Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations 26609 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701; 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add temporary § 165.T05–0288, to 

read as follows: 

§ 165.T05–0288 Safety Zone; Air Power 

Over Hampton Roads, Back River, 

Hampton, VA. 

(a) Regulated area. The following area 

is a safety zone: All waters in the 

vicinity of Willoughby Point on Back 

River within the area bounded by 

coordinates 37°05′35′′ N/076°20′47′′ W, 

thence to 37°05′43′′ N/076°20′14′′ W, 

thence to 37°05′19′′ N/076°20′02′′ W, 

thence to 37°05′12′′ N/076°20′18′′ W. 

(NAD 1983), in Hampton, VA. 

(b) Definition: For purposes of 

enforcement of this section, Captain of 

the Port Representative means any U. S. 

Coast Guard commissioned, warrant or 

petty officer who has been authorized 

by the Captain of the Port, Hampton 

Roads, Virginia to act on his behalf. 

(c) Regulation: (1) In accordance with 

the general regulations in 165.23 of this 

part, entry into this zone is prohibited 

unless authorized by the Captain of the 

Port, Hampton Roads or his designated 

representatives. 

(2) The operator of any vessel in the 

immediate vicinity of this safety zone 

shall: 

(i) Stop the vessel immediately upon 

being directed to do so by any 

commissioned, warrant or petty officer 

on board a vessel displaying a U.S. 

Coast Guard Ensign; and 

(ii) Proceed as directed by any 

commissioned, warrant or petty officer 

on board a vessel displaying a U.S. 

Coast Guard Ensign. 

(3) The Captain of the Port, Hampton 

Roads, Virginia can be contacted at 

telephone number (757) 638–6637. 

(4) U.S. Coast Guard vessels enforcing 

the safety zone can be contacted on 

VHF–FM marine band radio, channel 13 

(156.65 MHz) and channel 16 (156.8 

MHz). 

(d) Enforcement period: This rule will 

be enforced from 5 p.m. to 9 p.m. on 

May 13, 2011, from 9 a.m. to 5 p.m. on 

May 14, and from 9 a.m. to 5 p.m. on 

May 15, 2011. 

Dated: April 21, 2011. 

Mark S. Ogle, 

Captain, U.S. Coast Guard, Captain of the 

Port Hampton Roads. 

[FR Doc. 2011–11276 Filed 5–6–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2010–0430; FRL–9292–7] 

Revisions to the California State 

Implementation Plan, San Joaquin 

Valley Unified Air Pollution Control 

District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of 

revisions to the San Joaquin Valley 

Unified Air Pollution Control District 

(SJVUAPCD) portion of the California 

State Implementation Plan (SIP). These 

revisions were proposed in the Federal 

Register on May 21, 2010 and concern 

oxides of nitrogen (NOx) and particulate 

matter (PM) emissions primarily from 

indirect sources associated with new 

development projects as well as NOx 

and PM emissions from certain 

transportation and transit projects. We 

are approving local rules that regulate 

these emission sources under the Clean 

Air Act as amended in 1990 (CAA or the 

Act). 

DATES: Effective Date: This rule is 

effective on June 8, 2011. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2010–0430 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

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

some may not be publicly available in 

either location (e.g., Confidential 

Business Information). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Lily 

Wong, EPA Region IX, (415) 947–4114, 

wong.lily@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. EPA Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On May 21, 2010 (75 FR 28509), EPA 

proposed to approve the following rule 

into the California SIP. 

Local agency Rule No. Rule title Adopted Submitted 

SJVUAPCD ............................... 9510 Indirect Source Review (ISR) ....................................................... 12/15/05 12/29/06 

We proposed to approve this rule 

because we determined that it complied 

with the relevant CAA requirements. 

Our proposed action contains more 

information on the rule and our 

evaluation. 

II. Public Comments and EPA 

Responses 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we received comments from the 

following parties. 

1. Susan Asmus, National Association 

of Home Builders (NAHB); letter dated 

July 6, 2010. 

2. Lawrence J. Joseph, representing 

the American Road & Transportation 

Builders Association (ARTBA); letter 

dated July 6, 2010. 

3. Paul Cort, EarthJustice; letter dated 

July 6, 2010. 

4. Mat Ciremele, email dated May 25, 

2010. 

The comments and our responses are 

summarized below. 

Comment #1: NAHB asserts that EPA 

must disapprove Rule 9510 because a 

state must provide adequate assurances 

of the legal authority to carry out all SIP 

revisions and, in light of NAHB’s legal 

challenge to Rule 9510 in the U.S. Court 

of Appeals and the possibility of the 

court’s finding section 6.1.1 of Rule 

9510 preempted and unenforceable, the 

SJVUAPCD cannot enforce the emission 

limitations in section 6.1.1 because the 

limitations are preempted standards or 

other requirements. 

