and implementation and their 

anticipated emissions reductions by 

year. See 2007 Ozone Plan, Table 6–1, 

p. 6–5. It is this regulatory 

implementation schedule (and a similar 

one developed for the subsequent SJV 

2008 PM2.5 Plan) that has in large part 

determined the District’s rulemaking 

calendar over the last few years, and the 

anticipated emissions reductions listed 

in this implementation schedule have 

helped to define the needed stringency 

of the individual rules. Supporting 

information for the District’s adopted 

rules shows that during the ruledevelopment process, the District 

considers its control strategies and the 

emissions reductions needed for 

attainment that it has identified in its 

plans. For example, section I.A. 

(‘‘Reasons for Rule Development and 

Implementation’’) in the Rule 4320 SJV 

Staff Report 25 discusses both the 

deadline for adoption and the 

anticipated reductions from these new 

and revised rules in the 2007 Ozone 

Plan and states: ‘‘[t]his rulemaking 

project is intended to satisfy the 

attainment goals of the District’s 2007 

Ozone plan,’’ ‘‘[t]he plan calls for a total 

of 1.1 tons per day of NOX reductions 

[from large and medium boilers] * * *, 

’’ and ‘‘[t]he proposed amendments 

* * * will seek to obtain as much 

reduction of [NOX] from boilers, steam 

generators, and process heaters as 

expeditiously [as] practicable and 

technologically and economically 

feasible.’’ 26

Comment: AIR states that RACM is 

not limited to major sources, quoting 

EPA’s recommendation in the General 

Preamble at 13541 that ‘‘a State’s control 

analysis for existing stationary sources 

go beyond major stationary sources and 

that the state require control technology 

for other sources that are reasonable in 

light of the areas attainment needs.’’ AIR 

claims that an analysis of the effect of 

applying additional controls to nonmajor sources has not been conducted 

and therefore, EPA has no basis for its 

determination that additional 

reasonable controls are not available or 

that such control could not advance 

attainment. AIR further claims that the 

District’s RACT demonstration only 

explores controls on sources down to 10 

tons per year. 

Response: We agree that a RACM 

analysis should not be limited to major 

sources.27 See General Preamble at 

13541. We disagree, however, with 

AIR’s assertion that the District failed to 

evaluate controls for non-major sources. 

The District’s control measure 

evaluation (documented in Appendices 

H and I of the Plan) was not limited to 

major stationary sources but covered a 

wide variety of small stationary sources 

(e.g., gasoline stations, p. I–75), area 

sources (e.g., architectural coatings, p. I– 

100; asphalt roofing, p. I–56; and 

residential water heaters, p. I–28), 

indirect sources (e.g., employer trip 

reduction, p. I–141) and mobile sources 

(e.g., school buses, p. I–156). 

Most of the District’s rules currently 

apply to sources much smaller than 

major sources. See, for example, Rule 

4607—Graphic Arts which applies to 

any graphic arts source that emits more 

that 1.2 tpy of VOC, Rule 4308—Boilers 

0.75—2 MMBtu/hr which applies to all 

boilers of this size without regard to the 

source size; Rule 4622—Gasoline 

Transfer into Motor Vehicles which 

applies to most retail gasoline station; 

and Rule 4902—Residential Water 

Heaters.28 We also note that of the 18 

measures that the District has adopted 

following its submittal of the 2007 

Ozone Plan, all but two (glass melting 

furnaces and brandy and wine aging) 

regulate non-major sources. See 2007 

Ozone Plan, Table 6–1. See also, Table 

1 below. 

As to AIR’s claim that ‘‘[t]he District’s 

RACT demonstration only explores 

controls on sources down to 10 tons per 

year,’’ this statement is not germane to 

our evaluation of the Plan’s RACM 

demonstration under CAA 172(c)(1). 

The District submitted the 2009 RACT 

SIP 29 to meet the technology-based 

RACT requirements for specific types of 

sources in CAA section 182(b)(2) and (f). 

These requirements are separate from 

the RACM obligation in CAA section 

172(c)(1), and EPA therefore evaluated 

the 2009 RACT SIP for compliance only 

with these specific control technology 

requirements. See SJV 2009 RACT SIP 

final action. 

Evaluation of Potential To Advance 

Attainment 

As discussed above, under EPA’s 

longstanding policy, a SIP meets the 

RACM requirement in CAA section 

172(c)(1) if it includes all reasonably 

available measures that individually or 

in combination with other such 

measures can advance attainment of the 

relevant standard by one year or more. 

Thus to determine whether the SJV 

Ozone SIP meets this statutory 

requirement, we evaluated whether 

implementation of potential RACM 

(including any missing section 182 

RACT controls and those identified by 

AIR in its comments (see TSD, section 

III.C.) would expedite attainment of the 

1997 8-hour ozone standard in the SJV. 

Attainment of the 1997 8-hour ozone 

standard in the SJV depends on 

significant reductions in NOX

emissions. Air quality modeling shows 

that no level of VOC reductions will 

bring about attainment of the 8-hour 

ozone standard in the SJV absent these 

NOX reductions and no reasonable level 

of VOC reductions will expedite 

attainment absent significant NOX

reductions. See 2007 Ozone Plan, 

Chapter 3; see also, section II.C.3. of the 

TSD. 

Because VOC reductions will not 

advance attainment of the 1997 8-hour 

ozone standard unless substantial NOX

reductions are also achieved, we have 

focused our evaluation on the potential 

RACM that reduce NOX emissions. 

Specifically, we evaluated whether 

additional emissions reductions from 

the control measures suggested by the 


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30As an extreme ozone nonattainment area, SJV’s 

statutory attainment date is as expeditiously as 

practicable but no later than June 15, 2024. 40 CFR 

51.903(a). The SIP as submitted demonstrates that 

the most expeditious attainment date is June 15, 

2024. See 2007 Ozone Plan, p. 11–1. In order to 

attain by that date, the area must have all 

reductions needed for attainment in place by 2023. 

Thus, to advance attainment by one year, all 

reductions needed for attainment must be in place 

by 2022. 

31This finding under CAA section 172(c)(1) does 

not affect the District’s separate obligation under 

CAA sections 182(b)(2) and (f) and 40 CFR 

51.905(a)(1)(ii) to implement RACT for all major 

sources and all CTG source categories. 

32 It appears that the commenters overestimated 

the percentage of emissions reductions attributed to 

the new technology provision in the SIP by 

calculating the amount of needed reductions 

without taking into account the reductions 

attributed to baseline measures. The 59 percent 

figure represents the percent contribution of the 

new technology provision to the new emissions 

reductions (that is, the non-baseline emissions 

reductions) in the SIP. See TSD, Table F–2. 

commenter (e..g, requiring RACT-level 

controls on major source solid fuel-fired 

boilers and prohibiting the use of prebaseline emissions reductions credits as 

discussed in section III.C. below) and 

certain control measures not yet eligible 

for SIP credit, would provide sufficient 

additional reductions in 2023 to attain 

by June 15, 2024 without reliance on the 

CAA section 182(e)(5) new technology 

provision.30 We used 2023 rather than 

2022 because more information is 

available on projected controlled 

emissions levels in that year. Fleet 

turnover from existing mobile source 

measures will provide an additional 10 

tpd in NOX emissions reductions in the 

SJV between 2022 and 2023. Therefore, 

if we conclude that additional RACM 

measures would not provide sufficient 

reductions in 2023 to attain, we can also 

conclude that they would not provide 

sufficient emissions reductions in 2022. 

