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Citation: 75 Fed. Reg. 10420 2010

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

List of Subjects in40 CFRPart52

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, RegionalAdministrator, Region6.

* 40 CFRpart 52 is amended as follows: PART 52-[AMENDED]



### m1.The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart SS-Texas

* 2.The table in §52.2270(c) entitled "EPA Approved Regulations in the Texas SIP" is amendedby revising the entry for Section 116.114 underChapter 116--Control ofAir Pollution by Permits for New Construction or Modification, Subchapter B-New Source Review Permits, Division 1- Permit Application, toread 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 ofAir Pollutionby 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 ofCalifornia to meet the Clean Air Act (CAA) requirements applicable tothe San Joaquin Valley, California extreme 1- hour ozone standard nonattainment area (SJV area). EPA is approving the SIP revisions for the SJV area asmeeting 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: EffectiveDate: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.govand inhard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information maybe publicly available only at thehard 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 normalbusiness 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 ofContents

I. Summary ofProposed Actions 11.Summary ofPublic Comments Received
on the Proposals and EPAResponses II. Approval Status ofRules IV.FinalActions V. Statutory and Executive Order Review
I. Summary ofProposed 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 EPAbythe State of California. California made these submittals to meet the Clean Air Act (CAA) requirements applicable to the SanJoaquin Valley, California ozone nonattainment area (SJV area). The SJV

area became subject tothese 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. See40 CFR 51.905(a)(1)(i) and 900(f).

The SIP submittals that are the subject ofourJuly 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 inthe 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 standardto 0.075 ppm. See 73 FR 16436 (March 27, 2008). The references in this finalrule to the 8-hour standard areto the 1997 standard as codified at40 CFR 50.10. We refer tothese 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 ofvehicle trips. We also proposed to approve a commitment by ARB toreduce volatile organic compounds (VOC) emissions inthe SJV by 15 tons per day (tpd)and nitrogen oxides (NOx)by 20 tpd and to approve SJVAPCD's Rule 9310, SchoolBus Fleets.

In the same action, we proposed to disapprove, as failing to meetthe requirements of section 172(c)(9), the contingency measures in the 2004 SIP and the 2008 Clarifications thatwould take effect ifthe area failed to attainthe 1-hour ozone standard by the applicable attainment datebecause 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 ofemission 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 ofeach 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 canbe found inthe July 14, 2009 and October 2, 2009 proposals.

II. Summary ofPublic Comments Received on theProposals andEPA Responses

We received eight comment letters, listedbelow, in response to ourJuly 14, 2009 proposal and October 2, 2009 supplemental proposal. Several ofthese letters were submitted in conjunction with separate EPAproposed actions on individual SJVAPCD rules. We respond
to the comments in these letters in this

2 The proposed approval ofthe attainment
demonstration was predicated in part on emission reductions from a number ofState and Districtrules that we had proposed to approve inseparate actions. Wehave nowcompleted SIP approval of all these rules. See Table 1 atthe endof this preamble. final rule and TSD insofar as they are relevant to this action and respond to the remainder in our final rulesfor 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 thisfinal rule and TSD:

1.Brent Newell, CRPE, August 31, 2009, onthe behalf of 14 SanJoaquin Valley environmental and community organizations and the Natural Resource Defense Council.
2.Johannes Epke, CRPE, August 31, 2009, onbehalfofthe Center and 12 San Joaquin Valley environmental and community organizations. This
comment letter was in conjunction with

our proposed limited approval/limited disapproval ofSJVAPCD's Rule 4570, Confined Animal Facilities at 74 FR 33948 (July 14, 2009).

3.Johannes Epke, CRPE, August 31, 2009, onbehalfofthe Center and 11 San Joaquin Valley environmental and community organizations. This
comment letter was in conjunction with

our proposed approval ofARB's reformulated gasoline and diesel fuel regulations at 74 FR 38838 (July 27, 2009).

4. Brent Newell, Center on Race, Poverty &theEnvironment, November 2, 2009, on the behalf of 14 SanJoaquin 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 ofMedical 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 behalfofFresno 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 inthis final rule. Our full responses to all comments received canbe foundin the "Response
to Comments" section ofthe Technical 

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SupportDocument (TSD) for this rulemaking.3

A. EmissionsInventory
Comment:Earthjustice comments on the importance ofemission inventories, noting that CAA section 172(c)(3) requires that nonattainment plans "shall include a comprehensive, accurate, current inventory ofactual emissions from all sources ofthe relevant pollutant or pollutants in such area." It also comments that ARB submitted to EPA new emissions inventories for

ozone precursors in the SanJoaquin Valley as part ofthe 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 aresult ofbeing based on the State's revised onroad mobile source model, EMFAC. It then argues that the improvements to EMFAC, and therefore, tothe SJV emissions inventory overall, make the 2007 Ozone Plan inventory the most comprehensive, accurate, current inventory ofactual emissions from all

sources affecting the Valley's air quality. It concludes that EPA cannot approve the 2004 SIPbased oninventories that

are no longer current or accurate.

Response:EPA does not dispute the importance ofemission inventories. We evaluated the emission inventories in the 2004 SIP to determine ifthey are consistent with EPA guidance (General Preamble at 13502 5)and adequate to support thatplan'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 itwas submitted onNovember 15, 2004 and thatthis inventory, as well

asthe 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 findthat these inventories provide an appropriate basis for the ROP and attainment demonstrations in the 2004 SIP. See 74 FR at 33940.

ARB used itsmobile 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 SupportDocument for the Approval ofthe SanJoaquin ValleyExtreme 1-Hour Ozone Standard Plan and San JoaquinPortion of the 2003 State Strategy," December 11, 2009, U.S. EPA, Region 9. The TSD can be found inthe docket for this rulemaking.

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

*The General Preamble is the "General Preamble for Implementation of Title I ofthe Clean Air Act Amendments of 1990." 57 FR 13498 (April 16, 1992). and EPA approved it foruse 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 toEPA, 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 mostcurrent mobile source model available atthe time it is developing its SIP. SeeGeneral Preamble at 13503 (requiringthe use of MOBILE4.1 6for November, 1992 submittal ofbaseyear inventories); Office ofMobile Sources, EPA, "Procedures for Emissions Inventory Preparation, Volume IV: Mobile Source," June, 1992, page 5 (allowing
states touse MOBILE4.1 for the base
year inventories due November 1992, butrequiring MOBILE5, then scheduled for release in December 1992, forthe ROP and attainment demonstrations due November 1993); Memorandum,Philip A. Lorang, Director, Assessment and Modeling Division, Office ofMobile Sources, "Release ofMOBILE5a Emission Factor Model," March 29, 1993 (allowing the use ofMOBILE5 in updated base year inventories but requiring the use ofMOBILE5a, 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 ofMOBILE6 for SIP Development and Transportation Conformity," January 18, 2002 (Seitz Memo). 7

The Seitz Memo specifically addresses the issue ofhow the release ofthe new model, MOBILE6, would affect SIPs thatwere already submitted and/or approved or SIPs thatwere 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, EPAbelieves that MOBILE6 should be used in SIP development as expeditiously aspossible * * * [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,

6MOBILE is EPA's model for estimating pollution
from highway vehicles in all states except California where EMFAC is used.

7Inkeeping with this policy, ARB andthe District
used the most current version ofEMFAC, 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 byEPA foruse in SIPs in January 2008. 68 FR 3464, 3467 (January 18, 2008). the release ofMOBILE6 in most areas would not require a SIP revision based

onthe new model." The Seitz Memo further states that:

EPA believes that the Clean Air Act would

not require states that have already submitted SIPs orwill 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 toEPA approval forreasonable furtherprogress, attainment, ormaintenance SIPs that have been orwill soonbe submittedbased on MOBILE5, assumingthat 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). Itwould be unreasonable torequire the States torevise these SIPswith MOBILE6 since significant work has already occurred, and EPA intends toact onthese SIPs inatimely 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 oftheWashington, DC area's

severe area 1-hour attainment demonstration. The latter action was upheld in SierraClubv. EPA, 356 F.3d 296 (DC Cir. 2004). In SierraClubat 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 wouldlead to significant costs and potentially endless delays in the approval processes. EPA's decision to reject that course, andto accept the use ofMOBILE5 inthis 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 invehicle miles traveled (asrequired by CAA section 182(d)(1)(A)) as well as results in the underestimation ofthe emission reductions needed to satisfy the contingency measure requirement. Earthjustice argues thatEPA must reevaluate whether the 2004 SIP satisfies these CAA requirements based

onthe revised inventories.

