Federal Register/Vol. 74, No. 133/Tuesday, July 14, 2009/Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0693; FRL-8929-9]

Approval and Promulgation of

Implementation Plans: 1-Hour Ozone

Extreme Area Plan for San Joaquin

Valley, CA

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

in part and disapprove in part State

implementation plan (SIP) revisions

submitted by the State of California to

meet the Clean Air Act (CAA)

requirements applicable to the San

Joaquin Valley, California 1-hour ozone

nonattainment area (SJV area). These

requirements apply to the SJV area

following its April 16, 2004

reclassification from severe to extreme

for the 1-hour ozone national ambient

air quality standard (NAAQS). EPA is

proposing to approve the SIP revisions

for the SJV area as meeting applicable

CAA requirements for the attainment

demonstration, rate-of-progress

demonstration and related contingency

measures, and other control measures.

EPA is also proposing to disapprove the

contingency measures for failure to

attain. In addition, EPA is proposing to

approve the SJV Air Pollution Control

District's Rule 9310, "School Bus

Fleets." Finally, EPA is withdrawing its

previous proposal (73 FR 61381;

October 16, 2008) to fully approve the

SJV SIP revisions.

DATES: Comments must be submitted by

August 13, 2009.

ADDRESSES: Submit comments,

identified by docket number EPA-R09-

OAR-2008-0693, by one of the

following methods:

1. Agency Web site: http://

www.regulations.gov. EPA prefers

receiving comments through this

electronic public docket and comment

system. Follow the on-line instructions

to submit comments.

2. Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line

instructions.

3. E-mail: wicher.frances@epa.gov.

4. Mail or deliver: Ms. Marty Robin,

Office of Air Planning (AIR-2), U.S.

Environmental Protection Agency,

Region 9, 75 Hawthorne Street, San

Francisco, CA 94105-3901.

Instructions: All comments will be

included in the public docket without

change and may be made available

online at http://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 the

agency Web site, eRulemaking portal, or

e-mail. The agency Web site and

eRulemaking portal are anonymous

access systems, 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 Clarifications, EPA may

not be able to consider your comment.

Docket: The index to the docket for

this action is available electronically at

http://www.regulations.gov and in hard

copy at EPA Region 9, 75 Hawthorne

Street, San Francisco, California. While

all documents in the docket are listed in

the index, some information may be

publicly available only at the hard copy

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

some may not be publicly available in

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

hard copy materials, please schedule an

appointment during normal business

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Frances Wicher, U.S. EPA Region 9,

415-972-3957, wicher.frances@epa.gov

or 31http://www.epa.gov/regiono9/air/

actions.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms

"we," "us," and "our" mean U.S. EPA.

Table of Contents

I. The History of San Joaquin Valley

1-Hour Ozone Nonattainment Area and

Its Extreme Area Ozone Plan

A. The San Joaquin Valley 1-Hour Ozone

Nonattainment Area

B. SJV 2004 SIP, SJV Portion of 2003 State

Strategy and 2008 Clarifications

C. EPA's 2008 Proposed Approval of the SJV

Extreme 1-Hour Ozone Plan and 2003

State Strategy

II. Revocation of the 1-Hour Ozone Standard

and Anti-Backsliding Requirements

III. Review of the 2004 SIP, the SJV Portion

of the 2003 State Strategy and the 2008

Clarifications

A. Control Measures

B. Emission Inventories

C. Rate of Progress Demonstrations

D. Attainment Demonstration

E. Contingency Measures

F. Proposed Findings on Other Requirements

for Extreme Nonattainment Areas

IV. SJVAPCD Rule 9310 School Bus Fleets

V. Proposed Actions

A. Summary

B. Effect of Finalizing These Proposed

Actions

VI. Statutory and Executive Order Reviews

I. The History of San Joaquin Valley 1-

Hour Ozone Nonattainment Area and

its Extreme Area Ozone Plan

A. The San Joaquin Valley 1-Hour

Ozone Nonattainment Area

Eight counties comprise the San

Joaquin Valley ozone nonattainment

area (SJV area). From north to south,

these counties are San Joaquin,

Stanislaus, Merced, Madera, Fresno,

Kings, Tulare, and the valley portion of

Kern. 40 CFR 81.305. The local air

district is the San Joaquin Valley Air

Pollution Control District (SJVAPCD or

District).

The SJV area was initially classified

under the CAA, as amended in 1990, as

a serious area for the 1-hour ozone

standard. 56 FR 56694 (November 6,

1991). Under the amended CAA, the

attainment deadline for serious 1-hour

ozone areas was no later than November

15, 1999. CAA section 181(a)(1).

In 2001, we found that the SJV area

had failed to attain the 1-hour ozone

standard by the required deadline. 66

FR 56476 (November 8, 2001). As a

result of this finding, the area was

reclassified by operation of law to

severe with a new attainment deadline

of no later than November 15, 2005.

CAA section 181(a)(1). After

determining that sufficient controls

could not be implemented in time for

the area to attain by the severe area

deadline, California requested a

voluntary reclassification of the area to

extreme as allowed under CAA section

181(a)(5). See SJVAPCD Resolution 03-

12-10 "Requesting the [EPA] to Classify

the [SJV] Air Basin as Extreme

Nonattainment for the Federal 1-Hr

Ozone [] Standards," December 18,

2003. We granted California's request in

2004. 69 FR 20550 (April 16, 2004). As

a result, the SJV area is currently

classified as an extreme area for the 1-

hour ozone standard with an attainment

date of as expeditiously as practicable

but no later than November 15, 2010.

CAA section 181(a)(1).

B. 2004 SIP, SJV Portion of 2003 State

Strategy and 2008 Clarifications

The SJVAPCD adopted its "Extreme

Ozone Attainment Demonstration Plan"

on October 8, 2004 and amended it on

October 20, 2005 to, among other things,

substitute a new "Chapter 4: Control

Strategy." The State submitted the plan

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(with the exception of Chapter 81) and

amendment on November 15, 2004 and

March 6, 2006, respectively. See letters

from Catherine Witherspoon, California

Air Resources Board (ARB), to Wayne

Nastri, EPA, November 15, 2004 and

March 6, 2006. The plan and

amendment, collectively, will be

referred to as the "2004 SIP" in this

proposed rule. The 2004 SIP addresses

CAA requirements for extreme 1-hour

ozone areas including control measures,

rate-of-progress (ROP) and attainment

demonstrations, and contingency

measures.

