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

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Incorporation by reference,

Intergovernmental relations, Lead,

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur oxides, Volatile

organic compounds.

Dated: February 24, 2010.

Al Armendariz,

Regional Administrator, Region 6.

* 40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

m 1. The authority citation for part 52

continues to read as follows:

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

Subpart SS-Texas

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

"EPA Approved Regulations in the

Texas SIP" is amended by revising the

entry for Section 116.114 under Chapter

116--Control of Air Pollution by

Permits for New Construction or

Modification, Subchapter B-New

Source Review Permits, Division 1-

Permit Application, to read as follows:

§ 52.2270 Identification of plan.

(c) * * *

EPA APPROVED REGULATIONS IN THE TEXAS SIP

State

State citation Title/Subject approval/ EPA approval date Explanation

submittal date

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

Subchapter B-New Source Review Permits

Division 1-Permit Application

Section 116.114 ........ Application Review 12/19/07 03/08/10 [Insert FR Subsections (a), (a)(1), (a)(2), (b), and (b)(1) in

Schedule. page number where the SIP are as adopted 6/17/98 and approved

document begins], by EPA 9/18/02, 67 FR 58697.

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

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

respectively, and approved by EPA on 03/08/

10 [Insert FR page number where document

begins].

[FR Doe. 2010-4833 Filed 3-5-10; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0693; FRL-9108-4]

Approval and Promulgation of

Implementation Plans: 1-Hour Ozone

Extreme Area Plan for San Joaquin

Valley, CA

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving state

implementation plan (SIP) revisions

submitted by the State of California to

meet the Clean Air Act (CAA)

requirements applicable to the San

Joaquin Valley, California extreme 1-

hour ozone standard nonattainment area

(SJV area). EPA is approving the SIP

revisions for the SJV area as meeting

applicable CAA and EPA regulatory

requirements for the attainment and

rate-of-progress demonstrations and

their related contingency measures,

reasonably available control measures,

and other control requirements. In

addition, EPA is approving the SJV Air

Pollution Control District's Rule 9310,

"School Bus Fleets."

DATES: Effective Date: This rule is

effective on April 7, 2010.

ADDRESSES: EPA has established docket

number EPA-R09-OAR-2008-0693 for

this action. The index to the docket is

available electronically at

www.regulations.gov and in hard copy

at EPA Region IX, 75 Hawthorne Street,

San Francisco, California. While all

documents in the docket are listed in

the index, some information may be

publicly available only at the hard copy

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

some may not be publicly available in

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

hard copy materials, please schedule an

appointment during normal business

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Frances Wicher, EPA Region IX, (415)

942-3957, wicher.frances@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, "we," "us"

and "our" refer to EPA.

Table of Contents

I. Summary of Proposed Actions

11. Summary of Public Comments Received

on the Proposals and EPA Responses

II. Approval Status of Rules

IV. Final Actions

V. Statutory and Executive Order Review

I. Summary of Proposed Actions

On July 14, 2009 at 74 FR 33933, EPA

proposed to approve in part and

disapprove in part the state

implementation plan (SIP) revisions

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submitted to EPA by the State of

California. California made these

submittals to meet the Clean Air Act

(CAA) requirements applicable to the

San Joaquin Valley, California ozone

nonattainment area (SJV area). The SJV

area became subject to these

requirements following its 2004

reclassification to extreme for the 1-hour

ozone national ambient air quality

standard (1-hour ozone standard). 69 FR

20550 (April 15, 2004). Although we

established a new 8-hour ozone

standard in 19971 and subsequently

revoked the 1-hour ozone standard in

2005, the SJV area continues to remain

subject to certain CAA requirements for

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

implementing the 8-hour ozone

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

900(f).

The SIP submittals that are the subject

of our July 14, 2009 proposal are, first,

the "Extreme Ozone Attainment

Demonstration Plan" (2004 SIP) adopted

by the San Joaquin Valley Air Pollution

Control District (SJVAPCD or the

District) in 2004 and amended in 2005.

The 2004 SIP addresses CAA

requirements for extreme 1-hour ozone

areas including reasonably available

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

demonstrations, and contingency

measures.

The second SIP submittal is

"Clarifications Regarding the 2004

Extreme Ozone Attainment

Demonstration Plan" (2008

Clarifications) adopted by the SJVAPCD

in 2008. The 2008 Clarifications provide

updates to the 2004 SIP related to

reasonably available control technology

(RACT) measures adopted by the

SJVAPCD, the ROP demonstrations, and

contingency measures.

The third SIP submittal addressed in

our proposal is the "2003 State and

Federal Strategy for the California State

Implementation Plan," (2003 State

Strategy) adopted by the California Air

Resources Board (ARB) in October,

2003. This strategy document, as

modified by ARB's resolution adopting

it, identifies ARB's regulatory agenda to

reduce ozone and particulate matter in

California, including specific

commitments to reduce emissions in the

SJV area. The 2004 SIP relies in part on

the 2003 State Strategy for the

reductions needed to demonstrate

attainment and ROP for the 1-hour

ozone standard in the SJV area.

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

lowered the 8-hour ozone standard to 0.075 ppm.

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

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

1997 standard as codified at 40 CFR 50.10.

We refer to these three submittals

collectively as the 2004 SJV 1-hour

ozone plan or 2004 1-hour ozone plan.

EPA proposed to approve 2004 SJV 1-

hour ozone plan as meeting the

applicable CAA and EPA requirements

for an attainment demonstration, 2 ROP

demonstrations, ROP contingency

measures, RACM, clean fuel/clean

technology for boilers, and the provision

for transportation control measures

sufficient to offset any growth in

emissions from growth in VMT or the

number of vehicle trips. We also

proposed to approve a commitment by

ARB to reduce volatile organic

compounds (VOC) emissions in the SJV

by 15 tons per day (tpd) and nitrogen

oxides (NOx) by 20 tpd and to approve

SJVAPCD's Rule 9310, School Bus

Fleets.

In the same action, we proposed to

disapprove, as failing to meet the

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

contingency measures in the 2004 SIP

and the 2008 Clarifications that would

take effect if the area failed to attain the

1-hour ozone standard by the applicable

attainment date because the State had

not demonstrated that its contingency

measures provided sufficient emission

reductions to meet EPA guidance.

On August 28, 2009, ARB provided

additional information showing that

existing, creditable measures provided a

sufficient level of emission reduction

needed for attainment contingency

measures. Based on this additional

information, on October 2, 2009, we

proposed to approve the attainment

contingency measures and withdraw

our proposed disapproval at 74 FR

50936.

A more detailed discussion of each of

the California's SIP submittals for the

SJV area, the CAA and EPA

requirements applicable to them, and

our evaluation and proposed actions on

them can be found in the July 14, 2009

and October 2, 2009 proposals.

II. Summary of Public Comments

Received on the Proposals and EPA

Responses

We received eight comment letters,

listed below, in response to our July 14,

2009 proposal and October 2, 2009

supplemental proposal. Several of these

letters were submitted in conjunction

with separate EPA proposed actions on

individual SJVAPCD rules. We respond

to the comments in these letters in this

2 The proposed approval of the attainment

demonstration was predicated in part on emission

reductions from a number of State and District rules

that we had proposed to approve in separate

actions. We have now completed SIP approval of

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

preamble.

final rule and TSD insofar as they are

relevant to this action and respond to

the remainder in our final rules for the

individual rule actions.

We received four comment letters

from the Center on Race, Poverty & the

Environment representing various

organizations. We refer to these

comments collectively as from CRPE or

the Center throughout this final rule and

TSD:

1. Brent Newell, CRPE, August 31,

2009, on the behalf of 14 San Joaquin

Valley environmental and community

organizations and the Natural Resource

Defense Council.

2. Johannes Epke, CRPE, August 31,

2009, on behalf of the Center and 12 San

Joaquin Valley environmental and

community organizations. This

comment letter was in conjunction with

our proposed limited approval/limited

disapproval of SJVAPCD's Rule 4570,

Confined Animal Facilities at 74 FR

33948 (July 14, 2009).

3. Johannes Epke, CRPE, August 31,

2009, on behalf of the Center and 11 San

Joaquin Valley environmental and

community organizations. This

comment letter was in conjunction with

our proposed approval of ARB's

reformulated gasoline and diesel fuel

regulations at 74 FR 38838 (July 27,

2009).

4. Brent Newell, Center on Race,

Poverty & the Environment, November

2, 2009, on the behalf of 14 San Joaquin

Valley environmental and community

organizations and the Natural Resource

Defense Council.

We received two comment letters

from Earthjustice representing various

organizations. We refer to these

comments collectively as from

Earthjustice throughout this final rule

and TSD:

5. Paul Cort and Sarah Jackson,

Earthjustice, August 31, 2009, on behalf

of Medical Advocates for Healthy Air,

Fresno Metro Ministries, and the

Coalition for Clean Air (collectively,

Earthjustice).

6. Paul Cort and Sarah Jackson,

Earthjustice, November 2, 2009, on

behalf of Fresno Metro Ministries.

7. Seyed Sadredin, SJVAPCD, August

27, 2009.

8. James N. Goldstene, Executive

Officer, ARB, August 28, 2009.

We summarize our responses to the

most significant comments in this final

rule. Our full responses to all comments

received can be found in the "Response

to Comments" section of the Technical

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Support Document (TSD) for this

rulemaking.3

A. Emissions Inventory

Comment: Earthjustice comments on

the importance of emission inventories,

noting that CAA section 172(c)(3)

requires that nonattainment plans "shall

include a comprehensive, accurate,

current inventory of actual emissions

from all sources of the relevant

pollutant or pollutants in such area." It

also comments that ARB submitted to

EPA new emissions inventories for

ozone precursors in the San Joaquin

Valley as part of the 2007 Ozone Plan 4

for the 8-hour ozone standard and that

these updated inventories are "significantly different" than the

inventories in the 2004 SIP as a result

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

then argues that the improvements to

EMFAC, and therefore, to the SJV

emissions inventory overall, make the

2007 Ozone Plan inventory the most

comprehensive, accurate, current

inventory of actual emissions from all

sources affecting the Valley's air quality.

It concludes that EPA cannot approve

the 2004 SIP based on inventories that

are no longer current or accurate.

Response: EPA does not dispute the

importance of emission inventories. We

evaluated the emission inventories in

the 2004 SIP to determine if they are

consistent with EPA guidance (General

Preamble at 13502 5) and adequate to

support that plan's rate-of-progress

(ROP) and attainment demonstrations.

We determined that the plan's 2000 base

year emission inventory was

comprehensive, accurate, and current at

the time it was submitted on November

15, 2004 and that this inventory, as well

as the 2008 and 2010 projected

inventories used in the ROP and

attainment demonstrations, were

prepared in a manner consistent with

EPA guidance. Accordingly, we

proposed to find that these inventories

provide an appropriate basis for the

ROP and attainment demonstrations in

the 2004 SIP. See 74 FR at 33940.

ARB used its mobile source emissions

model EMFAC2002 to generate the onroad mobile source inventory in the

2004 SJV 1-hour ozone plan. ARB

released EMFAC2002 in October 2002

3,,Final Technical Support Document for the

Approval of the San Joaquin Valley Extreme 1-Hour

Ozone Standard Plan and San Joaquin Portion of

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

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

for this rulemaking.

* SJVAPCD, "2007 Ozone Plan," April 30, 2007.

* The General Preamble is the "General Preamble

for Implementation of Title I of the Clean Air Act

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

1992).

and EPA approved it for use in SIPs and

conformity determinations on April 1,

2003 (62 FR 15720). At the time the

2004 SIP was being developed (2003-

2004) and when it was subsequently

adopted by SJVAPCD and submitted by

ARB to EPA, EMFAC2002 was the most

current mobile source model available

for inventory purposes. 74 FR at 33940.

It has been EPA's consistent policy

that States must use the most current

mobile source model available at the

time it is developing its SIP. See General

Preamble at 13503 (requiring the use of

MOBILE4.1 6 for November, 1992

submittal of base year inventories);

Office of Mobile Sources, EPA,

"Procedures for Emissions Inventory

Preparation, Volume IV: Mobile

Source," June, 1992, page 5 (allowing

states to use MOBILE4.1 for the base

year inventories due November 1992,

but requiring MOBILE5, then scheduled

for release in December 1992, for the

ROP and attainment demonstrations due

November 1993); Memorandum, Philip

A. Lorang, Director, Assessment and

Modeling Division, Office of Mobile

Sources, "Release of MOBILE5a

Emission Factor Model," March 29, 1993

(allowing the use of MOBILE5 in

updated base year inventories but

requiring the use of MOBILE5a, released

March 1993, for the ROP and attainment

demonstrations due November 1993);

and Memorandum, John Seitz, Office of

Air Quality Planning and Standards

(OAQPS) and Margo Oge, Office of

Transportation and Air Quality, "Policy

Guidance on the Use of MOBILE6 for

SIP Development and Transportation

Conformity," January 18, 2002 (Seitz

Memo). 7

The Seitz Memo specifically

addresses the issue of how the release

of the new model, MOBILE6, would

affect SIPs that were already submitted

and/or approved or SIPs that were then

under development. Citing CAA section

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

stated in the Seitz Memo that, "while

[i]n general, EPA believes that MOBILE6

should be used in SIP development as

expeditiously as possible * * * [t]he

Clean Air Act requires that SIP

inventories and control measures be

based on the most current information

and applicable models that are available

when a SIP is developed. As a result,

6 MOBILE is EPA's model for estimating pollution

from highway vehicles in all states except

California where EMFAC is used.