Response:As discussed above, EPA's long-established and consistent policy does not require states to revise their already-submitted SIPs when anew mobile source emission model is released. This policy also means that 

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EPA will not evaluate these SIPs based

onthe 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 toconflate the 2004 1-hour ozone standard and 2007 8-hourozone standard plans. Following Earthjustice's logic would effectively result in the 1-hour ozone planbeing completely revised to become the 8- hour ozone plan. Thisis because an evaluation ofthe effect ofemissions inventory changes on the plan couldnot be limited tojust those changes resulting from the move to EMFAC2007. All factors, from revised growth projections and changes to other emissions inventory categories to the impact ofnew controls, would need to be taken into account before we could determine whether the planis or isnot approvable. In otherwords, an entire

new plan would need tobe developed. The District and State have already prepared a new planthat addresses the applicable 8-hour ozone standard and that isbased on EMFAC2007 as well as other updated information. EPA will evaluate the revised inventories in connection withits action onthat plan.

Comment:CRPE comments that because the 2004 SIP includes reductions from California mobile

source rules that are subject to CAA section 209 waivers ("waivermeasures") that occurred before 2000 as part ofthe 2000base year inventory, EPA's proposed action on the inventory violates CAA sections 172(c)(3) and 182(a)(1) because EPA has failed tofind that thereductions 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 ifthey were consistent with EPA guidance (General Preamble at 13502) and adequate to support thatplan's ROP and attainment demonstrations. 74 FR at 33940. Based on this evaluation, we proposed to findthat 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 alsoreviewed the District and State rules that were relied onfor emissions reductions in the 2004 SIPs base year andbaseline inventories. We determined that allthese rules were creditable under the CAA and our policies. See Sections III and IV ofthe TSD. For thereasons given in the proposal at 33938-33939 and discussed in our responses tocomments on waiver

measures below, webelieve 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 andthe agencies responsible for ensuring compliance with them are exercising appropriate oversight, absent information tothe contrary. The
commenter provides no information indicating either ofthese is not happening.

B. ReasonablyAvailableControl Measures(RACM)andReasonably Available ControlTechnology(RACT)
Comment:Earthjustice asserts that deferring action on the RACT demonstration isillegal and arbitrary. It further asserts that EPA cannot findthat the plan as submitted will provide for attainment "as expeditiously as practicable" without first demonstrating that all ofthe required controls, such as RACT, will be implemented. Finally, Earthjustice comments thatEPA cannot treat RACM and RACT as discrete requirements that canbe acted on separately because the statute clearly
states thatRACM includes RACT. It also
comments that EPA cannot determine that all reasonable measures are in place in the Valley withoutfirst 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 offailure 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-hourRACT 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 aresult ofthe State's withdrawal of this component ofthe 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 offailure to submit a required plan element which started sanctions andFIP clocks. 74 FR 3442.

For 30 years, EPAhas consistently interpreted theAct's RACM provision in section 172(c)(1) to require only those feasible measures necessary for expeditious attainment.8 Under EPA's interpretation, ifan 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 ithad implemented RACM, a state needs to show thatit considered awide range ofpotential 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 ofthe 1-hour ozone standard and the Act's specific language

onRACM, the appropriate standard for advancing attainment is, at a minimum,

oneyear 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 ofa RACM demonstration needs to consider the potential effect ofCAA section 182(b)(2) RACT on expeditious attainment, itdoes not require thatthere firstbe an approved RACT demonstration. For this action, we

8We initially stated our interpretation of the
RACM requirement inour 1979 nonattainment area plan guidance where we indicated that if a measure which might be available for implementation could
notbe implemented on a schedule that would advance the date for attainment inthe area, we would notconsider itreasonably available. See 44
FR 20372, 20375 (April 4, 1979). We affirmed this interpretation in the 1992 General Preamble at 13560; inMemorandum,John Seitz, Director, OAQPS, "Guidanceon the Reasonably Available Control Measure Requirement andAttainment 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 inthe 2007 PM2.5 implementation rule (72 FR 20586, 20612 (April 25, 2007) and § 51.1010.

9Attainment ofthe 1-hour standard is based on the average ofthe most recent three calendar years of data: "The [1-hour ozone] standard is attained when the expected number ofdays per calendar
year with maximum hourly average concentrations above 0.12 parts per million [ ]is equal to orless than 1." 40 CFR 50.9(a). Because ofthis, attainment ofthe 1-hour ozone standard can onlybe advanced by intervals ofone 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 thepotential effect of applying RACT tothose sources in the SJV area for which we had not already approved a RACT rule. We provide this evaluation in Section V ofthe TSD. This evaluation shows thatthere were no outstanding RACT measures that, either individually or in combination with otherpotential measures, would advance attainment ofthe 1-hour ozone standard in the SJV area. See TSD Section V and 74 FR at 33938.

We agree that SJVAPCD must adopt andimplement the specific section 182 control requirements ofthe Act,but we do not agree that the withdrawal ofthe RACT demonstration in the 2004 SIP precludes us from approving the plan's RACM and attainment demonstrations when ithas been shown thatthe RACT

measures would not contribute to more expeditious attainment.

Comment:Earthjustice argues that EPA's test ofwhether implementation of additional measures would advance attainment from 2010 to 2009is arbitrary and "absurd" given thatit believes the area will fail to attainby 2010. It further argues that it is "disingenuous for EPAto usethis impossible test"to justify the missing RACT analysis and approve the plan as meeting theRACM requirement and EPA should instead require a new plan based oncurrent, accurate information and a new attainment date and then evaluate whether RACM hasbeen met.

Response:We have not used the "advance attainment test" tojustify the missing RACT analysis. As stated previously, we tookthe appropriate statutory course ofaction for dealing with the withdrawn RACT demonstration: A finding offailure to submitand the starting of sanctions and FIP clocks. 74 FR 3442. We also described theprocess thatwe used to determine ifthe 2004 SJV 1-hour ozone plan provided for the implementation of allRACM needed for expeditious attainment in the proposal at 74 FR 33938. This process included evaluating the potential impact ofRACT 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 ofthe 1-hour ozone standard in the SJV area.

As we discuss below in the Attainment Demonstration section, we disagree withthe commenter thatthe plan does not demonstrate attainment of the revoked 1-hour ozone standard by the 2010 attainment date. C. TreatmentofWaiverMeasures
Comment:Earthjustice and CRPE object to ourproposal to grant emissions reduction credit to California's mobile

source control measures thathave received a waiver ofpreemption under CAA section 209 without first approving them into the SIP. Both commenters argue that ourreliance forthis proposal

on the general savings clause in CAA section 193 is inappropriate for several

reasons.

First, the commenters assertthat CAA section 193 only saves those "formal rules, notices, or guidance documents" that are not inconsistent with the CAA. They argue thatboth 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 andRFP andto meet other CAA requirements. They assert that our position on the treatment ofCalifornia'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 ofan agency's interpretations and we have not provided any evidence that Congress was aware ofour interpretation regarding the SIP
treatment ofCalifornia'smobile source control measures. Similarly, CRPE argues that our positions that Congress
must expressly disapprove ofEPA's long-standing interpretation and Congressional silence equates to a ratification ofEPA'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, tobe submitted and approved into SIPs before their emission reductions canbe credited. Response:We continue to believe that credit for emissions reductions from implementation ofCalifornia mobile

source rules that are subject to CAA section 209 waivers ("waivermeasures") is appropriate notwithstanding the fact that such rules are not approved as part ofthe California SIP. In ourJuly 14, 2009 proposed rule, we explained why

we believe such credit is appropriate. Seepages 33938 and 33939 ofthe 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, ofthe pioneering California motorvehicle control program and because amendments to the CAA (in1977) expanded the flexibility granted to California in order "to afford California the broadest possible discretion in selecting the best means to protect the health ofits 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 thatthe underlying rules are not part ofthe California SIP, EPA treated the waiver measures similarly to the Federal motorvehicle 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 ofthe baseline emissions inventory. EMFAC

was also used to prepare baseline inventory projections into the future, andthus the plans typically showed a decrease in motor vehicle emissions due
to the gradual replacement ofmore polluting vehicles with vehicles manufactured to meetnewer, more stringent California vehicle standards. The EMFAC model isbased onthe
motor vehicle emissions standards for which California has received waivers from EPAbut accounts forvehicle deterioration andmany otherfactors. The motorvehicle emissions estimates themselves combine EMFAC results with vehicle activity estimates, among otherconsiderations. See the 1982 Bay Area Air Quality Plan, and the related EPA rulemakings approving the plan (see 48FR 5074 (February 3, 1983) for the proposed rule and48 FR 57130 (December 28, 1983) for the finalrule)

as an example ofhowthe waiver 

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measures have been treated historically by EPA in California SIP actions. 10