For the reductions needed to

demonstrate attainment and ROP, the

2004 SIP relies in part on the "2003

State and Federal Strategy for the

California State Implementation Plan."

This strategy document identifies ARB's

regulatory agenda to reduce ozone and

particulate matter in California and

includes defined statewide control

measures that were to be reflected in

future SIPs and provisions specific to air

quality plans for the San Joaquin Valley.

On October 23, 2003, ARB adopted the

"2003 State and Federal Strategy for the

California State Implementation Plan,"

which consists of two elements: (1) the

Proposed 2003 State and Federal

Strategy for the California State

Implementation Plan (released August

25, 2003); and (2) ARB Board Resolution

03-22 which approves the Proposed

2003 State and Federal Strategy with the

revisions to that Strategy set forth in

Attachment A. On January 9, 2004, ARB

submitted to EPA the "2003 State and

Federal Strategy for the California State

Implementation Plan." Letter from

Catherine Witherspoon, ARB, to Wayne

Nastri, EPA, January 9, 2004.2

In this proposed rule we refer to the

two documents comprising the "Final

State and Federal Strategy for the

California State Implementation Plan"

as the "2003 State Strategy" or

individually as the "State Strategy" and

"ARB Resolution 03-22," respectively.

On August 21, 2008, the SJVAPCD

adopted "Clarifications Regarding the

2004 Extreme Ozone Attainment

Demonstration Plan" (2008

'Chapter 8 "California Clean Air Act Triennial

Progress Report and Plan Review" was included in

the plan to meet a State requirement to report every

three years on the area's progress toward meeting

California's air quality standards. Nothing in the

chapter was intended to address federal Clean Air

Act requirements.

2 On February 13, 2008, ARB withdrew from EPA

consideration certain commitments related to the

South Coast Air Basin in the "Final 2003 State and

Federal Strategy for the California State

Implementation Plan." These withdrawals do not

change the 2003 Strategy's provisions that apply to

the SJV area. Letter from James N. Goldstene, ARB,

to Wayne Nastri, EPA, February 13, 2008.

Clarifications). The State submitted the

2008 Clarifications on September 5,

2008. Letter from James N. Goldstene,

ARB, to Wayne Nastri, EPA, with

enclosures, September 5, 2008. The

2008 Clarifications provide updates to

the 2004 SIP related to reasonably

available control technology (RACT)

measures adopted by the SJVAPCD, the

ROP demonstration, and contingency

measures.

CAA section 110(k)(1) requires EPA to

determine whether a SIP submission is

complete within 60 days of receipt. This

section also provides that any plan that

has not been affirmatively determined to

be complete or incomplete shall become

complete within 6 months by operation

of law. EPA's completeness criteria are

found in 40 CFR part 51, subpart V.

The 2004 SIP, comprised of the

original November 15, 2004 plan and

May 6, 2006 amendment, was deemed

complete by operation of law on May

15, 2005 and September 6, 2006. On

February 18, 2004, we determined the

Final 2003 State Strategy to be

complete. Letter from Deborah Jordan,

EPA, to Catherine Witherspoon, ARB,

February 18, 2004. We found the 2008

Clarifications complete on September

23, 2008. Letter from Deborah Jordan,

EPA, to James N. Goldstene, ARB,

September 23, 2008.

C. EPA's 2008 Proposed Approval of the

2004 SIP, SJV Portion of the 2003 State

Strategy and the 2008 Clarifications

This is the second time we have

proposed action on the 2004 SIP, the

SJV portion of the 2003 State Strategy

and the 2008 Clarifications. On October

16, 2008, we proposed full approval of

these SIP submittals and received three

comment letters during the public

comment period.3 73 FR 61381. After

considering these comments, we are

withdrawing our October 16, 2008

proposed rule and reproposing action

on these SIP submittals. As a result, we

are not responding to the comments we

received on that proposed action at this

time. Commenters wishing to again raise

issues raised in comments on that

proposal should resubmit applicable

comments to the docket for this

rulemaking.

II. Revocation of the 1-Hour Ozone

Standard and Anti-Backsliding

Requirements

In 1979, we set the health-based

NAAQS for ozone at 0.12 parts per

million (ppm) averaged over one hour.

3 Comment letters were received from

Earthjustice; the Center for Race, Poverty and the

Environment; and the National Association of

Home Builders. These letters can be found in the

docket for this proposal.

See 44 FR 8220 (February 9, 1979). In

1997, we revised this ozone standard by

lowering the level to 0.08 ppm and

extending the averaging time to eight

hours. 4 See 62 FR 38856 (July 18, 1997).

In 2004, EPA designated and

classified most areas of the country

under the 8-hour ozone standard. 69 FR

23858 (April 30, 2004). At the same

time, we issued the "Final Rule to

Implement the 8-Hour Ozone National

Ambient Air Quality Standard-Phase

1" (Phase 1 rule or 8-hour

implementation rule). 69 FR 23951

(April 30, 2004). Among other matters,

the Phase 1 rule revoked the 1-hour

ozone standard in the SJV area (as well

as in most other areas of the country),

effective June 15, 2005. See 40 CFR

50.9(b); 69 FR at 23996 and 70 FR 44470

(August 3, 2005).

The Phase 1 rule also set forth antibacksliding principles to ensure

continued progress toward attainment of

the 8-hour ozone standard by

identifying which 1-hour ozone

standard requirements remain

applicable in an area after revocation of

that standard. 40 CFR 51.900(f). The

Phase 1 rule also identified several CAA

requirements, such as contingency

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

182(c)(9), that would not continue to

apply after revocation. See § 51.905(e).

The U.S. Court of Appeals for the

District of Columbia Circuit

subsequently vacated the provisions of

the Phase 1 rule that waived the

requirements under the revoked 1-hour

ozone standard for, among other things,

contingency measures for failure to

attain or to make reasonable further

progress toward attainment of the 1-

hour ozone standard. See South Coast

Air Quality Management District, et al.,

v. EPA, 472 F.3d 882 (D.C. Cir. 2006),

rehearing denied 489 F.3d 1245 (2007)

(clarifying that the vacatur was limited

to the issues on which the court granted

the petitions for review) (collectively

referred to below as South Coast). On

January 16, 2009, EPA proposed to

remove the contingency measure

exemption in 40 CFR 51.905(e) for these

requirements and to list contingency

measures as applicable requirements

under § 51.900(f). 74 FR 2936.