After analyzing the maximum 

potential emissions reductions from 

additional controls on source categories 

for which we have not yet approved 

rules meeting RACT and measures 

recommended by AIR (including 

eliminating the use of pre-baseline 

emissions reduction credits in the area’s 

new source review program) and 

comparing them against the level of 

reductions needed for attainment in the 

SJV by June 15, 2024, we find that even 

with these additional controls, the 2023 

NOX emissions level in the SJV would 

still be well above the level needed for 

attainment. See Table C–5 in the TSD. 

We conclude, therefore, that the SJV 

2007 8-hour ozone SIP provides for 

RACM as required by CAA section 

172(c)(1).31

D. CAA Section 182(e)(5) New 

Technology Provision 

Comment: AIR states that California’s 

reliance on ‘‘black box’’ measures in the 

SJV 2007 8-hour Ozone SIP fails to meet 

the requirements and intent of the Clean 

Air Act by allowing the State and 

District to defer their responsibility to 

attain the 8-hour ozone standards. AIR 

argues that there are three problems 

with how the State and District are 

using the CAA 182(e)(5) new technology 

provision. 

First, AIR argues that it is arbitrary for 

EPA to approve a new technology 

provision of 80 tons per day of NOX

reductions or 59 percent of the 

reductions needed for attainment given 

its lack of definition. 

Second, AIR asserts that section 

182(e)(5) is intended to address new 

technologies that will develop over time 

but that in California, ‘‘new 

technologies alone will not sufficiently 

reduce pollution to attain federal air 

quality standards.’’ Citing a description 

in the Proposal TSD (at page 81) of a 

potential measure described by CARB as 

‘‘prioritizing federal transportation 

funding to support air quality goals,’’ 

AIR argues that ‘‘[t]his example clearly 

fails to meet all the criteria required for 

Black Box use,’’ and that while ‘‘tying 

air quality to transportation planning’’ is 

important for attainment, the black box 

cannot be used as a basis for not 

requiring implementation of ‘‘existing’’ 

strategies such as increased public 

transit that do not require the 

development of new technologies. 

Third, AIR states that the section 

182(e)(5) commitments are vague and 

insufficient and that EPA cannot 

approve the attainment demonstration 

‘‘unless the Section 182(e)(5) measures 

comply with the CAA.’’ Citing both 

CAA section 182(e)(5) and EPA’s 

January 8, 1997 final rule approving the 

1-hour ozone plan for several California 

nonattainment areas (62 FR 1150, 1179), 

AIR asserts that the new technology 

measures must: (1) Contain sufficient 

definition; (2) contain schedules for 

development of the new technologies; 

(3) contain commitments for funding; 

(4) depend on development of new 

technologies; and (5) include an 

enforceable commitment to develop and 

adopt necessary contingency measures. 

AIR asserts that the SJV 2007 8-hour 

Ozone SIP ‘‘only attempts to comply 

with requirement number (5),’’ that the 

generalized discussion in the SIP 

provides little assurance of CARB’s 

ability to develop these measures, and 

that approval of these measures is 

therefore arbitrary and capricious. 

Response: First, we disagree with the 

commenters’ contention that EPA’s 

approval of the SIP is arbitrary because 

of the amount of emissions reductions 

attributed to the new technology 

provision or because they are 

undefined. As an initial matter, we note 

that the commenters’ assertion about the 

59 percent of the emissions reductions 

needed for attainment of the 1997 

8-hour ozone standard in the SJV that 

are attributed to the new technologies 

provision is not correct.32 The correct 

percentage of the needed NOX emissions 

reductions attributed to the new 

technology provision in the SJV 2007 

8-hour Ozone SIP is 12 percent as 

explained further below. 

The CAA does not provide a 

quantitative limit on the extent to which 

the attainment demonstration for an 

extreme ozone nonattainment area may 

rely on the new technology provisions 

under CAA section 182(e)(5). As we 

explained in our proposed rule, CAA 

section 182(e)(5) authorizes EPA to 

approve provisions in an extreme area 

plan which ‘‘anticipate development of 

new control techniques or improvement 

of existing control technologies,’’ and to 

approve an attainment demonstration 

based on such provisions if the State 

demonstrates that: (1) such provisions 

are not necessary to achieve incremental 

reductions required during the first 

10 years after the effective date of 

designation for the 1997 8-hour ozone 

standards, and (2) the State has 

submitted enforceable commitments to 

submit adopted contingency measures 

meeting certain criteria no later than 

three years before proposed 

implementation of the new technology 

measures. See 76 FR 57846, 57854. EPA 

guidance on section 182(e)(5) states, 

among other things, that the SIP should 

show that the long-term measure(s) 

cannot be fully developed and adopted 

by the submittal date for the attainment 

demonstration and that the measures 

approved under section 182(e)(5) may 

include those that anticipate future 

technological developments as well as 

those that require complex analyses, 

decision making and coordination 

among a number of government 

agencies. See General Preamble at 

13524. 

The majority of the emissions 

reductions in the SJV 2007 8-hour 

Ozone SIP are attributed to already 

adopted and near-term measures. See 76 

FR 57846, 57850–61. Our summary of 

SJV’s 8-hour ozone attainment 

demonstration in the proposed rule 

shows that the area needs to reduce 

emissions from 2002 levels by a total of 

424 tpd of NOX and 116 tpd of VOC to 

attain the 1997 8-hour ozone standards 

by June 15, 2024. See 76 FR 57846, 

57859 (Table 10) (values rounded to the 

ones place). Of these needed reductions, 


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33We note that although this final action 

included EPA’s approval of new technology 

provisions under CAA section 182(e)(5) as part of 

California’s SIP for the 1-hour ozone NAAQS in the 

South Coast area, this prior rulemaking action is not 

germane to today’s action on the SJV 2007 Ozone 

approximately 88 percent of the NOX

reductions and all of the VOC 

reductions are attributed to already 

adopted measures or commitments to 

adopt and implement existing 

technologies by 2014. See 76 FR 57846, 

57859 (Table 10) and 57851, 57853 

(Tables 2 and 5) (identifying CARB and 

District measures recently adopted or 

scheduled for near-term consideration). 

These measures include all reasonably 

available control measures and 

generally represent the most stringent 

air pollution control requirements for 

stationary, area, and mobile sources 

nationwide. This leaves just 12 percent 

of the needed NOX reductions and none 

of the needed VOC reductions to be met 

through new technologies under CAA 

section 182(e)(5). See 76 FR 57846, 

57859 (Table 10). 

Given the demonstrated need for 

emissions reductions from new and 

improved control techniques needed to 

attain the 1997 8-hour ozone standard in 

the SJV, we believe it is reasonable for 

the State to attribute this amount of 

emissions reductions to the new 

technology provision. However, as we 

stated in our proposed rule, we expect 

the amount and relative proportion of 

reductions from measures scheduled for 

long-term adoption under section 

182(e)(5) should decrease in any future 

SIP update, and EPA will not approve 

any future SIP revisions with an 

increase in the 182(e)(5) reductions for 

2023 without a convincing showing that 

the technologies relied upon in the nearterm rules are infeasible or ineffective in 

achieving emissions reductions in the 

near-term. See 76 FR 57846, 57856. 

Moreover, to the extent new modeling 

performed in any subsequent SIP 

revision demonstrates that there is an 

increase in the year 2023 carrying 

capacity for VOC and NOX, this change 

may not be used to decrease the amount 

of emissions reductions scheduled to be 

achieved by any existing technology 

measures from the SJV 2007 8-hour 

Ozone SIP unless CARB or the District 

make the convincing showing described 

above. 

Second, we disagree with AIR that 

CAA section 182(e)(5) allows only for 

plan provisions that rely on ‘‘new 

technologies’’ and that the District must 

adopt additional ‘‘existing strategies’’ 

that do not rely on new technologies. 