In our proposed rule, we indicated that webelieve that section 193 ofthe CAA, the general savings clause added by Congress in 1990, effectively ratified

our long-standing practice ofgranting 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 ofnonroad vehicles and engines,

once again reflecting Congressional intent to provide California with the broadest possible discretion in selecting thebest 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 isnot consistent withproviding 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 wouldnot 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 waivermeasures notwithstanding the absence of the underlying rules inthe SIP is further documented byreference to EPA's review and approval ofa May 1979 revision to the California SIPentitled, "Chapter 4, California Air Quality Control Strategies." In our proposed approval ofthe 1979revision (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 (stationarysource) controls."As to the former, the SIPrevision discusses vehicular control measures

as including "technical control measures" and "transportation controlmeasures." Theformer refers
to the typesof measures we referto 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 intitle 13, California Administrative Code, chapter 3 * * *," including the types ofvehicle emission standards

we refer to herein as waiver measures; however, California did not submit the related portions ofthe California Administrative Code (CAC) to EPA as part ofthe 1979 SIPrevision submittal. With respect to the CAC, the 1979 SIPrevision states: "Thefollowing appendices areportions ofthe California Administrative Code. Persons interested in theseappendices should refer directly to the code." Thus, the Statewas clearly signaling its intention to relyon the California motor vehicle control program butnot to submit the underlying rules to EPA as partof 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. WhenEPA receives new waiver requests from CARB, EPA publishes a notice of opportunity for public hearing and
comment andthen publishes a decision in the Federal Register following the public commentperiod. Once again, in substance, theprocess 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, justas SIP revisions are not effective until approved by EPA, changes to CARB's rules (for which a waiver hasbeen granted) are not effective until EPA grants a new waiver, unless the changes are "within the scope" ofaprior waiver and no new waiver is needed.

Moreover, to maintain a waiver, CARB's rules can be relaxed only to a level ofaggregate equivalence tothe Federal MotorVehicle Control Program (FMVCP) [seesection 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 nonroadvehicle and engine standards act as a backstop where there isa corresponding California nonroad waiver measure. The constraints ofthe waiver process thus

serve to limitthe 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 ofthe Federal program in serving as an effective backstop to the State program. In other words, with the harmonization ofEPA mobile source standards with the corresponding State standards, the Federal program isbecoming essentially

a full backstop to the California program.

In addition, the commenters' concerns

over thepotential for relaxation by the State ofthe waiver measures because the underlying regulations are not subject toEPA review and approval as

a SIP revision are not apractical

concern for this particular plan given that the plan's horizon isvery short
term (nextcouple ofyears), andthe onroad and nonroad vehicles thatin 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 ofvehicles already manufactured, even ifthe State wanted
to relax the standards.

As tothe concerns raisedby the
commenters on enforceability, we note that CARB has as long a history of enforcement ofvehicle/engine emissions standards as EPA, and CARB's enforcement program is equally

asrigorous 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

asEPA'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 ofCAA section 193 is fundamentally flawed. EPA has historically given SIP credit for waiver

measures in our approval ofattainment 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 ofallowing 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 ofon-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 tpdVOC and 20 tpdNOx by2010 do not satisfy the first factor in EPA's three-factor test for the approval ofenforceable commitments. The commenter argues that the commitments do not meetthe first factor, that commitments provide onlya limited portion ofthe needed reductions, for several reasons. The first

reason isthat the commitment is not for 6.3 percent ofthe needed NOx reductions and 11.6 percent ofthe

11Inthis 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 simplereason that, unlike the waivermeasures, there is no history of past practice orlegislative history supporting
treatment ofother 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 uponfor SIP purposes must be approved into the SIP. 

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needed VOC reductions, the numbers EPA gave in the proposal, butrather 19.2 percent for NOx (41.1tpd) and 37.7 percent for VOC (48.7 tpd)because these were the emissions reductions in commitment form at the timethe 2004 SIP was submitted. The second reason is thatthe 11.6 percent commitment level for VOC is not minimal. The final

reason isthat the commitments now constitute 100 percent ofthe remaining emission reductions needed. The
commenter concludes thatthese levels

are not the limited or minimal role of commitments envisioned in the decision in BCCAAppeal Groupv. EPA, 355 F.3d 817 (5thCir. 2003).

Response:We did not propose to approve commitments of41.1 tpd NOx and 48.7 tpd VOC, rather we proposed
to approve and are taking final action to approve commitments of20 tpd NOx and 15 tpdVOC. 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 ofthe original commitments relating to those reductions are now obsolete and approving them would

serve no purpose.

The State ofTexas' enforceable commitment for the Houston/Galveston
area, the approval ofwhich was upheld by the 5th Circuit inBCCA, represented 6 percent ofthe reductions needed for attainment in the area. Wenote thatthe
courtin BCCA did not conclude that
any amount greater than 6 percent ofthe reductions needed would be unreasonable. We believe that the 6.3 percent reduction ofNOx and the 11.6 percent reduction ofVOC, as stated in

our proposal, also fitwithin the parameters ofa "limited" amount ofthe reductions needed for attainment and nothing in the BCCA decision
contravenes that.

The commenter's final pointmerely describes the nature ofall emissions reductions commitments submitted in support ofan attainment demonstration, i.e., thatthey are intended to fill the gap between the level ofreductions achieved from adopted rules and the level ofreductions needed for attainment. In other words, their
purpose is to provide 100 percent ofthe remaining reductions needed for attainment.

Comment:Earthjustice also argues that ARB's commitments to reduce emissions in the SJV area by 15 tpdVOC and 20 tpdNOx by2010 do not satisfy EPA's second factor for the approval of enforceable commitments, thatthe State is capable ofmeeting its commitment. It first notes thatthe Goldstene letter 12 shows thatrules adopted through 2007 have achieved all ofthe remaining NOx reductions needed for attainment and 3.3 tpd ofthe remaining 15 tpd of needed VOC reductions. The
commenter then states, based on its review ofthe measures listed byEPA in its proposed approval as potential

sources ofVOC emission reductions (e.g., the pesticide emission limits adopted by the California Department of Pesticide Regulations) and ARB's 2009 rulemaking schedule, thatthere are no State measures that canbe adopted and implemented in time toprovide the remaining 11.7 tpdin VOC reductions by 2010.

Response:In the Goldstene letter, ARB submitted a summary ofthe emissions reductions expected from a number ofadopted State rules in the SJV area by 2010. This summary is preliminary and isnot intended to be a final statement ofARB's compliance with its emissions reductions commitments. As a preliminary analysis, itcannot be used to determine whether the State has not or will not meet its commitments.

The commenter assumes thatthe only path now open tothe State to fulfill its commitments is the adoption ofnew

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 itbeen required to provide, an evaluation ofthe effectiveness ofits entire control program in reducing emissions in the SJV area. Given thatthe State has preliminarily demonstrated, based on a limited set ofmeasures, that all NOx reductions and 90 percent of the VOC reductions needed for attainment oftherevoked 1-hour standard in the SJV area have been achieved, we believe itis reasonable to

assume that thebalance ofthe reductions can alsobe achieved bythe beginning ofthe 2010 ozone season. Comment:Earthjustice argues that ARB's commitments to reduce emissions in the SJV area by 15 tpd VOC and 20 tpd NOxby 2010 do not satisfy EPA's third and final factorfor the approval ofenforceable commitments, that the commitment is for a reasonable and appropriate period oftime. It asserts that the State has less than ayear to adopt and make effective controls to achieve 13.3 tpd VOCby 2010 andit is

12Letter, James Goldstene,Executive Officer, ARB, to Laura Yoshii, Acting Regional Administrator, EPA, June 29, 2009 ("Goldstene letter"). not reasonable to assume thatit 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 tpdbetween 2009 and 2010. The commenter's argument again rests on the assumption that the only path now opento the State
to meetits VOC commitment isto 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 itsthree-factor test to

assess whether an enforceable commitment is approvable skips over the initial determination ofwhether the commitments are in fact enforceable. In this regard, Earthjustice cites Bayview HuntersPointCommunityAdvocatesv. MetropolitanTransportation Commission,366 F.3d 692 (9thCir. 2004) and Citizens fora Better Environmentv. 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 outEl ComitePara ElBienestardeEarlimart v. Warmerdam,539 F.3d 1062 (9th Cir. 2008), stating that inEl Comitethe court explained thatbecause an inventory in

a SIP isnot a "standard or limitation" as defined by the CAA, it was not an independently enforceable aspect ofthe SIP. Thus, Earthjustice reasons, in order
tobe 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 thatEPA's approval here allows for the same unenforceable situation that occurred in Ventura where the State

can claim, even erroneously, that changes tothe inventory can substitute for its commitment to reduce emissions, and EPA and thepublic 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 couldbe interpreted as goals unenforceable by citizens under Ninth Circuit precedent, citingBayview.