7 In keeping with this policy, ARB and the District

used the most current version of EMFAC,

EMFAC2007, to prepare the most recent ozone plan

for the Valley, the 2007 Ozone Plan. See 2007

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

November 2006 and approved by EPA for use in

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

2008).

the release of MOBILE6 in most areas

would not require a SIP revision based

on the new model." The Seitz Memo

further states that:

EPA believes that the Clean Air Act would

not require states that have already submitted

SIPs or will submit SIPs shortly after

MOBILE6's release to revise these SIPs

simply because a new motor vehicle

emissions model is now available. EPA

believes that this is supported by existing

EPA policies and case law [Delaneyv. EPA,

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

does not believe that the State's use of

MOBILE5 should be an obstacle to EPA

approval for reasonable further progress,

attainment, or maintenance SIPs that have

been or will soon be submitted based on

MOBILE5, assuming that such SIPs are

otherwise approvable and significant SIP

work has already occurred (e.g., attainment

modeling for an attainment SIP has already

been completed with MOBILE5). It would be

unreasonable to require the States to revise

these SIPs with MOBILE6 since significant

work has already occurred, and EPA intends

to act on these SIPs in a timely manner.

EPA has also consistently applied this

policy in approving SIPs. See, for

example, 67 FR 30574, 30582 (May 7,

2002), approval of 1-hour ozone

standard attainment demonstration for

Atlanta, Georgia and 68 FR 19106,

19118 and 19120 (April 17, 2003),

approval of the Washington, DC area's

severe area 1-hour attainment

demonstration. The latter action was

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

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

308, the court cites the Seitz Memo and

concludes that "[t]o require states to

revise completed plans every time a

new model is announced would lead to

significant costs and potentially endless

delays in the approval processes. EPA's

decision to reject that course, and to

accept the use of MOBILE5 in this case,

was neither arbitrary nor capricious."

Comment: Earthjustice comments that

an outdated inventory adversely affects

the 2004 1-hour ozone plan's rate of

progress (ROP) and attainment

demonstrations and its demonstration

related to offsetting growth in emissions

from growth in vehicle miles traveled

(as required by CAA section

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

underestimation of the emission

reductions needed to satisfy the

contingency measure requirement.

Earthjustice argues that EPA must

reevaluate whether the 2004 SIP

satisfies these CAA requirements based

on the revised inventories.

Response: As discussed above, EPA's

long-established and consistent policy

does not require states to revise their

already-submitted SIPs when a new

mobile source emission model is

released. This policy also means that

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EPA will not evaluate these SIPs based

on the new model. We note that

EMFAC2007 was released in November

2006 and was not approved by EPA

until January 2008 two years after the

SIP was submitted. 68 FR 3464 (January

18, 2008).

In its comments, Earthjustice

consistently attempts to conflate the

2004 1-hour ozone standard and 2007

8-hour ozone standard plans. Following

Earthjustice's logic would effectively

result in the 1-hour ozone plan being

completely revised to become the 8-

hour ozone plan. This is because an

evaluation of the effect of emissions

inventory changes on the plan could not

be limited to just those changes

resulting from the move to EMFAC2007.

All factors, from revised growth

projections and changes to other

emissions inventory categories to the

impact of new controls, would need to

be taken into account before we could

determine whether the plan is or is not

approvable. In other words, an entire

new plan would need to be developed.

The District and State have already

prepared a new plan that addresses the

applicable 8-hour ozone standard and

that is based on EMFAC2007 as well as

other updated information. EPA will

evaluate the revised inventories in

connection with its action on that plan.

Comment: CRPE comments that

because the 2004 SIP includes

reductions from California mobile

source rules that are subject to CAA

section 209 waivers ("waiver measures")

that occurred before 2000 as part of the

2000 base year inventory, EPA's

proposed action on the inventory

violates CAA sections 172(c)(3) and

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

that the reductions from the waiver

measures have occurred, are

enforceable, or are otherwise consistent

with the Act, EPA's implementing

regulations, and the General Preamble.

Response: We evaluated the emission

inventories in the 2004 SIP to determine

if they were consistent with EPA

guidance (General Preamble at 13502)

and adequate to support that plan's ROP

and attainment demonstrations. 74 FR at

33940. Based on this evaluation, we

proposed to find that the base year

inventory (and the projected baseline

inventories derived from it) provided an

appropriate basis for the ROP and

attainment demonstrations in the 2004

SIP. 74 FR 33933, 33940.

We also reviewed the District and

State rules that were relied on for

emissions reductions in the 2004 SIPs

base year and baseline inventories. We

determined that all these rules were

creditable under the CAA and our

policies. See Sections III and IV of the

TSD. For the reasons given in the

proposal at 33938-33939 and discussed

in our responses to comments on waiver

measures below, we believe that

California's mobile source measures are

fully creditable for SIP purposes.

As to emission reductions from

waiver measures actually occurring, we

assume that sources comply with

applicable emission limitations and the

agencies responsible for ensuring

compliance with them are exercising

appropriate oversight, absent

information to the contrary. The

commenter provides no information

indicating either of these is not

happening.

B. Reasonably Available Control

Measures (RACM) and Reasonably

Available Control Technology (RACT)

Comment: Earthjustice asserts that

deferring action on the RACT

demonstration is illegal and arbitrary. It

further asserts that EPA cannot find that

the plan as submitted will provide for

attainment "as expeditiously as

practicable" without first demonstrating

that all of the required controls, such as

RACT, will be implemented. Finally,

Earthjustice comments that EPA cannot

treat RACM and RACT as discrete

requirements that can be acted on

separately because the statute clearly

states that RACM includes RACT. It also

comments that EPA cannot determine

that all reasonable measures are in place

in the Valley without first evaluating

RACT for all SJV area sources.

Response: We described the RACM

analysis in the 2004 1-hour ozone plan

in the proposal at 74 FR at 33935. We

also discussed the section 182(b)(2)

RACT provision in the 2004 SIP, stating

that the State had formally withdrawn it

and that we had subsequently made a

finding of failure to submit the RACT

demonstration for the 1-hour ozone

standard and initiated sanction and

federal implementation plan (FIP)

clocks under CAA sections 179(a) and

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

3442 (January 21, 2009). Finally, we

noted that California had recently

submitted the District's revised 8-hour

ozone standard RACT plan (adopted

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

the plan is intended in part to correct

the failure to submit finding for the 1-

hour ozone standard RACT requirement

as well, and that we are currently

reviewing the revised RACT plan for

action in a subsequent rulemaking. See

74 FR at 33935.

Contrary to the commenter's

assertions, we did not defer action

under CAA section 110(k) on the RACT

demonstration in the 2004 SIP because,

as a result of the State's withdrawal of

this component of the plan, there was

no such demonstration on which the

Agency could act. Instead, we took the

appropriate action under the CAA

which was, as stated above, to make a

finding of failure to submit a required

plan element which started sanctions

and FIP clocks. 74 FR 3442.

For 30 years, EPA has consistently

interpreted the Act's RACM provision in

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

feasible measures necessary for

expeditious attainment.8 Under EPA's

interpretation, if an otherwise feasible

measure, alone or in combination with

other measures, cannot expedite

attainment then it is not considered to

be reasonably available. Thus, to show

that it had implemented RACM, a state

needs to show that it considered a wide

range of potential measures and found

none that were feasible for the area and

that would, alone or in combination

with other feasible measures, advance

attainment. See 1999 RACM Guidance.

Based on the form of the 1-hour ozone

standard and the Act's specific language

on RACM, the appropriate standard for

advancing attainment is, at a minimum,

one year from the predicted attainment

date in the attainment plan. 9

We have determined that the 2004 SIP

contains all reasonably available

measures needed for expeditious

attainment. While any evaluation of a

RACM demonstration needs to consider

the potential effect of CAA section

182(b)(2) RACT on expeditious

attainment, it does not require that there

first be an approved RACT

demonstration. For this action, we

8 We initially stated our interpretation of the

RACM requirement in our 1979 nonattainment area

plan guidance where we indicated that if a measure

which might be available for implementation could

not be implemented on a schedule that would

advance the date for attainment in the area, we

would not consider it reasonably available. See 44

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

interpretation in the 1992 General Preamble at

13560; in Memorandum, John Seitz, Director,

OAQPS, "Guidance on the Reasonably Available

Control Measure Requirement and Attainment

Demonstration Submissions for Ozone

Nonattainment Areas," November 30, 1999 (1999

RACM Guidance); in the 2005 8-hour

implementation rule (70 FR 71612, 71659

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

2007 PM2.5 implementation rule (72 FR 20586,

20612 (April 25, 2007) and § 51.1010.

9 Attainment of the 1-hour standard is based on

the average of the most recent three calendar years

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

when the expected number of days per calendar

year with maximum hourly average concentrations

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

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

of the 1-hour ozone standard can only be advanced

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

requires RACM sufficient to provide for expeditious

attainment; thus, what constitutes RACM for the 1-

hour ozone standard must be determined based on

what reductions are needed to advance attainment

by one year.

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evaluated the potential effect of

applying RACT to those sources in the

SJV area for which we had not already

approved a RACT rule. We provide this

evaluation in Section V of the TSD. This

evaluation shows that there were no

outstanding RACT measures that, either

individually or in combination with

other potential measures, would

advance attainment of the 1-hour ozone

standard in the SJV area. See TSD

Section V and 74 FR at 33938.

We agree that SJVAPCD must adopt

and implement the specific section 182

control requirements of the Act, but we

do not agree that the withdrawal of the

RACT demonstration in the 2004 SIP

precludes us from approving the plan's

RACM and attainment demonstrations

when it has been shown that the RACT

measures would not contribute to more

expeditious attainment.

Comment: Earthjustice argues that

EPA's test of whether implementation of

additional measures would advance

attainment from 2010 to 2009 is

arbitrary and "absurd" given that it

believes the area will fail to attain by

2010. It further argues that it is

"disingenuous for EPA to use this

impossible test" to justify the missing

RACT analysis and approve the plan as

meeting the RACM requirement and

EPA should instead require a new plan

based on current, accurate information

and a new attainment date and then

evaluate whether RACM has been met.

Response: We have not used the

"advance attainment test" to justify the

missing RACT analysis. As stated

previously, we took the appropriate

statutory course of action for dealing

with the withdrawn RACT

demonstration: A finding of failure to

submit and the starting of sanctions and

FIP clocks. 74 FR 3442. We also

described the process that we used to

determine if the 2004 SJV 1-hour ozone

plan provided for the implementation of

all RACM needed for expeditious

attainment in the proposal at 74 FR

33938. This process included evaluating

the potential impact of RACT on source

categories for which we have not

previously approved a RACT rule. See

TSD, Section V. We determined that

there were no outstanding measures,

including potential RACT measures,

that could provide for more expeditious

attainment of the 1-hour ozone standard

in the SJV area.

As we discuss below in the

Attainment Demonstration section, we

disagree with the commenter that the

plan does not demonstrate attainment of

the revoked 1-hour ozone standard by

the 2010 attainment date.

C. Treatment of Waiver Measures

Comment: Earthjustice and CRPE

object to our proposal to grant emissions

reduction credit to California's mobile

source control measures that have

received a waiver of preemption under

CAA section 209 without first approving

them into the SIP. Both commenters

argue that our reliance for this proposal

on the general savings clause in CAA

section 193 is inappropriate for several

reasons.

First, the commenters assert that CAA

section 193 only saves those "formal

rules, notices, or guidance documents"

that are not inconsistent with the CAA.

They argue that both the CAA and

EPA's long-standing policies and

regulations require SIPs to contain the

state and local emission limitations and

control measures that are necessary for

attainment and RFP and to meet other

CAA requirements. They assert that our

position on the treatment of California's

waived measures is inconsistent with

this requirement. Earthjustice also

argues that only SIP approval provides

for the CAA's enforcement oversight

(CAA sections 179 and 304) and antibacksliding (CAA section 110(1) and

193) safeguards.

Second, the commenters argue that

we cannot claim that our position was

ratified by Congress because section 193

saves only regulations, standards, rules

notices, orders and guidance "promulgated or issued" by the

Administrator and we have not

identified documents promulgated or

issued by EPA that establish our

position here. Earthjustice further

asserts that our interpretation has not

been expressed through any affirmative

statements and the only statements of

relevant statutory interpretations are

contrary to our position on California's

waived measures.

Third, Earthjustice argues that there is

no automatic presumption that Congress

is aware of an agency's interpretations

and we have not provided any evidence

that Congress was aware of our

interpretation regarding the SIP

treatment of California's mobile source

control measures. Similarly, CRPE

argues that our positions that Congress

must expressly disapprove of EPA's

long-standing interpretation and

Congressional silence equates to a

ratification of EPA's interpretation are

incorrect.

Finally, Earthjustice argues EPA's

position is inconsistent because we do

require other state measures, e.g., the

consumer products rules and fuel

standards, to be submitted and

approved into SIPs before their emission

reductions can be credited.

Response: We continue to believe that

credit for emissions reductions from

implementation of California mobile

source rules that are subject to CAA

section 209 waivers ("waiver measures")

is appropriate notwithstanding the fact

that such rules are not approved as part

of the California SIP. In our July 14,

2009 proposed rule, we explained why

we believe such credit is appropriate.