CAA section 182(e)(5) allows for 

approval of extreme area plan 

provisions that ‘‘anticipate development 

of new control techniques or 

improvement of existing control 

technologies,’’ which EPA interprets to 

include ‘‘[those that may anticipate 

future technological developments as 

well as those that may require complex 

analyses and decision making and 

coordination among a number of 

government agencies.’’ See 57 FR 13498, 

13524. Thus, in addition to plan 

provisions that rely on ‘‘new 

technologies,’’ section 182(e)(5) 

contemplates provisions that are as of 

yet undefined because they require, for 

example, time for State and local 

agencies to evaluate complex technical 

information and to seek public 

participation in their regulatory 

processes. 

AIR correctly notes that EPA’s TSD 

identified ‘‘prioritiz[ation of] federal 

transportation funding to support air 

quality goals’’ among a number of 

potential long-term strategies that CARB 

had identified for further consideration 

(see Proposal TSD, p. 81, citing 2007 

State Strategy, pp. 55–56), but it does 

not describe any specific control 

measure that such budgetary decisions 

could support and that is reasonably 

available for current implementation in 

the SJV. Likewise, although AIR asserts 

generally that ‘‘increased transit’’ and 

other ‘‘existing strategies’’ should be 

required as control measures because 

these do not require the development of 

new technologies, they have not 

identified any particular control 

measure that the State should be 

obligated to include in its plan for 

attaining the 1997 8-hour ozone 

standards in the SJV. CARB and the 

District have adopted all of the control 

measures for NOX and VOC that are 

‘‘reasonably available’’ within the 

meaning of CAA section 172(c)(1) for 

current implementation in the SJV and 

have submitted enforceable 

commitments to adopt additional 

measures achieving specific amounts of 

emissions reductions by specific years. 

See 76 FR 57846, 57850–57854. These 

measures are not sufficient, however, to 

achieve the significant amounts of NOX

and VOC reductions necessary to attain 

the 1997 8-hour ozone NAAQS in the 

SJV by June 15, 2024. Absent new 

information about additional control 

measures that are cost-effective and 

technically feasible for current 

implementation in the area, we believe 

it is reasonable to allow the State and 

District time to develop additional 

control measures based on new or 

improved control technologies under 

CAA section 182(e)(5). 

Third, we disagree with AIR that the 

SIP’s section 182(e)(5) provisions are 

vague and insufficient. As discussed in 

our proposed rule, CARB has submitted 

enforceable commitments to achieve 

specific amounts of NOX and VOC 

reductions by 2023 through the 

development of new or improved 

control technologies under CAA section 

182(e)(5). The total tonnage 

commitment in the SJV is for 81 tpd 

NOX. See 76 FR 57846, 57854–57855 

and 2009 State Strategy Status Report, 

p. 21. With respect to the requirement 

for contingency measures in CAA 

section 182(e)(5)(B), we explained in 

our proposed rule that CARB’s 2011 

Ozone SIP Revisions contain the State’s 

enforceable commitment ‘‘to develop, 

adopt, and submit contingency 

measures by 2020 if advanced 

technology measures do not achieve 

planned reductions’’ (76 FR 57846, 

57855, referencing CARB Resolution 

11–22, July 21, 2011), and in a letter 

dated November 18, 2011 to EPA Region 

9, CARB confirmed that EPA’s 

understanding of this enforceable 

commitment is correct. See letter James 

N. Goldstene, Executive Officer, 

California Air Resources Board, to Jared 

Blumenfeld, Regional Administrator, 

U.S. EPA Region 9, November 18, 2011. 

In addition, as explained in our 

proposed rule (76 FR 57846, 57855), the 

SJV 2007 8-hour Ozone SIP identifies 

numerous potential measures currently 

under consideration as part of the longterm strategy, and CARB has committed 

to submit a SIP revision by 2020 that 

will identify the additional strategies 

and implementing agencies needed to 

achieve the needed reductions by the 

beginning of the 2023 ozone season. See 

2011 Ozone SIP Revisions, p. A–8; see 

also the August 29, 2011 Goldstene 

letter which describes California’s 

climate change programs, clean car 

technologies, programs to accelerate 

hybrids and plug-in technologies, 

greenhouse gas emissions reduction 

targets for passenger vehicles, and the 

District’s efforts to shift goods 

movement to lower-emission 

alternatives and to reduce emissions 

caused by electricity and natural gas 

consumption in residential, industrial, 

and institutional settings). We note also 

that CARB has stated its intent to 

convene annual strategy meetings with 

the South Coast and SJV Districts and 

EPA to discuss progress in the 

development of its new technology 

measures, and to secure resources for 

continuing research and development of 

new technologies. See August 29, 2011 

Goldstene letter; see also 2009 State 

Strategy Status Report, pp. 25–27. 

Finally, AIR references CAA section 

182(e)(5) and EPA’s final rule approving 

an ozone SIP previously submitted by 

California (62 FR 1150, 1179) 33 in 


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SIP. We assume that the commenters intended to 

refer, instead, to the source of the five criteria that 

EPA has recommended for consideration in 

evaluating new technology provisions under CAA 

182(e)(5), which is the General Preamble (57 FR 

13498, 13524 (April 16, 1992)). 

34EPA’s General Preamble states that in order to 

rely on ‘‘new technology provisions’’ under CAA 

section 182(e)(5), a SIP must satisfy the following 

criteria: (1) Identify all measures, including the 

long-term measure(s) for which additional time 

would be needed for development and adoption; (2) 

show that the long-term measure(s) cannot be fully 

developed and adopted by the submittal date for the 

attainment demonstration and contain a schedule 

outlining the steps leading to final development 

and adoption of the measure(s); (3) contain 

commitments from those agencies that would be 

involved in developing and implementing the 

schedule for the measure; (4) contain a commitment 

to develop and submit contingency measures (in 

addition to those otherwise required for the area) 

that could be implemented if the measure is not 

developed or if it fails to achieve the anticipated 

reductions; and (5) not rely on the new technology 

measures to meet any emissions reductions 

requirements within the first 10 years after 

enactment. See 57 FR 13498, 13524 (April 16, 

1992). We note that this language is non-binding 

guidance although it is phrased in mandatory terms. 

35The 2004 Ozone SIP is the ‘‘Extreme Ozone 

Attainment Plan,’’ adopted by the SJVUAPCD on 

October 8, 2004 and submitted to EPA by CARB on 

November 15, 2004 and the relevant portions of the 

CARB’s ‘‘2003 State and Federal Strategy for the 

California State Implementation Plan’’ adopted on 

October 23, 2003 and submitted to EPA on January 

9, 2004. 

As initially submitted, the attainment 

demonstration in the 2004 Ozone SIP included 5 

tpd of NOX and 5 tpd of VOC emissions reductions 

from new technology measures (referred to as 

‘‘long-term measures’’ in 2004 Ozone SIP). See 

CARB, ‘‘Staff Report, Proposed 2004 State 

Implementation Plan for Ozone in the San Joaquin 

Valley,’’ September 28, 2004, Table E–2, p. 5. These 

reductions were part of the District’s emissions 

reductions commitments. Id. However, prior to 

EPA’s action on the 2004 Ozone SIP, the District 

adopted and submitted rules that provided 

sufficient emissions reductions to meet all its 

commitments including its commitments for 

reductions from new technology measures. See 74 

FR 33933, 33937 (July 14, 2009). As a result, EPA 

did not approve any element of the 2004 SIP under 

the CAA section 182(e)(5) new technology 

provision. See 75 FR 10420, 10436–37 (March 8, 

2010). The 2004 Ozone SIP also included 

commitments by CARB to achieve 15 tpd of VOC 

and 20 tpd of NOX emissions reductions in the SJV 

by 2010; likewise, these commitments were 

approved as meeting the requirements of CAA 

section 110(a)(2)(A) and 172(c)(6) and not CAA 

section 182(e)(5). Id. 

support of its assertion that the longterm strategy must satisfy five 

‘‘requirements,’’ of which, commenters 

contend, the SJV 2007 8-hour Ozone SIP 

addresses only one. We disagree with 

this characterization of both the 

requirements of CAA section 182(e)(5) 

and the provisions in the SIP. 