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 meetthe requirements oftheAct, 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 tobe brought against any person who is alleged "tobe 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. JamesBuseyeta]., 79 F.3d 1250, 1258 (1st Cir. 1996):

Courts interpreting citizen suitjurisdiction have largely focused onwhether the particular standard orrequirement plaintiffs sought to enforce was sufficiently specific. Thus, interpreting citizen suitjurisdiction as limited to claims "forviolations of specific provisions of the act or specific provisions of

an applicable implementation plan," the Second Circuit held that suits can bebrought
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 ofcitizen suit jurisdiction. See, e.g., Coalition Against ColumbusCtr.v. CityofNew York, 967 F.2d 764, 769-71 (2d Cir. 1992); Catev. Transcontinental GasPipeLine Corp.,904 F. Supp. 526, 530-32 (W.D. Va. 1995); Citizens foraBetterEnv'tv. Deukmejian,731 F. Supp. 1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).
Thus courts have found thatthe citizen suitprovision cannot be usedto enforce the aspirational goal ofattaining the NAAQS, but canbe usedto 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 (74FR at 33938). In short,the State commits to achieve 20 tpd NOx and 15 tpd VOCin the SJV area by the 2010 ozone season. While the State identifies possible control measures that itmight 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 toadoptandimplement

measuresto achieve,ata minimum, 15 tpd

13

EPA can alsoenforce SIP commitments pursuant to CAA section 113. BOGand20 tpdNOx emissionreductionsin
the San Joaquin Valley Air Basin by the 2010

ozone season. ARB willadoptmeasuresto achieve these reductions between 2002-2009. ARB may meet this commitment by adopting

one ormore ofthe control measures in Table 4-3,by adopting one or more alternative control measures, or byimplementing incentive program(s), so longasthe aggregate emissionreductioncommitmentis achieved. (Emphasis added). 2004 SIP at section 4.7.3. Seealso ARB StaffReport at 29; ARB Resolution 04-29 at 5("The State's contribution includes * * * a previously approved commitment for 10 tpd new NOxemissions as part ofthe 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 tpdNOx 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 theBayview
court and cited by the commenter. ARB's commitments here are to adopt and implement measures thatwill achieve specific reductions ofNOxand 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 Bayviewas support fortheir contention that ARB's commitments are unenforceable aspirational goals. Bayviewdoes not,however, provide any such support. That case involved a provision ofthe 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 wouldbe determined after consultation withthe transit operators. Following a table listing these estimates, TCM 2provided 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 courtconsidered multiple factors, including theplain language ofTCM 2 (e.g., "[a]greeing to establish a ridership 'target' is simply not the same as promising to attain thattarget," Bayview
at698); the logic ofTCM 2,i.e., the drafters ofTCM 2were careful notto characterize any given increase as an obligation because the TCMwas contingent on a number offactors beyond MTC's control, id. at 699; and the factthat TCM 2was an extension of TCM 1thathad as an enforceable strategy the improvement oftransit services, specifically through productivity improvements in transit operators' five-year plans, id. at 701. As

aresult of all ofthese factors, the Ninth Circuit found that TCM 2clearly designated the productivity improvements asthe 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 inBayview.The language in ARB's commitments, as stated multiple times in multiple documents, is specific and unequivocal; the intent ofthe commitments is clear; andthe strategy ofadopting measures to achieve the required reductions is completely within ARB's control. Furthermore, as statedpreviously, ARB identifies specific emission reductions thatitwill achieve and specifies thatthis will be done through the adoption and implementation ofmeasures and also specifies the time bywhich these reductions willbe achieved, i.e., the beginning ofthe 2010 ozone season.

Earthjustice also cites CBEIIat 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 thatARB commitments are neither express nor specific. In fact, these cases support our interpretation ofARB's commitments. Citizens foraBetterEnvironmentv. 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: "Ifa determination is made that RFP is not being met for the transportation sector, MTC will adopt additional TCMs within 6 months ofthe determination. These TCMs willbe designed to bring the region back within the RFP line." The courtfound that "[o]n its face, this language isboth specific andmandatory." Id. at 1458. In CBE

### L ARB and MTC argued thatTCM 2could
not constitute an enforceable strategy because the provision failsto 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 ofthe contingency measures

are not provided. Thus we hold that that thebasic 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 ofthose

measures are not spelled out." Id. at 1457.14 In concluding thatthe transportation and stationary source contingency provisions were enforceable, the court stated: "Thus, while this Courtis not empowered to enforce the Plan's overall objectives [footnote omitted; attainment ofthe NAAQS]-or NAAQS-directly, it can and indeed, must,enforce specific strategies committed to in the Plan." Id.
at 1454.

Earthjustice's reliance on CBEI is misplaced. Italso involves in part the contingency measures in the 1982 Bay Area Plan. In CBE11, defendants argued that RFP and the NAAQS are coincident because, had theplan's projections been accurate, then achieving RFP would have resulted in attainment ofthe NAAQS. The court rejected this argument, stating that:

the Court wouldbe enforcing the contingency plan,an express strategy for attaining NAAQS. Although enforcement of this strategy mightpossibly resultin attainment, it isdistinct from simply orderingthat NAAQS be achieved without anchoring that order on any specified strategy. Plainly, thefact that a specified strategy mightbe successful and lead to attainment does notrenderthat strategy unenforceable. (Emphasis in original). CBEIIat 980.

ARB's commitments here are analogous to theterms ofthe contingency measures in the CBEcases. ARB commits to adopt measures, which

are not specifically identified, to achieve a specific tonnage ofemission 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 ofemission reductions through adoption and implementation ofunidentified

14Inthis 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 notmet. The Plan identified a number ofpotential stationary sources butdid 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 isthat commitment mustbe clear in terms ofwhat isrequired, e.g.,

a specified amount ofemission reductions or the achievement of a specified amount ofprogress (i.e., RFP). ARB's commitments are thus clearly a specific enforceable strategy rather than

an unenforceable aspirational goal.

Earthjustice's reliance onEl Comiteis also misplaced. The plaintiffs in the district court attempted to enforce a provision ofthe 1994California 1-hour

ozone SIP known as the Pesticide Element. The Pesticide Element relied

on an inventory ofpesticide VOC emissions toprovide thebasis 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 ofestimated 1990 pesticidal VOC emissions based on 1991 pesticide

use data * * *." El ComitePara El BienestardeEarlimart 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 soughtto enforce the commitment to use the original methodology, claiming thatthe calculation ofthebaseline 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 ofemissions attributed to those

sources. As defendants argue, once the

sources ofair 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 of42 U.S.C. 7604 (f)(1)-(4).
Id. at 928. Inits opinion, the court distinguished Bayview and CBEL pointing out thatin those cases "the

measures atissue were designed to reduce emissions." Id.

On appeal, the plaintiffs shifted their argument to claim thatthebaseline inventory and the calculation methodology were necessary elements ofthe overall enforceable commitment
to reduce emissions in nonattainment

areas. The Ninth Circuit agreed with the district court's conclusion thatthe 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 itto the commitment to decide to adopt regulations, ifnecessary." Id. at 1073.

While Earthjustice cites the Ninth Circuit's El Comiteopinion, itsutility 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 ofthe SIP. Rather, it isthe district court's opinion, in distinguishing the commitments in CBEand Bayview,that provides insight into the situation at issue in our action. As the court recognized, abaseline inventory or the methodology used tocalculate it,is not

ameasure to reduce emissions. It instead "identifies emission sources and then quantifies the amount ofemissions attributed to those sources." In contrast,

as stated previously, in the 2004 SIP and 2003 State Strategy, ARB commits to adopt andimplement measures sufficient to achieve specified emission reductions by a date certain. As described above, a number ofcourts 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 thatnothing precludes the State from submitting a SIP revision to alter the commitments approvedby EPA,just asthe State may choose to submit a revision to any provision ofan approved SIP. Ifthe 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 anduntil such time asthe State submits andEPA approves a revision to the commitments approved in this action, those commitments remain enforceable. Comment:Earthjustice states that the 2004 SIP suggests thatthe State "may
meet its commitment by adopting one or

more ofthe controlmeasures in Table 4-3 * * *one or more alternative
measures, or * * * incentive programs,

so long asthe aggregate emission reduction commitment is achieved." 2004 Plan at 4-55. Earthjustice claims that these commitments are so vague that theycannot possiblybe enforced against the State; because there is no requirement that the State take any specific actions, its commitments
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they are not specific strategies based on emissions standards or limitations.