Response #1: The commenter is 

correct in asserting that a state must 

provide assurances of legal authority to 

carry out SIPs and SIP revisions. See 

CAA section 110(a)(2)(E)(SIPs must 

‘‘provide (i) necessary assurances that 

the State * * * will have adequate 

* * * authority under State (and, as 

appropriate, local) law to carry out such 

implementation plan * * * ’’). In our 

Technical Support Document (TSD) for 

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26610 Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations 

the proposed rule, we recognized the 

legal challenge brought by NAHB 

against the SJVUAPCD in connection 

with enforcement of Rule 9510. At the 

time we proposed action on Rule 9510, 

NAHB had appealed to the Ninth 

Circuit Court of Appeals [in National 

Association of Home Builders v. San 

Joaquin Valley Unified Air Pollution 

Control District (No. 08–17309)] to 

overturn a District Court ruling that held 

that Rule 9510 was not preempted 

under the CAA, but the Ninth Circuit 

had not yet reached a decision on the 

appeal. Based on the information 

available to us at the time, we 

concluded that the SJVUAPCD had the 

authority to adopt and implement Rule 

9510 because we believed that the limits 

in the rule were not preempted under 

CAA section 209(e), consistent with the 

District Court ruling. 

Since publication of the proposed 

rule, the Ninth Circuit has published its 

opinion in National Association of 

Home Builders v. San Joaquin Valley 

Unified Air Pollution Control District, 

627 F.3d 730 (9th Cir. 2010) (‘‘NAHB’’). 

In an opinion filed December 7, 2010, 

the Ninth Circuit affirmed the District 

Court’s ruling that Rule 9510 was not 

preempted. With respect to the express 

preemption of CAA section 209(e)(1), 

which preempts states and subdivisions 

thereof from adopting or attempting to 

enforce any standard or other 

requirement relating to the control of 

emissions from either of two categories 

of new nonroad vehicles or engines, the 

court held that Rule 9510 was not 

preempted because none of the 

construction equipment that Rule 9510 

regulates would be considered ‘‘new’’ 

under EPA’s pre-existing (and 

permissible, in the court’s view) 

definition of ‘‘new.’’ 

Before turning to the implied 

preemption of CAA section 209(e)(2), 

which preempts states and subdivisions 

thereof from adopting or attempting to 

enforce any standard or other 

requirement relating to the control of 

emissions from all other types of 

nonroad vehicles and engines not 

covered in CAA section 209(e)(1), the 

court first determined that Rule 9510 

was authorized under CAA section 

110(a)(5), the CAA section that allows 

states and subdivisions thereof to 

include indirect source review (ISR) 

programs in a SIP. CAA section 

110(a)(5)(C) defines ‘‘indirect sources’’ as 

meaning ‘‘a facility, building, structure, 

installation, real property, road, or 

highway which attracts, or may attract, 

mobile sources of pollution,’’ but also 

provides that ‘‘[d]irect emissions sources 

or facilities at, within, or associated 

with, any indirect source shall not be 

deemed indirect sources for the 

purposes of this paragraph.’’ 

Noting that Rule 9510 is ultimately 

directed at emissions that come from 

construction equipment (i.e., direct 

sources), the court, nonetheless, 

concluded that Rule 9510 was 

authorized under section 110(a)(5) 

because in the court’s view, the 

limitation only makes sense if it is read 

to prohibit an indirect source review 

program from targeting direct sources at, 

within, or associated with, any indirect 

source apart from the program’s 

regulation of an indirect source, and 

Rule 9510 does not target construction 

equipment apart from its regulation of 

development sites. The court also notes 

that the scope of Rule 9510 indicates 

that the rule targets sites rather than 

equipment. The reach of the rule 

depends on the character of the site, not 

on the character of the equipment. The 

court then concluded that the feature 

that allows Rule 9510 to qualify as an 

indirect source for the purposes of CAA 

section 110(a)(5), i.e., its site-based 

regulation of emissions, was the same 

feature that allows the rule to avoid 

preemption under CAA section 

209(e)(2). 

Given the appellate court’s decision, 

we believe that any significant doubt 

about the SJVUAPCD’s authority to 

enforce the emissions requirements in 

section 6.1.1 has been removed, and that 

our approval of Rule 9510 is consistent 

with CAA section 110(a)(2)(E) as 

explained in the proposal. 

Comment #2: NAHB asserts that the 

emission limits of section 6.1.1 of Rule 

9510 are preempted under CAA section 

209(e)(1) because they represent 

‘‘standards or other requirements’’ 

relating to the control of emissions from 

new nonroad construction vehicles or 

engines less than 175 horsepower. 

Response #2: CAA section 209(e)(1) 

states: ‘‘No State or any political 

subdivision thereof shall adopt or 

attempt to enforce any standard or other 

requirement relating to the control of 

emissions from * * * (A) New engines 

which are used in construction 

equipment or vehicles or used in farm 

equipment or vehicles and which are 

smaller than 175 horsepower. (B) New 

locomotives or new engines used in 

locomotives. Subsection (b) of this 

section shall not apply for purposes of 

this paragraph.’’ The construction 

equipment to which section 6.1.1 of 

Rule 9510 applies is not new 

equipment. Under EPA’s nonroad 

emissions standard regulations, ‘‘new’’ 

means ‘‘a nonroad engine, nonroad 

vehicle, or nonroad equipment the 

equitable or legal title to which has 

never been transferred to an ultimate 

purchaser. Where the equitable or legal 

title to the engine, vehicle, or equipment 

is not transferred to an ultimate 

purchaser until after the engine, vehicle, 

or equipment is placed into service, 

then the engine, vehicle, or equipment 

will no longer be new after it is placed 

into service.’’ See 40 CFR 89.2. This 

definition was upheld by the Court of 

Appeals for the District of Columbia in 

Engine Manufacturers Association v. 