As a general matter, the planning and

control requirements that remain

applicable following the revocation of

the 1-hour ozone standard derive from

CAA sections 110, 172, and 182. CAA

sections 110 and 172 contain general

planning and control requirements

4 In 2008 we lowered the 8-hour ozone standard

to 0.075 ppm. See 73 FR 16436 (March 27, 2008).

The references in this proposed rule to the 8-hour

standard are to the 1997 standard as codified at 40

CFR 50.10.

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applicable to all nonattainment areas.

CAA section 182 contains more specific

requirements applicable to ozone

nonattainment areas, including

requirements in section 182(e) that

apply to areas classified as extreme,

such as the SJV area.

In 1992, EPA issued a General

Preamble describing our preliminary

views on how we intended to review 1-

hour ozone plans submitted to meet

these CAA's requirements. See "General

Preamble for Implementation of Title I

of the Clean Air Act Amendments of

1990." 57 FR 13498 (April 16, 1992).

The General Preamble as well as other

EPA guidance documents related to 1-

hour ozone plans continue to guide our

review of the 1-hour ozone requirements

that remain applicable following

revocation of that standard.

Under the Phase 1 rule, areas remain

subject to the 1-hour requirements until

they attain the 8-hour ozone standard.

Once an area is redesignated to

attainment for the 8-hour standard, it

may shift the applicable requirements to

contingency measures (consistent with

the CAA sections 110(1) and 193). See

Phase 1 rule at 23955 and 40 CFR

51.905(b).

III. Review of the 2004 SIP, the SJV

Portion of the 2003 State Strategy and

the 2008 Clarifications

A. Control Measures

1. Requirements for Control Measures

CAA section 172(c)(1) requires

nonattainment area plans to provide for

the implementation of all reasonably

available control measures (RACM)

including RACT. RACM is not listed

separately in 40 CFR 51.900(f) as an

applicable requirement following

revocation of the 1-hour ozone standard;

however, EPA interprets the RACM

requirement to be a component of an

area's attainment demonstration. See

General Preamble at 13560.

EPA has previously provided

guidance interpreting the RACM

requirement in the General Preamble at

13560 and a memorandum entitled

"Guidance on the Reasonably Available

Control Measure Requirement and

Attainment Demonstration Submissions

for Ozone Nonattainment Areas," John

Seitz, Director, OAQPS to Regional Air

Directors, November 30, 1999 (Seitz

memo). In summary, EPA guidance

provides that States, in addressing the

RACM requirement, should consider all

potential measures for source categories

in the nonattainment area to determine

whether they are reasonably available

for implementation in that area and

whether they would advance the area's

attainment date by one or more years.

Under the CAA, RACT is required for

major sources of volatile organic

compounds (VOC) and for all VOC

source categories for which EPA has

issued Control Techniques Guideline

(CTG) documents. In addition, EPA has

issued Alternative Control Techniques

(ACT) documents to help States in

making RACT determinations. CAA

sections 172(c)(1), 182(a)(2)(A),

182(b)(2), and 183(a) and (b). CAA

section 182(f) requires that RACT also

apply to major stationary sources of

nitrogen oxides (NOx). In extreme areas,

a major source is a stationary source that

emits or has the potential to emit 10

tons of VOC or NOx per year. CAA

section 182(e). The RACT requirement

in 182(b)(2), the major source threshold

in section 182(e) as it applies to RACT,

and the application of RACT to major

sources of NOx are all applicable

requirements under the Phase 1 rule. 40

CFR 51.905(a)(1)(i) and 51.900(f)(1), (3)

and (12).

The CAA also requires that SIPs

"shall include enforceable emission

limitations, and such other control

measures, means or techniques * * * as

well as schedules and timetables for

compliance, as may be necessary or

appropriate to provide for

attainment * * * by the applicable

attainment date.* * *" CAA section

172(c)(6). CAA section 110(a)(2)(A)

contains almost identical language.

2. Control Measures in the 2004 SIP and

2003 State Strategy

a. RACM Demonstration

To determine which measures would

be feasible for the SJV area, the District

looked at measures implemented in

other areas (including the South Coast

Air Basin, the San Francisco Bay Area,

and the Houston-Galveston area),

documents produced by ARB, as well as

measures suggested by the public at

local workshops. The District then

screened the identified measures and

rejected those that affected few or no

sources in the SJV area, had already

been adopted as rules, or were in the

process of being adopted. The remaining

measures were evaluated using baseline

inventories, available control

technologies, and potential emission

reductions as well as whether the

measure could be implemented on a

schedule that would expedite

attainment of the 1-hour ozone

standard. 2004 SIP, section 4.2.1.

Based on this evaluation, the District

developed an expeditious rule adoption

schedule listing 21 measures involving

adoption of eight new rules and

revisions to over 20 existing rules. 2004

SIP, Table 4-1. Since submittal of the

SIP in 2004, the District has completed

action on these rules and submitted

them to EPA for approval. Table 1 in the

2008 Clarifications and Table 2 below.

In addition to the District's efforts, the

eight San Joaquin Valley Regional

Transportation Planning Agencies

(RTPAs) conducted a RACM evaluation

for transportation sources. This

evaluation, described in section 4.6.3. of

the 2004 SIP, resulted in extensive local

government commitments to implement

programs to reduce auto travel and

improve traffic flow. 2004 SIP, section

4.6 and Appendix C. The local

governments also provide reasoned

justifications for any measures that they

did not adopt. See 2004 SIP, Appendix

C.

Finally, the 2004 SIP relies on the

2003 State Strategy to address mobile

and area source categories not under the

District's jurisdiction. 2004 SIP, section

4.7. Table I-1 in the 2003 State Strategy

shows the impressive list of both mobile

and area source measures that have been

adopted by California between 1994 and

2003, along with the mobile source rules

that have been adopted by EPA during

this period. Table I-2 in the 2003 State

Strategy lists proposed new State

measures, most of which have already

been adopted. 5 This list of new State

measures was developed through a

public process intended to identify and

refine new emission reductions

strategies for California. 2003 State

Strategy, page ES-5.

b. RACT Demonstration

The 2004 SIP includes a brief section

4.2.5 discussing the RACT obligation

and specific source categories where

further analysis and potential future

controls would need to be adopted in

order to ensure that RACT levels of

control are applied to sources down to

the 10 tons per year (tpy) level. The

State subsequently formally withdrew

the RACT portion of the 2004 SIP,

specifically section 4.2.5. See 2008

Clarifications, page 3. On January 21,

2009, we made a finding that California

failed to submit the required 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). 74 FR 3442.