As explained above and in our 

proposed rule, EPA interprets the Act to 

allow EPA to approve the State’s 

conceptual new technology provisions 

and credit them toward the attainment 

demonstration if the state makes the 

required commitment to submit 

contingency measures, which then must 

be submitted to EPA no later than 3 

years before proposed implementation 

and EPA concludes that the measures 

are not needed to achieve the first 10 

years of required rate of progress 

reductions. See 76 FR 57846, 57854. 

The five ‘‘requirements’’ for approval of 

new technology provisions that 

commenters reference are not statutory 

or regulatory requirements but 

recommended criteria. See General 

Preamble at 13524.34

As also explained in the proposed 

rule, CARB and the District have 

demonstrated a clear need for additional 

time to fully develop and adopt the 

long-term measures under consideration 

and have met the statutory requirements 

for approval of such conceptual 

measures under CAA section 182(e)(5). 

See 76 57846 57854–57855. The General 

Preamble at 13524 recommends that a 

SIP relying on new technology 

provisions under CAA section 182(e)(5) 

identify all of the specific long-term 

measures the State intends to adopt, 

contain a schedule outlining the specific 

steps leading to final development and 

adoption, and contain commitments 

from the agencies that would be 

involved in developing and 

implementing these measures, in 

addition to satisfying the statutory 

criteria. However, as discussed in our 

proposed rule and above, both the 2007 

State Strategy and the 2007 Ozone Plan 

provide lists of the types of technologies 

and measures that they are pursuing to 

achieve the emissions reductions 

needed for attainment of the 8-hour 

ozone standard in the SJV. See 76 FR 

57846, 57854–57855 and TSD, section 

II.E.2.; see also, 2007 Ozone Plan, 

Chapters 7, 8, and 11; 2007 State 

Strategy, pp. 54–57; 2009 State Strategy 

Update, p. 25; and 2011 Ozone Plan 

Update, Appendix A. The State has also 

committed to share the results of its 

efforts with the public through Board 

meetings, workshops and other means. 

See 2009 State Strategy Update, p. 25; 

see also, letter, James Goldstene, 

Executive Officer, CARB, to Jared 

Blumenfeld, Regional Administrator, 

EPA Region 9, August 29, 2011. Finally, 

the State has committed to work to 

secure resources for continuing research 

and development and to develop 

schedules for moving from research to 

implementation. Id. We find that the 

State and District have adequately 

addressed the policy criteria in the 

General Preamble given the significant 

emissions reductions needed to attain 

the 1997 8-hour ozone NAAQS in the 

SJV and the type of sources (i.e., mobile 

sources) for which technology must be 

developed, tested, and deployed in 

order to achieve these reductions. EPA 

commits to do its share to support the 

needed research and development 

activities of CARB and the District. 

Comment: AIR asserts that the SJV 

already violates the 1-hour ozone 

standard and failed to attain that 

standard by November 15, 2010 (citing 

76 FF 56694 (September 14, 2011)) is 

‘‘particularly’’ relevant to the approval 

of the new technology provisions in the 

8-hour ozone plan because, according to 

AIR, the District and CARB ‘‘relied 

heavily’’ on new technology measures 

in its previous plans for the 1-hour 

ozone standard and these commitments 

have not been met. AIR further asserts 

that EPA cannot reasonably rely on the 

continued use of the new technologies 

provision because, according to AIR, the 

District’s and CARB’s track record for 

using this approach has not resulted in 

the pollution reductions committed to 

in the SJV 2004 1-hour attainment plan. 

Response: EPA is acting today on the 

SJV 2007 8-hour Ozone SIP, which the 

State submitted to meet the 

requirements of part D, title I of the 

CAA for the 1997 8-hour ozone 

standard. Neither the CAA’s planning 

requirements related to attainment of 

the 1-hour ozone standard nor the 

State’s submittals to meet the Act’s 

requirements for that prior standard are 

germane to our action on the SJV 2007 

8-hour Ozone SIP under CAA section 

110(k). Additionally, nothing in section 

182(e)(5) of the CAA or our 

implementing regulations requires EPA 

to take into account the success or 

failure of a prior plan for a different 

ambient air quality standard in 

approving extreme area plan provisions 

that meet the requirements of CAA 

section 182(e)(5) for the 1997 8-hour 

ozone standard. EPA’s proposed rule to 

determine that the SJV failed to attain 

the 1-hour ozone standard by its 

applicable attainment date (76 FR 

56694, September 14, 2011), which 

commenters reference, likewise has no 

bearing on our action on the SJV 2007 

8-hour Ozone SIP under CAA section 

110(k). 

We disagree with AIR’s assertions that 

the District and CARB relied heavily on 

new technology measures in its 

previous plans for the 1-hour ozone 

standards and that these commitments 

have not been met. The District relied 

on emissions reductions from new 

technology measures only in its 2004 

Ozone SIP.35 Reductions from new 

technology measures in the 2004 Ozone 

SIP accounted for less than 4 percent of 

the overall reductions in that SIP’s 

attainment demonstration; and the 

District subsequently showed that it had 


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adopted sufficient measures to achieve 

these reductions. See 74 FR 33933, 

33937 (July 14, 2009). 

Finally, we disagree with 

commenters’ argument that EPA must 

direct CARB to ‘‘extract from the black 

box needed reductions they know will 

not come from future technologies, 

reduce the overall size of the black box 

to a reasonable level and better define 

where the remaining black box 

reductions are expected to come from.’’ 

It is not possible at this point in time to 

know that certain emissions reductions 

will not come from future technologies, 

and we do not believe it is reasonable 

to require the State to reduce the 

amount of emissions reductions 

attributed to the long-term strategy by 

either implementing measures or 

incremental reductions beyond those 

otherwise mandated by the Act or 

developing measures based on control 

techniques not yet identified or 

commercially available for 

implementation in the area. As 

explained above, the State has met the 

statutory criteria for approval of its longterm strategy under CAA section 

182(e)(5). 

E. CAA Section 182(d)(1)(A) 

Requirements 

Comment: AIR asserts that EPA has 

also failed to assess the adequacy of the 

SIP’s compliance with the requirement 

in CAA section 182(d)(1)(A) that the SIP 

provide adequate enforceable control 

measures ‘‘to allow total area emissions 

to comply with RFP and attainment 

requirements.’’ AIR argues that, because 

the area has not adopted sufficient 

enforceable control measures to provide 

for attainment (citing to its comments 

that the attainment demonstration is not 

approvable because, inter alia, measures 

relied on in that demonstration were not 

in the SIP), this provision must be met 

and EPA must direct the State/District 

to adopt the additional measures needed 

for attainment, either as TCMs to reduce 

motor vehicle emissions, or as controls 

on other source categories so that total 

emissions reductions provide for 

attainment. 

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

requires the State to ‘‘submit a revision 

that identifies and adopts specific 

enforceable transportation control 

strategies and transportation control 

measures * * * to attain reductions in 

motor vehicle emissions as necessary, in 

combination with other emissions 

reduction requirements of [title 1, part 

D, subpart 2], to comply with the 

requirements of [sections 182] (b)(2)(B) 

and (c)(2)(B)’’ and ‘‘to consider 

measures specified in section 108(f) 

* * * and to choose from among and 

implement such measures as necessary 

to demonstrate attainment.’’ 