Response:We disagree. As statedin
responses to previous comments, EPA believes that ARB's commitments to adopt andimplement controlmeasures to achieve the specified aggregate tonnage by thebeginning ofthe 2010

ozone season are enforceable as an emission standard or limitation under CAA section 304. The fact thatthe State may meet its SIP obligationby adopting

measures that are not specifically identified in the SIP, orthrough one of several available techniques, does not render therequirement 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

orappropriate" to achieve attainment. Earthjustice further states that, while CAA section 110(k)(4) allows EPA to grant "conditional approval" ofa SIP lacking certain statutory elements "based on a commitment ofthe state to adopt specific enforceable measures"by

a date certain, the statute provides that the conditional approval automatically becomes adisapproval ifthe state fails
to comply with the commitment within

oneyear. Earthjustice then claims that EPA here appears to be trying to avoid this limitation by treating open-ended promises ofthe State to reduce emissions as enforceable commitments

eventhough 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 SierraClubv. EPA, 356 F.3d 295, 298 (DCCir. 2004) as overturning EPA's conditional approval ofSIPs based in part on the fact thatthe commitments identified no specific

measures that the state would implement.

Response:As pertinent to the comment, SierraClubinvolved EPA's conditional approval under section 110(k)(4) ofSIPs lacking in their entirety RACM and ROP demonstrations and contingency measures based on letters submitted by states that committedto

cure these deficiencies. The court rejected EPA's construction ofsection 110(k)(4) as contrary to the unambiguous statutory language requiring the state to commit to adopt specificenforceable measures. Sierra Clubat 302. The courtfound that EPA's construction turned the section 110(k)(4) conditional approval into a
means ofcircumventing SIP deadlines. Id. at 303. EPA does not dispute the holding of SierraClub.However that case is not germane toEPA's approval ofARB's commitments here because the Agency is not approving those commitments under section 110(k)(4). The relevant precedent is instead BCCA.The factsin 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 thatEPA 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 offully 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 SIPmay contain "enforceable emission limitations and other control measures, means, ortechniques

* * * aswell as schedules and timetables for compliance, as may benecessary or appropriate" to meet theCAA's requirements * * *. Thus, according tothe plainlanguage ofthe statute, SIPs may contain "means," "techniques" and/or "schedules and timetables for compliance" that the EPA considers "appropriate" for attainment so long as theyare "enforceable."" SeeId. §7410(a)(2)(A). "Schedules and timetables" is broadly defined as "a schedule ofrequired

measures including an enforceable sequence of actions or operations leading to compliance with an emissionlimitation, prohibition or standard." 42 U.S.C. 7602(p). The remaining terms are not defined by the Act. Becausethe statute is silent onthe issue ofwhether enforceable commitments are appropriate means, techniques, or schedules for attainment, EPA's interpretation allowing limited use ofanenforceable commitment in the Houston SIPmustbe upheld if reasonable.
BCCA at 839-840. The court upheld EPA's approval ofthe 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 forEPA to approve enforceable commitments as distinct from the commitments contemplated by section 110(k)(4). See also EnvironmentalDefensev. EPA, 369 F.3d 193, 209-210 (2nd Cir. 2004). As a result, contrary to Earthjustice's contention, section 110(k)(4) is not abar to EPA's approval ofARB's enforceable commitments and that approval under section 110(k)(3) ispermissible as an appropriate means, technique or schedule or timetable for compliance under sections 110(a)(2)(A) and 172(c)(6).

Comment:CRPE contends thatthe 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 andII-B-15, 23) to be implemented inthe 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 thatARB's commitments are unenforceable. CRPE implies thatit would be easier and/or more convenient for citizens toenforce 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 donot agree that the commitments are unenforceable. Comment:CRPE claims that all ofthe commitments in the 2003 State Strategy

are unenforceable because they include promises by ARB stafftobring an unidentified measure to the ARB Board (State Strategy at II-A-13, 15, 16 andIIB-15, 23) and there is no commitment by the Board itselfto adopt a particular strategy to achieve specific reductions by a specific implementation date. CRPE believes that the act ofproposing a strategy tothe Boardis not a commitment to adopt a strategy and, citing 74 FR at 33938, thatEPA recognizes this fundamental defect.

Response:The enforceable commitments in the 2004 SIP andthe 2003 Strategy at issue here, as described above and in theproposal at 33938, do
not refer to action byARB staffto take certain measures to the Board. Rather, as described in detail above, the enforceable commitments at issue refer
to "ARB" and/or "the State" andrequire it to adopt and implement measures to achieve specific reductions in NOx and VOC emissions by the beginning ofthe 2010 ozone season. By adopting both the 2004 Plan and 2003 State Strategy, the Board endorsed the content ofthese 

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documents and committed the Board to take the actions mandated in them. Comment:Earthjustice claims thatthe 2004 Plan simply states thatARB "estimates" thatmeasures in the 2003 State Strategy will achieve 15 tpd VOC and 20 tpdNOx reductions, noting that the Strategy was adopted before the Plan andtherefore doesn't mention the quantitative commitments (State Strategy at ES-12, 1-7 through 1-9, 1-23 through 1-26). Earthjustice concludes thatthis estimate was clearly wrong, asthe State admits itis coming
up short.

Response:The 2004 Plan at section 4.7.1 states that "ARB staffestimates 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 asTable 4-3 in the 2004 Plan. Because the State's enforceable commitments are to achieve, independent ofany estimates in the plan, aggregate emission reductions from one or more ofthe 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 Stateto quantify the measures in Table 4-3.

To the extentthat Earthjustice in this
comment intends to argue that the 5tpd 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.RateofProgress 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 ofreductions

over more than 3years while the CAA allows averaging over 3-year periods only. Italso argues that the State's demonstration relies on carrying forward excess emissions reductions from previous milestoneyears and that this is also inconsistent with the CAA because it again allows emissions reductions tobe 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, itdoes not appear thatthe 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 mostcomplex ofthe Act's nonattainment area plan requirements
to apply in practice. See, for example, the General Preamble's discussion at 13516 on howto calculate a post-1996 ROP target. To respond to these comments, several points needto be understood about the ROP demonstration requirement: 1.A state demonstrates thatitmeets the required ROP by showing that total emissions in its area willbe at orbelow

a target level of emissions for a specified year. 15 This target level ofemissions, referred to as the ROP milestone, is calculated for each ofthe 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 fromthe preceding milestone periods (e.g., 1990- 1996, 1997-1999, etc.). States often
convert this targetlevel ofemissions into the emissions reductions needed to show ROPby subtracting itfrom its baseline inventory for that milestone year.

Plotted ona graph where the x-axis is the milestoneyears 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 isbelowthe line by the milestone date. An example ofan ROP graph canbe found at 66 FR42480, 42843 (August13,2001), proposed approval ofNewYork's 2002, 2005, and 2007 ROP plans.

EPA has consistently treated ROP milestones astarget levels of emissions. Seefor example, 61 FR 10921 (March 18, 1996), proposed approval of California's ROP and attainment plans for 7nonattainment areas; 62 FR 37175, 37177 (July 11,1997),proposed approval ofTexas's 15 percent ROP plans for Dallas, El Paso and Houston; 65 FR 11525,11530 (March3, 2000), proposed approval ofIllinois' post-1996 ROP plan for Chicago; and 70 FR 2085, 2088 (January 12, 2005), proposed approval ofthe Washington, DC area's

15

From the General Preamble at 13508: "Once the 1996 targetlevel ofemissions is calculated, States
must develop whatever control strategies are needed to meet that target. * * * The assessment ofwhether an area hasmet the RFPrequirement in 1996 willbe based on whether the area is at or below the 1996 target level ofemissions 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 thattotal emissions levels in its area are below each ROP milestone, itdoes 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 isunfounded.

2.The commenter isincorrect that the CAA forbids carrying forward ofexcess 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 shallinclude reductions that occurred before such period, computed in accordance with [section 182(b)(1)], that exceed the 15 percent amount ofreductions 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 notbelieve that Congress intended to prohibit carrying forward of

excess emissions reductions into other ROP periods. Congress was interested in both expediting emissions reductions andreducing the costs ofair pollution controls. The first would be served by rewarding States for early implementation byallowing the carryover ofcredit and the latter bynot ignoring otherwise creditable emissions reductions thathad already occurred. SeeAss'n ofIrritated Residentsv. EPA, 423 F.3d 989,996 (Inthe context of allowing credit for past emission reductions under CAA section 189(d) for PM-10 plans: "[b]y allowing such crediting, the EPAprovides amaterial incentive for implementing themost 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 ofthe Washington, DC area's 1-hour

ozone attainment demonstration; and 68 FR 7476, 7486 (February 14,2003), approval ofRhode 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. Itmay, therefore, rely exclusively on NOxreductions to meet its 2008 and 2010ROP requirements 10430

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andthe commenter's contention thatthe District has not met itsrequired VOC ROP requirement isbaseless. Comment:CRPE argues thatthe 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 ofthe ROP provision also limits credit
to SIP-approved measures, citing our proposed approval ofthe ROP demonstration in the 1999 amendment
to the 1997 1-hour ozone standard plan for the South CoastAir 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 limitemissions reductions creditable in ROP demonstrations to just those reductions from SIP-approved rules, italso allows credit from rules promulgated by theAdministrator (e.g., FMVCP), and CAA titleV federal operating permits. Neither federal

measures nor title V permits are inthe SIP.