During the last several years, the

District has also adopted and revised its

5 See chapter 3 (page 38) of the "Air Resources

Board's Proposed State Strategy for California's

2007 State Implementation Plan," Revised Draft

(Release date: April 26, 2007) (2007 State Strategy)

and "Status Report on the State Strategy for

California's 2007 State Implementation Plan (SIP)

and Proposed Revision to the SIP Reflecting

Implementation of the 2007 State Strategy," ARB,

April 24, 2009.

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RACT demonstration plan for the 8-hour

ozone standard. On January 31, 2007,

California submitted the District's initial

RACT plan for the 8-hour ozone

standard to EPA. The District adopted a

revised 8-hour ozone standard RACT

plan on April 16, 2009 and the State

submitted the revised plan on June 17,

2009. In addition to addressing

comments on the initial plan, The

District intends this revised plan to

address the failure to submit finding for

the 1-hour ozone RACT demonstration

and to assure that its rules cover sources

in the SJV area down to the extreme area

major source threshold of 10 tpy. See

letter from Andrew Steckel, EPA, to

George Heinen, SJVAPCD, May 6, 2008.

We are currently reviewing the revised

RACT plan for future action.

c. Enforceable Limitations and Other

Control Measures

The 2004 SIP's modeling analysis,

discussed further below, determined

that attainment of the 1-hour ozone

standard required reducing 2000

baseyear emissions from 556.8 tons per

day (tpd) NOx and 443.5 tpd VOC to

343.5 tpd NOx and 314.4 tpd VOC. 2004

SIP at 3-7 through 3-11 and 5-9

through 5-12 and "Proposed 2004 State

Implementation Plan for Ozone in the

San Joaquin Valley," September 28,

2004, Air Resources Board Staff Report

(ARB Staff Report) at Table III-6.

As shown in Table 1 below, we have

divided the control measures in the

2004 SIP's attainment demonstration

among three categories: Baseline

measures, interim measures, and control

strategy measures. As the term is used

here and in the ARB Staff Report,

baseline measures are rules and

regulations adopted prior to September,

2002 (i.e., prior to 2004 SIP's

development) that provide continuing

reductions through and after 2010. We

have defined interim measures as those

rules adopted between September, 2002

and the 2004 SIP's adoption date in

October, 2004. See Table III-7 in the

ARB Staff Report. Finally, control

strategy measures are the new rules, rule

revisions, and commitments included in

the 2004 SIP and 2003 State Strategy

that will ensure that the additional

increment of emission reductions

needed beyond the baseline and interim

measures is achieved in time to

demonstrate attainment by November

2010. See Tables III-6 and III-8 in the

ARB Staff Report.

TABLE 1-SUMMARY OF EMISSION

REDUCTIONS IN THE 2004 SIP

[Tons per summer day]

VOC NOx

2000 baseyear emissions 443.5 556.8

2010 baseline emissions 365.1 396.8

2010 Attainment emissions target ................... 314.4 343.5

Reductions needed for attainm ent ........................ 129.1 213.3

Baseline Measures:

SJVAPCD .................. 6-8.5 18.9

State .......................... 79.3 97.2

Federal ...................... 7.6 43.9

Total ................... 78.4 160

Percent from

Baseline Measures ................. 61% 75%

Interim Measures:

SJVAPCD adopted

rules ...................... 2.4 12.2

Percent from Interim

Measures ............... 2% 6%

Control Strategy Measures:

SJVAPCD (includes

long-term measures) ....................... 33.3 2 1.1

State .......................... 15 20

Total ................... 48.3 41.1

Percent from

Control Strategy Measures 38% 19%

ARB Staff Report, table 111-6.

Percentage may not sum to 100% because

of rounding.

i. Baseline and Interim Measures

As shown in Table 1, the majority of

the emission reductions needed to

demonstrate attainment by November

2010 come from baseline and interim

measures. These reductions come from

a combination of Federal, State, and

District measures.

A. SJVAPCD Measures-SJVAPCD

currently has adopted more than 50

prohibitory rules that limit emissions of

either VOC or NOx. These rules include

controls for boilers, oil field and

refinery equipment, a variety of surface

coatings operations, and open burning.

We have provided a list of SJVAPCD

NOx and VOC rules together with

information on their SIP approval status

in the technical support document

(TSD) for this proposal.

B. State measures-California has

adopted standards for many categories

of on- and off-road vehicles and engines,

gasoline and diesel fuels, and numerous

categories of consumer products. The

State's baseline measures fall within

6 The negative number here indicates that

emissions increased in the source categories under

the District's authority to control. The increase is

mainly from growth in livestock operations. ARB

Staff report, table III-6.

two categories: measures for which the

State has obtained or has applied to

obtain a waiver of Federal pre-emption

under CAA section 209 (section 209

waiver measures or waiver measures)

and those for which the State is not

required to obtain a waiver (non-waiver

measures).

Section 209 waiver measures. A

waiver under section 209 is, in general,

required for most on- and non-road

vehicle or engine standards. Examples

of State waiver measures are: low

emission vehicle program, heavy duty

bus standards, and small off-road

engines. A list of California's waiver

measures can be found in the TSD. We

discuss in more detail the CAA section

209 waiver provisions and how we

intend to treat reductions from these

measures in attainment and ROP

demonstrations in section C.3.b. below.

Non-waiver measures. These

measures include: improvements to

California's inspection and maintenance

(I/M) program, SmogCheck; cleaner

burning gasoline and diesel regulations;

and limits on the VOC content and

reactivity of consumer products. 7 A list

of these non-waiver measures can be

found in the TSD.

