ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-R09-OAR-2009-0269; FRL-] 

Approval and Promulgation of Implementation Plans; 

State of California; Legal Authority 

AGENCY: U.S. Environmental Protection Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to clarify the contents of the 

applicable implementation plan for the State of California under 

the Clean Air Act. Specifically, EPA is proposing to clarify 

that the statutory provisions submitted by California and 

approved by EPA in 1972 supporting the State’s legal authority 

chapter of the original implementation plan were superseded by a 

subsequent approval by EPA in 1980 of California’s revision to 

the legal authority chapter of the plan. EPA is proposing this 

action to clarify the status in the California plan of the 

statutory provisions submitted and approved in 1972. 

DATE: Any comments must arrive by [Insert date 30 days from the 

date of publication in the Federal Register]. 

ADDRESSES: Submit comments, identified by docket number EPA-R09-

OAR-2009-0269, by one of the following methods: 

• Federal eRulemaking Portal: www.regulations.gov. Follow the 

on-line instructions. 

• E-mail: rios.gerardo@epa.gov. 
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• Mail or deliver: Gerardo Rios, Chief, Permits Office (AIR3), U.S. Environmental Protection Agency, Region IX, 75 

Hawthorne Street, San Francisco, CA 94105. 

Instructions: All comments will be included in the public docket 

without change and may be made available online at 

www.regulations.gov, including any personal information 

provided, unless the comment includes Confidential Business 

Information (CBI) or other information whose disclosure is 

restricted by statute. Information that you consider CBI or 

otherwise protected should be clearly identified as such and 

should not be submitted through www.regulations.gov or e-mail. 

www.regulations.gov is an “anonymous access” system, and EPA 

will not know your identity or contact information unless you 

provide it in the body of your comment. If you send e-mail 

directly to EPA, your e-mail address will be automatically 

captured and included as part of the public comment. If EPA 

cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able to 

consider your comment. 

Docket: The index to the docket for this action is available 

electronically at www.regulations.gov and in hard copy at EPA 

Region IX, 75 Hawthorne Street, San Francisco, California. While 

all documents in the docket are listed in the index, some 

information may be publicly available only at the hard copy 
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location (e.g., copyrighted material), and some may not be 

publicly available in either location (e.g., CBI). To inspect 

the hard copy materials, please schedule an appointment during 

normal business hours with the contact listed in the FOR FURTHER 

INFORMATION CONTACT section below. 

FOR FURTHER INFORMATION CONTACT: Gerardo Rios, Chief, Permits 

Office (AIR-3), U.S. Environmental Protection Agency, Region IX, 

(415) 972-3974: rios.gerardo@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” 

and “our” refer to EPA. 

Table of Contents 

I. Summary of Today's Proposed Action 

II. Background 

III. Proposed Action 

IV. Public Comment and Final Action 

V. Statutory and Executive Order Reviews 

I. Summary of Today’s Proposed Action

In today’s action, under the Clean Air Act (CAA or “Act”), 

we are proposing to clarify that the statutory provisions 

submitted by California in 1972 supporting the State’s legal 

authority chapter of the original implementation plan were 

superseded by a subsequent approval by EPA in 1980 of a revision 

to California’s legal authority chapter of the plan. 

II. Background 
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Pursuant to the Clean Air Act (CAA or “Act”), as amended in 

1970, EPA promulgated national ambient air quality standards 

(NAAQS) for certain air pollutants, including photochemical 

oxidants, hydrocarbons, carbon monoxide, nitrogen dioxide, 

sulfur oxides, and particulate matter. The 1970 Amended Act 

required each state to submit to EPA a plan which provides for 

the implementation, maintenance, and enforcement of the NAAQS 

within the state. These plans are referred to as state 

implementation plans (SIPs). 

The 1970 Amended Act also established content requirements 

for SIPs. Among other elements, the 1970 Amended Act required 

SIPs to provide “necessary assurances that the State will have 

adequate ... authority to carry out such implementation plan, 

... .” See section 110(a)(2)(F)(i) of the 1970 Amended Act. In 

40 CFR 51.11 (now codified at 40 CFR 51.230-51.232), EPA 

regulations further specify that “Each plan shall show that the 

State has legal authority to carry out the plan, including 

authority to (1) Adopt emission standards and limitations, ... . 