See pages 33938 and 33939 of the

proposed rule. Historically, EPA has

granted credit for the waiver measures

because of special Congressional

recognition, in establishing the waiver

process in the first place, of the

pioneering California motor vehicle

control program and because

amendments to the CAA (in 1977)

expanded the flexibility granted to

California in order "to afford California

the broadest possible discretion in

selecting the best means to protect the

health of its citizens and the public

welfare," (H.R. Rep. No. 294, 95th

Congr., 1st Sess. 301-2 (1977)). In

allowing California to take credit for the

waiver measures notwithstanding the

fact that the underlying rules are not

part of the California SIP, EPA treated

the waiver measures similarly to the

Federal motor vehicle control

requirements, which EPA has always

allowed States to credit in their SIPs

without submitting the program as a SIP

revision.

EPA's historical practice has been to

give SIP credit for waiver measures by

allowing California to include motor

vehicle emissions estimates made by

using California's EMFAC motor vehicle

emissions factor model as part of the

baseline emissions inventory. EMFAC

was also used to prepare baseline

inventory projections into the future,

and thus the plans typically showed a

decrease in motor vehicle emissions due

to the gradual replacement of more

polluting vehicles with vehicles

manufactured to meet newer, more

stringent California vehicle standards.

The EMFAC model is based on the

motor vehicle emissions standards for

which California has received waivers

from EPA but accounts for vehicle

deterioration and many other factors.

The motor vehicle emissions estimates

themselves combine EMFAC results

with vehicle activity estimates, among

other considerations. See the 1982 Bay

Area Air Quality Plan, and the related

EPA rulemakings approving the plan

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

the proposed rule and 48 FR 57130

(December 28, 1983) for the final rule)

as an example of how the waiver

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measures have been treated historically

by EPA in California SIP actions. 10

In our proposed rule, we indicated

that we believe that section 193 of the

CAA, the general savings clause added

by Congress in 1990, effectively ratified

our long-standing practice of granting

credit for the California waiver rules

because Congress did not insert any

language into the statute rendering

EPA's treatment of California's motor

vehicle standards inconsistent with the

Act. Rather, Congress extended the

California waiver provisions to most

types of nonroad vehicles and engines,

once again reflecting Congressional

intent to provide California with the

broadest possible discretion in selecting

the best means to protect the health of

its citizens and the public welfare.

Requiring the waiver measures to

undergo SIP review in addition to the

statutory waiver process is not

consistent with providing California

with the broadest possible discretion as

to on-road and nonroad vehicle and

engine standards, but rather, would add

to the regulatory burden California faces

in establishing and modifying such

standards, and thus would not be

consistent with Congressional intent. In

short, we believe that Congress intended

California's mobile source rules to

undergo only one EPA review process

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

EPA's waiver review and approval

process is analogous to the SIP approval

process. First, CARB adopts its

10 EPA'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).

emissions standards following notice

and comment procedures at the state

level, and then submits the rules to EPA

as part of its waiver request. When EPA

receives new waiver requests from

CARB, EPA publishes a notice of

opportunity for public hearing and

comment and then publishes a decision

in the Federal Register following the

public comment period. Once again, in

substance, the process is similar to that

for SIP approval and supports the

argument that one hurdle (the waiver

process) is all Congress intended for

California standards, not two (waiver

process plus SIP approval process).

Moreover, just as SIP revisions are not

effective until approved by EPA,

changes to CARB's rules (for which a

waiver has been granted) are not

effective until EPA grants a new waiver,

unless the changes are "within the

scope" of a prior waiver and no new

waiver is needed.

Moreover, to maintain a waiver,

CARB's rules can be relaxed only to a

level of aggregate equivalence to the

Federal Motor Vehicle Control Program

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

respect, the FMVCP acts as a partial

backstop to California's on-road waiver

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

FMVCP would apply in California).

Likewise, Federal nonroad vehicle and

engine standards act as a backstop

where there is a corresponding

California nonroad waiver measure. The

constraints of the waiver process thus

serve to limit the extent to which CARB

can relax the waiver measures for which

there are corresponding EPA standards,

and thereby serve an anti-backsliding

function similar in substance to those

established for SIP revisions in CAA

sections 110(1) and 193. Meanwhile, the

growing convergence between California

and EPA mobile source standards

diminishes the difference in the

emissions reductions reasonably

attributed to the two programs and

strengthens the role of the Federal

program in serving as an effective

backstop to the State program. In other

words, with the harmonization of EPA

mobile source standards with the

corresponding State standards, the

Federal program is becoming essentially

a full backstop to the California

program.

In addition, the commenters' concerns

over the potential for relaxation by the

State of the waiver measures because

the underlying regulations are not

subject to EPA review and approval as

a SIP revision are not a practical

concern for this particular plan given

that the plan's horizon is very short

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

will determine whether the area attains

the standard are already in operation or

in dealer showrooms. There is no

practical means for the State to relax the

standards of vehicles already

manufactured, even if the State wanted

to relax the standards.

As to the concerns raised by the

commenters on enforceability, we note

that CARB has as long a history of

enforcement of vehicle/engine

emissions standards as EPA, and

CARB's enforcement program is equally

as rigorous as the corresponding EPA

program. The history and rigor of

CARB's enforcement program lends

assurance to California SIP revisions

that rely on the emissions reductions

from CARB's rules in the same manner

as EPA's mobile source enforcement

program lends assurance to other State's

SIPs in their reliance on emissions

reductions from the FMVCP.

In summary, we disagree that our

interpretation of CAA section 193 is

fundamentally flawed. EPA has

historically given SIP credit for waiver

measures in our approval of attainment

demonstrations and other planning

requirements such as reasonable further

progress and contingency measures

submitted by California. We continue to

believe that section 193 ratifies our

long-standing practice of allowing credit

for California's waiver measures

notwithstanding the fact they are not

approved into the SIP, and correctly

reflects Congressional intent to provide

California with the broadest possible

discretion in the development and

promulgation of on-road and nonroad

vehicle and engine standards.1

D. ARB Commitments

Comment: Earthjustice asserts that

ARB's commitments to reduce

emissions in the SJV area by 15 tpd VOC

and 20 tpd NOx by 2010 do not satisfy

the first factor in EPA's three-factor test

for the approval of enforceable

commitments. The commenter argues

that the commitments do not meet the

first factor, that commitments provide

only a limited portion of the needed

reductions, for several reasons. The first

reason is that the commitment is not for

6.3 percent of the needed NOx

reductions and 11.6 percent of the

11 In this regard, we disagree that we are treating

the waiver measures inconsistently with other

California control measures, such as consumer

products and fuels rules, for the simple reason that,

unlike the waiver measures, there is no history of

past practice or legislative history supporting

treatment of other California measures, such as

consumer products rules and fuels rules, in any

manner differently than is required as a general rule

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

measures that are relied upon for SIP purposes must

be approved into the SIP.

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needed VOC reductions, the numbers

EPA gave in the proposal, but rather

19.2 percent for NOx (41.1 tpd) and 37.7

percent for VOC (48.7 tpd) because

these were the emissions reductions in

commitment form at the time the 2004

SIP was submitted. The second reason

is that the 11.6 percent commitment

level for VOC is not minimal. The final

reason is that the commitments now

constitute 100 percent of the remaining

emission reductions needed. The

commenter concludes that these levels

are not the limited or minimal role of

commitments envisioned in the

decision in BCCA Appeal Group v. EPA,

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

Response: We did not propose to

approve commitments of 41.1 tpd NOx

and 48.7 tpd VOC, rather we proposed

to approve and are taking final action to

approve commitments of 20 tpd NOx

and 15 tpd VOC. Because the District

has adopted and submitted and EPA has

approved rules achieving reductions of

21.1 tpd NOx and 33.3 tpd VOC, the

portion of the original commitments

relating to those reductions are now

obsolete and approving them would

serve no purpose.

The State of Texas' enforceable

commitment for the Houston/Galveston

area, the approval of which was upheld

by the 5th Circuit in BCCA, represented

6 percent of the reductions needed for

attainment in the area. We note that the

court in BCCA did not conclude that

any amount greater than 6 percent of the

reductions needed would be

unreasonable. We believe that the 6.3

percent reduction of NOx and the 11.6

percent reduction of VOC, as stated in

our proposal, also fit within the

parameters of a "limited" amount of the

reductions needed for attainment and

nothing in the BCCA decision

contravenes that.

The commenter's final point merely

describes the nature of all emissions

reductions commitments submitted in

support of an attainment demonstration,

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

between the level of reductions

achieved from adopted rules and the

level of reductions needed for

attainment. In other words, their

purpose is to provide 100 percent of the

remaining reductions needed for

attainment.

Comment: Earthjustice also argues

that ARB's commitments to reduce

emissions in the SJV area by 15 tpd VOC

and 20 tpd NOx by 2010 do not satisfy

EPA's second factor for the approval of

enforceable commitments, that the State

is capable of meeting its commitment. It

first notes that the Goldstene letter 12

shows that rules adopted through 2007

have achieved all of the remaining NOx

reductions needed for attainment and

3.3 tpd of the remaining 15 tpd of

needed VOC reductions. The

commenter then states, based on its

review of the measures listed by EPA in

its proposed approval as potential

sources of VOC emission reductions

(e.g., the pesticide emission limits

adopted by the California Department of

Pesticide Regulations) and ARB's 2009

rulemaking schedule, that there are no

State measures that can be adopted and

implemented in time to provide the

remaining 11.7 tpd in VOC reductions

by 2010.

Response: In the Goldstene letter,

ARB submitted a summary of the

emissions reductions expected from a

number of adopted State rules in the

SJV area by 2010. This summary is

preliminary and is not intended to be a

final statement of ARB's compliance

with its emissions reductions

commitments. As a preliminary

analysis, it cannot be used to determine

whether the State has not or will not

meet its commitments.

The commenter assumes that the only

path now open to the State to fulfill its

commitments is the adoption of new

measures. We disagree. The list of

measures provided by ARB in the

Goldstene letter represents a fraction of

the rules and programs adopted and

implemented by the State. See TSD,

Table 9. ARB has not provided, nor has

it been required to provide, an

evaluation of the effectiveness of its

entire control program in reducing

emissions in the SJV area. Given that the

State has preliminarily demonstrated,

based on a limited set of measures, that

all NOx reductions and 90 percent of

the VOC reductions needed for

attainment of the revoked 1-hour

standard in the SJV area have been

achieved, we believe it is reasonable to

assume that the balance of the

reductions can also be achieved by the

beginning of the 2010 ozone season.

Comment: Earthjustice argues that

ARB's commitments to reduce

emissions in the SJV area by 15 tpd VOC

and 20 tpd NOx by 2010 do not satisfy

EPA's third and final factor for the

approval of enforceable commitments,

that the commitment is for a reasonable

and appropriate period of time. It asserts

that the State has less than a year to

adopt and make effective controls to

achieve 13.3 tpd VOC by 2010 and it is

12 Letter, James Goldstene, Executive Officer,

ARB, to Laura Yoshii, Acting Regional

Administrator, EPA, June 29, 2009 ("Goldstene

letter").

not reasonable to assume that it will

able to achieve these reductions.

Response: ARB's commitments, made

in 2004, are to reduce emissions in the

SJV area by 20 tpd NOx and 15 tpd VOC

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

as the commenter asserts, to reduce

VOC emissions by 13.3 tpd between

2009 and 2010. The commenter's

argument again rests on the assumption

that the only path now open to the State

to meet its VOC commitment is to adopt

new measures. As we discuss above, we

do not believe this assumption is

accurate. See also 74 FR at 39940.

Comment: Earthjustice comments that

EPA's recitation of its three-factor test to

assess whether an enforceable

commitment is approvable skips over

the initial determination of whether the

commitments are in fact enforceable. In

this regard, Earthjustice cites Bayview

Hunters Point Community Advocates v.

Metropolitan Transportation

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

2004) and Citizens for a Better

Environment v. Metropolitan

Transportation Commission, 746

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

[known as CBE II], to support its

contention that ARB's commitment is an

unenforceable "aspirational goal." In

addition, Earthjustice singles out El

Comite Para El Bienestar de Earlimart v.

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

2008), stating that in El Comite the court

explained that because an inventory in

a SIP is not a "standard or limitation" as

defined by the CAA, it was not an

independently enforceable aspect of the

SIP. Thus, Earthjustice reasons, in order

to be enforceable, not only must a state's

commitment to adopt additional

measures to attain emission standards

be specific and announced in plain

language, but any data or rubric that

will be used to determine when and

how the state will adopt those measures

must be enforceable. Earthjustice further

claims that EPA's approval here allows

for the same unenforceable situation

that occurred in Ventura where the State

can claim, even erroneously, that

changes to the inventory can substitute

for its commitment to reduce emissions,

and EPA and the public would be

powerless to object.

Similarly, CRPE characterizes the

2003 State Strategy's commitments to

achieve aggregate emission reductions

by the attainment year as "global

tonnage" commitments that could be

interpreted as goals unenforceable by

citizens under Ninth Circuit precedent,

citing Bayview.

Response: Under CAA section

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

enforceable emission limitations and

other control measures, means or

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techniques necessary to meet the

requirements of the Act, as well as

timetables for compliance. Similarly,

section 172(c)(6) provides that

nonattainment area SIPs must include

enforceable emission limitations and

such other control measures, means or

techniques "as may be necessary or

appropriate to provide for attainment" of

the NAAQS by the applicable

attainment date.

Control measures, including

commitments in SIPs, are enforced

through CAA section 304(a) which

provides for citizen suits to be brought

against any person who is alleged "to be

in violation of * * * an emission

standard or limitation* * *." "Emission

standard or limitation" is defined in

subsection (f) of section 304.13 As

observed in Conservation Law

Foundation, Inc. v. James Busey et a].,

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

Courts interpreting citizen suit jurisdiction

have largely focused on whether the

particular standard or requirement plaintiffs

sought to enforce was sufficiently specific.