Federal measures. These measures

include EPA's national emission

standards for heavy duty diesel trucks,8

certain new construction and farm

equipment,9 and locomotives. 10 States

are allowed to rely on reductions from

Federal measures in attainment and

ROP demonstrations.

ii. Control Strategy Measures

A. SJVAPCD's commitments and rule

adoption. In the 2004 SIP, the District

committed to adopt specific rules or

rule revisions by specified dates, to

submit the rules within one month of

adoption to ARB for submittal to EPA,

and to achieve from each measure

specified reductions by 2010. 2004 SIP

at Table 4-1 and SJVAPCD Resolution

No. 5-10-12 (October 20, 2005), p. 4,

item 9. This information is updated in

7 California's Department of Pesticide Regulations

(DPR) limits total pesticide emissions in the San

Joaquin Valley. However, the attainment

demonstration in the 2004 SIP does not assume any

DPR regulatory limits on pesticide emissions. See

2003 State Strategy, p. III-C-3. 8 66 FR 5001 (January 18, 2001). ARB estimates

that interstate trucks registered outside of California

represent over 50 percent of the heavy duty trucks

in California. See Table III-1 in "Staff Report: Initial

Statement of Reason for Proposed Rulemaking,

Proposed Regulation for In-Use, On-road Diesel

Vehicles," California Air Resources Board (October

2008). 9

Tier 2 and 3 non-road engines standards, 63 FR

56968 (October, 23, 1998); Tier 4 diesel non-road

engine standard, 69 FR 38958 (June 29, 2004).

10 63 FR 18978 (May 16, 1998) and 73 FR 37045

(June 30, 2008).

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Table 1 of the 2008 Clarifications which

shows not only the original commitment

in the 2004 SIP but also the date on

which the District adopted the rule

associated with each commitment and

the actual emissions reductions

achieved by each rule. A summary of

the information found in Table 1 in the

2008 Clarifications is presented in our

Table 2 below. Table 2 also gives the

date and cite for EPA's approval or

proposed approval of the rule or the

date of signature on the proposed

approval.

TABLE 2-SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT 2004 PLAN SPECIFIC RULE COMMITMENTS

2004 SIP Achieved 20.SP emission Local Approval cite/date or proposed

Rule No., description and commitment ID from 2004 SIP commitment (201 0-tpd) reductions emission Lo A pproval cite/date adoption approval cite/date

(2010-tpd)

NOx Control Measures

9310 Fleet School buses (C) ........................................................ 0.1 0.611 9/21/06 NPR signed 6/30/09.

9510 Indirect Source M itigation (D) .............................................. 4.0 .................... 12/15/05 See note below.

4307 Small Boilers (2-5 MMBTU) (E) .......................................... 1.0 5.1 4/20/06 72 FR 29887 (5/30/07).

4352 Solid fuel boilers (G) ............................................................ 0.0 0.0 5/18/06 Proposed 72 FR 29901 (5/30/

07).

4702 Stat. IC engines (H) ............................................................. 8.0 16.8 1/18/07 73 FR 1819 (1/10/08).

4309 Com mercial Dryers (I) ......................................................... 1.0 0.7 12/15/05 72 FR 29887 (5/30/07).

4308 W ater Heaters 0.075 (N) ..................................................... 0.2 0.8 10/20/05 72 FR 29887 (5/30/07).

4103 Open Burning (Q) ................................................................ 1.1 1.7 5/17/07 Proposed 74 FR 30485 (6/26/

09).

4703 Sta. Gas Turbines (S) ......................................................... 0.6 1.9 8/17/06 NPR signed 6/22/07.

Long-te rm m easures ....................................................................... 5.0 .................... . ................... S ee discussion below .

N O x T o ta l ................................................................................. 2 1 .1 2 7 .6

2004 SIP Achieved Rule No. and dt emission Local Submittal date or approval cite/ escripion commimen reductions adoption date

(2010-tpd) (2010-tpd)

VOC Control Measures

4409 O il & Gas Fug. (A) ............................................................... 4.7 5.1 4/20/05 71 FR 14653 (3/23/06).

4455 Ref. & Chem . Fug. (B) ........................................................ 0.2 0.3 4/20/05 71 FR 14653 (3/23/06).

4694 W ineries (F) ......................................................................... 0.7 .................... 12/15/05 S ee note below .

4565 Com posting/Biosolids (J) ..................................................... 0.1 .................... 3/15/07 See note below .

4612 Automotive Coating (incorporates Rule 4602)(K) ............... 0.1 1.0 9/20/07 Proposed 74 FR 28467 (6/16/

09).

4570 CAFO Rule (L) ..................................................................... 15.8 17.7 6/15/06 NPR signed 6/30/09.

4662 Org. Solvent Degreasing (M) ......................................... ....................... Proposed 74 FR 27084 (June 8,

2009).

4663 Org. Sol. Cleaning (M) ........................................................ 1.3 3.1 9/20/07 Proposed 74 FR 27084 (June 8,

2009).

4603 Metal Parts/Products (M) ......... ................................... ....................... Proposed 74 FR 28467 (June

16, 2009).

4604 Can and Coil Coating (M) ........ ................................... ....................... Proposed 74 FR 28467 (6/16/

09).

4605 Aerospace Coating (M) ......... .................................... ....................... NPR signed 6/30/09.

4606 Wood Products Coating (M) ......................................... ....................... NPR signed 6/26/09.

4607 Graphic Arts (M) .................................................. ....................... NPR signed 6/26/09.

4612 Automotive Coating (M) ......... .................................... ....................... Proposed 74 FR 28467 (6/16/

09).

4653 Adhesives (M) ........................................................................ NPR signed 6/26/09.

4684 Polyester Resin Operation (M) ....................................... ....................... NPR signed 6/30/09.

4401 Steam-Enhanced Oil-well (0) .............................................. 1.4 0.3 12/14/06 NPR signed 6/30/09.

4651 Soil Decontamination (P) ..................................................... <0.05 0.0 9/20/07 NPR signed 6/22/09.

4103 Open Burning (Q) ................................................................ 2.9 3.9 5/17/07 Proposed 74 FR 30485 (6/26/

09).

4682 Polym eric Foam Mfg. (R) .................................................... 0.1 .................... 9/20/07 See note below .

4621 & 4624 Gasoline storage & trans. (T & U) .......................... 0.9 1.9 12/20/07 NPRs signed 6/22/09 and 6/26/

09.

Long-term measures ....................................................................... 5. ........... .............. See discussion below.

V O C to ta l ................................................................................. 3 3 .3 3 3 .3

Note: This rule has been adopted and submitted. EPA is currently reviewing the rule for SIP action. Numbers may not add to totals because of

rounding.