We have determined that the SJV 

2007 8-hour Ozone SIP meets the RPF 

requirements in sections 182(b)(2)(B) 

and (c)(2)(B) and demonstrates 

attainment consistent with the subpart 2 

requirements and thus also meets the 

requirements of section 182(d)(1)(A) to 

adopt transportation control strategies 

and TCMs as necessary to demonstrate 

RFP and attainment. See 76 FR 57846, 

57863 and TSD, section II.H.3.; see also, 

TSD, section III.A.2. (responding to 

comments on the approvability of the 

baseline emissions inventory and the 

attainment demonstration). The SIP also 

includes documentation that the state 

considered the transportation control 

measures listed in CAA section 108(f), 

evaluated their effectiveness in 

contributing to expeditious attainment, 

and concluded that they would not. See 

2007 Ozone SIP, appendix D; 76 FR 

57846, 57852 and 57863 and TSD, 

sections II.B.3.b. and II.H.2. 

We disagree with AIR’s summary of 

the CAA section 182(d)(1)(A) 

requirements related to RFP and 

attainment. This specific section does 

not require that the SIP provide 

‘‘adequate enforceable control measures 

‘to allow total area emissions to comply 

with RFP and attainment 

requirements’ ’’ but rather it requires 

that the state adopt enforceable 

transportation strategies and TCM as 

necessary in combination with other 

emissions reduction requirement of 

subpart 2 to demonstrate RFP and to 

implement TCMs as necessary to 

demonstration attainment. Thus, if other 

SIP provisions provide for RFP and 

attainment consistent with applicable 

CAA requirements (including, in this 

case, the provisions of CAA section 

182(e)(5)), then the state has no 

obligation under section 182(d)(1)(A) to 

adopt transportation control strategies 

and TCMs for RFP and attainment 

purposes. 

III. Approval Status of the Control 

Strategy Measures and Final Actions on 

the Attainment Demonstration and 

Enforceable Commitments 

A. Approval Status of Control Strategy 

Measures 

As part of its control strategy for 

attaining the 1997 8-hour ozone 

standards in the SJV, the District made 

specific commitments to adopt nineteen 

measures on the schedule identified in 

the Plan. See 2007 Ozone Plan, Table 6– 

1 (revised December 18, 2009). The 

District has now completed its actions 

on all measures except for one which it 

found to be infeasible. See Table 1 

below. As Table 1 shows, EPA has 

approved all of the adopted rules except 

for one, which EPA is not currently 

crediting with emissions reductions in 

the RFP or attainment demonstration. 

TABLE 1—SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT 2007 OZONE PLAN SPECIFIC RULE COMMITMENTS

Measure number & description District rule 

No. 

Adoption date 

SIP status 

Anticipated Actual 

S–GOV–1 Composting Biosolids ........ 4565 1st Q–2007 ................ March 2007 ............... Approved: December 13, 2011 (signature date). 

S–AGR–1 Open Burning (Phase IV) .. 4103 2nd Q–2010 .............. April 2010 .................. Approved: September 29, 2011 (signature date). 

S–SOL–11 Solvents 

Organic Solvents ................................ 4661 .................................... September 2007 ........ Approved: 75 FR 24406 (May 5, 

2010). 

Organic Solvent Degreasing ............... 4662 3rd Q–2007 ............... September 2007 ........ Approved: 74 FR 37948 (July 30, 

2009). 

Organic Solvent Cleaning ................... 4663 September 2007 ........ Approved: 74 FR 37948 (July 30, 

2009). 

S–COM–5 Stationary Gas Turbines ... 4703 3rd Q–2007 ............... September 2007 ........ Approved: 74 FR 53888 (October 21, 

2009). 


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36The Truck Rule and the Drayage Truck Rule 

were included in a SIP submittal dated September 

21, 2011. We have included the September 21, 2011 

SIP submittal in the docket for this rulemaking. 

TABLE 1—SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT 2007 OZONE PLAN SPECIFIC RULE COMMITMENTS— 

Continued 

Measure number & description District rule 

No. 

Adoption date 

SIP status 

Anticipated Actual 

S–IND–24 Soil Decontamination ........ 4651 3rd Q–2007 ............... September 2007 ........ Approved: 74 FR 52894 (October 15, 

2009). 

S–IND–6 Polystyrene Foam ............... 4682 3rd Q–2007 ............... September 2007 ........ Approved: 76 FR 41745 (July 15, 

2011). 

S–PET–1&2 Gasoline Storage & 

Transfer.

4623 

4624 

4th Q–2007 ............... December 2007 ......... Approved: 74 FR 56120 (October 30, 

2009). 

S–PET–3 Aviation Fuel Storage ......... ........................ 3rd Q–2007 ............... found not feasible ...... Found infeasible. 

S–COM–1 Large Boilers ..................... 4306 

4320 

3rd Q–2008 ............... October 2008 ............ Approved: 75 FR 1715 (January 13, 

2010) and 76 FR 16696 (March 25, 

2011). 

S–COM–2 Boilers, Steam Generators 

and Process Heaters (2 to 5 

MMBtu/hr).

4307 3rd Q–2008 ............... October 2008 ............ Approved: 75 FR 1715 (January 13, 

2010). 

S–COM–7 Glass Melting Furnaces 1 .. 4354 3rd Q–2008 ............... October 2008 ............ Approved: 76 FR 53640 (August 29, 

2011). 

S–SOL–20 Graphic Arts ..................... 4607 4th Q–2008 ............... December 2008 ......... Approved: 74 FR 52894 (October 15, 

2009). 

S–COM–9 Residential Water Heaters 4902 1st Q–2009 ................ March 2009 ............... Approved: 75 FR 24408 (May 5, 

2010). 

S–GOV–5 Composting Green Waste 4566 4th Q 0 2010 ............. August 2011 .............. Rule adopted August 2011, Submitted November 18, 2011. 

S–IND–21 Flares ................................ 4311 2nd Q–2009 .............. June 2009 ................. Approved: 76 FR 68106 (November 

3, 2011). 

S–IND–14 Brandy and Wine Aging .... 4695 3rd Q–2009 ............... September 2009 ........ Approved: 76 FR 47076 (August 4, 

2011). 

S–SOL–1 Architectural Coatings ........ 4601 4th Q–2009 ............... December 2009 ......... Approved: 76 FR69135 (November 8, 

2011). 

S–AGR–2 Confined Animal Facilities 4570 2nd Q–2010 .............. October 2010 ............ Approved: December 13, 2011 (signature date). 

S–SOL–6 Adhesives ........................... 4653 3rd Q–2010 ............... September 2010 ........ Approved: November 18, 2011 (signature date). 

Source: List of measures and anticipated adoption dates: 2007 Ozone Plan, Table 6–1, revised December 18, 2009. 

As part of its control strategy for 

attaining the 1997 8-hour ozone 

standards in the SJV, CARB committed 

to propose certain measures on the 

schedule identified in the 2007 State 

Strategy. These commitments were 

updated in the 2011 Progress Report and 

2011 Ozone SIP Revisions. We list these 

measures and their current approval 

status in Table 2. Of the measures listed 

in the 2007 State Strategy’s updated 

rulemaking schedule, we note that only 

reductions from the ‘‘SmogCheck 

Improvement,’’ ‘‘Cleaner In-Use Heavy 

Duty Trucks,’’ ‘‘Cleaner In-Use Off-Road 

Engines,’’ and ‘‘Consumer Products 

Program’’ measures are currently 

credited with reductions in the 

attainment demonstration. See 76 FR 

57846, 57853 (Table 7). 