Thus, interpreting citizen suit jurisdiction as

limited to claims "for violations of specific

provisions of the act or specific provisions of

an applicable implementation plan," the

Second Circuit held that suits can be brought

to enforce specific measures, strategies, or

commitments designed to ensure compliance

with the NAAQS, but not to enforce the

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

at 613-14. Courts have repeatedly applied

this test as the linchpin of citizen suit

jurisdiction. See, e.g., Coalition Against

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

764, 769-71 (2d Cir. 1992); Cate v.

Transcontinental Gas Pipe Line Corp., 904 F.

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

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

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

746 F. Supp. 976 (1990).

Thus courts have found that the citizen

suit provision cannot be used to enforce

the aspirational goal of attaining the

NAAQS, but can be used to enforce

specific strategies to achieve that goal.

We describe ARB's commitments in

the 2004 SIP and the 2003 State Strategy

in detail in the proposal (74 FR at

33938). In short, the State commits to

achieve 20 tpd NOx and 15 tpd VOC in

the SJV area by the 2010 ozone season.

While the State identifies possible

control measures that it might adopt to

achieve these emission reductions, it

does not commit to adopt any specific

measures. The language used in the

2004 SIP and the 2003 State Strategy to

describe ARB's commitments is

consistently mandatory and

unequivocal in nature, e.g.:

ARB commits to adopt and implement

measures to achieve, at a minimum, 15 tpd

13 EPA can also enforce SIP commitments

pursuant to CAA section 113.

BOG and 20 tpd NOx emission reductions in

the San Joaquin Valley Air Basin by the 2010

ozone season. ARB will adopt measures to

achieve these reductions between 2002-2009.

ARB may meet this commitment by adopting

one or more of the control measures in Table

4-3, by adopting one or more alternative

control measures, or by implementing

incentive program(s), so long as the aggregate

emission reduction commitment is achieved.

(Emphasis added). 2004 SIP at section

4.7.3. See also ARB Staff Report at 29;

ARB Resolution 04-29 at 5 ("The State's

contribution includes * * * a

previously approved commitment for 10

tpd new NOx emissions as part of the

Valley 2003 particulate matter SIP, and

new commitments for additional

reductions of 15 tpd VOC and 10 tpd

NOx from new defined State measures

in the Valley in 2010"); and 2003 State

Strategy at 1-16, Table 1-10 ("Total

Emission Reduction Commitment from

New State Measures" listed in the table

as 10 tpd NOx with action dates 2002-

2008). Thus, ARB's commitments are

clearly distinguishable from the

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

objectives, identified by the Bayview

court and cited by the commenter.

ARB's commitments here are to adopt

and implement measures that will

achieve specific reductions of NOx and

VOC emissions. As such, as will be seen

below, they are specific strategies

designed to achieve the SIP's overall

objectives.

Both Earthjustice and CRPE cite

Bayview as support for their contention

that ARB's commitments are

unenforceable aspirational goals.

Bayview does not, however, provide any

such support. That case involved a

provision of the 1982 Bay Area 1-hour

ozone SIP, known as TCM 2, which

states in pertinent part:

Support post-1983 improvements

identified in transit operator's 5-year plans,

after consultation with the operators adopt

ridership increase target for 1983-1987.

EMISSION REDUCTION ESTIMATES: These

emission reduction estimates are predicated

on a 15% ridership increase. The actual

target would be determined after consultation

with the transit operators.

Following a table listing these estimates,

TCM 2 provided that "[r]idership

increases would come from productivity

improvements * * *."

Ultimately the 15 percent ridership

estimate was adopted by the

Metropolitan Transportation

Commission (MTC), the implementing

agency, as the actual target. Plaintiffs

subsequently attempted to enforce the

15 percent ridership increase. The court

found that the 15 percent ridership

increase was an unenforceable estimate

or goal. In reaching that conclusion, the

court considered multiple factors,

including the plain language of TCM 2

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

'target' is simply not the same as

promising to attain that target," Bayview

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

drafters of TCM 2 were careful not to

characterize any given increase as an

obligation because the TCM was

contingent on a number of factors

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

the fact that TCM 2 was an extension of

TCM 1 that had as an enforceable

strategy the improvement of transit

services, specifically through

productivity improvements in transit

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

a result of all of these factors, the Ninth

Circuit found that TCM 2 clearly

designated the productivity

improvements as the only enforceable

strategy. id. at 703.

The commitments in the 2004 SIP and

2003 State Strategy are in stark contrast

to the ridership target that was deemed

unenforceable in Bayview. The language

in ARB's commitments, as stated

multiple times in multiple documents,

is specific and unequivocal; the intent

of the commitments is clear; and the

strategy of adopting measures to achieve

the required reductions is completely

within ARB's control. Furthermore, as

stated previously, ARB identifies

specific emission reductions that it will

achieve and specifies that this will be

done through the adoption and

implementation of measures and also

specifies the time by which these

reductions will be achieved, i.e., the

beginning of the 2010 ozone season.

Earthjustice also cites CBE II at 701 for

the proposition that courts can only

enforce "express" or "specific" strategies.

However, as discussed below, there is

nothing in the CBE cases that supports

the commenter's view that ARB

commitments are neither express nor

specific. In fact, these cases support our

interpretation of ARB's commitments.

Citizens for a Better Environment v.

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

1990), known as CBE I, concerned in

part contingency measures for the

transportation sector in the 1982 Bay

Area 1-hour ozone SIP. The provision

states: "If a determination is made that

RFP is not being met for the

transportation sector, MTC will adopt

additional TCMs within 6 months of the

determination. These TCMs will be

designed to bring the region back within

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

its face, this language is both specific

and mandatory." Id. at 1458. In CBE L

ARB and MTC argued that TCM 2 could

not constitute an enforceable strategy

because the provision fails to specify

exactly what TCMs must be adopted.

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The court rejected this argument,

finding that "[w]e discern no principled

basis, consistent with the Clean Air Act,

for disregarding this unequivocal

commitment simply because the

particulars of the contingency measures

are not provided. Thus we hold that that

the basic commitment to adopt and

implement additional measures, should

the identified conditions occur,

constitutes a specific strategy, fully

enforceable in a citizens action,

although the exact contours of those

measures are not spelled out." Id. at

145 7.14 In concluding that the

transportation and stationary source

contingency provisions were

enforceable, the court stated: "Thus,

while this Court is not empowered to

enforce the Plan's overall objectives

[footnote omitted; attainment of the

NAAQS]-or NAAQS-directly, it can

and indeed, must, enforce specific

strategies committed to in the Plan." Id.

at 1454.

Earthjustice's reliance on CBE I is

misplaced. It also involves in part the

contingency measures in the 1982 Bay

Area Plan. In CBE 11, defendants argued

that RFP and the NAAQS are coincident

because, had the plan's projections been

accurate, then achieving RFP would

have resulted in attainment of the

NAAQS. The court rejected this

argument, stating that:

the Court would be enforcing the

contingency plan, an express strategy for

attaining NAAQS. Although enforcement of

this strategy might possibly result in

attainment, it is distinct from simply

ordering that NAAQS be achieved without

anchoring that order on any specified

strategy. Plainly, the fact that a specified

strategy might be successful and lead to

attainment does not render that strategy

unenforceable.

(Emphasis in original). CBE II at 980.

ARB's commitments here are

analogous to the terms of the

contingency measures in the CBE cases.

ARB commits to adopt measures, which

are not specifically identified, to

achieve a specific tonnage of emission

reductions. Thus, the commitment to a

specific tonnage reduction is

comparable to a commitment to achieve

RFP. Similarly, a commitment to

achieve a specific amount of emission

reductions through adoption and

implementation of unidentified

14 In this passage, the court was referring

specifically to the stationary source contingency

measures in the Bay Area plan which contained a

commitment to adopt such measures if emission

targets were not met. The Plan identified a number

of potential stationary sources but did not commit

to any particular one. In discussing the

transportation contingency measures, the court

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

measures is comparable to the

commitments to adopt unspecified

TCMs and stationary source measures.

The key is that commitment must be

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

a specified amount of emission

reductions or the achievement of a

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

ARB's commitments are thus clearly a

specific enforceable strategy rather than

an unenforceable aspirational goal.

Earthjustice's reliance on El Comite is

also misplaced. The plaintiffs in the

district court attempted to enforce a

provision of the 1994 California 1-hour

ozone SIP known as the Pesticide

Element. The Pesticide Element relied

on an inventory of pesticide VOC

emissions to provide the basis to

determine whether additional regulatory

measures would be needed to meet the

SIP's pesticides emissions target. To this

end, the Pesticide Element provided

that "ARB will develop a baseline

inventory of estimated 1990 pesticidal

VOC emissions based on 1991 pesticide

use data * * *." El Comite Para El

Bienestar de Earlimart v. Helliker, 416

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

ARB subsequently employed a different

methodology which it deemed more

accurate to calculate the baseline

inventory. The plaintiffs sought to

enforce the commitment to use the

original methodology, claiming that the

calculation of the baseline inventory

constitutes an "emission standard or

limitation." The district court disagreed:

By its own terms, the baseline identifies

emission sources and then quantifies the

amount of emissions attributed to those

sources. As defendants argue, once the

sources of air pollution are identified, control

strategies can then be formulated to control

emissions entering the air from those sources.

From all the above, I must conclude that the

baseline is not an emission "standard" or

"limitation" within the meaning of 42 U.S.C.

7604 (f)(1)-(4).

Id. at 928. In its opinion, the court

distinguished Bayview and CBE L

pointing out that in those cases "the

measures at issue were designed to

reduce emissions." Id.

On appeal, the plaintiffs shifted their

argument to claim that the baseline

inventory and the calculation

methodology were necessary elements

of the overall enforceable commitment

to reduce emissions in nonattainment

areas. The Ninth Circuit agreed with the

district court's conclusion that the

baseline inventory was not an emission

standard or limitation and rejected

plaintiffs' arguments attempting "to

transform the baseline inventory into an

enforceable emission standard or

limitation by bootstrapping it to the

commitment to decide to adopt

regulations, if necessary." Id. at 1073.

While Earthjustice cites the Ninth

Circuit's El Comite opinion, its utility in

analyzing ARB's commitments here is

limited to that court's agreement with

the district court's conclusion that

neither the baseline nor the

methodology qualifies as an

independently enforceable aspect of the

SIP. Rather, it is the district court's

opinion, in distinguishing the

commitments in CBE and Bayview, that

provides insight into the situation at

issue in our action. As the court

recognized, a baseline inventory or the

methodology used to calculate it, is not

a measure to reduce emissions. It

instead "identifies emission sources and

then quantifies the amount of emissions

attributed to those sources." In contrast,

as stated previously, in the 2004 SIP and

2003 State Strategy, ARB commits to

adopt and implement measures

sufficient to achieve specified emission

reductions by a date certain. As

described above, a number of courts

have found commitments substantially

similar to ARB's here to be enforceable

under CAA section 304(a).

Finally, EPA is not responding to

Earthjustice's comment regarding

Ventura because the comment is

without sufficient specificity for us to

know to what the comment refers.

Nevertheless, we note that nothing

precludes the State from submitting a

SIP revision to alter the commitments

approved by EPA, just as the State may

choose to submit a revision to any

provision of an approved SIP. If the

State does so, commenters would have

an opportunity to object to such a

revision at the State and local levels

during the notice-and-hearing processes

for SIP adoption and would again have

an opportunity to raise concerns during

EPA's review process. However, unless

and until such time as the State submits

and EPA approves a revision to the

commitments approved in this action,

those commitments remain enforceable.

Comment: Earthjustice states that the

2004 SIP suggests that the State "may

meet its commitment by adopting one or

more of the control measures in Table

4-3 * * * one or more alternative

measures, or * * * incentive programs,

so long as the aggregate emission

reduction commitment is achieved."

2004 Plan at 4-55. Earthjustice claims

that these commitments are so vague

that they cannot possibly be enforced

against the State; because there is no

requirement that the State take any

specific actions, its commitments

cannot be considered enforceable under

Ninth Circuit case law. This is because

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they are not specific strategies based on

emissions standards or limitations.

Response: We disagree. As stated in

responses to previous comments, EPA

believes that ARB's commitments to

adopt and implement control measures

to achieve the specified aggregate

tonnage by the beginning of the 2010

ozone season are enforceable as an

emission standard or limitation under

CAA section 304. The fact that the State

may meet its SIP obligation by adopting

measures that are not specifically

identified in the SIP, or through one of

several available techniques, does not

render the requirement to achieve the

aggregate emission reductions

unenforceable.

Comment: Earthjustice states CAA

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

SIPs to contain "enforceable emission

limitations * * * as may be necessary

or appropriate" to achieve attainment.

Earthjustice further states that, while

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

grant "conditional approval" of a SIP

lacking certain statutory elements

"based on a commitment of the state to

adopt specific enforceable measures" by

a date certain, the statute provides that

the conditional approval automatically

becomes a disapproval if the state fails

to comply with the commitment within

one year. Earthjustice then claims that

EPA here appears to be trying to avoid

this limitation by treating open-ended

promises of the State to reduce

emissions as enforceable commitments

even though the State has never

specified exactly what it commits to do.

Earthjustice states that courts have

rejected similar attempts to circumvent

the statute's limitations on conditional

approvals. To support this contention,

Earthjustice cites Sierra Club v. EPA,

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

overturning EPA's conditional approval

of SIPs based in part on the fact that the

commitments identified no specific

measures that the state would

implement.