EPA has approved numerous ROP demonstrations thatrely on reductions from Federal measures. See, for example, 61 FR 11735 (March 22, 1996), approval ofWisconsin's 15 percent ROP plan and contingency measures; 66 FR 586 (January 3, 2001) approval ofthe 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 forthe Philadelphia area. As discussed in the proposal, we have historically treated California's waiver measures similarly
to the Federal motorvehicle control requirements. 74 FR at 33939.

In the February 2000 proposed rule citedby the commenter, EPAproposed
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 ofthe 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 onlyon reductions from SIP-approved rules and commitments, itrelied 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 forROP. F.AttainmentDemonstration
Comment:Earthjustice comments that SJV will not attainthe 1-hour ozone standard by 2010because there have been too many exceedances ofthe standard in 2008 and 2009 and that these exceedances show thatthe attainment demonstration is not working and is not approvable. It also
comments that EPAhas made clear that attainment by the deadline requires that the three years leading up to that deadline mustbe clean. In support ofits position, the commenter cites EPA's PM2.5 implementation rule at40 CFR 

### §51.1000; the preamble tothe PM 2 .5 implementation rule at 72 FR 20586, 20600 (April 25, 2007); and EPA's "Response to Comments Document, Finalizing Approval ofthe 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 thatthe emissions reductions needed to prevent future violations ofthe 1-hour ozone standard would be in place by the beginning of the 2010 ozone season rather than by the beginning ofthe 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 ofattainment 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 ofattainment required by CAA section 182(c)(2), which isbased

on projections offuture air quality levels and submittedbefore the attainment date. Forthe 1-hour ozone standard, an attainment determination isbased 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 isbased

on air quality modeling showing that projected emissions in the attainment
year will be at or below the level needed
to preventviolations ofthe relevant ambient air quality standard. For ozone, the attainment year isdefined 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 belowthe level ofthe standard no later thanthe beginning of the ozone season immediately prior to the attainment date. EPAhas never interpreted theAct to require that the demonstration show that airquality levels willbe at orbelow the level ofthe standard for each ofthe three ozone

seasons prior to the attainment date.

Following this interpretation, the 2004 SIP does not demonstrate that there wouldbe noviolations ofthe revoked 1-hour ozone standard in 2008

or 2009. Rather itdemonstrates that clean airwould begin withthe 2010

ozone season. Because we are still months away from the start ofthe 2010

ozone season and air quality trends show decreasing number ofdays over the standard, we believe itis premature to say the 2004 1-hour ozone planwill
not result in attainment bythe SJV area's ultimate applicable attainment date.

Our policy on attainment demonstrations isconsistent with the

ozone attainment provisions in subpart 2oftitle 1,part D ofthe 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. Forexample, 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 alsothe attainment date for these areas. For

areas classified serious and above, CAA section 182(c)(2)(B) requires that ROP of 3percent per year averaged over 3years "untilthe attainment date" (atotal of9 percent reduction in emissions in the 3 years leading up to an area's attainment date). EPA does notbelieve that Congress intended these mandatory reductions tobe in excess ofwhat 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 ofdata meeting the

ozone standard by its attainment date buthas complied with all requirements and commitments pertaining to the area in the applicable implementation plan and has no more than one exceedance ofthe standard inthe attainment year, may receive a one-year extension ofits attainment date. Assuming these conditions are again met the following year, the area may receive an additional one-year extension. Ifthe area has no

more than one exceedance in this final extension year, then it willhave three years ofdata indicating thatit has attained the ozone standard.

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approval of 1-hour ozone attainment demonstrations. Our ozone modeling guidance, which was issuedless than a year afterthe 1990 Amendments were enacted, requires States to model the

ozone season before the attainment date andnot the third ozone seasonbefore the attainment date. SeeChapter 6 "Attainment Demonstrations," Guideline forRegulatoryApplicationofthe Urban AirShedModel (July 1991, OAQPS, EPA).

The ozone attainment demonstrations that EPAhas approved since the CAA Amendments of 1990 have been based

onthis modeling guidance and demonstrate attainment only forthe attainment year. See, for example, 61 FR 10921 

### (March 18, 1996) and 62 FR 1150 (January8, 1997), proposed and final approval ofCalifornia's attainment plans for 7nonattainment 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 ofcontingency measures following an area's failure to attain isto provide extra emissions reductions that

are needed to attain. Itthen asserts that EPA's approach ofallowing areas to credit emissions reductions from

measures that are already inplace that

are not needed for attainment is arbitrary andillegal because, ifthe area does fail to attain, the reductions from these measures are not surplus and

more are needed. Itargues further that EPA's policy allows plans tobe 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 cantake 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 ofthe attainment contingency provisions in the 2004 SJV 1-hour ozone plan.16 In ourJuly 14, 2009 proposal and again in our October 2, 2009 supplementary proposal, we made it clear thatthere were no excess emissions reductions from adopted

16

By "surplus" and "extra"emissions reductions,
the commenter is referring to emissions reductions that arerealized inthe attainment yearthat are

more than the emissions reductions needed to demonstrate attainment. We referto 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 tobelieve that the reductions the State credits asits 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 thatyear. Thisis 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 ofmeasures accumulate as the engine fleetturns over, resulting in increasing benefits over time. All ofthe reductions from these measuresthat 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. Itis this additional benefit, i.e., an additional 15.7 tpd NOxand 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 tomeetthe contingency measures requirement. 74 FR 50936, 50938 

### (Table 1). Thus these reductions will notbe reflected in 2010 ambient air quality levels but will provide air quality benefits in 2011. In this respect, the emission reductions from the State andfederal 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 thatthe
commenter appears to advocate, e.g., a control measure adopted by the State or District that would remain unimplemented, andthus yielding no emission reductions until triggered by a failure ofthe area to attainthe standard.

InLEANv. EPA,382 F.3d 575 (5th Cir. 2004), the court upheld EPA's approval ofcontingency 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 usealready implemented measures to meet the CAA sections 172(c)(9) and 182(c)(9) contingency measures requirement, provided that the reductions from these measures werenot alsorelied 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 66FR 634 (January 3, 2001). In theserulemakings, 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 ofa continuing, surplus emissions reduction fits neatly within the CAA's requirement that a necessary element ofa contingency

measure is thatit must 'take effect without further action by the State or [EPA]"' Id. at 584. InLEAN, 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 fromthese

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, fulfillthe purpose of such measures "to provide a cushion while the plan isbeing 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 ofthe plan. It
asserts that the CAA requires that all State and local control measures relied
upon to satisfy the planning requirements oftheAct be included in the implementation plan, citing the language in CAA sections 172(c)(9) and 182(c)(9) and that itis not sufficient to simply identify measures because they could be revised orrevoked without EPA approval under section 110(l), or would be unenforceable under the CAA ifthe 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 tocomments on the
treatment ofwaiver measures above, we address at length our viewthat such

measures can be relied on to meetthe 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 hasbeen 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 andtherefore the technology required to meet them hasbeen demonstrated, making iteven 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 isrelied 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-hourozone 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 * * *."Itthen asserts that the extension ofour policy on waiver

measures to contingency measures ignores the plain language of sections 172(c)(9) and 182(c)(9) and that EPAhas
not shown that ithas allowed the use of

measures that are not inthe SIP for contingency measures. Finally, the
commenter states thatEPA cannot claim that Congress in the 1990 Amendments ratified the practice ofallowing 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 thesereductions would be used. Our discussion presumed thatwaiver measures could be credited for any SIP purpose for which similar federal measures can be used: "EPA treated [thewaiver] rules similarly to the federal motorvehicle control requirements, which EPA has always allowed states to credit in their SIPs without submitting the program as

a SIP revision." 74FR at 33939. While there was no explicit statutory requirement for contingency measures prior to the 1990 CAA Amendments, there isno 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 ofIndiana'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 plansfor 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 ofRhode Island's post-96 ROP plan; 55 FR 33996, 33999 (June 26, 2001), approval ofSt. Louis's 1-hour ozone attainment plan; 66 FR 40802, 40824 (August 3, 2001) finalized at 66 FR 56944 (November 13, 2001), approval ofIndiana'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 OffsetRequirement
Comments:CRPE alleges thatthe 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 ofthe CAA require TCMs when vehicle miles traveled (VMT)increase in a region. In support ofitsposition, 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 isthe level ofvehicle emissions thatwould occur ifVMT held
constant in the area." 2S. Comm. on Environment &Public Works, 103rd Cong., ALegislative History ofthe 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 andTCMs to offset any growth in emissions from growth in VMT or numbers ofvehicle 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 aconsequential growth in emissions. Because the 2004 1-hour

ozone plan shows thatthrough the attainment year there willbe no increase in motorvehicle 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 ofthe 1990CAA Amendments cited by the commenter, in the General Preamble at 13522- 13523.