EPA, 88 F.3d 1075 (DC Cir. 1996) (EMA 

v. EPA), and the 9th Circuit, in NAHB, 

also indicated its view that this 

definition was permissible. 

Rule 9510 applies to applicants that 

seek final discretionary approval for 

certain development projects, and thus 

the emission limits in section 6.1.1 of 

Rule 9510 apply to construction 

equipment that has already been 

purchased or placed into service, and 

brought to a development site to meet 

the particular construction needs of a 

given development project. Therefore, 

the limits do not apply to new 

construction equipment within the 

meaning of CAA section 209(e)(1). 

Even if the emission limits in the rule 

could have the consequence of 

influencing an applicant early in the 

planning process in connection with the 

purchase of construction equipment, for 

the reasons provided in the TSD to 

EPA’s proposed rule on Rule 9510 and 

in the responses, EPA believes that the 

emission limits in section 6.1.1 of Rule 

9510 do not represent a standard or 

other requirement relating to the control 

of emissions from new nonroad engines 

or nonroad vehicles, and thus are not 

preempted under CAA section 209(e)(1). 

NAHB references the Supreme Court’s 

decision in Engine Manufacturers 

Assocation v. South Coast Air Quality 

Management District, 541 U.S. 246 

(2004) (EMA v. South Coast). However, 

that case involved a regulation of 

vehicles that clearly were ‘‘new,’’ as 

defined in the statute, as the regulations 

applied to vehicles at the time of 

purchase. Rule 9510 applies after the 

time of purchase of the engine and in 

any case is directed to the site of the 

project, not the engine, and can be met 

in ways that do not implicate the 

purchase of new engines. The Court of 

Appeals has ruled that Rule 9510 is not 

preempted under section 209(e)(1) and 

we follow and agree with that decision. 

Comment #3: NAHB asserts that the 

emission limits of section 6.1.1 of Rule 

9510 are preempted under CAA section 

209(e)(2) because they apply to used 

nonroad construction equipment greater 

than 50 horsepower. 

Response #3: CAA section 209(e)(2) 

applies to, among other categories of 

nonroad vehicles and engines, used 

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Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations 26611 

nonroad vehicles or engines, and it 

allows EPA to authorize, after notice 

and opportunity for public hearing, the 

State of California to adopt and enforce 

standards and other requirements 

relating to the control of emissions from 

such vehicles or engines if certain 

criteria are met. As asserted by the 

commenter, no authorization has been 

sought from EPA by California for the 

emission limitations in section 6.1.1 of 

Rule 9510. However, EPA does not 

believe such authorization is required 

because, while section 6.1.1 sets 

standards relating to the control of 

emissions from used construction 

equipment, EPA notes that the 

standards at issue in this SIP revision 

relate directly only to emissions 

associated with development sites. As 

the Court of Appeals stated, this 

regulation is authorized as an indirect 

source review program under section 

110(a)(5) of the Act. Rule 9510 does not 

regulate nonroad engines directly and 

would not affect nonroad engines apart 

from the possible effects from the 

regulation of the indirect source as a 

whole. The court noted that given the 

language in section 110 authorizing 

indirect source programs, they would 

cautiously examine the Act before 

concluding that section 209(e)(2) 

preempted such a program. The court 

also distinguished the cases cited by 

NAHB, EMA v. South Coast and Pacific 

Merchant Shipping Ass’n v. Goldstene, 

517 F.3d 1108 (9th Cir. 2008), by noting 

that the regulations in those cases were 

directed at vehicles, not sites. EPA also 

notes that Rule 9510 allows compliance 

with the site-based requirement using 

actions that would not affect the engines 

at the site or would only affect the use 

of the engine, which EPA has already 

determined is not preempted by section 

209(e)(2). See also, EMA v. EPA and 

Pacific Merchant Shipping Ass’n v. 

Goldstene, 2009 U.S. Dist Lexis 55516, 

70 ERC 1337 (E.D. Cal. 2009). Thus any 

argument that the requirements are de 

facto standards on nonroad engines is 

not persuasive. The Court of Appeals 

has ruled that Rule 9510 is not 

preempted under section 209(e)(2) and 

we follow and agree with that decision. 

Comment #4: Citing Engine 

Manufacturers Association v. South 

Coast Air Quality Management District 

[541 U.S. 246 (2004)], NAHB asserts that 

EPA erred in finding that the emissions 

limits in Rule 9510 are not preempted 

under CAA section 209(e) because the 

standards can be met in numerous ways 

including options that do not involve 

any changes to nonroad equipment and 

that the emission limits in Rule 9510 

would be preempted only if they impose 

burdens so onerous that manufacturers 

would be forced to alter the design or 

emission control equipment on new 

nonroad engines or vehicles. 