Response: As pertinent to the

comment, Sierra Club involved EPA's

conditional approval under section

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

RACM and ROP demonstrations and

contingency measures based on letters

submitted by states that committed to

cure these deficiencies. The court

rejected EPA's construction of section

110(k)(4) as contrary to the

unambiguous statutory language

requiring the state to commit to adopt

specific enforceable measures. Sierra

Club at 302. The court found that EPA's

construction turned the section

110(k)(4) conditional approval into a

means of circumventing SIP deadlines.

Id. at 303.

EPA does not dispute the holding of

Sierra Club. However that case is not

germane to EPA's approval of ARB's

commitments here because the Agency

is not approving those commitments

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

precedent is instead BCCA. The facts in

BCCA were very similar to those

presented here. In BCCA, EPA approved

an enforceable commitment in the

Houston ozone SIP to adopt and

implement unspecified NOx controls on

a fixed schedule to achieve aggregate

emission reductions. Petitioners

claimed that EPA lacked authority

under the CAA to approve a SIP

containing an enforceable commitment

to adopt unspecified control measures

in the future. The court disagreed and

found that section 110(k)(4) conditional

approvals do not supplant EPA's

practice of fully approving enforceable

commitments:

Nothing in the CAA speaks directly to

enforceable commitments. The CAA does,

however, provide EPA with great flexibility

in approving SIPs. A SIP may contain

"enforceable emission limitations and other

control measures, means, or techniques

* * * as well as schedules and timetables for

compliance, as may be necessary or

appropriate" to meet the CAA's requirements * * *. Thus, according to the plain language

of the statute, SIPs may contain "means,"

"techniques" and/or "schedules and

timetables for compliance" that the EPA

considers "appropriate" for attainment so

long as they are "enforceable."" See Id.

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

broadly defined as "a schedule of required

measures including an enforceable sequence

of actions or operations leading to

compliance with an emission limitation,

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

The remaining terms are not defined by the

Act. Because the statute is silent on the issue

of whether enforceable commitments are appropriate means, techniques, or schedules

for attainment, EPA's interpretation allowing

limited use of an enforceable commitment in

the Houston SIP must be upheld if

reasonable.

BCCA at 839-840. The court upheld

EPA's approval of the commitment,

finding that "EPA reasonably concluded

that an enforceable commitment to

adopt additional control measures on a

fixed schedule was an 'appropriate'

means, technique, or schedule or

timetable for compliance" under

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

at 841. Thus the court recognized that

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

provide a basis for EPA to approve

enforceable commitments as distinct

from the commitments contemplated by

section 110(k)(4). See also

Environmental Defense v. EPA, 369 F.3d

193, 209-210 (2nd Cir. 2004). As a

result, contrary to Earthjustice's

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

to EPA's approval of ARB's enforceable

commitments and that approval under

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

appropriate means, technique or

schedule or timetable for compliance

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

172(c)(6).

Comment: CRPE contends that the

State's aggregate tonnage commitment is

unenforceable as a practical matter.

CRPE then states that enforcement of

such a global commitment to adopt

unidentified measures (e.g., State

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

23) to be implemented in the Valley by

2010 is extremely difficult given the

open-ended commitment to adopt

unspecified strategies. CRPE states that

citizens cannot enforce vague control

measures that do not commit ARB to

any particular regulations by 2008 and

citizens are left with enforcing the

global tonnage amounts after 2010.

Response: CRPE does not explain why

it believes that ARB's commitments are

unenforceable. CRPE implies that it

would be easier and/or more convenient

for citizens to enforce a different type of

commitment. Even assuming CRPE is

correct, this does not equate to

unenforceablity. Moreover, as seen

above, the commitment in TCM 2,

which the court found to be enforceable

in Bayview, is directly analogous to

ARB's commitments in the 2004 SIP and

2003 State Strategy. Thus, we do not

agree that the commitments are

unenforceable.

Comment: CRPE claims that all of the

commitments in the 2003 State Strategy

are unenforceable because they include

promises by ARB staff to bring an

unidentified measure to the ARB Board

(State Strategy at II-A-13, 15, 16 and IIB-15, 23) and there is no commitment

by the Board itself to adopt a particular

strategy to achieve specific reductions

by a specific implementation date. CRPE

believes that the act of proposing a

strategy to the Board is not a

commitment to adopt a strategy and,

citing 74 FR at 33938, that EPA

recognizes this fundamental defect.

Response: The enforceable

commitments in the 2004 SIP and the

2003 Strategy at issue here, as described

above and in the proposal at 33938, do

not refer to action by ARB staff to take

certain measures to the Board. Rather, as

described in detail above, the

enforceable commitments at issue refer

to "ARB" and/or "the State" and require

it to adopt and implement measures to

achieve specific reductions in NOx and

VOC emissions by the beginning of the

2010 ozone season. By adopting both

the 2004 Plan and 2003 State Strategy,

the Board endorsed the content of these

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documents and committed the Board to

take the actions mandated in them.

Comment: Earthjustice claims that the

2004 Plan simply states that ARB "estimates" that measures in the 2003

State Strategy will achieve 15 tpd VOC

and 20 tpd NOx reductions, noting that

the Strategy was adopted before the Plan

and therefore doesn't mention the

quantitative commitments (State

Strategy at ES-12, 1-7 through 1-9,

1-23 through 1-26). Earthjustice

concludes that this estimate was clearly

wrong, as the State admits it is coming

up short.

Response: The 2004 Plan at section

4.7.1 states that "ARB staff estimates

that the near-term measures in the

Statewide Strategy will provide 15 tpd

ROG and 20 tpd NOx in the San Joaquin

Valley in 2010." The near-term measures

in the 2003 State Strategy are

reproduced as Table 4-3 in the 2004

Plan. Because the State's enforceable

commitments are to achieve,

independent of any estimates in the

plan, aggregate emission reductions

from one or more of the control

measures in Table 4-3, by adopting one

or more alternative control measures, or

by implementing incentive programs, it

was not necessary for the State to

quantify the measures in Table 4-3.

To the extent that Earthjustice in this

comment intends to argue that the 5 tpd

VOC and 20 tpd NOx in ARB's

commitments are merely estimates and

therefore do not constitute enforceable

obligations, we disagree for the reasons

stated in our responses to comments

above.

E. Rate of Progress Demonstration

Comment: Earthjustice asserts that the

method used in the 2004 SIP to

demonstrate ROP is not allowed by CAA

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

allows for the averaging of reductions

over more than 3 years while the CAA

allows averaging over 3-year periods

only. It also argues that the State's

demonstration relies on carrying

forward excess emissions reductions

from previous milestone years and that

this is also inconsistent with the CAA

because it again allows emissions

reductions to be averaged over longer

periods than the 3-year period expressly

allowed. Finally, Earthjustice claims

that without carrying forward the excess

emissions reductions from previous

milestones, it does not appear that the

District has continued to make the

required reasonable further progress in

reducing VOC emissions.

Response: The post-1996 ROP

requirement in CAA section

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

among the most complex of the Act's

nonattainment area plan requirements

to apply in practice. See, for example,

the General Preamble's discussion at

13516 on how to calculate a post-1996

ROP target. To respond to these

comments, several points need to be

understood about the ROP

demonstration requirement:

1. A state demonstrates that it meets

the required ROP by showing that total

emissions in its area will be at or below

a target level of emissions for a specified

year. 15 This target level of emissions,

referred to as the ROP milestone, is

calculated for each of the area's

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

etc.) according to CAA requirements

and the procedures in the General

Preamble. Each successive milestone

reflects the accumulated ROP from the

preceding milestone periods (e.g., 1990-

1996, 1997-1999, etc.). States often

convert this target level of emissions

into the emissions reductions needed to

show ROP by subtracting it from its

baseline inventory for that milestone

year.

Plotted on a graph where the x-axis is

the milestone years between 1990 and

an area's attainment date and the y-axis

is the milestone target level, the ROP

milestones would produce a slightly

concave downward line. This line

establishes the maximum level of

allowable emissions for the area to meet

the ROP requirement. The CAA's

"averaged over three years" requirement

means that the total emissions level in

the area can rise above the line during

that 3-year period between milestone

dates provided it is below the line by

the milestone date. An example of an

ROP graph can be found at 66 FR 42480,

42843 (August 13, 2001), proposed

approval of New York's 2002, 2005, and

2007 ROP plans.

EPA has consistently treated ROP

milestones as target levels of emissions.

See for example, 61 FR 10921 (March

18, 1996), proposed approval of

California's ROP and attainment plans

for 7 nonattainment areas; 62 FR 37175,

37177 (July 11, 1997), proposed

approval of Texas's 15 percent ROP

plans for Dallas, El Paso and Houston;

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

proposed approval of Illinois' post-1996

ROP plan for Chicago; and 70 FR 2085,

2088 (January 12, 2005), proposed

approval of the Washington, DC area's

15 From the General Preamble at 13508: "Once the

1996 target level of emissions is calculated, States

must develop whatever control strategies are

needed to meet that target. * * * The assessment

of whether an area has met the RFP requirement in

1996 will be based on whether the area is at or

below the 1996 target level of emissions and not

whether the area has achieved a certain actual

reduction relative to having maintained the current

control strategy."

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

understood as an emissions level target,

it is clear that so long as a state can

demonstrate that total emissions levels

in its area are below each ROP

milestone, it does not need to show an

actual 9 percent emission reduction in

each 3-year period. Therefore, the

comment that the manner in which

California demonstrated ROP is not in

compliance with the Act is unfounded.

2. The commenter is incorrect that the

CAA forbids carrying forward of excess

emissions reductions. In fact, section

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

emission reductions beyond the 15

percent required under section 182(b)(1)

for the period 1990-1996 are creditable

toward the ROP requirement in section

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

the period beginning 6 years after

November 15, 1996 shall include

reductions that occurred before such

period, computed in accordance with

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

percent amount of reductions required

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

(Emphasis added.) While this sentence

refers explicitly only to carrying forward

excess reductions into the 1997-1999

period, we do not believe that Congress

intended to prohibit carrying forward of

excess emissions reductions into other

ROP periods. Congress was interested in

both expediting emissions reductions

and reducing the costs of air pollution

controls. The first would be served by

rewarding States for early

implementation by allowing the

carryover of credit and the latter by not

ignoring otherwise creditable emissions

reductions that had already occurred.

See Ass'n of Irritated Residents v. EPA,

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

allowing credit for past emission

reductions under CAA section 189(d)

for PM-10 plans: "[b]y allowing such

crediting, the EPA provides a material

incentive for implementing the most

effective measures as quickly as

possible.").

3. States are allowed to substitute

NOx reductions for VOC reductions in

any post-1996 ROP demonstration (see

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

NOx reductions exclusively for post1996 ROP demonstrations. See 70 FR

25688, 25697 (May 13, 2005); approval

of the Washington, DC area's 1-hour

ozone attainment demonstration; and 68

FR 7476, 7486 (February 14, 2003),

approval of Rhode Island's 1-hour ozone

attainment demonstration. SJV has an

approved 15 percent ROP

demonstration and thus has already met

its minimum VOC ROP obligation. See

62 FR at 1172. It may, therefore, rely

exclusively on NOx reductions to meet

its 2008 and 2010 ROP requirements

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and the commenter's contention that the

District has not met its required VOC

ROP requirement is baseless.

Comment: CRPE argues that the CAA

requires that states only take credit for

reductions from SIP-approved measures

in ROP demonstrations, citing CAA

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

that EPA's longstanding interpretation

of the ROP provision also limits credit

to SIP-approved measures, citing our

proposed approval of the ROP

demonstration in the 1999 amendment

to the 1997 1-hour ozone standard plan

for the South Coast Air Basin (SCAB)

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

which cites the General Preamble at

13517.

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

does not limit emissions reductions

creditable in ROP demonstrations to just

those reductions from SIP-approved

rules, it also allows credit from rules

promulgated by the Administrator (e.g.,

FMVCP), and CAA title V federal

operating permits. Neither federal

measures nor title V permits are in the

SIP.

EPA has approved numerous ROP

demonstrations that rely on reductions

from Federal measures. See, for

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

approval of Wisconsin's 15 percent ROP

plan and contingency measures; 66 FR

586 (January 3, 2001) approval of the

Washington, DC area's attainment and

post-96 ROP plans; and 66 FR 54143

(October 26, 2001), approval of

Pennsylvania's post-96 ROP plan for the

Philadelphia area. As discussed in the

proposal, we have historically treated

California's waiver measures similarly

to the Federal motor vehicle control

requirements. 74 FR at 33939.

In the February 2000 proposed rule

cited by the commenter, EPA proposed

to approve the ROP demonstration for

the SCAB. This demonstration relied

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

District and State; therefore, we limited

our description of the ROP requirement

to those ROP provisions that were

applicable to our action. By doing so,

we did not rewrite the Act or the

General Preamble to limit creditable

reductions in ROP demonstrations to

SIP-approved measures only. We note

that although the ROP demonstration in

the South Coast plan relied explicitly

only on reductions from SIP-approved

rules and commitments, it relied

implicitly on ARB's adopted and

implemented mobile source program,

reductions from which are incorporated

into the South Coast plan's baseline

inventory, to generate the majority of

emissions reductions needed for ROP.