(2) Enforce applicable laws, regulations, standards, ... .” EPA 

regulations further specify: “The provisions of law or 

regulation which the State determines provide the authorities 

required under this section shall be specifically identified, 

and copies of such laws or regulations shall be submitted with 

the plan.” See 40 CFR 51.11(c) (1972). In other words, the laws 
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or regulations relied upon by the State to provide the necessary 

assurances of adequate legal authority must be identified in the 

plan, but copies of the actual laws or regulations themselves, 

while they must be submitted with the plan, need not be part of 

the plan itself. 

On February 21, 1972, Governor Ronald Reagan submitted the 

original California SIP to EPA. The original SIP consisted of 13 

parts, the first of which was referred to as the “State General 

Plan.” The other parts contained air-basin-specific elements and 

appendices. The “State General Plan” was divided into eight 

chapters. Chapter 7 (“Legal Considerations,” or, as referred to 

herein, the “legal authority” chapter) was submitted as part of 

the original SIP to meet the statutory and regulatory 

requirements described above in connection with legal authority. 

Chapter 7 describes, among other things, the history of air 

pollution control in California, the legal authority of the 

California Air Resources Board (ARB) and the local air districts 

to adopt emission limitations, enforce applicable laws, prevent 

new construction, obtain emission information, require source 

monitoring, and describes various principles governing 

transportation and land use controls. Chapter 7 includes many 

citations to individual sections within the California Health & 

Safety, Penal, Civil Procedure, Government, and Vehicle codes, 

as well as citations to (then) recently-approved legislation, 
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and attorney general opinions as support for the assurance that 

adequate legal authority exists in the state to meet CAA and EPA 

SIP requirements. 

The state included an appendix to chapter 7 (entitled 

“Appendix II: State Statutes and other Legal Documents Pertinent 

to Air Pollution Control in California” in the plan (herein, 

“appendix II”) that included the specific sections of California 

code and other legal documents cited in chapter 7, but also 

included many sections of the California Health & Safety Code 

(CH&SC) that were not cited specifically in chapter 7. Appendix 

II was organized into 14 categories: CH&SC provisions related to 

air pollution and pertinent 1971 amendments (not then yet 

codified), certain Penal Code sections, Senate Bill 678 (related 

to authority of attorney general to protect the environment), 

the California Emergency Services Act, an order approved by the 

Governor related to emergencies, certain California Code of 

Civil Procedure sections, certain Government Code sections, 

examples of continuous monitoring rules, the California Public 

Records Act, a Letter Opinion of the California Attorney General 

dated March 8, 1971 related to authority for regulating fuel 

composition, a Letter Opinion of the California Attorney General 

dated October 6, 1971 related to authority of the San Francisco 

Bay Area air pollution control district to prevent new 

construction, certain California Vehicle Code sections related 
7

to bus and commuter freeway lanes, SB 325 (1971) establishing a 

sales tax on gasoline, and various land use laws, including 

Assembly Bill (AB) 2070 (1970) related to land use planning 

requirements and the establishment of the Office of Planning and 

Research, certain California Government Code provisions, and AB 

1301 (1970) related to consistency between zoning and general 

plans. 

In May 1972, EPA approved in part and disapproved in part 

the original California SIP. See 37 FR 10842 (May 31, 1972) and 

40 CFR 52.220(b). With respect to legal authority, EPA approved 

the submittal but found that the SIP did not meet certain 

requirements related to air pollution emergencies and 

availability of emission data. See 37 FR 10842, at 10852 and 40 

CFR 52.225. EPA’s approval included both chapter 7 and the 

statutory and other documents contained in appendix II as 

described above. 