Generally, EPA will approve a State 

plan that takes emissions reduction 

credit for a control measure only where 

EPA has approved the measure as part 

of the SIP, or in the case of certain onroad and nonroad measures, where EPA 

has issued the related waiver of 

preemption or authorization under CAA 

section 209(b) or section 209(e). In our 

September 2011 proposed rule, in 

calculating and proposing to approve 

the State’s aggregate emissions 

reductions commitment in connection 

with our proposed approval of the 

attainment demonstration, we assumed 

that full final approval, waiver, or 

authorization of a number of CARB 

rules would occur prior to our final 

action on the San Joaquin Valley 8-hour 

ozone SIP. See 76 FR 57846, 57853 

(Table 7). Two specific adopted CARB 

rules on which the attainment 

demonstration relies include the Truck 

Rule and the Drayage Truck Rule (that 

collectively are included in a State 

measure referred to as ‘‘Cleaner In-Use 

Heavy Duty Trucks’’). We proposed 

approval of both rules at 76 FR 40652 

(July 11, 2011) but could not take final 

action on the rules until these rules 

were approved by the California Office 

of Administrative Law (OAL). OAL 

approved the Drayage Truck Rule on 

November 9, 2011 and the Truck Rule 

on December 14, 2011. CARB submitted 

the rules to EPA for final approval on 

December 9 and 15, 2011, respectively. 

We expect to complete action on these 

rules prior to the effective date of this 

rule. 

Based on anticipated approval of 

these two CARB rules, we are allowing 

the plan’s attainment demonstration, 

and our final approval of it, to rely on 

the emissions reductions from these 

rules for the following reasons: 

• Both rules have been adopted by 

CARB, approved by the California OAL, 

and submitted to EPA as a revision to 

the California SIP,36 and the adopted 

versions are essentially the same as 

those for which EPA proposed approval; 

and 

• The comments that we have 

received on our proposed approval of 

the two CARB rules (Truck Rule and 

Drayage Truck Rule) contend that the 

rules are costly and may not be 

economically or technologically 

feasible, but such considerations cannot 

form the basis for EPA disapproval of a 

rule submitted by a state as part of the 

SIP [see Union Electric Company v. 

EPA, 427 U.S. 246, 265 (1976)]. 

We are confident that the final action 

on the rules will be completed in the 


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37California Assembly Bill 2289, passed in 2010, 

requires the Bureau of Automotive Repair to direct 

older vehicles to high performing auto technicians 

and test stations for inspection and certification 

effective 2013. Reductions shown for the 

SmogCheck program in the 2011 Ozone SIP 

Revisions do not include reductions from AB 2289 

improvements. 2011 Ozone SIP Revisions, 

Appendix C. 

near-term and that, as a result, 

continued reliance by the SJV 2007 

8-hour Ozone SIP, and our final 

approval of it, on the emissions 

reductions associated with the rules is 

reasonable and appropriate. If, however, 

we are unable to complete a final action 

on these rules prior to the effective date 

of today’s action, we will take 

appropriate remedial action to ensure 

that our action on the plan is fully 

supportable or to reconsider that action. 

TABLE 2—2007 STATE STRATEGY DEFINED MEASURES APPLICABLE TO THE SJV, SCHEDULE FOR CONSIDERATION AND

CURRENT STATUS

State measures Expected action 

year Current status 

Smog Check Improvements ..................................................... 2007–2009 ......... Elements approved 75 FR 38023 (July 1, 2010).37

Expanded Vehicle Retirement (AB 118) ................................... 2007 ................... Adopted by CARB, June 2009; by Bureau of Automotive Repair, September 2010. 

Modification to Reformulated Gasoline Program ...................... 2007 ................... Approved, 75 FR 26653 (May 12, 2010) 

Cleaner In-Use Heavy Duty Trucks (includes Drayage rule) ... 2007, 2008, 2010 Proposed for approval: 76 FR 40652 (July 11, 2011) See 

discussion above. 

Accelerated Introduction of Cleaner Locomotives .................... 2008 ................... Prop 1B bond funds awarded to upgrade line-haul locomotive engines not already accounted for by enforceable 

agreements with the railroads. Those cleaner line-hauls 

will begin operation by 2012. 

Cleaner In-Use Off-Road Engines ............................................ 2007, 2010 ......... Waiver decision pending. 

Cleaner In-Use Agricultural Equipment .................................... 2013 ................... Incentive program in progress. Additional action expected 

2013. 

New Emissions Standards for Recreational Boats ................... 2013 ................... Action expected 2013. 

Expanded Off-Road Recreational Vehicle Emissions Standards.2013 ................... Action expected 2013. 

Enhanced Vapor Recovery for Above Ground Storage Tanks 2008 ................... Adopted June 2007. Requirements implemented through 

District Rule 4621. 

Additional Evaporative Emissions Standards ........................... 2013 ................... Action expected 2013. 

Consumer Products Program (I & II) ........................................ 2008, 2009, 2011 Approved 74 FR 57074 (November 4, 2009), 76 FR 27613 

(May 12, 2011) and December 7, 2011 (signature date). 

Pesticide Regulation (DPR) ...................................................... 2008, 2009 ......... Submitted October 2009, revisions submitted August 2011. 

Source: 2009 State Strategy Status Report, p.4, 2011 Progress Report, Table 1, and 2011 Ozone SIP Revisions, Appendix A–3. Additional information from www.ca.arb.gov. 

B. Enforceable Emissions Reductions 

Commitments 

For the 2007 Ozone Plan, the District 

committed to achieve certain aggregate 

emissions reductions of NOX and VOC. 

See 2007 Ozone Plan, Table 6–1 (revised 

December 18, 2008). See Table 3. EPA 

is approving these aggregate emissions 

reductions commitments. 

TABLE 3—SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT 2007 OZONE PLAN AGGREGATE EMISSIONS

REDUCTIONS COMMITMENTS

[Tons per summer day] 

2011 2012 2014 2017 2020 2023 

NOX .......................................................... 4.4 6.0 6.3 7.8 8.0 8.2 

VOC ......................................................... 15.3 26.5 40.5 42.2 44.5 46.3 

Source: 2007 Ozone Plan, Table 6–1, revised December 18, 2008. 

In the 2007 State Strategy, CARB 

committed to achieve certain aggregate 

emissions reductions of 46 tpd NOX and 

25 tpd VOC in the SJV by the attainment 

year of 2023 that are sufficient, in 

combination with existing SIPcreditable measures, the District’s 

commitments, and commitments for 

reductions under the CAA section 

182(e)(5) new technologies provision, to 

attain the 1997 8-hour ozone standard in 

the San Joaquin Valley by the applicable 

attainment date of June 15, 2024. CARB 

also made enforceable commitments to 

achieve aggregate emissions reductions 

in the SJV in the RFP milestone years of 

2014, 2017, and 2020. See 2007 State 

Strategy, p. 63; CARB Resolution 07–28, 

Attachment B, p. 6; and 2009 State 

Strategy Status Report, p. 21. See Table 

4 below. 

The 2011 Ozone SIP Revisions revised 

the State’s emissions estimates for 

certain source categories and projection 

years and provided additional 

information on the State and District’s 

progress to date in achieving their total 

emissions reduction commitments. In 

this action, we are approving CARB’s 

and the District’s emissions reduction 

commitments as submitted in the 2007 

State Strategy, 2009 State Strategy 

Update and the 2007 Ozone Plan 

without change, because we do not have 

sufficient information to determine how 

the 2011 SIP Revision alters the State’s 

near-term and CAA section 182(e)(5) 

emissions reduction commitments. We 

note that the amount and relative 

proportion of reductions from measures 

scheduled for adoption under CAA 

section 182(e)(5), as compared to 


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38CARB’s letter also requested that we limit the 

duration of our approval of the MVEB approved 

with the 2008 PM2.5 Plan. These budgets were also submitted on July 29, 2011 as an appendix to the 

2001 Ozone SIP Revisions. 

measures already adopted or scheduled for near-term adoption, should decrease 

in any future SIP update. 