F. Attainment Demonstration

Comment: Earthjustice comments that

SJV will not attain the 1-hour ozone

standard by 2010 because there have

been too many exceedances of the

standard in 2008 and 2009 and that

these exceedances show that the

attainment demonstration is not

working and is not approvable. It also

comments that EPA has made clear that

attainment by the deadline requires that

the three years leading up to that

deadline must be clean. In support of its

position, the commenter cites EPA's

PM2.5 implementation rule at 40 CFR

§ 51.1000; the preamble to the PM 2.5

implementation rule at 72 FR 20586,

20600 (April 25, 2007); and EPA's

"Response to Comments Document,

Finalizing Approval of the PM-10 State

Implementation Plan for the Clark

County Serious PM-10 Nonattainment

Area Annual and 24-Hour PM-10

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

Response: Consistent with the CAA

and EPA regulations and policy, the

2004 SJV 1-hour ozone plan

demonstrates that the emissions

reductions needed to prevent future

violations of the 1-hour ozone standard

would be in place by the beginning of

the 2010 ozone season rather than by

the beginning of the 2008 ozone season.

See 2004 SIP, p. 5-5.

The three cites in the commenter's

letter are all to descriptions of

attainment determinations. The

determination of attainment required by

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

by reviewing ambient air quality

monitoring data after the attainment

date, is distinctly different from the

demonstration of attainment required by

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

on projections of future air quality

levels and submitted before the

attainment date. For the 1-hour ozone

standard, an attainment determination

is based on monitored air quality levels

in the three years preceding the

attainment date. General Preamble at

13506. In acting on the 2004 SJV 1-hour

ozone plan under CAA section 110(k),

we are not making an attainment

determination.

An attainment demonstration is based

on air quality modeling showing that

projected emissions in the attainment

year will be at or below the level needed

to prevent violations of the relevant

ambient air quality standard. For ozone,

the attainment year is defined as the

calendar year that includes the last full

ozone season prior to the statutory

attainment date. 40 CFR 51.900(g). More

simply, ozone attainment

demonstrations show that the air quality

will be at or below the level of the

standard no later than the beginning of

the ozone season immediately prior to

the attainment date. EPA has never

interpreted the Act to require that the

demonstration show that air quality

levels will be at or below the level of the

standard for each of the three ozone

seasons prior to the attainment date.

Following this interpretation, the

2004 SIP does not demonstrate that

there would be no violations of the

revoked 1-hour ozone standard in 2008

or 2009. Rather it demonstrates that

clean air would begin with the 2010

ozone season. Because we are still

months away from the start of the 2010

ozone season and air quality trends

show decreasing number of days over

the standard, we believe it is premature

to say the 2004 1-hour ozone plan will

not result in attainment by the SJV

area's ultimate applicable attainment

date.

Our policy on attainment

demonstrations is consistent with the

ozone attainment provisions in subpart

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

program Congress crafted here for ozone

attainment does not require that all

measures needed to attain the standard

be implemented three years prior to the

area's attainment date. For example,

moderate areas were required by section

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

reductions of 15 percent reduction by

November 15, 1996 which was also the

attainment date for these areas. For

areas classified serious and above, CAA

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

3 percent per year averaged over 3 years "until the attainment date" (a total of 9

percent reduction in emissions in the 3

years leading up to an area's attainment

date). EPA does not believe that

Congress intended these mandatory

reductions to be in excess of what is

needed to attain.

This position is also consistent with

the attainment date extension

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

Under this section, an area that does not

have three-years of data meeting the

ozone standard by its attainment date

but has complied with all requirements

and commitments pertaining to the area

in the applicable implementation plan

and has no more than one exceedance

of the standard in the attainment year,

may receive a one-year extension of its

attainment date. Assuming these

conditions are again met the following

year, the area may receive an additional

one-year extension. If the area has no

more than one exceedance in this final

extension year, then it will have three

years of data indicating that it has

attained the ozone standard.

EPA has consistently taken this

position in guidance and in our

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approval of 1-hour ozone attainment

demonstrations. Our ozone modeling

guidance, which was issued less than a

year after the 1990 Amendments were

enacted, requires States to model the

ozone season before the attainment date

and not the third ozone season before

the attainment date. See Chapter 6

"Attainment Demonstrations," Guideline

for Regulatory Application of the Urban

Air Shed Model (July 1991, OAQPS,

EPA).

The ozone attainment demonstrations

that EPA has approved since the CAA

Amendments of 1990 have been based

on this modeling guidance and

demonstrate attainment only for the

attainment year. See, for example, 61 FR

10921 (March 18, 1996) and 62 FR 1150

(January 8, 1997), proposed and final

approval of California's attainment

plans for 7 nonattainment areas; 66 FR

54143 (October 25, 2001), approval of

Pennsylvania's 1-hour ozone attainment

plan for the Philadelphia area; and 67

FR 30574 (May 7, 2002), approval of

Georgia's 1-hour ozone attainment plan

for Atlanta.

G. Contingency Measures

Comment: Earthjustice states that the

purpose of contingency measures

following an area's failure to attain is to

provide extra emissions reductions that

are needed to attain. It then asserts that

EPA's approach of allowing areas to

credit emissions reductions from

measures that are already in place that

are not needed for attainment is

arbitrary and illegal because, if the area

does fail to attain, the reductions from

these measures are not surplus and

more are needed. It argues further that

EPA's policy allows plans to be

approved without the "safety net that

Congress envisioned," so that when the

SJV area fails to attain in 2010 there is

nothing in the plan that can take

immediate effect without further action

by the State or the District to address

such a failure.

Response: We did not propose to

credit "extra" or "surplus" reductions in

the attainment demonstration as

contingency measures in our proposed

approval of the attainment contingency

provisions in the 2004 SJV 1-hour ozone

plan. 16 In our July 14, 2009 proposal

and again in our October 2, 2009

supplementary proposal, we made it

clear that there were no excess

emissions reductions from adopted

16 By "surplus" and "extra" emissions reductions,

the commenter is referring to emissions reductions

that are realized in the attainment year that are

more than the emissions reductions needed to

demonstrate attainment. We refer to these

additional reductions as "excess reductions in the

attainment demonstration."

measures in the attainment

demonstration. See 74 FR at 33944 and

74 FR 50936, 50937. Nevertheless, the

commenter seems to believe that the

reductions the State credits as its

attainment contingency measures will

already be in place by the SJV area's

attainment year, 2010, and thus will

already be contributing to reduced

ozone levels in that year. This is not the

case here.

The measures relied on for attainment

contingency measures in the 2004 SJV

1-hour ozone plan are existing State and

federal on- and off-road new engine

standards.17 Emissions reductions from

these types of measures accumulate as

the engine fleet turns over, resulting in

increasing benefits over time. All of the

reductions from these measures that are

used by the State to show compliance

with the attainment contingency

measures requirement occur in 2011,

the year after the SJV area's attainment

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

additional 15.7 tpd NOx and 8.6 tpd

VOC in reductions beyond the

reductions from these measures in 2010,

to be realized in the SJV area in 2011,

that the State uses to meet the

contingency measures requirement. 74

FR 50936, 50938 (Table 1). Thus these

reductions will not be reflected in 2010

ambient air quality levels but will

provide air quality benefits in 2011. In

this respect, the emission reductions

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

contingency measures in the SJV area

are virtually identical in operation to

the type of contingency measure that the

commenter appears to advocate, e.g., a

control measure adopted by the State or

District that would remain

unimplemented, and thus yielding no

emission reductions until triggered by a

failure of the area to attain the standard.

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

Cir. 2004), the court upheld EPA's

approval of contingency measures that

relied on reductions that occurred one

year prior to the Baton Rouge area's

failure to attain but that continued on an

annual basis thereafter and were, among

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

words, as the court framed it, "the

17 EPA has long allowed states to use already

implemented measures to meet the CAA sections

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

requirement, provided that the reductions from

these measures were not also relied on for

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

attainment demonstration or ROP. See 62 FR 15844

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

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

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

however, unlike the situation here, the reductions

used for contingency measures were realized in the

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

the attainment demonstration, and continued

without increasing into following years.

effects continue to manifest an effect

after the plan fails." Id. The court found

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

surplus emissions reduction fits neatly

within the CAA's requirement that a

necessary element of a contingency

measure is that it must 'take effect

without further action by the State or

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

to the situation here, the air quality

benefits from the contingency measures

occurred prior to a potential plan failure

and the emission reductions from these

measures did not increase thereafter, but

continued at the same rate. Thus the

contingency measures in the 2004 SJV

1-hour ozone plan, to a greater extent

than in LEAN, fulfill the purpose of

such measures "to provide a cushion

while the plan is being revised to meet

the missed milestone." 72 FR 20586,

20642.

Comment: Earthjustice notes that

EPA's proposal to approve the updated

contingency measure demonstration

rests on crediting emissions reductions

from State programs that are not

enforceable components of the plan. It

asserts that the CAA requires that all

State and local control measures relied

upon to satisfy the planning

requirements of the Act be included in

the implementation plan, citing the

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

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

simply identify measures because they

could be revised or revoked without

EPA approval under section 110(l), or

would be unenforceable under the CAA

if the State were to decide not to

implement them.

Response: In this particular case, all

measures credited as contingency

measures are State and federal on- or

off-road mobile source controls adopted

prior to September 2002. These controls

include waiver measures which EPA

believes may be used to meet the CAA's

contingency measures requirement. In

our response to comments on the

treatment of waiver measures above, we

address at length our view that such

measures can be relied on to meet the

CAA's planning requirements without

being approved by EPA into the SIP. We

also address in that section the

commenter's concerns regarding

enforceability and antibacksliding.

We note further that since the State

has been implementing these emission

standards since 2002, the likelihood that

the State will, at this late date, suddenly

decide to stop implementing them is

negligible. Moreover, engines complying

with these standards are already being

sold and therefore the technology

required to meet them has been

demonstrated, making it even less likely

that the State would stop implementing

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them. However, in the unlikely event

that the State should relax or revoke a

measure that is relied on for

contingency, EPA has mechanisms other

than section 110(1) to assure adequate

contingency measures, including

finding the SIP inadequate under

section 110(k)(5).

We note also that since 2002, in part

to fulfill its emissions reductions

commitment, the State has adopted

other control measures that reduce

emissions from on- and off-road

vehicles which are not considered in

calculating the post-2010 emissions

reductions for contingency measures.

See Goldstene letter. We also note that

the State and District have submitted

the 2007 8-hour ozone plan that

includes additional post-2010 emissions

reductions.

Comment: Earthjustice claims that our

proposal on the appropriate treatment of

emissions reductions from waiver

measures makes no mention of

contingency measures or the specific

statutory language in sections 172(c)(9)

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

measures shall be included in the plan

revision * * *." It then asserts that the

extension of our policy on waiver

measures to contingency measures

ignores the plain language of sections

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

not shown that it has allowed the use of

measures that are not in the SIP for

contingency measures. Finally, the

commenter states that EPA cannot claim

that Congress in the 1990 Amendments

ratified the practice of allowing waiver

measures as contingency measures

because EPA has never before adopted

it.

Response: Our discussion in the

proposal regarding the SIP crediting of

emissions reductions from waiver

measures does not address the SIP

purposes for which these reductions

would be used. Our discussion

presumed that waiver measures could

be credited for any SIP purpose for

which similar federal measures can be

used: "EPA treated [the waiver] rules

similarly to the federal motor vehicle

control requirements, which EPA has

always allowed states to credit in their

SIPs without submitting the program as

a SIP revision." 74 FR at 33939. While

there was no explicit statutory

requirement for contingency measures

prior to the 1990 CAA Amendments,

there is no reason to believe that

Congress would make a distinction

between measures creditable in

attainment and ROP demonstrations and

those creditable for contingency

measures.

EPA has long allowed States to use

federal measures as contingency

measures. See 62 FR 15844, 15847

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

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

nonattainment area; 62 FR 66279

(December 18, 1997), approval of

Illinois' 15 percent ROP plans for the

Chicago-Gary-Lake County 1-hour ozone

nonattainment area and East St. Louis 1-

hour ozone nonattainment area; 66 FR

30811 (June 8, 2001), approval of Rhode

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

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

Louis's 1-hour ozone attainment plan;

66 FR 40802, 40824 (August 3, 2001)

finalized at 66 FR 56944 (November 13,

2001), approval of Indiana's attainment

and ROP demonstrations and related

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

nonattainment area; 66 FR 56904, 56905

(November 13, 2001) approval of

Illinois's attainment and ROP

demonstrations and related contingency

measures for the Chicago-Gary-Lake

County 1-hour ozone nonattainment

area.

H. VMT Offset Requirement

Comments: CRPE alleges that the 2004

SIP fails to include transportation

control measures (TCM) as required by

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

the plain language, legislative history,

and the structure of the CAA require

TCMs when vehicle miles traveled

(VMT) increase in a region. In support

of its position, the Center quotes a

statement from the legislative history of

the 1990 CAA Amendments: "[t]he

baseline for determining whether there

has been growth in emissions due to

increased VMT is the level of vehicle

emissions that would occur if VMT held

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

Environment & Public Works, 103rd

Cong., A Legislative History of the Clean

Air Act Amendments of 1990 (Comm.

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

490 (1990)).

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

requires a state to submit a SIP revision,

for severe and extreme nonattainment

areas such as the SJV area, that

identifies and adopts specific

enforceable transportation control

strategies and TCMs to offset any growth

in emissions from growth in VMT or

numbers of vehicle trips in such areas.