In response to EPA’s request and in response to the Clean 

Air Act Amendments of 1977, California undertook a comprehensive 

update to the California SIP. On March 16, 1979, the ARB 

submitted a revision to the legal authority chapter of the SIP, 

entitled “Chapter 3 - Legal Authority, Revision to State of 

California Implementation Plan for the Attainment and 

Maintenance of Ambient Air Quality Standards (December 1978),” 

(also referred to herein as the revised “legal authority” 
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chapter). Much like the original legal authority chapter, the 

revised legal authority chapter provides an overview of air 

pollution control in California, generally describes the 

statutory responsibilities and authority of the ARB and the air 

pollution control districts, and addresses specific legal 

authorities for enforcement of the SIP, right of entry and 

source information gathering, public availability of data, 

emergency episodes, new source review, vehicular controls, and 

transportation and land use controls. While the general topics 

covered in the revised legal authority chapter were similar to 

those covered in the original legal authority chapter, the 

discussion is completely re-organized and updated to reflect, 

among other things, recodifications of statutory provisions. 

Also, like the legal authority chapter in the original SIP, the 

revised legal authority chapter includes numerous citations to 

individual sections of the CH&SC (which had been re-numbered and 

re-codified since the time of the original SIP), certain 

citations to other California codes (e.g., Business and 

Professions Code, Administrative Code, Government Code and 

Vehicle Code) and an attorney general’s letter opinion. However, 

unlike the legal authority chapter in the original SIP, the 

revised legal authority chapter, as submitted in 1979, did not 

include physical copies of the actual statutory provisions nor 

the other documents cited in the chapter. Instead, the 1979 SIP 
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revision simply incorporates by reference the 1978 edition of 

California Air Pollution Control Laws as “appendix 3-A” to the 

chapter. Later in 1979, we proposed approval of the revised SIP 

“Chapter 3 – Legal Authority” as an update and clarification of 

the 1972 SIP. See 44 FR 38912 (July 3, 1979). The following 

year, we took final action, effective September 10, 1980, to 

approve the revised legal authority chapter. See 45 FR 53136 

(August 11, 1980) and 40 CFR 52.220(c)(48). Since that time, EPA 

has not approved any other revision to the chapter that 

addresses legal authority in the California SIP.

Recently, the status of the statutory provisions from the 

original SIP has come into question in the context of third 

party litigation, an EPA rulemaking action on a revision to new 

source review rules in the San Joaquin Valley, and a lawsuit 

filed against EPA challenging certain EPA actions on the premise 

that such actions were arbitrary and capricious if a certain 

statutory provision submitted and approved by EPA in connection 

with the original SIP remains in effect as part of the current 

applicable California SIP.1 Thus, we believe that clarification 

 

1

 See Ass’n of Irritated Residents v. C&R Vanderham Dairy, No. 1:05-CV01593(OWW)(E.D. Cal.)(third-party litigation); 73 FR 9260 (February 20, 

2008)(EPA proposed rule approving changes to San Joaquin Valley new source 

review rules); and Sierra Club v. EPA, No. 08-70395 (9th Cir. filed January 

28, 2008)(petition for review of three EPA actions). The particular provision 

at issue in these examples is CH&SC section 24265, which excludes certain 

categories of emissions sources, including equipment used in agricultural 

operations in the growing of crops or raising of fowls or animals, from the 

general grant of authority to local air districts to require permits for new 

and existing emissions sources. CH&SC section 24265 was not cited 
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of the status of the statutory provisions (and other legal 

documents) submitted in connection with the original SIP is 

necessary and appropriate at this time. 