We have consistently applied this interpretation in ourprevious approvals ofSIPs implementing theprovision. 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 ofNew 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 ofNewYork's attainment demonstration and relatedprovisions for the NewYork-New JerseyConnecticut ozone nonattainment area; 66 FR 57247 (November 14, 2001), approval oftheVMT offset plan forthe Houston-Galveston ozone nonattainment area; 70 FR 25688 (May 13, 2005), approval oftheWashington, DC area's 1-hour attainment demonstration and relatedprovisions; 70 FR 34358 (June 14, 2005), approval ofAtlanta's VMT plan; and 74 FR 10176, 10179 (March 10, 2009), approval/disapproval ofthe 2004 1-hour

ozone plan for the South Coast (California)Air Basin.

Comments:CRPE asserts thatVMT has increased within the San Joaquin Valley and thatvehicle emissions are higher than they wouldbe ifVMTheld
constant in the area, so EPA'sfailure 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 ofany growth in emissions due toVMT growth and not the offset ofany growth in VMT inthe absence ofconsequential growth of
motor vehicle emissions. Consistent with our guidance in the General Preamble, the 2004 1-hour ozone plan demonstrates thatthere is no year-toyear growth in motorvehicle emissions due to VMT growth over the life ofthe 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 74FR at 33944. 10433

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H. CleanFuels/Technology forBoilers
Comment:Earthjustice notes EPA's
statements thatthe District's two rules governing gas- and liquid-fired boilers, Rules 4306 and 4307, require advanced NOx controls and havebeen approved

as RACT and thatthe District's rule covering solid-fuel-fired boilers, Rule 4352, alsorequires advanced NOx control. Itthen asserts thatEPA has no rational basis for these claims and EPA has not identified what kinds of advanced controls are in place at

sources covered bythese 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 toreduce NOx emissions.

Response:Section 182(e)(3) ofthe Act requires that SIPs for extreme ozone nonattainment areas contain provisions requiring thateach new,modified, and existing electric utility and industrial and commercial boiler that emits more than 25 tpy ofNOx either: (1)Burn as its primary fuel a clean fuel (naturalgas, methanol, orethanol, or a comparably low-polluting fuel), or (2)use advanced control technology (suchas 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 ofthe 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 ofNOx). We discussed in the proposal that boilers subject to Rule 4306 could only comply with the limits in thatrule through the use ofadvanced control technologies. See 74 FR at 33945. SJVAPCD Rule 4352-Solid Fuel Fired Boilers, Steam Generators, andProcess Heater (amended May 18, 2006) applies
toboilers thatburn avariety ofsolid fuels. We discuss Rule 4352 further below.

The State submitted the 2004 SIP on November 15, 2004. As ofthat date, the last full year ofinventory data available
to the District to determine ifboilers 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, allboilers 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 tocommercial and industrial boilers (in addition to othertypes of emission units)at facilities that potentially emit 10 tpy or more ofNOx, which includes allboilers at such facilities that emit more than 25 tpy of NOx. All ofthe NOx emission limits in the current rule effectively require operation ofSelective Noncatalytic Reduction (SNCR)control systems. As discussed below, we believe SNCR is "comparably effective" to SCRfor 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 ofclean fuels
at these types ofboilers. 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) (forlarge coal-fired boilers with SCR and low-NOxburner 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 PSDprogram. See RACT/BACT/LAER Clearinghouse. According tothe 1994 ACT for industrial/commercial/institutional boilers (Table 2-6), wood-fired watertube boilers with SCR can achieve NOx emissions of0.22 lb/MMBtu. The 1994 ACT does not contain emission levels for wood-fired fluidbed combustion boilers with SCR but states that this type ofunit with SNCR can achieve NOx emission limits ranging from 0.03 to 0.20 lb/MMBtu.

Our review ofthese emission ranges indicates that although emission rates

can vary according to fuel type and boiler size, generally SNCR controls are comparably effective to SCR forboilers firing wood (biomass), municipal solid waste, and many other types ofsolid

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). OnDecember 9, 2009 we reproposed to approve Rule 4352 into the SIPbutto disapprove the District's demonstration that the rule met the RACT requirement. See 74 FR 65042. fuels. As a general matter, SNCRis also comparably effective to SCR control for circulating fluidized bed coal-fired boilers ofless than 50 MW electric generation capacity. Forcoal-fired boilers, we have focused our review on circulating fluidized bedboilers ofless than 50 MW electric generation capacity because all existing coal-fired boilers in the SJV are ofthistype and belowthis size. See SJVAPCD, "District Permitted Solid Fuel Boilers," found in the docket for this rulemaking. The emission levels achievedby SNCR control systems are also generally comparable to the uncontrolled NOx emissions from boilers firing clean fuels such asnatural gas, which may range from 0.07 to 0.45 lb/MMBtu (Table 2-2 in the 1994 ACT for ICIboilers). 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 toboilers that emit above 25 tpy ofNOx, we note that, as a practical matter, only existingboilers in the SJV

are likely to be constrained by the NOx emission limits in Rule 4352, as allnew boilers thatpotentially emit above 25 tpy and all major modifications at existing boilers will alsobe subject to the more stringent control technology requirements oftheNonattainment New Source Review (NSR)or PSD permit programs. The requirements ofRule 4352 are generally applicable to this

source category and do not supplant any
more stringent control requirements that apply ona case-by-case basis underthe NSR or PSD permit programs.

Additionally, according to a listof permitted facilities in the SJV provided by the District, allpermitted units subject to Rule 4352 are equipped with SNCR. This listmay be found in the docket for this rule. The permits attached bythe commenter all state that the units involved have ammonia injection, another name for SNCR.

K. OtherComments

Comment:CRPE provided extensive
comments on the alleged unenforceability ofthe pesticide element in the 2003 State Strategy and argued thatEPA should disapprove it.

Response:CRPE's comments on the pesticide element are notgermane 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 ofits 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 orROP. See 74 FR at 39936,ftn. 7. Comment:CRPE comments thatEPA 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 ofRule 4570, Confined Animal Facilities. Firstwe 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 therule meets the RACT provisions ofCAA section 182(b)(2). See 74FR 33948. The limited approval means that the rule is an enforceable part ofthe SIP. The limited disapproval requires the District to provide additional documentation and/or rule revisions to

assure thatthe ruleis RACT in order to avoid the imposition ofsanctions under CAA section 179 and the promulgation ofa 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 itcan 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 (feedaccording to National Research Council (NRC) Guidelines) for dairy, beeffeedlot, and other cattle facilities is arbitrary and capricious and

an abuse ofdiscretion 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 thatifthe 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 ofdocuments in support ofits
comments on the emissions reductions.

Response:In the 2004 SIP, reductions from the Rule 4570 are estimated to be 17.7tpd or 28 percent ofthe baseline inventory for confined animal facilities. See 2008 Clarifications at 7and 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 thebaseline.

The District initially adopted Rule 4570 inJune 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. SeeFinal Draft StaffReport for Rule 4570, p. 50.19 During this public process, the Center submitted
comments similar tothe ones itmakes here. In response to these comments, the District noted that its emissions reductions estimate was based on a number ofresearch 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 ofthe 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 onwhether 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 StaffReport for Rule 4570, Appendix A, p. 12.

The Districtbased its estimated emissions reductions for Rule 4570 on

a careful consideration ofthe information then available and used conservative (i.e., low) estimates ofthe potential emissions reductions. We have reviewed the District's analysis and find it reasonable. Final Draft StaffReport for Rule 4570, p. 24. More specifically, we do not believe that itoverestimates the reductions from menu option A.1. as alleged by the commenter.

We note thatthe Center raised this specific issue in State court litigation on Rule 4570. The courts found for the District on this issue. SeeAssociationof Irritated Residentsv. SJVAPCD (2008), 168 Cal. App. 4th 535, 553-554.

Comment:CRPE argues thatRule 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 thatmany ofthe control

measures are currently being implemented and thatthe District defends its rule as an anti-backsliding

measure that will ensure that current voluntary practices are not abandoned. CRPE then asserts thatthe approach that the District has taken violates the statutory requirement that rulesmust reduce emissions.