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As can be seen from Table 2, the

District also committed to achieve an

additional 5 tpd NOx and 5 tpd of VOC

reductions from unidentified long-term

measures. The status of this aggregate

commitment is discussed further below.

In total, the District committed to

reductions of 33.3 tpd of VOC and 21.1

tpd of NOx by 2010. See Table 1 above.

B. State commitments and rule

adoption. The 2003 State Strategy,

adopted prior to the 2004 SIP, includes

a commitment to reduce NOx emissions

in the SJV area by 10 tpd by 2010.12

2003 State Strategy, 1-24 through 1-26.

Possible measures to achieve these

reductions are described and listed in

the 2003 State Strategy at 1-14 through

1-26 and ARB Resolution 03-22,

Attachment A. The 2003 State Strategy

also states that beyond its emission

reduction commitment, new

commitments to achieve further VOC 13

and NOx reductions would be needed

for the future SJV 1-hour ozone plan

(which the SJVAPCD and ARB

subsequently adopted as the 2004 SIP)

and would be considered as part of that

plan. 2003 State Strategy, 1-26. To that

end, the 2004 SIP incorporates the 2003

State Strategy as it applies to the area

and includes an additional commitment

by the State to achieve by the beginning

of the 2010 ozone season emissions

reductions of 10 tpd NOx and 15 tpd

VOC.

Although the 2003 State Strategy

identifies possible control measures that

could deliver these reductions, the

State's commitment is only to achieve

these NOx and VOC emission

reductions in the aggregate by the

beginning of the 2010 ozone season.

Thus the State's total enforceable

commitments in the 2004 SIP are to

achieve 20 tpd NOx and 15 tpd VOC

emission reductions in the aggregate by

2010. See 2003 State Strategy, pages I7 through I-9 and 1-26; ARB Board

Resolution 04-29, October 28, 2004;

ARB Staff Report, pages 29-30; 2004 SIP

at section 4.7 (including Table 4-3

which duplicates Table I-2 in the 2003

State Strategy). 14

11 Table 1 in the 2008 Clarifications erroneously

gives this reduction as 1.6 tpd. See e-mail, Jessi

Hafer, SJVAPCD, to Frances Wicher, EPA, February

18, 2009, "Reductions from 1-hour SIP

clarifications."

12 The 2003 State Strategy makes clear that this

commitment was intended for immediate inclusion

in the 2003 PM-10 plan for the SJV area and for

later inclusion in the 1-hour ozone plan for the SJV

area. State Strategy, 1-23 and 1-26.

1

3

The State uses the term "reactive organic gases"

(ROG) in its documents. For the purposes of this

proposed rule, VOC and ROG are interchangeable.

14In these documents the State's commitment is

sometimes referred to as 20 tpd NOx and sometimes

as 10 tpd NOx. The 20 tpd reference is to ARB's

3. EPA's Evaluation of the Control

Measures in the SIP Submittals

a. RACM/RACT Demonstration

As described above, with respect to

the RACM requirement, the District

evaluated a range of potentially

available measures for inclusion in its

2004 SIP and committed to adopt those

it found to be feasible for attaining the

1-hour ozone standard. The process and

the criteria the District used to select

certain measures and reject others are

consistent with EPA's RACM guidance.

We also describe above the measure

evaluation process undertaken by the

State, the SJV RTPAs and the SJV local

jurisdictions. This process is also

consistent with EPA's RACM guidance.

See General Preamble at 13560 and

Seitz memo.

Based on our review of the results of

these RACM analyses, the 2003 State

Strategy and the District's and

California's adopted rules and

commitments to adopt and implement

controls, we propose to find that there

are, at this time, no additional

reasonably available measures that

would advance attainment of the 1-hour

ozone standard in the SJV area. We

estimate that it would take an additional

reduction of from 3.7 to 6.2 tpd VOC

and 13.7 to 17.0 tpd NOx to advance

attainment by one year in the San

Joaquin Valley. See TSD, Section V. No

reasonably available unadopted

measures identified in the 2004 SIP,

2003 State Strategy, and revised 8-hour

ozone RACT demonstration plan, either

individually or collectively, could

deliver this level of emission

reductions. See TSD, Section V for more

details.

Therefore, we propose to find that the

2004 SIP, together with the 2003 State

Strategy, provides for the

implementation of RACM as required by

CAA section 172(c)(1). This proposed

finding does not affect the District's

continuing obligation under the CAA to

implement RACT pursuant to CAA

section 182(b)(2) and 40 CFR

51.905(a)(1)(ii).

b. Enforceable Limitations and Other

Control Measures

i. SJVAPCD Measures

Every District baseline and interim

rule has been either approved into the

SIP or replaced by a SIP-approved

commitment for 10 tpd NOx in the Statewide

Strategy and ARB's additional commitment for 10

tpd NOx in the 2004 SIP at section 4.7 and ARB

Board Resolution 04-29. See also ARB Staff Report

for the 2004 SIP at 29. The 10 tpd reference is to

ARB's additional commitment for 10 tpd NOx in

the 2004 SIP at section 4.7 and ARB Resolution 04-

29.

revision to that rule. See Table 8 in the

TSD. Emission reductions from these

rules are fully creditable in attainment

and ROP demonstrations and may be

used to meet other CAA requirements,

such as contingency measures.

As shown above and discussed

further below, the 2008 Clarifications

and Table 2 above demonstrate that the

District has fulfilled its control strategy

commitments in the 2004 SIP to adopt

specific rules. The reductions from

these adopted rules have exceeded the

District's total emission reduction

commitments, including its

commitments for reductions from longterm measures. We have either

approved or proposed to approve all

measures relied upon to achieve these

emission reductions; therefore, the

reductions from these measures are or

will be, when finally approved, fully

creditable in attainment and ROP

demonstrations and may be used to

meet other CAA requirements.