Since the statutory language plainly

requires that growth in emissions be

offset, we interpret this provision to

require TCMs only when there is growth

in emissions due to growth in VMT or

vehicle trips and not when there is

simply growth in VMT or vehicle trips

without a consequential growth in

emissions. Because the 2004 1-hour

ozone plan shows that through the

attainment year there will be no

increase in motor vehicle emissions

caused by increased VMT or numbers of

vehicle trips, the statutory duty to adopt

and submit TCMs to offset emissions

growth has not been triggered. See 2008

Clarifications, page 9, (Table 3) and 74

FR at 33945 (Table 6).

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

as well as the excerpt from the

legislative history of the 1990 CAA

Amendments cited by the commenter,

in the General Preamble at 13522-

13523.

We have consistently applied this

interpretation in our previous approvals

of SIPs implementing the provision.

See, for example, 60 FR 48896

(September 21, 1995) approval of

Illinois' vehicle miles traveled plan for

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

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

proposed and final approval of New

Jersey's 15 percent ROP plan and other

provisions for the New York-New

Jersey-Connecticut ozone nonattainment

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

approval of New York's attainment

demonstration and related provisions

for the New York-New JerseyConnecticut ozone nonattainment area;

66 FR 57247 (November 14, 2001),

approval of the VMT offset plan for the

Houston-Galveston ozone

nonattainment area; 70 FR 25688 (May

13, 2005), approval of the Washington,

DC area's 1-hour attainment

demonstration and related provisions;

70 FR 34358 (June 14, 2005), approval

of Atlanta's VMT plan; and 74 FR

10176, 10179 (March 10, 2009),

approval/disapproval of the 2004 1-hour

ozone plan for the South Coast

(California) Air Basin.

Comments: CRPE asserts that VMT

has increased within the San Joaquin

Valley and that vehicle emissions are

higher than they would be if VMT held

constant in the area, so EPA's failure to

require TCMs violates the Act.

Response: For the reasons discussed

in response to the previous comment,

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

only requires the offset of any growth in

emissions due to VMT growth and not

the offset of any growth in VMT in the

absence of consequential growth of

motor vehicle emissions. Consistent

with our guidance in the General

Preamble, the 2004 1-hour ozone plan

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

due to VMT growth over the life of the

plan. See 2008 Clarifications, p. 9.

Therefore, no additional TCMs are

required, and EPA may approve the

2004 SIP as meeting the CAA section

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

33944.

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H. Clean Fuels/Technology for Boilers

Comment: Earthjustice notes EPA's

statements that the District's two rules

governing gas- and liquid-fired boilers,

Rules 4306 and 4307, require advanced

NOx controls and have been approved

as RACT and that the District's rule

covering solid-fuel-fired boilers, Rule

4352, also requires advanced NOx

control. It then asserts that EPA has no

rational basis for these claims and EPA

has not identified what kinds of

advanced controls are in place at

sources covered by these rules. The

commenter included several permits for

solid-fuel boilers that operate in the SJV,

asserting that permits do not require

catalytic control technology or

comparably effective methods to reduce

NOx emissions.

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

requires that SIPs for extreme ozone

nonattainment areas contain provisions

requiring that each new, modified, and

existing electric utility and industrial

and commercial boiler that emits more

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

its primary fuel a clean fuel (natural gas,

methanol, or ethanol, or a comparably

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

control technology (such as catalytic

control technology) or other comparably

effective control "catalytic control

technology" was intended generally to

refer to selective catalytic reduction

(SCR).

SJVAPCD Rule 4306-Boilers, Steam

Generators and Process Heaters-Phase

3; Rule 4307-Boilers, Steam

Generators, and Process Heaters-2.0

MMBtu/hr To 5.0 MMBtu/hr; and Rule

4309-Boilers, Steam Generators, and

Process Heaters-0.075 MMBtu/hr To

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

rate limits (5.0 MMBtu/hr and 2.0

MMBTU/hr) in Rules 4307 and 4308, as

approved in the SIP, boilers subject to

these rules are too small to be subject to

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

do not emit greater than 25 tpy of NOx).

We discussed in the proposal that

boilers subject to Rule 4306 could only

comply with the limits in that rule

through the use of advanced control

technologies. See 74 FR at 33945.

SJVAPCD Rule 4352-Solid Fuel Fired

Boilers, Steam Generators, and Process

Heater (amended May 18, 2006) applies

to boilers that burn a variety of solid

fuels. We discuss Rule 4352 further

below.

The State submitted the 2004 SIP on

November 15, 2004. As of that date, the

last full year of inventory data available

to the District to determine if boilers in

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

requirement was 2003. Inventory data

available from ARB's emissions

inventory database (http://

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

show that, in 2003, all boilers that

emitted 25 tpy NOx were either fired on

natural gas or solid fuel. This list is

provided in the TSD.

SJVAPCD Rule 4352-Solid Fuel

Fired Boilers, Steam Generators, and

Process Heater (amended May 18, 2006)

applies to commercial and industrial

boilers (in addition to other types of

emission units) at facilities that

potentially emit 10 tpy or more of NOx,

which includes all boilers at such

facilities that emit more than 25 tpy of

NOx. All of the NOx emission limits in

the current rule effectively require

operation of Selective Noncatalytic

Reduction (SNCR) control systems. As

discussed below, we believe SNCR is

"comparably effective" to SCR for the

affected sources, and thus fulfills CAA

section 182(e)(3) requirements for these

affected sources. SNCR also appears to

achieve NOx emissions reductions

comparable to combustion of clean fuels

at these types of boilers. 18

According to information in EPA's

RACT/BACT/LAER Clearinghouse

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

blO2.cfm), recent Prevention of

Significant Deterioration (PSD) permits

contain emission limits for coal-fired

boilers ranging from 0.067 lbs/million

Btu (MMBtu) (for large coal-fired boilers

with SCR and low-NOx burner

technology) to 0.1 lbs/MMBtu (for

medium-sized coal-fired boilers with

SNCR). These limits reflect Best

Available Control Technology (BACT)

determinations under the PSD program.

See RACT/BACT/LAER Clearinghouse.

According to the 1994 ACT for

industrial/commercial/institutional

boilers (Table 2-6), wood-fired

watertube boilers with SCR can achieve

NOx emissions of 0.22 lb/MMBtu. The

1994 ACT does not contain emission

levels for wood-fired fluid bed

combustion boilers with SCR but states

that this type of unit with SNCR can

achieve NOx emission limits ranging

from 0.03 to 0.20 lb/MMBtu.

Our review of these emission ranges

indicates that although emission rates

can vary according to fuel type and

boiler size, generally SNCR controls are

comparably effective to SCR for boilers

firing wood (biomass), municipal solid

waste, and many other types of solid

1' We proposed to approve Rule 4352 as meeting

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

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

May 30, 2007 proposal, we also approved Rule 4352

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

we received adverse comments on this direct final

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

41450). On December 9, 2009 we reproposed to

approve Rule 4352 into the SIP but to disapprove

the District's demonstration that the rule met the

RACT requirement. See 74 FR 65042.

fuels. As a general matter, SNCR is also

comparably effective to SCR control for

circulating fluidized bed coal-fired

boilers of less than 50 MW electric

generation capacity. For coal-fired

boilers, we have focused our review on

circulating fluidized bed boilers of less

than 50 MW electric generation capacity

because all existing coal-fired boilers in

the SJV are of this type and below this

size. See SJVAPCD, "District Permitted

Solid Fuel Boilers," found in the docket

for this rulemaking. The emission levels

achieved by SNCR control systems are

also generally comparable to the

uncontrolled NOx emissions from

boilers firing clean fuels such as natural

gas, which may range from 0.07 to 0.45

lb/MMBtu (Table 2-2 in the 1994 ACT

for ICI boilers). SNCR control systems

consistently achieve up to 80 percent

NOx emissions reductions and are

compatible with almost all solid fuelfired boiler operations, while other

controls may in some cases be sensitive

to catalyst poisoning and other technical

constraints.

As to boilers that emit above 25 tpy

of NOx, we note that, as a practical

matter, only existing boilers in the SJV

are likely to be constrained by the NOx

emission limits in Rule 4352, as all new

boilers that potentially emit above 25

tpy and all major modifications at

existing boilers will also be subject to

the more stringent control technology

requirements of the Nonattainment New

Source Review (NSR) or PSD permit

programs. The requirements of Rule

4352 are generally applicable to this

source category and do not supplant any

more stringent control requirements that

apply on a case-by-case basis under the

NSR or PSD permit programs.

Additionally, according to a list of

permitted facilities in the SJV provided

by the District, all permitted units

subject to Rule 4352 are equipped with

SNCR. This list may be found in the

docket for this rule. The permits

attached by the commenter all state that

the units involved have ammonia

injection, another name for SNCR.

K. Other Comments

Comment: CRPE provided extensive

comments on the alleged

unenforceability of the pesticide

element in the 2003 State Strategy and

argued that EPA should disapprove it.

Response: CRPE's comments on the

pesticide element are not germane to the

action we are taking here and we will

not address their specifics. EPA

proposed no action on the pesticide

element in the 2003 State Strategy as

part of its action on the 2004 SJV 1-hour

ozone plan. As we noted in the proposal

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and acknowledged by the commenter,

the plan does not rely on emissions

reductions from the pesticide element to

demonstrate attainment or ROP. See 74

FR at 39936, ftn. 7.

Comment: CRPE comments that EPA

should not allow emissions reduction

credit for SJVAPCD Rule 4570 because

we have proposed to disapprove the

rule for not meeting the CAA's

requirement for RACT.

Response: On July 14, 2009, EPA

proposed a limited approval/limited

disapproval of Rule 4570, Confined

Animal Facilities. First we proposed to

approve the rule into the California SIP

under CAA section 110(k) as a SIP

strengthening. Second, we proposed to

disapprove the District's demonstration

that the rule meets the RACT provisions

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

33948. The limited approval means that

the rule is an enforceable part of the SIP.

The limited disapproval requires the

District to provide additional

documentation and/or rule revisions to

assure that the rule is RACT in order to

avoid the imposition of sanctions under

CAA section 179 and the promulgation

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

are finalizing our action on Rule 4570

concurrent with this action on the SJV

1-hour ozone plan. Because Rule 4570 is

now approved into the SIP, emissions

reductions from it can be credited in the

plan's attainment and ROP

demonstrations and for other CAA

requirements.

Comment: CRPE comments that

allowing emissions reduction credit for

compliance with menu option A.1 in

Rule 4570 (feed according to National

Research Council (NRC) Guidelines) for

dairy, beef feedlot, and other cattle

facilities is arbitrary and capricious and

an abuse of discretion because these

reductions are already reflected in the

baseline emissions factor used to

calculate total emissions from dairies

and other cattle related operations. It

then claims that if the 10 percent

emissions reduction credit for option

A.1. was eliminated, then emissions

reductions from Rule 4570 would drop

from 7,563 tons per year (21 tons per

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

per day). The Center included a number

of documents in support of its

comments on the emissions reductions.

Response: In the 2004 SIP, reductions

from the Rule 4570 are estimated to be

17.7 tpd or 28 percent of the baseline

inventory for confined animal facilities.

See 2008 Clarifications at 7 and 74 FR

at 33937 (Table 2). In determining the

emissions reductions from the rule,

SJVAPCD conservatively estimated that

compliance with menu option A.1.

would reduce emissions by 10 percent

over the baseline.

The District initially adopted Rule

4570 in June 2006 after conducting

public workshops and providing a

public review and comment period on

both the draft rule and its estimate of

the Rule's potential emissions

reductions. See Final Draft Staff Report

for Rule 4570, p. 50.19 During this

public process, the Center submitted

comments similar to the ones it makes

here. In response to these comments, the

District noted that its emissions

reductions estimate was based on a

number of research studies showing that

changes in animals' diets would result

in VOC emissions reductions and that

the 10 percent reduction it was using

was at the low end of the range of

effectiveness seen in this research. It

also noted that the information available

in the studies used to establish the

baseline emission factor were not

conclusive on whether the animals in

those studies were fed according to the

NRC guidelines and thus the baseline

did not necessarily include reductions

associated with a NRC diet. See Final

Draft Staff Report for Rule 4570,

Appendix A, p. 12.

The District based its estimated

emissions reductions for Rule 4570 on

a careful consideration of the

information then available and used

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

potential emissions reductions. We have

reviewed the District's analysis and find

it reasonable. Final Draft Staff Report for

Rule 4570, p. 24. More specifically, we

do not believe that it overestimates the

reductions from menu option A.1. as

alleged by the commenter.

We note that the Center raised this

specific issue in State court litigation on

Rule 4570. The courts found for the

District on this issue. See Association of

Irritated Residents v. SJVAPCD (2008),

168 Cal. App. 4th 535, 553-554.

Comment: CRPE argues that Rule

4570 codifies existing practices and,

therefore, will not generate emissions

reductions. Citing the District's Staff

Report for Rule 4570, it claims that the

District admits that many of the control

measures are currently being

implemented and that the District

defends its rule as an anti-backsliding

measure that will ensure that current

voluntary practices are not abandoned.

CRPE then asserts that the approach that

the District has taken violates the

statutory requirement that rules must

reduce emissions.

19 SJVAPCD, "Final Draft Staff Report Proposed

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

2006.

Response: The District believes and

we concur that Rule 4570 will generate

significant emission reductions. Simply

because a practice is an existing

industry practice does not mean that

every facility uses it or uses it

consistently.

The commenter does not cite the

provision in the CAA that it believes

requires, as condition of approval, that

SIP rules must reduce emissions. EPA

finds nothing in the CAA that requires

that rules approved into the SIP by EPA

result in direct and quantifiable

emission reductions. We frequently

approve rules and rule revisions that

merely clarify existing requirements and

are not expected to reduce emissions

demonstratively.