19SJVAPCD, "Final Draft StaffReport Proposed Rule 4570 (ConfinedAnimal Facilities)," June 15,
2006. Response:The Districtbelieves and

we concur thatRule 4570 will generate significant emission reductions. Simply because a practice is an existing industry practice does not meanthat every facility uses it or uses it consistently.

The commenter does not cite the provision in the CAAthat itbelieves requires, as condition ofapproval, that SIP rules must reduce emissions. EPA finds nothing in the CAA thatrequires 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 ofPM10. The commenter inthat instance claimed thatthe emission reductions estimated tobe achieved by the rule

were inaccurate and inflated because the estimate double-counted emission reductions alreadybeing achieved from practices already in common useby growers. In ourresponse to this argument we stated that "itwas understood that some agricultural sites may have been employing practices not required byregulation at thattime, 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 ofVOC emissions from dairy operations for Rule 4570. Itthen asserts that approval ofthe rule with "fictitious"reductions based oncommonly-used industry practices would be arbitrary and capriciousbecause the majority of controls have no factual support whatsoever.

Response:The District used the best information available at the timeit adopted Rule 4570 and applied that information reasonably to determine the emissions reductions estimates for the rule. See Rule 4570 StaffReport, p. 22. As noted above, simplybecause a practice iscommonly used in an industry does not mean thatit isused by every facility or used consistently by every facility in thatindustry. We note that the Center also raised this specific issue in State courtlitigation on Rule 4570. The courts found forthe District 10435

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onthis issue. See Associationof Irritated Residentsv. SJVAPCD (2008), 168 Cal. App. 4th 535, 553-554. III. Approval Status ofRules
The demonstration of attainment in the 2004 SIP and 2008 Clarifications relied on emission reductions from a number ofDistrict and State rules. EPA has nowtaken final actionto approve each ofthese rules into the California 1-hour ozone SIP as shown inTable 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 IDfrom 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 MMBTU) (E)

............................................................................................... 5.1 72 FR 29887 (5/30/07). 4702 Stat. IC engines (H)

.................................................................................................................. 16.8 73 FR 1819 (1/10/08). 4309 Commercial Dryers (I)

............................................................................................................... 0.7 72 FR 29887 (5/30/07). 4308 Water 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

Ox Totals

.................................................................................................................................... 27.6

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 Org. Solvent Degreasing (M)

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

........................ 74 FR 37948 (7/30/09). 4663 Org. 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 Wood 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 Decontamination (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).

VOC Totals

............................................................................................................................. 33.3

The ROP and attainment demonstrations in the 2004 SIP and 2008 Clarifications also relied in part on ARB's consumer product regulations (finalapproval 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 (finalapproval signed December 11, 2009).

IV. Final Actions

For the reasons givenin ourproposed approvals at 74 FR 33933 and 74FR 50936, EPA istaking the following actions. 1.EPA is approving pursuant to CAA section 110(k)(3), the following elements ofthe 2004 SIP andthe 2008 Clarifications:

a. The rate ofprogress demonstration

as meeting therequirements ofCAA 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 asmeeting 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) thatthe 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 forboilers; 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 orthe number ofvehicle trips. 3.EPA is approving pursuant to CAA section 110(k)(3) section 4.7 inthe 2004 SIP and the provisions ofthe 2003 State 10436

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Strategy and ARB Board Resolution 04- 29 thatrelate 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 theRACM (exclusive ofRACT) 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 SchoolBus Fleets (adoptedSeptember 21, 2006) into the San Joaquin Valley portion ofthe California SIP.

V. Statutoryand Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role isto approve State choices, provided thatthey meet the criteria ofthe CleanAir 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 "significantregulatory action" subject to review by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

* Does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.);

* 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 etseq.);

* 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 actionbased onhealth 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 (66FR 28355, May 22, 2001);

* Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; and

e Does not provide EPA withthe 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, andEPA notes that it will not impose substantial direct
costs ontribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 etseq., as added bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rulemay take effect, the
agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. A major rule
cannot take effect until 60 days afterit is published in theFederalRegister. This action is not a "majorrule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicialreview of this action must be filed in the United States Court ofAppeals for the appropriate circuit by May 7, 2010. Filing a petition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthis actionfor the purposes ofjudicial review nordoes it extend the time within which a petition forjudicial review maybe filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged laterin proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: December 11, 2009. LauraYoshii,
ActingRegional Administrator, RegionIX. * Part52, Chapter I,Title 40 oftheCode ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

m 1. The authority citationfor part52 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 readas follows: §52.220 Identificationofplan.

* * * * *

(c) * * * (317) * * * (i) * * * (B) State ofCalifornia Air Resources Board. (1)Executive Order G-125-304 "Adoption and Submittal ofNew State Commitments for the San Joaquin Valley" withAppendix 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 ofdirect 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 ofCalifornia Air Resources Board, Resolution No. 03-14,
June 26, 2003") to E.O.G-125-304.

* * * * *

(339) * * * (i) * * * (B) State ofCalifornia 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 SanJoaquin Valley Particulate Matter State Implementation Plan" (pp.1-23 through 1-25)which was adopted without revision to section I.D.2. on October 23,2003by ARB ResolutionNo. 03-22.

(ii) * * * (C) State ofCalifornia 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 (October23,2003).

* * * * * 

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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 onNovember 15, 2004 by the Governor's designee. (i) Incorporation by reference. (A) State ofCalifornia AirResources Board. (1)ARB Resolution No. 04-29. Commitment to achieve additional emission reductions in the SanJoaquin Valley Air Basin of10 tons per day (tpd) ofnitrogen oxides and 15 tpd ofvolatile organic compounds by 2010 as described on page 5ofResolution No. 04-29 October 28, 2004 and page 29 of "StaffReport, Proposed 2004 State Implementation Plan for Ozone inthe SanJoaquin Valley, release date September 28, 2004."

(ii)Additional Material. (A) SanJoaquin ValleyAir Pollution Control District. (1)Extreme Ozone Attainment Demonstration Plan, as adopted by the SJVAPCD on October 8, 2004 and bythe California Air Resource Board on October 28, 2005.

(370) An amended plan was submitted onMarch 6, 2006by the Governor's designee. (i) [Reserved] (ii)Additional Material. (A) SanJoaquin ValleyAir Pollution Control District. (1)Amendments to the 2004 Extreme Ozone Attainment Demonstration Plan adopted by the SJVAPCD on October 20, 2005 andby CARB onMarch 3, 2006.

(B) State ofCalifornia 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 bythe Governor's designee. (i) [Reserved] (ii)Additional Material. (A) SanJoaquin ValleyAir 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 andby CARB on September 5, 2008.

(B) State ofCalifornia Air Resources Board. (1)Executive Order S-08-012, "Approval and Submittal of Amendments to the 2004 SanJoaquin 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 LimitationsGuidelines and Standards forthe Construction and Development PointSource 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 inthe Federal Register on December 1,2009, 74FR 62995, due to a date calculation error. The finalrule 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 ofFinalRule

The Environmental Protection Agency is correcting a final rule that appeared in the Federal Register onTuesday, December 1, 2009. 74 FR 62995. The final rule established CleanWater 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.govset

an applicable date for the numeric effluent limitation and associated monitoring requirements for sites that disturb 20 or more acres ofland at one time for 20 months from the publication ofthe rule in the Federal Register. That date was expressed as a calculation: "20 months after the date ofpublication of the finalrule" or (inother places) "18 months after the effective date ofthe rule." The date wouldbe the same under either calculation, because the effective date ofthe rule was two months after publication. That date isindicated in several locations throughout the preamble ofthe final rule. See e.g., 74 FR 63050. A member ofthe public reading thepreamble and regulatory text ofthe 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 andwould 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, isthe dateby which discharges from construction sitesthat disturb 20 or more acres of land at one timemust comply withthe numeric effluent limitation and monitoring requirements.

Section 553 ofthe Administrative Procedure Act, 5U.S.C. 553(b)(B), provides that, when an agency forgood

cause finds that notice andpublic 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 thatthere 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 ofCongress, Executive OrdersandAgency 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 reviewby the Office ofManagement andBudget. Because the agency has made a "good cause"finding thatthis action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, itis
not subject tothe regulatory flexibility provisions ofthe Regulatory Flexibility Act, 5U.S.C. 601 et seq., or to sections 202 and 205 ofthe Unfunded Mandates Reform Act of 1995 (UMRA) PublicLaw 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 affectthe communities oftribal 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 therelationship between the national government and the States, or

onthe distribution ofpower and responsibilities among the various levels ofgovernment, 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 itis not economically significant. 10438

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