Response #4: EPA agrees that, if the 

emission limits in Rule 9510 were 

standards or other requirements relating 

to the emissions from nonroad vehicles 

or engines, then the limits would be 

preempted under section 209(e) 

regardless of whether the rule provides 

for compliance options other than direct 

reduction of emissions from nonroad 

vehicles or engines and regardless of 

whether the limits would in practical 

effect force manufacturers to alter the 

design or emission control equipment 

on new nonroad engines or vehicles. In 

this case, though, as noted above and as 

found by the Court of Appeals, the 

emission limits in Rule 9510 are not 

such standards. 

In the TSD, EPA describes the 

flexibility provided in Rule 9510 to 

developers in meeting the emissions 

limitations not to show that the 

standards are therefore not preempted, 

but as further evidence that the rule 

truly is an indirect source rule that only 

indirectly regulates emissions from 

direct sources (such as construction 

equipment). Furthermore, in the TSD, 

EPA evaluates the potential for Rule 

9510, as an ISR rule otherwise 

authorized under CAA section 110(a)(5), 

to nevertheless run afoul of CAA section 

209(e), and in so doing, EPA identified 

two ways that an ISR rule that on its 

face is authorized under CAA section 

110(a)(5) could nonetheless be 

preempted. First, the ISR rule could be 

preempted if the rule in practice as 

applied acts to compel the manufacturer 

or user of a nonroad engine or vehicle 

to change the emission control design of 

the engine or vehicle, or second, an ISR 

rule could be preempted if it creates 

incentives so onerous as to be in effect 

a purchase mandate. EPA concluded, 

however, that Rule 9510 would not have 

either type of effect and would not 

operate in such a way as to amount to 

a standard controlling the emissions of 

nonroad vehicles or engines, and thus 

would not be preempted. 

Comment #5: NAHB contrasts EPA’s 

stated position on preemption of state 

attempts to enforce fleet-based nonroad 

emissions standards with EPA’s 

proposed approval of section 6.1.1 of 

Rule 9510 which, in NAHB’s view, 

establishes emissions standards for 

fleets of construction equipment when 

used at construction sites subject to 

Rule 9510. 

Response #5: EPA agrees that, if the 

emission limits in Rule 9510 were 

standards or other requirements relating 

to the control of emissions from 

nonroad vehicles or engines, then the 

fact that they apply to fleets of 

construction equipment, rather than to 

individual nonroad vehicles or engines, 

would not make any difference as to 

preemption. Such fleet-based nonroad 

emission limits would be preempted 

just as would emission limits that apply 

to individual nonroad engines or 

vehicles. 

However, as the Court of Appeals 

found, the emission limits in section 

6.1.1. of Rule 9510 are not standards or 

other requirements relating to the 

control of emissions from nonroad 

vehicles or engines, but rather, are 

emission reduction obligations that 

relate to the construction-phase at 

development sites, and as such are not 

preempted. EPA notes that the rule by 

its terms (see section 2.0 of the rule) 

applies to applicants seeking 

discretionary approval for development 

projects that meet certain size criteria 

and to certain transportation or transit 

projects, not to fleets of nonroad 

vehicles or engines. EPA also notes that 

a developer has numerous options to 

meet the emission reduction obligation 

in section 6.1.1, including options that 

do not involve any changes to 

construction equipment (see section 6.3 

of the rule). The flexibility provided in 

the rule in meeting the emission 

reduction obligation in section 6.1.1 

provides further evidence that the rule 

is intended to reduce emissions from 

construction sites as an indirect source 

of emissions, rather than to regulate the 

construction equipment directly, either 

as a fleet or as individual pieces of 

equipment. 

Comment #6: ARTBA petitions EPA 

to amend EPA’s rules implementing 

CAA section 209(e) to clarify that: 

(1) Section 209(e) preempts rules based 

on nonroad fleets to the same extent that 

it preempts rules based on individual 

nonroad vehicles and engines; 

(2) section 209(e)’s preemption lasts 

throughout nonroad vehicles and 

engines’ useful life; (3) section 

209(e)(1)(A) preempts California 

standards and other requirements 

related to emissions from farm and 

construction equipment under 175 

horsepower to the same extent that 

section 209(e)(1)(B) preempts California 

standards and other requirements 

related to emissions from locomotives; 

and (4) section 209(e) preempts 

emission-based regulation of the use 

and operation of nonroad vehicles and 

engines, such as regulations on hours of 

usage, daily mass emission limits, and 

fuel restrictions. 

Response #6: ARTBA’s petition seems 

to be little more than a renewal of its 

earlier request for an amendment to 

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26612 Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations 

EPA’s rule implementing CAA section 

209(e). EPA denied ARTBA’s petition. 

See 73 FR 59034 (October 8, 2008). 

ARTBA’s challenge to EPA’s denial of 

ARTBA’s petition was dismissed for 

lack of subject matter jurisdiction by the 

U.S. Court of Appeals for the DC Circuit. 