III. Proposed Action 

As shown from the State’s submittals and the regulatory 

history of EPA’s actions on the legal authority chapter, and 

revisions thereto, of the California SIP (as described in the 

previous section of this document), the statutory provisions and 

other legal documents submitted in support of the legal 

authority chapter in the original SIP are no longer part of the 

California SIP. The statutory provisions and other legal 

documents were superseded by our 1980 approval of the revised 

legal authority chapter of the California SIP (codified at 40 

CFR 52.220(c)(48)). Our conclusion in this regard follows from 

our finding, based on the nature and scope of the revised 

chapter and the mismatch between the statutory citations in the 

revised chapter and those contained in the original chapter, 

 specifically in the legal authority chapter of the original SIP but was 

included within the large excerpt from the CH&SC submitted by the State of 

California in support of the original legal authority chapter. (CH&SC section 

24265 was later re-codified as CH&SC section 42310.) As proposed in this 

action, it is clear that the statutory agricultural permitting exemption from 

the original SIP does not remain in effect as part of the current applicable 

California SIP. For the purposes of State law, effective January 1, 2004, 

Senate Bill 700 (2003) repealed the full permitting exemption for 

agricultural sources then in CH&SC 42310(e) and added a new section that 

provides a limited permitting exemption for minor agricultural sources. 

However, the California SIP has historically included, and continues to 

include, certain local district permitting rules that explicitly exempt 

agricultural sources or refer to the statutory agricultural exemption. EPA 

expects California to continue the process of revising local district 

permitting rules as necessary to amend the SIP consistent with the provisions 

of Senate Bill 700. 
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that the 1979 submittal of the revised legal authority chapter 

represented a wholesale replacement of the original chapter.2 We 

also note that the actual statutory provisions and other legal 

documents relied upon to support a state’s assurance of adequate 

legal authority need not be approved into the SIP under CAA 

section 110 or EPA’s SIP regulations in 40 CFR part 51 (although 

such provisions are required to be submitted with the plan). 

Thus, EPA could approve, consistent with CAA and EPA 

requirements, and did so in this instance, a wholesale revision 

to the original legal authority chapter without also approving 

the actual statutory provisions and other legal documents cited 

therein.3 

To memorialize our interpretation of the effect of our 1980 

approval of the revised legal authority chapter of the 

 

2

 ARB described the nature and purpose of that agency’s comprehensive 

update of the California SIP during the late 1970’s as follows: “The [EPA] 

has formally requested that the [ARB] update the State of California 

Implementation Plan for Achieving and Maintaining the National Ambient Air 

Quality Standards, usually referred to simply as the ‘SIP.’ The original SIP 

document, submitted to EPA in 1972, has become obsolete largely because of 

the many modifications to federal, state, and local air pollution rules and 

regulations and substantial advancements in technical aspects of air 

pollution prediction and control. A new SIP 1978 Working Document has been 

prepared as an initial response to the EPA request and contains an updated 

summary and description of the California SIP. ... The SIP 1978 Working 

Document is a step towards replacing the obsolete 1972 SIP.” See page 1 of 

Chapter 1 (“Introduction”) (April 1978) of the SIP – 78 Working Document. 

Therefore, the revised legal authority was intended by ARB, and approved by 

EPA, as a wholesale replacement of the original legal authority chapter, 

including the related statutory provisions and other materials submitted in 

support of the original chapter. 3

 We view the revised legal authority chapter’s incorporation (as 

appendix 3-A) of the 1978 edition of California Air Pollution Control Laws as 

simply providing a general reference to where the statutory citations in the 

chapter could be located rather than as having the effect of a literal 

reading of the provisions into the chapter. 
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California SIP and thereby clarify the status of the statutory 

and other legal documents submitted in connection with the 

original California SIP’s legal authority chapter, we propose 

today under CAA section 301(a)(1)4 to revise 40 CFR 

52.220(b)(12)(i) to read as follows: 

“(i) Previously approved on May 31, 1972 and deleted 

without replacement, effective September 10, 1980, chapter 7 of 

part I and all of the statutory provisions and other legal 

documents contained in appendix II to chapter 7 (Legal 

Considerations).” 