TABLE 4—CARB COMMITMENTS TO SPECIFIC AGGREGATE EMISSIONS REDUCTIONS

[Tons per summer day] 

2014 2017 2020 2023 2023 CAA 

182(e)(5) 

VOC ..................................................................................... 23 (1) 24 25 (1) 

NOX ...................................................................................... 2 17.1 88–93 56 46 81 

Source: 2009 State Strategy Status Report, p. 21. 1 No commitment to VOC reductions in 2017 or to VOC reductions pursuant to CAA 182(e)(5) advanced technologies provision. 

2As modified in the final approval of the SJV 2008 PM2.5 SIP, see 76 FR 69896, 69924. 

IV. Approval of the Motor Vehicle 

Emissions Budgets for Transportation 

Conformity 

CARB submitted updated MVEB for 

the San Joaquin Valley and their 

documentation in Appendices A and C, 

respectively, of the 2011 Ozone SIP 

Revisions. As part of our review of the 

budgets’ approvability, EPA evaluated 

the revised budgets using our adequacy 

criteria in 40 CFR 93.318(e)(4). We 

posted the revised budgets on EPA’s 

adequacy review Web page on 

September 19, 2011 and requested 

public comment by October 19, 2011. 

We did not receive any comments. As 

documented in Table K–3 in the TSD, 

we found that the budgets meet each 

adequacy criterion. We have completed 

our detailed review of the 2007 SJV 

8-hour Ozone SIP and supplemental 

submittals including the 2011 Ozone 

SIP Revisions and are approving the 

SIP’s attainment and RFP 

demonstrations. We have also reviewed 

the MVEB submitted with the 2011 

Ozone SIP Revisions and have found 

that they are consistent with the 

attainment and RFP demonstrations and 

are based on control measures that have 

already been adopted and implemented. 

Therefore, we are approving the 2011, 

2014, 2017, 2020, and 2023 MVEB as 

shown in Table 5. 

Now that the approval of the budgets 

is finalized, the SJV MPOs and the U.S. 

Department of Transportation are 

required to use the revised budgets in 

transportation conformity 

determinations. Due to the formatting of 

the budgets (combining emissions 

changes, recession impacts and 

reductions from control measures), 

CARB will need to provide the MPOs 

with emissions reductions associated 

with the control measures incorporated 

into the budgets for the appropriate 

analysis years so that they can include 

these reductions in future conformity 

determinations in accordance with 40 

CFR 93.122. In addition, for these 

conformity determinations, the motor 

vehicle emissions from implementation 

of the transportation plan should be 

projected and compared to the budgets 

at the same level of accuracy as the 

budgets in the plan, for example 

emissions should be rounded to the 

nearest tenth (e.g., 0.1 tpd). 

During the comment period on the 

proposed approval of the SJV 2007 

8-hour Ozone SIP, CARB requested that 

EPA limit the duration of its approval of 

the budgets submitted on July 29, 2011 

as part of the 2011 Ozone SIP Revisions 

to last only until the effective date of 

EPA’s adequacy finding for any 

subsequently submitted budgets. See 

letter, Douglas Ito, Chief, Air Quality 

and Transportation Planning Branch; 

California Air Resources Board, October 

17, 2011. 

The transportation conformity rule 

allows EPA to limit the approval of 

budgets. See 40 CFR 93.118(e)(1). 

However, we can only consider a state’s 

request to limit an approval of its MVEB 

if the request includes the following 

elements: 

• An acknowledgement and 

explanation as to why the budgets under 

consideration have become outdated or 

deficient; 

• A commitment to update the 

budgets as part of a comprehensive SIP 

update; and 

• A request that EPA limit the 

duration of its approval to the time 

when new budgets have been found to 

be adequate for transportation 

conformity purposes. 

See 67 FR 69141 (November 15, 2002) 

(limiting our prior approval of MVEB in 

certain California SIPs). 

Because CARB’s request does not 

include all of these elements, we cannot 

address it at this time. Once CARB has 

adequately addressed them, we intend 

to propose to limit the duration of our 

approval of the MVEB in the SJV 2007 

8-hour Ozone SIP and provide the 

public an opportunity to comment.38

The duration of the approval of the 

budgets, however, is not limited until 

we complete such a rulemaking. 

TABLE 5—MOTOR VEHICLE EMISSIONS BUDGET IN THE SJV 2007 OZONE SIP AS REVISED ON JULY 21, 2011 

[Tons per summer day] 

Year 2011 2014 2017 2020 2023 

County ROG NOX ROG NOX ROG NOX ROG NOX ROG NOX

Fresno .................................................................................. 14.3 36.2 10.7 30.0 9.3 22.6 8.3 17.7 8.0 13.5 

Kern (SJV) ............................................................................ 12.7 50.3 9.7 42.7 8.7 31.7 8.2 25.1 7.9 18.6 

Kings .................................................................................... 2.8 10.7 2.1 8.9 1.8 6.7 1.7 5.3 1.6 4.0 

Madera ................................................................................. 3.4 9.3 2.5 7.7 2.2 5.8 2.0 4.7 1.9 3.6 

Merced ................................................................................. 5.1 19.9 3.7 16.7 3.2 12.4 2.9 9.9 2.8 7.4 

San Joaquin ......................................................................... 11.1 24.6 8.4 20.5 7.2 15.6 6.4 12.4 6.3 10.0 

Stanislaus ............................................................................. 8.5 16.9 6.4 13.9 5.6 10.6 5.0 8.4 4.7 6.4 


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TABLE 5—MOTOR VEHICLE EMISSIONS BUDGET IN THE SJV 2007 OZONE SIP AS REVISED ON JULY 21, 2011— 

Continued 

[Tons per summer day] 

Year 2011 2014 2017 2020 2023 

County ROG NOX ROG NOX ROG NOX ROG NOX ROG NOX

Tulare ................................................................................... 8.8 16.0 6.7 13.2 5.8 10.1 5.3 8.1 4.9 6.2 

V. Final Actions 

For the reasons discussed in our 

September 16, 2011 proposed rule (76 

FR 57846) and further explained above, 

EPA is approving California’s SIP for 

attaining the 1997 8-hour ozone NAAQS 

in the San Joaquin Valley. The 

California 8-hour ozone attainment SIP 

for the San Joaquin Valley is composed 

of the SJVUAPCD’s 2007 Ozone Plan as 

revised in 2009 and 2011 and the SJVspecific portions of CARB’s 2007 State 

Strategy as revised in 2009 and 2011 

that address CAA and EPA regulations 

for attainment of the 1997 8-hour ozone 

NAAQS in the SJV. 