See Am. Rd. & Transp. Builders Ass’n 

v. EPA, 588 F.3d 1109 (DC Cir. 2009), 

petition for cert. denied, No. 09–1485 

(U.S. Oct. 4, 2010). ARTBA’s petition, 

except as discussed below, is related to 

the general preemption issues that 

ARTBA has raised previously and not 

specifically to the proposal to add Rule 

9510 to the California SIP. EPA has 

already reviewed these issues several 

times and is not revisiting these broader 

issues in this limited proceeding. To the 

extent ARTBA intends EPA to do so, the 

request is denied. Further, because EPA 

did not propose any changes to its rules 

implementing section 209(e) in this 

rulemaking on the California SIP, it 

could not make any such revisions in 

this final rule in any event. 

Comment #7: ARTBA contends that, 

in EPA’s final rule on California’s 

submittal of Rule 9510, EPA should find 

that EPA’s action has ‘‘nationwide scope 

or effect’’ pursuant to CAA section 

307(b)(1) leading to exclusive 

jurisdiction in the U.S. Court of Appeals 

for the District of Columbia to ensure 

nationwide uniformity in the 

interpretation and enforcement of these 

important CAA issues. 

Response #7: CAA section 307(b)(1) 

generally provides that judicial review 

of EPA action in approving a SIP or SIP 

revisions may be filed only in the U.S. 

Court of Appeals for the appropriate 

circuit. Thus, final EPA actions on 

revisions to the California SIP, such as 

Rule 9510, are generally subject to 

timely challenges filed in the U.S. Court 

of Appeals for the Ninth Circuit. 

However, judicial review of an EPA SIP 

action may be filed only in the U.S. 

Court of Appeals for the District of 

Columbia if such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

EPA finds and publishes that such 

action is based on such a determination. 

We do not believe that our action 

approving Rule 9510 as a revision to the 

California SIP is based on a 

determination of ‘‘nationwide scope or 

effect.’’ While we recognize Rule 9510 as 

a novel approach for advancing air 

quality goals, the innovative or unusual 

nature of the rule alone does not give 

our approval of it under CAA section 

110 ‘‘nationwide scope or effect.’’ Once 

approved, Rule 9510 will become 

enforceable under the CAA by its terms 

only to certain development projects 

within the geographic jurisdiction 

covered by the SJVUAPCD. Thus, EPA’s 

approval of Rule 9510 is clearly regional 

in scope and effect. 

Of course, EPA’s rationale for 

approval of Rule 9510 sets a precedent 

for future rulemaking actions on similar 

ISR rules submitted to EPA as SIP 

revisions by California or any other 

state, but the precedential effect in this 

instance is no different than for EPA 

actions approving or disapproving any 

other SIP or SIP revision anywhere in 

the country. Thus, EPA’s action on Rule 

9510 is based on a determination of no 

greater scope or effect than any other 

EPA action on SIPs, which are 

reviewable only in the U.S. Courts of 

Appeal of the appropriate circuit, not 

necessarily the U.S. Court of Appeals for 

the District of Columbia. 

Comment #8: ARTBA contends that 

EPA cannot approve Rule 9510 as a SIP 

revision because: (1) Section 209(e) 

preempts Rule 9510 as an impermissible 

standard and ‘‘other requirement’’ 

related to emissions for construction 

equipment both above and below 175 

horsepower; (2) California and the 

SJVUAPCD therefore lack authority to 

enforce Rule 9510, and (3) SIP approval 

does not meet the criteria or procedures 

for waiving federal preemption such as 

California’s protectiveness 

determination, consistency with 

sections 209 and 202(a), and the 

opportunity for an EPA hearing. 

Response #8: As to preemption issues, 

please see our responses to comments 

#2 through #5 above. As to the legal 

authority to enforce Rule 9510, please 

see our response to comment #1. Lastly, 

as to the failure by Rule 9510 to meet 

the criteria or procedures for waiving 

preemption, we do not believe that Rule 

9510 requires a waiver because, as 

discussed above and as determined by 

the Court of Appeals, it is not 

preempted as it does not establish 

standards or other requirements relating 

to the control of emissions of nonroad 

engines or vehicles for the purposes of 

CAA section 209(e) but rather 

establishes standards relating to the 

control of emissions from an indirect 

source, the construction phase of 

development projects. 

Comment #9: Citing EPA’s TSD for 

Rule 9510, NAHB notes EPA has 

concluded that some provisions of Rule 

9510 concerning on-site and off-site 

emissions reductions are not federally 

enforceable. NAHB asserts that section 

172(c)(6) the CAA (42 U.S.C. 7502(c)(6)) 

prohibits EPA from incorporating into a 

SIP ‘‘any portion of Rule 9510 that it has 

determined to be federally 

unenforceable.’’ 