The relevant provision of the CFR, 40 CFR 52.220(b)(12), 

currently lists certain CH&SC provisions related to variances 

that EPA deleted from the California SIP in 2004. See 69 FR 

67062 (November 16, 2004). In today’s action, we are proposing 

to revise 40 CFR 52.220(b)(12) to clarify that none of the 

statutory provisions (and other legal documents) submitted in 

connection with chapter 7 (Legal Considerations) of the original 

California SIP remain in the SIP, not just the few provisions 

currently listed. We propose to revise 40 CFR 52.220(b)(12) to 

codify the date (September 10, 1980) on which the statutory 

provisions (and other legal documents) were superseded in the 

 

4

 CAA section 301(a)(1) states: “The Administrator is authorized to 

prescribe such regulations as are necessary to carry out his functions under 

this chapter. ... .” We believe that our rule proposed herein today is 

necessary to clarify the contents of the California SIP and thereby carry out 

the functions of EPA in connection with the state’s plan. 
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California SIP. 

The effect of our action, if finalized as proposed, would 

be to clarify that the subject statutory provisions, including 

the statutory-based agricultural permitting exemption contained 

in CH&SC section 24265, have not been part of the California SIP 

since the effective date (September 10, 1980) of our 1980 

approval of the revised legal authority chapter of the 

California SIP.5

IV. Public Comment and Final Action 

Under CAA section 301(a)(1) and for the reasons discussed 

above, EPA is proposing to clarify that the statutory provisions 

and other legal documents submitted in connection with the legal 

authority chapter of the original 1972 California SIP were 

superseded by EPA’s approval of a revised legal authority 

chapter in 1980 (and codified at 40 CFR 52.220(c)(48)). To 

memorialize EPA’s interpretation of the effect of the 1980 final 

rule on the earlier submitted and approved statutory provisions 

and other legal documents, EPA is proposing to revise 40 CFR 

52.220(b)(12)(i) to read as follows: 

“(i) Previously approved on May 31, 1972 and deleted 

without replacement, effective September 10, 1980, chapter 7 of 

 

5

 However, as noted in footnote #1 in this document, the California SIP 

has historically included, and continues to include, certain local district 

permitting rules that explicitly exempt agricultural sources or refer to the 

statutory agricultural exemption. EPA expects California to continue the 

process of revising local district permitting rules as necessary to amend the 

SIP consistent with the provisions of Senate Bill 700. 
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part I and all of the statutory provisions and other legal 

documents contained in appendix II to chapter 7 (Legal 

Considerations).” 

EPA is soliciting public comments on the issues discussed 

in this document and will accept comments for the next 30 days. 

These comments will be considered before taking final action. 

V. Statutory and Executive Order Reviews 

Under the Clean Air Act, the Administrator is required to 

approve a SIP submission that complies with the provisions of 

the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role 

is to approve state choices, provided that they meet the 

criteria of the Clean Air Act. Accordingly, this action merely 

proposes to clarify the effect of a previous approval by EPA of 

a state submittal as meeting Federal requirements and does not 

impose additional requirements beyond those imposed by state 

law. For that reason, this proposed action: 

• is not a "significant regulatory action" subject to review 

by the Office of Management and Budget under Executive 

Order 12866 (58 FR 51735, October 4, 1993); 

• does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 

et seq.); 

• is certified as not having a significant economic impact on 
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a substantial number of small entities under the Regulatory 

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

• does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the 

Unfunded Mandates Reform Act of 1995 (Public Law 104-4); 

• does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999); 

• is not an economically significant regulatory action based 

on health or safety risks subject to Executive Order 13045 

(62 FR 19885, April 23, 1997); 

• is not a significant regulatory action subject to Executive 

Order 13211 (66 FR 28355, May 22, 2001); 

• is not subject to requirements of Section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the Clean Air Act; 

and 

• does not provide EPA with the discretionary authority to 

address, as appropriate, disproportionate human health or 

environmental effects, using practicable and legally 

permissible methods, under Executive Order 12898 (59 FR 

7629, February 16, 1994). 

In addition, this proposed rule does not have tribal 

implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the SIP is not approved to apply in 

Indian country located in the state, and EPA notes that it will 

not impose substantial direct costs on tribal governments or 

preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air pollution control, 

Intergovernmental relations, Oxides of nitrogen, Ozone, 

Reporting and recordkeeping requirements, Volatile organic 

compounds. 

Dated: 

Region IX.