To the extent such measures are not

credited for attainment or ROP, they

may also be used as contingency

measures that would be triggered by a

failure to attain or to make reasonable

further progress.

ii. State Measures and Commitments

A. Section 209 Waiver Measures.

California's motor vehicle emissions

control program predates the first

Federal statute regulating motor vehicle

emissions, the Motor Vehicle Air

Pollution Control Act of 1965 (which

amended the CAA of 1963). In further

CAA amendments, referred to as the Air

Quality Act of 1967 (Pub. L. 90-148),

Congress allowed the State of California,

and only California, a waiver of the Air

Quality Act's pre-emption of State

emissions standards for new motor

vehicles or new motor vehicle engines

because of California's pioneering

efforts and unique problems. This was

not changed when the statute was

amended in 1970. The 1977

amendments to the CAA expanded the

flexibility granted to California in order

"to afford California the broadest

possible discretion in selecting the best

means to protect the health of its

citizens and the public welfare." (H.R.

Rep. No. 294, 95th Congr., 1st Sess.

301-2 (1977). So long as California

determines that its motor vehicle

standards are "in the aggregate" at least

as protective of public health and

welfare as applicable Federal standards,

title II of the CAA requires EPA, unless

it makes certain findings, to waive the

Act's general prohibition on State

adoption and enforcement of standards

relating to the control of emissions from

new motor vehicles or new motor

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vehicle engines. See CAA section 209(a)

and (b).

In the Agency's review of the

California SIP and its many revisions,

EPA has historically allowed emission

reduction credit for the motor vehicle

emissions standards that are subject to

a section 209(b) waiver without

requiring California to submit the

standards themselves to EPA for

approval as part of the California SIP. In

this respect EPA treated these rules

similarly to the Federal motor vehicle

control requirements, which EPA has

always allowed States to credit in their

SIPs without submitting the program as

a SIP revision. CAA section 193,

enacted as part of the 1990

Amendments to the CAA, is a general

savings clause that provides for, among

other things, EPA statutory

interpretations that predate those

amendments to remain in effect so long

as not inconsistent with the Act. At the

time it enacted section 193, Congress

did not insert any language into the

statute rendering EPA's treatment of

California's motor vehicle standards

inconsistent with the Act. Thus, in

section 193, Congress effectively ratified

EPA's longstanding pre-1990 practice of

allowing emission reduction credit for

California standards subject to the

waiver process notwithstanding the

absence of the standards in the SIP

itself.

As part of the 1990 Amendments to

the CAA, Congress enacted subsection

(e) of section 209. In nearly identical

language to subsections (a) and (b) of

section 209, subsection (e) sets forth the

Federal pre-emption of State emissions

standards for nonroad vehicles or

engines but allows the State of

California, and only California, a waiver

of pre-emption (with certain exceptions)

under criteria that mirror the section

209(b) waiver provisions for motor

vehicles. Since 1990, EPA has treated

such nonroad standards in the same

manner as California motor vehicle

standards, i.e., allowing credit for

standards subject to the waiver process

without requiring submittal of the

standards as part of the SIP. Congress is

presumed to be aware of agency

interpretations and its subsequent

revision of the statute to add subsection

(e) without overruling EPA's

interpretation with respect to motor

vehicle standards is further compelling

evidence that the Agency correctly

interpreted congressional intent with

respect to crediting California

requirements subject to a section 209

waiver without requiring California to

submit the standards themselves to EPA

for approval as part of the California

SIP.

B. Non-waiver measures. In separate

proposed rules, we have proposed to

approve the latest revisions to the

gasoline and diesel fuel standards

(proposed rule signed June 30, 2009 and

will be published in early July, 2009 15)

and consumer products rules (74 FR

30481 (June 26, 2009)). We also will be

proposing action soon on the State's

I/M program. The reductions from these

measures will be, if finally approved

into the SIP, fully creditable in

attainment and ROP demonstrations. To

the extent such measures are not

credited for attainment or ROP, they

may also be used as contingency

measures that would be triggered by a

failure to attain or to make reasonable

further progress.

C. State commitments. As stated

above, measures already adopted by the

District and State (both prior to and

pursuant to the 2004 SIP) provide the

majority of emission reductions needed

to demonstrate attainment. The balance

of the needed reductions is in the form

of enforceable commitments by ARB.

EPA believes, consistent with past

practice, that the CAA allows approval

of enforceable commitments that are

limited in scope where circumstances

exist that warrant the use of such

commitments in place of adopted

measures. 16 Once EPA determines that

15These fuel regulations do not include the Low

Carbon Fuel Standards adopted by ARB on April

24, 2009.

16 Commitments approved by EPA under section

110(k)(3) of the CAA are enforceable by EPA and

citizens under, respectively, sections 113 and 304

of the CAA. In the past, EPA has approved

enforceable commitments and courts have enforced

these actions against states that failed to comply

with those commitments: See, e.g., American Lung

Ass'n of N.J. v. Kean, 670 F. Supp. 1285 (D.N.J.

1987), aff'd, 871 F.2d 319 (3rd Cih. 1989); NRDC,

Inc. v. N.Y. State Dept. of Env. Cons., 668 F. Supp.

848 (S.D.N.Y. 1987); Citizens for a Better Env't v.

Deukmejian, 731 F. Supp. 1448, recon. granted in

par, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition for

Clean Airv. South Coast Air Quality Mgt. Dist., No.

CV 97-6916-HLH, (C.D. Cal. Aug. 27, 1999).

Further, if a state fails to meet its commitments,

EPA could make a finding of failure to implement

the SIP under CAA Section 179(a), which starts an

18-month period for the State to correct the nonimplementation before mandatory sanctions are

imposed.

CAA section 110(a)(2)(A) provides that each SIP

"shall include enforceable emission limitations and

other control measures, means or techniques * * *

as well as schedules and timetables for compliance,

as may be necessary or appropriate to meet the

applicable requirement of the Act." Section

172(c)(6) of the Act, which applies to

nonattainment SIPs, is virtually identical to section

110(a)(2)(A). The language in these sections of the

CAA is quite broad, allowing a SIP to contain any

"means or techniques" that EPA determines are

"necessary or appropriate" to meet CAA

requirements, such that the area will attain as

expeditiously as practicable but no later than the

designated date. Furthermore, the express

allowance for "schedules and timetables"

demonstrates that Congress understood that all

circumstances warrant consideration of

an enforceable commitment, EPA

considers three factors in determining

whether to approve the enforceable

commitment: (a) does the commitment

address a limited portion of the

statutorily-required program; (b) is the

State capable of fulfilling its

commitment; and (c) is the commitment

for a reasonable and appropriate period

of time. 17

We believe that, in acting on the 2004

SIP and 2003 State Strategy,

circumstances warrant the consideration

of enforceable commitments. As shown

in Table 1 and discussed below in

section III.D., the majority of emission

reductions needed to demonstrate

attainment and all of the emission

reductions needed to demonstrate ROP

come from rules and regulations that

were adopted prior to the plan's

submittal in November 2004, i.e., they

come from the baseline and interim

measures. All of these rules and

regulations have been approved,

proposed for approval, granted a waiver,

or promulgated by EPA.