Response #9: NAHB misinterprets 

section 172(c)(6) the Act. As cited by 

NAHB, section 172(c)(6) does state that 

SIPs ‘‘shall include enforceable 

emissions limitations.’’ However, NAHB 

reads this language to mean that SIPs 

shall only include enforceable emissions 

limitations. This reading is far from 

correct. SIPs contain many aspects 

which are not federally enforceable 

emissions limitations. For example, 

approved SIPs contain such items as 

current emissions inventories, future 

emissions inventory projections based 

upon economic and technological 

trends, and air quality modeling. In 

addition, section 172(c)(6) expressly 

provides for ‘‘other control measures, 

means or techniques’’ which may not 

include enforceable emissions 

limitations. One example given in 

section 172(c)(6) is ‘‘economic 

incentives such as fees.’’ The imposition 

of a fee on a polluting activity may 

create an incentive to minimize the 

resulting pollution from that activity, 

and the incentive might be successful in 

accomplishing that goal. However, 

imposition of the fee, in itself, in no way 

creates an enforceable emissions 

limitation. 

In addition, as noted in EPA’s TSD, 

through policies such as ‘‘Guidance for 

Incorporating Voluntary Mobile Source 

Emission Reduction Programs in State 

Implementation Plans (VMEP)’’ and 

‘‘Incorporating Emerging and Voluntary 

Measures into a State Implementation 

Plan (SIP),’’ EPA has recognized that 

measures and rules which are not 

federally enforceable can be 

incorporated into a SIP pursuant to the 

Act in appropriate circumstances. 

Finally, in evaluating rules or 

measures which contain novel and/or 

voluntary aspects, some issues regarding 

federal enforceability really concern the 

amount of emissions reductions which 

can be legally compelled pursuant to 

such a rule or measure, and, therefore, 

what amount of emissions reductions, if 

any, should be credited toward 

satisfying the planning requirements of 

section 110 of the Act. This is the case 

with Rule 9510. As noted by NAHB, 

many of the issues described in EPA’s 

TSD concern the mechanisms created by 

Rule 9510 to accomplish emissions 

reductions. For example, a project 

developer subject to Rule 9510 might 

choose to pay fees instead of reducing 

emissions associated with the project 

site. In turn, the SJVUAPCD would use 

these collected fees to generate off-site 

emissions reductions. The SJVUAPCD’s 

ability to require these reductions 

would rely on a contract between the 

SJVUAPCD and an off-site project 

applicant. 

If Rule 9510 was incorporated into the 

SIP, EPA could use the Act’s 

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Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations 26613 

1EPA’s EIP Guidance, ‘‘Improving Air Quality 

with Economic Incentive Programs’’ published on 

January 2001 (EPA–452/R–01–001) is available at 

http://www.epa.gov/ttn/oarpg/t1/memoranda/ 

eipfin.pdf. 

2A copy of VMEP (October 23, 1997) is available 

at http://www.epa.gov/otaq/stateresources/policy/ 

general/vmep-gud.pdf. 

3This guidance is entitled, ‘‘Incorporating 

Emerging and Voluntary Measures into a State 

Implementation Plan (SIP),’’ September 2004, and is 

available at http://www.epa.gov/ttn/oarpg/t1/ 

memoranda/evm_ievm_g.pdf. 

enforcement authority to require that 

the appropriate fees be collected from a 

project developer, and that the collected 

fees be used by the SJVUAPCD to seek 

off-site emissions reductions. However, 

the issue of federal enforceability arises 

because EPA may not be able to enforce 

the terms of a contract between the 

SJVUAPCD and an off-site project 

applicant, and thus the emissions 

reductions required by that contract, 

pursuant to its enforcement authority 

under the Act. Thus the issue is not 

EPA’s ability to enforce the provisions 

of Rule 9510 as they are written, but 

whether those provisions create 

adequate legal authority for EPA to 

require emissions reductions which are 

sought or claimed by the rule. In view 

of these enforceability concerns, among 

other issues, the TSD recommends 

approving Rule 9510 into the SIP, but 

also recommends that ‘‘reductions from 

the Rule should not be credited in any 

attainment and rate of progress/ 

reasonable further progress 

demonstrations or used to meet 

contingency measure requirements until 

the District corrects the identified 

problems, which we believe the District 

should easily be able to do.’’ In today’s 

final rule we therefore approve Rule 

9510 but we do not assign any 

emissions reduction credit to the rule 

for purposes of any attainment or 

progress demonstration in any area. 

Comment #10: NAHB states that Rule 

9510 is not an ‘‘incentive’’ program that 

‘‘encourages’’ reductions, but rather Rule 

9510 requires developers to achieve 

emission reductions. NAHB therefore 

asserts that Rule 9510 is not an 

economic incentive program and EPA’s 

guidance, ‘‘Improving Air Quality with 

Economic Incentive Programs’’ (EIP 

Guidance) does not apply. 

Response #10: Economic incentive 

programs (EIPs), as defined by EPA’s 

EIP Guidance,1 are programs which may 

include State established measures 

directed toward stationary, area, and/or 

mobile sources, to achieve emission 

reductions milestones to attain and 

maintain ambient air quality standards, 

and/or to provide more flexible, lowercost approaches to meeting 

environmental goals. EIPs use marketbased strategies to encourage reducing 

emissions in the most efficient manner 

(see EIP Guidance sections 1.1 and 

15.1). While Rule 9510 requires 

developers subject to the rule to reduce 

emissions, it also provides developers 

the flexibility of paying a fee as an 

alternative means to comply. The 

developer may choose to pay a fee when 

it is a lower cost approach to meeting 

the rule requirements. Rule 9510 also 

requires SJVUAPCD to administer a 

program that uses these funds to achieve 

surplus emission reductions. Because 

the program as a whole includes this 

separate program where SJVUAPCD will 

use the funds to obtain emission 

reductions, it allows for a more flexible 

and potentially lower cost approach to 

getting emission reductions from the 

program. For these two reasons, Rule 

9510 is an economic incentive program 

and EPA’s EIP Guidance applies. 