Specifically, EPA is approving under 

CAA section 110(k)(3) the following 

elements of the SJV 2007 8-hour ozone 

attainment SIP: 

1. The revised 2002 base year 

emissions inventory as meeting the 

requirements of CAA sections 182(a)(1) 

and 40 CFR 51.915; 

2. The reasonably available control 

measures demonstration as meeting the 

requirements of CAA section 172(c)(1) 

and 40 CFR 51.912(d); 

3. The reasonable further progress 

demonstration as meeting the 

requirements of CAA section 172(c)(2) 

and 182(c)(2)(B) and 40 CFR 51.910; 

4. The attainment demonstration as 

meeting the requirements of CAA 

sections 182(c)(2)(A) and 40 CFR 

51.908; 

5. The provisions for the development 

of new technologies pursuant to CAA 

section 182(e)(5) and CARB’s 

commitment to adopt and submit by 

2020 contingency measures to be 

implemented if the new technologies do 

not achieve the planned emissions 

reductions and additional attainment 

contingency measures meeting the 

requirements of CAA 172(c)(9) as given 

in CARB Resolution 11–22 (July 21, 

2011), and CARB’s commitment to 

develop and submit by 2020 revisions to 

the SIP that will: (1) Reflect 

modifications to the 2023 emissions 

reduction target based on updated 

science and (2) identify additional 

strategies and implementing agencies 

needed to achieve the needed 

reductions by 2023 as given in the 2011 

Ozone SIP Revisions on page A–8; 

6. The contingency measure 

provisions for failure to make RFP and 

to attain as meeting the requirements of 

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

7. The demonstration that the SIP 

provides for transportation control 

strategies and measures sufficient to 

offset any growth in emissions from 

growth in VMT or the number of vehicle 

trips and to provide for RFP and 

attainment as meeting the requirements 

CAA section 182(d)(1)(A); 

8. The revised motor vehicle 

emissions budgets for the RFP years of 

2011, 2014, 2017, and 2020 and the 

attainment year of 2023 submitted on 

July 29, 2011 because they are derived 

from approvable RFP and attainment 

demonstrations and meet the 

requirements of CAA section 176(c) and 

40 CFR part 93, subpart A; 

9. SJVUAPCD’s commitments to 

achieve specific aggregate emissions 

reductions of direct VOC and NOX, as 

listed in Table 6–1 of the 2007 Ozone 

Plan (as revised December 18, 2008) and 

as given in Table 3 above; and 

10. CARB’s commitments to propose 

certain defined measures, as listed in 

Table B–1 on page 1 of Appendix B of 

the 2011 Progress Report and in 

Appendix A–3 of the 2011 Ozone SIP 

Revisions, to achieve aggregate 

emissions reductions of 23 tpd of VOC 

by 2014; 88–93 tpd of NOX by 2017; 

24 tpd of VOC and 46 tpd of NOX by 

2023 from existing technologies and 81 

tpd of NOX by 2023 from new 

technologies as provided in CARB 

Resolution 07–28, Attachment B and the 

2009 State Strategy Status Report; p. 20 

and as given in Table 4 above; to update 

the SJV 2007 Ozone Plan modeling to 

reflect the emissions inventory 

improvements and any other new 

information by December 31, 2014 or by 

the date the SIPs are due for the revised 

8-hour ozone standard, whichever 

comes first, as provided in CARB 

Resolution 11–22 (July 21, 2011), p. 3, 

and to achieve the emissions reductions 

needed to attain the 8-hour ozone 

standard in the SJV as provided in 

CARB Resolution 07–28 (September 27, 

2007), Appendix B, p. 3, 2009 State 

Strategy Status Report, p. 13. 

Finally, we find that SJVUAPCD has 

satisfied the clean fuel/advanced 

technology requirement for boilers in 

CAA section 182(e)(3) for the SJV. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals under 

section 110 and subchapter I, part D of 

the Clean Air Act do not create any new 

requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because this 

approval action does not create any new 

requirements, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 

42 U.S.C. 7410(a)(2). 


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D. Unfunded Mandates Reform Act 

Under sections 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that this 

approval action as promulgated does not 

include a Federal mandate that may 

result in estimated costs of $100 million 

or more to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This Federal action 

approves pre-existing requirements 

under State or local law, and imposes 

no new requirements. Accordingly, no 

additional costs to State, local, or tribal 

governments, or to the private sector, 

result from this action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely approves a State rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (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.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

approves a State rule implementing a 

Federal standard. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ 

(66 FR 28355, May 22, 2001) because it 

is not a significant regulatory action 

under Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

rulemaking. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the Clean Air Act. 

Accordingly, this action merely 

approves certain State requirements for 

inclusion into the SIP under CAA 

section 110 and subchapter I, part D and 

disapproves others, and will not in-andof itself create any new requirements. 

Accordingly, it does not provide EPA 

with the discretionary authority to 

address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 


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12672 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Rules and Regulations 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

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

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

rule will be effective on April 30, 2012. 

L. Petitions for Judicial Review 

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 April 30, 2012. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Air pollution control, Incorporation 

by reference, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Volatile organic compounds. 

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

Dated: December 15, 2011. 

Jared Blumenfeld, 

Regional Administrator, EPA Region 9. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52 [AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220, is amended by 

adding paragraphs (c)(356)(ii)(B)(4), 

(c)(396)(ii)(A)(1)(i) and (2)(i), 

(c)(397)(ii)(A)(4) and (B), and (c)(408). 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(356) * * * 

(ii) * * * 

(B) * * * 

(4) CARB Resolution No. 07–28 with 

Attachments A and B, September 27, 

2007. Commitments to achieve the total 

emissions reductions necessary to attain 

the Federal standards in the SJV air 

basin, which represent aggregate 

emissions reductions of 24 tons per day 

(tpd) of volatile organic compounds 

(VOC) and 46 tpd of nitrogen oxides 

(NOX) by 2023 from existing 

technologies and 81 tpd of NOX by 2023 

from new technologies and to achieve 

23 tpd of VOC by 2014; 88–93 tpd of 

NOX by 2017; 24 tpd of VOC and 56 tpd 

of NOX by 2020 as provided in CARB 

Resolution 07–28, Attachment B, pp. 3– 

6 as modified by the 2009 State Strategy 

Status Report, pp. 20–21 as adopted by 

CARB Resolution No. 09–34 (April 24, 

2009). 

* * * * * 

(396) * * * 

(ii) * * * 

(A) * * * 

(1) * * * 

(i) Commitment to develop and 

submit by 2020 revisions to the SIP that 

will: Reflect modifications to the 2023 

emissions reduction target based on 

updated science and identify additional 

strategies and implementing agencies 

needed to achieve the needed 

reductions by 2023 as given in the 2011 

Ozone SIP Revisions on page A–8. 

(2) * * * 

(i) Commitment to develop, adopt and 

submit by 2020 contingency measures to 

be implemented if advanced technology 

measures do not achieve the planned 

reductions and attainment contingency 

measures meeting the requirements of 

CAA 172(c)(9), pursuant to CAA section 

182(e)(5) as given on page 4. 

(ii) Commitment to update the air 

quality modeling in the SJV 2007 Ozone 

Plan to reflect the emissions inventory 

improvements and any other new 

information by December 31, 2014 or 

the date by which state implementation 

plans are due for the expected revision 

to the federal 8-hour ozone standard 

whichever comes first, as provided on 

page 3. 

* * * * * 

(397) * * * 

(ii) * * * 

(A) * * * 

(4) CARB Resolution No. 07–20 with 

Attachment A, June 14, 2007. 

(B) San Joaquin Valley Unified Air 

Pollution Control District. 

(1) 2007 Ozone Plan, adopted on 

April 30, 2007. 

(2) SJVUAPCD Governing Board, In 

the Matter of: Adopting the San Joaquin 

Valley Unified Air Pollution Control 

District 2007 Ozone Plan, Resolution 

No. 07–04–11a, April 30, 2007. 

Commitments to achieve emissions 

reductions as described in Table 6–1 of 

the 2007 Ozone Plan, as amended 

December 18, 2008. 

* * * * * 

(408) An amended plan was 

submitted on April 24, 2009 by the 

Governor’s designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) San Joaquin Valley Unified Air 

Pollution Control District. 

(1) Amendments to the 2007 Ozone 

Plan (amending the rulemaking 

schedule for Measure S–GOV–5 Organic 

Waste Operations) adopted on 

December 18, 2008. 

(2) SJVUAPCD Governing Board, In 

the Matter of: Proposed Amendment to 

the 2007 Ozone Plan to Extend the Rule 

Adoption Schedule for Organic Waste 

Operations, SJVUAPCD Governing 

Board Resolution No. 08–12–18. 

December 18, 2008. 

[FR Doc. 2012–4674 Filed 2–29–12; 8:45 am] 

BILLING CODE 6560–50–P 


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