A similar argument was raised in

response to our 2005 proposal to

approve SJVAPCD Rule 4550,

Conservation Management Practices

(CMP) for agricultural sources of PM10. The commenter in that instance

claimed that the emission reductions

estimated to be achieved by the rule

were inaccurate and inflated because

the estimate double-counted emission

reductions already being achieved from

practices already in common use by

growers. In our response to this

argument we stated that "it was

understood that some agricultural sites

may have been employing practices not

required by regulation at that time, and

that these existing practices may not

have been accounted for in the emission

inventory. Rule 4550 makes these

practices mandatory and federally

enforceable, allowing the District to take

credit for the emission reductions

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

Comment: CRPE claims that the

District guessed or applied a default

emissions reduction estimate to come

up with a 36 percent reduction of VOC

emissions from dairy operations for

Rule 4570. It then asserts that approval

of the rule with "fictitious" reductions

based on commonly-used industry

practices would be arbitrary and

capricious because the majority of

controls have no factual support

whatsoever.

Response: The District used the best

information available at the time it

adopted Rule 4570 and applied that

information reasonably to determine the

emissions reductions estimates for the

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

As noted above, simply because a

practice is commonly used in an

industry does not mean that it is used

by every facility or used consistently by

every facility in that industry. We note

that the Center also raised this specific

issue in State court litigation on Rule

4570. The courts found for the District

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on this issue. See Association of

Irritated Residents v. SJVAPCD (2008),

168 Cal. App. 4th 535, 553-554.

III. Approval Status of Rules

The demonstration of attainment in

the 2004 SIP and 2008 Clarifications

relied on emission reductions from a

number of District and State rules. EPA

has now taken final action to approve

each of these rules into the California

1-hour ozone SIP as shown in Table 1

below for the District rules and

discussed below for the State rules.

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

HOUR OZONE STANDARD ATTAINMENT DEMONSTRATION

NOx controls

Achieved

Rule #, description and commitment ID from 2004 SIP emission reductions Approval cite/date

(2010-tpd)

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

4307 Small Boilers (2-5 M M BTU) (E) ............................................................................................... 5.1 72 FR 29887 (5/30/07).

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

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

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

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

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

N O x T o ta ls .................................................................................................................................... 2 7 .6

VOC controls

Achieved emission

Rule # and description reductions Approval cite/date

(2010-tpd)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4684 Polyester Resin Operations (M).

4401 Steam -Enhanced Oil-well (0) ................................................................................................... 0.3 Final signed 12/11/09.

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

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

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

V O C T o ta ls ............................................................................................................................. 3 3 .3

The ROP and attainment

demonstrations in the 2004 SIP and

2008 Clarifications also relied in part on

ARB's consumer product regulations

(final approval published at 74 FR

57074 (November 4, 2009)), ARB's

reformulated gasoline and diesel fuel

regulations (final approval signed

December 11, 2009), and State's

SmogCheck vehicle inspection and

maintenance program (final approval

signed December 11, 2009).

IV. Final Actions

For the reasons given in our proposed

approvals at 74 FR 33933 and 74 FR

50936, EPA is taking the following

actions.

1. EPA is approving pursuant to CAA

section 110(k)(3), the following

elements of the 2004 SIP and the 2008

Clarifications:

a. The rate of progress demonstration

as meeting the requirements of CAA

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

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

b. the rate-of-progress contingency

measures as meeting the requirements of

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

c. the attainment demonstration as

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

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

and

d. the attainment contingency

measures as meeting the requirements of

CAA section 172(c)(9);

2. EPA is finding pursuant to CAA

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

the 2008 Clarifications meet the

requirements of:

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

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

fuel/clean technology for boilers; and

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

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

TCMs sufficient to offset any growth in

emissions from growth in VMT or the

number of vehicle trips.

3. EPA is approving pursuant to CAA

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

SIP and the provisions of the 2003 State

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Strategy and ARB Board Resolution 04-

29 that relate to aggregate emission

reductions in the San Joaquin Valley Air

Basin as meeting the requirements of

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

4. EPA is approving pursuant to CAA

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

State Strategy and the 2008

Clarifications as meeting the RACM

(exclusive of RACT) requirements of

CAA section 172(c) and 40 CFR

51.905(a)(1)(ii).

5. EPA is approving pursuant to CAA

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

School Bus Fleets (adopted September

21, 2006) into the San Joaquin Valley

portion of the California SIP.

V. Statutory and Executive Order

Reviews

Under the Clean Air Act, the

Administrator is required to approve a

SIP submission that complies with the

provisions of the Act and applicable

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

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

submissions, EPA's role is to approve

State choices, provided that they meet

the criteria of the Clean Air Act.

Accordingly, this action merely

approves State law and plans as meeting

Federal requirements and does not

impose additional requirements beyond

those imposed by State law. For that

reason, this action:

* Is not a "significant regulatory

action" subject to review by the Office

of Management and Budget under

Executive Order 12866 (58 FR 51735,

October 4, 1993);

* Does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act (44

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

* Is certified as not having a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

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

* Does not contain any unfunded

mandate or significantly or uniquely

affect small governments, as described

in the Unfunded Mandates Reform Act

of 1995 (Pub. L. 104-4);

* Does not have Federalism

implications as specified in Executive

Order 13132 (64 FR 43255, August 10,

1999);

* Is not an economically significant

regulatory action based on health or

safety risks subject to Executive Order

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

* Is not a significant regulatory action

subject to Executive Order 13211 (66 FR

28355, May 22, 2001);

* Is not subject to requirements of

Section 12(d) of the National

Technology Transfer and Advancement

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

application of those requirements would

be inconsistent with the Clean Air Act;

and

e Does not provide EPA with the

discretionary authority to address, as

appropriate, disproportionate human

health or environmental effects, using

practicable and legally permissible

methods, under Executive Order 12898

(59 FR 7629, February 16, 1994).

In addition, this rule does not have

tribal implications as specified by

Executive Order 13175 (65 FR 67249,

November 9, 2000), because the SIP is

not approved to apply in Indian country

located in the State, and EPA notes that

it will not impose substantial direct

costs on tribal governments or preempt

tribal law.

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this action and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

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

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

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by May 7, 2010.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this action for

the purposes of judicial review nor does

it extend the time within which a

petition for judicial review may be filed,

and shall not postpone the effectiveness

of such rule or action. This action may

not be challenged later in proceedings to

enforce its requirements (see section

30 7(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: December 11, 2009.

Laura Yoshii,

Acting Regional Administrator, Region IX.

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

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

m 1. The authority citation for part 52

continues to read as follows:

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

Subpart F-California

* 2. Section 52.220 is amended by

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

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

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

(c)(371) to read as follows:

§ 52.220 Identification of plan. * * * * *

(c) * * *

(317) * * *

(i) * * *

(B) State of California Air Resources

Board.

(1) Executive Order G-125-304

"Adoption and Submittal of New State

Commitments for the San Joaquin

Valley" with Appendix A. Commitment

to achieve additional emissions

reductions in the San Joaquin Valley Air

Basin of 10 tons per day (tpd) of

nitrogen oxides and 0.5 tpd of direct

PM10 by 2010 as given on page 4 of

Executive Order G-125-304, executed

August 19, 2003, and on page 5 of

Appendix A ("State of California Air

Resources Board, Resolution No. 03-14,

June 26, 2003") to E.O. G-125-304. * * * * *

(339) * * *

(i) * * *

(B) State of California Air Resources

Board.

(1) "Revised Proposed 2003 State and

Federal Strategy for the California State

Implementation Plan," (release date

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

San Joaquin Valley Particulate Matter

State Implementation Plan" (pp. 1-23

through 1-25) which was adopted

without revision to section I.D.2. on

October 23, 2003 by ARB Resolution No.

03-22.

(ii) * * *

(C) State of California Air Resources

Board.

(1) "Revised Proposed 2003 State and

Federal Strategy for the California State

Implementation Plan," (release date

August 25, 2003) as revised by ARB

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

excluding for section I.D.2.

(2) ARB Resolution No. 03-22

(October 23, 2003). * * * * *

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(348) * * * (i) * * *

(A)***

(2) Rule 9310, "School Bus Fleets,"

adopted on September 21, 2006. • * * * *

(369) New and amended plans were

submitted on November 15, 2004 by the

Governor's designee.

(i) Incorporation by reference.

(A) State of California Air Resources

Board.

(1) ARB Resolution No. 04-29.

Commitment to achieve additional

emission reductions in the San Joaquin

Valley Air Basin of 10 tons per day (tpd)

of nitrogen oxides and 15 tpd of volatile

organic compounds by 2010 as

described on page 5 of Resolution No.

04-29 October 28, 2004 and page 29 of

"Staff Report, Proposed 2004 State

Implementation Plan for Ozone in the

San Joaquin Valley, release date

September 28, 2004."

(ii) Additional Material.

(A) San Joaquin Valley Air Pollution

Control District.

(1) Extreme Ozone Attainment

Demonstration Plan, as adopted by the

SJVAPCD on October 8, 2004 and by the

California Air Resource Board on

October 28, 2005.

(370) An amended plan was

submitted on March 6, 2006 by the

Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Air Pollution

Control District.

(1) Amendments to the 2004 Extreme

Ozone Attainment Demonstration Plan

adopted by the SJVAPCD on October 20,

2005 and by CARB on March 3, 2006.

(B) State of California Air Resources

Board.

(1) Executive Order G-126-336, dated

March 3, 2005 (year is correctly 2006).

(371) An amended plan was

submitted on September 8, 2008 by the

Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Air Pollution

Control District.

(1) "Clarifications Regarding the 2004

Extreme Ozone Attainment

Demonstration Plan for the Revoked

Federal 1-hr Ozone Standard" adopted

by the SJVAPCD on August 31, 2008

and by CARB on September 5, 2008.

(B) State of California Air Resources

Board.

(1) Executive Order S-08-012,

"Approval and Submittal of

Amendments to the 2004 San Joaquin

Valley 1-hour Ozone Attainment Plan,"

dated September 5, 2008.

[FR Doe. 2010-4752 Filed 3-5-10; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 450

[EPA-HQ-OW-2008-0465; FRL-9118-7]

RIN 2040-AE91

Effluent Limitations Guidelines and

Standards for the Construction and

Development Point Source Category;

Correction

AGENCY: Environmental Protection

Agency.

ACTION: Correcting amendments.

SUMMARY: The Environmental Protection

Agency (EPA) is correcting a date in a

final rule that appeared in the Federal

Register on December 1, 2009, 74 FR

62995, due to a date calculation error.

The final rule established Clean Water

Act technology-based Effluent

Limitations Guidelines and New Source

Performance Standards for the

Construction and Development point

source category.

DATES: Effective on March 8, 2010.

FOR FURTHER INFORMATION CONTACT: Mr.

Jesse W. Pritts at 202-566-1038

(pritts.jesse@epa.gov).

SUPPLEMENTARY INFORMATION:

Correction of Final Rule

The Environmental Protection Agency

is correcting a final rule that appeared

in the Federal Register on Tuesday,

December 1, 2009. 74 FR 62995. The

final rule established Clean Water Act

technology-based Effluent Limitations

Guidelines and New Source

Performance Standards for the

Construction and Development (C&D)

point source category. The final C&D

rule as signed by the Administrator on

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

an applicable date for the numeric

effluent limitation and associated

monitoring requirements for sites that

disturb 20 or more acres of land at one

time for 20 months from the publication

of the rule in the Federal Register. That

date was expressed as a calculation: "20

months after the date of publication of

the final rule" or (in other places) "18

months after the effective date of the

rule." The date would be the same under

either calculation, because the effective

date of the rule was two months after

publication. That date is indicated in

several locations throughout the

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

FR 63050. A member of the public

reading the preamble and regulatory text

of the final rule as sent to the Office of

the Federal Register (OFR) for

publication and published on EPA's

Web site would easily be able to

calculate the date intended by this rule

and would certainly understand that

compliance with the numeric effluent

limitation and associated monitoring

requirements would be required later

than 2010.

The rule was effective on February 1,

2010. Calculated correctly, this means

that August 1, 2011, is the date by

which discharges from construction

sites that disturb 20 or more acres of

land at one time must comply with the

numeric effluent limitation and

monitoring requirements.

Section 553 of the Administrative

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

provides that, when an agency for good

cause finds that notice and public

procedure are impracticable,

unnecessary or contrary to the public

interest, the agency may issue a rule

without providing notice and an

opportunity for public comment. EPA

has determined that there is good cause

for making today's rule final without

prior proposal and opportunity for

comment because such notice and

opportunity for comment is unnecessary

and contrary to public interest.

Related Acts of Congress, Executive

Orders and Agency Initiatives

Under Executive Order 12866, 58 FR

51735 (October 4, 1993), this action is

not a "significant regulatory action" and

is therefore not subject to review by the

Office of Management and Budget.

Because the agency has made a "good

cause" finding that this action is not

subject to notice-and-comment

requirements under the Administrative

Procedure Act or any other statute, it is

not subject to the regulatory flexibility

provisions of the Regulatory Flexibility

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

202 and 205 of the Unfunded Mandates

Reform Act of 1995 (UMRA) Public Law

104-4. In addition, this action does not

significantly or uniquely affect small

governments or impose a significant

intergovernmental mandate, as

described in sections 203 and 204 of

UMRA. This rule also does not

significantly or uniquely affect the

communities of tribal governments, as

specified by Executive Order 13084. 63

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

not have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. 64 FR 43255

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

subject to Executive Order 13045, 62 FR

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

economically significant.

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