Comment #11: NAHB states that Rule 

9510 is not a voluntary program, that it 

is a mandatory program. NAHB asserts 

that EPA’s ‘‘Guidance on Incorporating 

Voluntary Mobile Source Emission 

Reduction Programs in State 

Implementation Plans (VMEP)’’ does not 

apply. 

Response #11: First, we wish to 

clarify that EPA proposed to approve 

Rule 9510 because it strengthens the 

SIP. EPA did not propose to approve 

Rule 9510 as a measure under VMEP.2

Our discussion of VMEP and the 

Emerging and Voluntary Measures 

Policy 3 was intended to provide the 

SJVUAPCD and the public with 

information concerning certain 

deficiencies in Rule 9510 and how these 

deficiencies might be addressed under 

the policies so that SIP emission 

reduction credit could be granted for the 

emission reductions achieved by Rule 

9510. In addition, we acknowledge that 

we may not have made fully clear in the 

TSD the difference between 

enforceability in the context of 

reviewing the provisions of an 

individual emissions control rule as 

distinct from being able to assure that a 

state’s commitment to achieve 

emissions reductions is fully 

accomplished. 

The commenter is correct that entities 

subject to Rule 9510 are required to 

comply with the rule, and in that sense 

the provisions are mandatory. However, 

the commenter misunderstands the 

scope and potential applicability of 

VMEP. 

VMEP defines voluntary measures as 

emission reduction programs that rely 

on voluntary actions of individuals or 

other parties for achieving emission 

reductions. However, a State’s 

obligations with respect to VMEPs must 

be enforceable at the State and Federal 

levels. That is, under the VMEP policy 

guidance, the State is not responsible, 

necessarily, for implementing a program 

dependent on voluntary actions. 

However, the State is obligated to 

monitor, assess and report on the 

implementation of voluntary actions 

and the emission reductions achieved 

from the voluntary actions and to 

remedy in a timely manner emission 

reduction shortfalls should the 

voluntary measure not achieve projected 

emission reductions. 

While the developer must comply 

with the rule, several of the developer’s 

compliance options rely upon voluntary 

emission reductions. For instance, the 

developer could include on-site 

mitigation measures designed to reduce 

vehicle miles travelled by the residents. 

Emission reductions would occur when 

residents voluntarily choose to drive 

less. Alternatively, the developer could 

also pay a fee in lieu of implementing 

on-site mitigation measures. While the 

SJVUAPCD would use the funds to 

achieve emission reductions, the 

entities actually providing the emission 

reductions are voluntarily participating 

in the program and are not subject to a 

rule. Because some of the activities 

generating the actual emission 

reductions are voluntary, VMEP could 

be used to help evaluate whether SIP 

credit is appropriate if the deficiencies 

discussed in section (5)(f) of our TSD 

are addressed. 

Comment #12: NAHB notes that 

EPA’s guidance ‘‘Incorporating 

Emerging and Voluntary Measures into 

a State Implementation Plan (SIP)’’ 

(Emerging and Voluntary Measures 

Policy) does not apply to emissions 

from mobile sources. NAHB states that 

while EPA asserts that developers are 

the entities subject to the rule, 

developers are not the ‘‘sources’’ of NOX

and PM10 mobile source emissions. 

NAHB states that nonroad engines and 

vehicles are the ‘‘source’’ of emissions 

regulated by Section 6.1.1. NAHB 

therefore concludes that this policy does 

not apply. 

Response #12: In section (5)(b)(iv) of 

our TSD (page 13), we discuss 

enforceability and how prohibitory rules 

typically hold ‘‘sources’’ of emissions 

legally responsible for the required 

emission reductions. Rule 9510 in 

contrast applies to developers. As the 

entity subject to the rule and legally 

responsible for the emission reductions, 

our reference to the developer as the 

‘‘source’’ in Rule 9510 was shorthand to 

reflect their legal responsibility under 

Rule 9510. The commenter is correct 

that sources of emissions are normally 

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26614 Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations 

categorized as mobile, stationary, or area 

sources. However, as we described in 

Response #1, the CAA recognizes that 

development projects are ‘‘indirect 

sources’’ and can be subject to regulation 

in a SIP. 

Development projects indirectly result 

in new emissions from mobile, 

stationary, and area sources, including 

those from new or longer vehicle trips, 

fuel combustion from stationary and 

area sources, use of consumer products, 

landscaping maintenance, and 

construction activities. 

While the calculation of emission 

reductions required by Rule 9510 takes 

into account construction equipment 

emissions (Section 6.1) and operational 

emissions (Section 6.2), the emission 

reduction obligation is expressed in tons 

of NOX and tons of PM10 without regard 

to whether the reductions must come 

from mobile, stationary, or area sources. 

Indeed, Section 6.3 allows the emission 

reduction requirement to be met 

through any combination of on-site 

measures or off-site fees. 

Because the sources of emissions are 

mobile, stationary, and area sources and 

the emission reductions could come 

from all three types of sources, EPA has 

appropriately considered the guidances 

‘‘Incorporating Emerging and Voluntary 

Measures into a State Implementation 

Plan (SIP)’’ which applies to stationary 

and area sources, and ‘‘Guidance on 

Incorporating Voluntary Mobile Source 

Emission Reduction Programs in State 

Implementation Plans (VMEP)’’ which 

applies to mobile sources. As we 

clarified in Response #11, the 

discussion in the TSD on the 

consideration of these policies was 

largely to provide the SJVUAPCD and 

the public with information on how rule 

deficiencies might be addressed in the 

future. 

Comment #13: NAHB states that even 

if the Emerging and Voluntary Measures 

Policy applied to non-road mobile 

sources under Rule 9510, EPA cannot 

approve Rule 9510 because the non-road 

mobile source reductions are not 

permanent. The reductions are not 

permanent because they are not 

federally enforceable. 

Response #13: As we stated in 

Responses #11 and #12, EPA did not 

propose to approve Rule 9510 as a 

measure under the Emerging and 

Voluntary Measures Policy, and the 

discussion in the TSD was largely to 

provide information on how rule 

deficiencies might be addressed in the 

future to obtain SIP credit for emission 

reductions. While thus not relevant to 

our action in approving Rule 9510, we 

will elaborate on the concept of 

permanent. 

Whether a reduction is considered 

‘‘permanent’’ is dependent on the 

duration of the obligation which the 

particular measure and resulting 

emission reductions are meant to 

address. The commenter has noted that 

EPA identified enforceability concerns 

with the provisions requiring 

implementation of the mitigation 

measure, and Response #9 addresses the 

enforceability issue. Enforceability is a 

separate question from whether the nonroad mobile source mitigation measure, 

if implemented, results in permanent 

reductions. If a developer’s mitigation 

measure is the use of lower emitting 

construction equipment, the very use of 

that equipment results in a stream of 

emission reductions during the 

construction phase. Although these 

reductions may not be federally 

enforceable, they can still be permanent 

during the relevant time period. 

III. EPA Action 

No comments were submitted that 

change our assessment that the 

submitted rules comply with the 

relevant CAA requirements. Therefore, 

as authorized in section 110(k)(3) of the 

Act, EPA is fully approving this rule 

into the California SIP. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

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

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

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not interfere with Executive 

Order 12898 (59 FR 7629 (Feb. 16, 

1994)) because EPA lacks the 

discretionary authority to address 

environmental justice in this 

rulemaking. 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 

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

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by July 8, 2011. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

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Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations 26615 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements. 

Dated: March 31, 2011. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220, is amended by 

adding paragraph (c)(348) (i)(A)(3) to 

read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(348) * * * 

(i) * * * 

(A) * * * 

(3) Rule 9510, ‘‘Indirect Source 

Review (ISR),’’ adopted on December 15, 

2005. 

* * * * * 

[FR Doc. 2011–11133 Filed 5–6–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2007–1073; FRL–9292–4] 

Revisions to the California State 

Implementation Plan, Imperial County 

Air Pollution Control District (ICAPCD) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of 

revisions to the Imperial County Air 

Pollution Control District portion of the 

California State Implementation Plan 

(SIP). These revisions were proposed in 

the Federal Register on February 9, 

2011 and concern New Source Review 

(NSR) permitting requirements and 

exemptions for various air pollution 

sources. We are approving local rules 

that regulate these emission sources 

under the Clean Air Act as amended in 

1990 (CAA or the Act). 

DATES: Effective Date: This rule is 

effective on June 8, 2011. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2007–1073 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed at 

http://www.regulations.gov, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material, large maps, multivolume reports), and some may not be 

available in either location (e.g., 

confidential business information 

(CBI)). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Laura Yannayon, EPA Region IX, (415) 

972–3534, yannayon.laura@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. EPA Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On February 9, 2011 (76 FR 7142), 

EPA proposed to approve the following 

rules into the California SIP. 

Local agency Rule No. Rule title Amended Submitted 

ICAPCD .......................................... 201 ................................................. Permits Required ........................... 10/10/06 08/24/07 

ICAPCD .......................................... 202 ................................................. Exemptions .................................... 10/10/06 08/24/07 

We proposed to approve these rules 

because we determined that they 

complied with the relevant CAA 

requirements. Our proposed action 

contains more information on the rules 

and our evaluation. 

II. Public Comments and EPA 

Responses 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we received no comments. 

III. EPA Action 

No comments were submitted that 

change our assessment that the 

submitted rules comply with the 

relevant CAA requirements. Therefore, 

as authorized in section 110(k)(3) of the 

Act, EPA is fully approving these rules 

into the California SIP. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

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

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

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act 

(44 U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

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