As a result of these State and District

efforts, most sources in the SJV area

were already subject to stringent rules

prior to the plan's development, leaving

fewer opportunities to reduce

emissions. In the 2004 SIP and the 2003

State Strategy, SJVAPCD and ARB

identified potential control measures

that could achieve the additional

emission reductions needed for

attainment (see 2004 SIP, sections 4.2.4

and 4.3 and 2003 State Strategy,

sections IMV.). However, the timeline

needed to develop, adopt, and

implement these measures went well

beyond the November 15, 2004 deadline

to submit the SJV's extreme area plan. 18

Given these circumstances, we believe

that the reliance in the 2004 SIP on

enforceable commitments was

warranted. As noted before, SJVAPCD

has now fully satisfied its 2004 SIP

commitments, leaving just ARB's

commitment remaining. We now

consider the three factors to determine

whether ARB's commitment is

approvable.

First, we look to see if the

commitment addresses a limited portion

of a statutory requirement. Only the

required controls might not have to be in place

before a SIP could be fully approved.

17 The U.S. Court of Appeals for the Fifth Circuit

upheld EPA's interpretation of CAA sections

110(a)(2)(A) and 172(c)(6) and the Agency's use and

application of the three factor test in approving

enforceable commitments in the Houston-Galveston

ozone SIP. BCCA Appeal Group et al. v. EPA et al.,

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

18 This deadline was set pursuant to CAA section

182(i), when the SJV was reclassified to extreme on

April 16, 2004 at 69 FR 20550.

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attainment demonstration in the 2004 emission reductions than anticipated in from commitments needed to attain the

SIP relies on ARB's aggregate the 2004 SIP (see Table 2 above), we 1-hour ozone standard will be 13.5 tpd

commitment to achieve reductions of 20 expect that not all of the reductions NOx or 6.3% and 15 tpd VOC or 11.6

tpd NOx and 15 tpd VOC in the SJV area committed to by ARB will be needed to percent or 8.3 percent of the combined

by 2010. Because the District's rules are demonstrate attainment. Table 3 below NOx and VOC needed for attainment.

now anticipated to achieve more shows that the remaining reductions

TABLE 3-REMAINING COMMITMENT PORTION OF THE 2004 SIP REDUCTIONS IN TONS PER DAY FOR 2010

NOx VOC

R e d uctio n s ne e d e d to atta in .................................................................................................................................. 2 13 .3 12 9 .1

Reductions from baseline measures adopted by 9/02 and interim measures ..................................................... 172.2 80.8

Reductions needed from com m itm ents in 2004 SIP ............................................................................................. 41.1 48.7

Reductions achieved from SJVAPCD rules that are approved or proposed for approval ................................... 27.6 33.3

R eductions needed to attain from com m itm ents ................................................................................................... 13.5 15

Percent of reductions needed to attain from com m itm ents .................................................................................. 6.3 11.6

Sources: ARB Staff Report for the 2004 SIP, Table 111-6; 2008 Clarifications, Table 1.

Given the State's efforts to date, we

believe this relatively small portion of

reductions from enforceable

commitments in the 2004 SIP is

acceptable.

Second, we look to see if the State is

capable of fulfilling its commitment.

ARB has recently submitted information

on its efforts to fulfill its commitment in

the 2004 SIP and 2003 State Strategy.

See Letter, James Goldstene, ARB, to

Laura Yoshii, EPA, June 29, 2009.

Overall, ARB adopted rules between

July 2003 and October 2007 that are

expected to achieve 14.1 tpd NOx and

3.3 tpd VOC. Attached to this letter is

a list of these measures which includes

tighter diesel fuel standards and tighter

consumer product limits which we have

proposed to approve, and a number of

waiver measures. These measures

represent the most stringent regulations

yet enacted in the country.

The list, however, does not include a

number of State programs that may

reduce emissions between now and the

2010 attainment deadline (e.g.,

California's greenhouse gas motor

vehicle standards and limits on

pesticide emissions in the SJV area

adopted by DPR). Moreover, in 2007,

ARB adopted a revised State Strategy

that continues its program of

identifying, evaluating, developing and

adopting new or tighter controls on

sources within its jurisdiction. 19 See

2007 State Strategy as revised and

updated on April 24, 2009.

Given the evidence of the State's

efforts to date and its continuing

program to adopt controls, we believe

that the State will be able to meet its

enforceable commitments to achieve 20

tpd NOx and 15 tpd VOC by 2010. We,

therefore, conclude that the second

factor is satisfied.

19 The State's current rulemaking agenda for 2009

can be found at: http://www.arb.ca.govlregactl

2009rulemakingcalendar.pdf.

Finally, we look to see if the

commitment is for a reasonable and

appropriate period of time. In order to

meet the commitment to achieve

reductions of 15 tpd VOC and 20 tpd

NOx by the beginning of the 2010 ozone

season, the State projected an ambitious

rule development, adoption, and

implementation schedule in the 2003

State Strategy. This projected schedule

reasonably anticipated sufficient time to

achieve the committed reductions by

2010. See 2003 State Strategy, Tables I7 and 1-10. Most projected adoption

dates for measures that could fulfill the

commitment were in 2006 or earlier,

with implementation in 2006 to 2008.

These dates were all well before the SJV

area's required attainment deadline of

November 15, 2010. They are also

reasonable given the type of measures

that were contemplated (e.g., retrofit

controls for existing heavy-duty off-road

diesel equipment), measures that

require significant lead times to achieve

reductions. Therefore, the State's

schedule was reasonable and

appropriate for achieving its

commitment, and we conclude that the

third factor is satisfied.

For the above reasons, we believe that

the three factors EPA considers in

determining whether to approve

enforceable commitments are

satisfactorily addressed with respect to

the State's commitment. We are

therefore proposing to approve the

State's commitment in the 2004 SIP,

ARB Board Resolution 04-29 and Final

2003 State Strategy to achieve 20 tpd

NOx and 15 tpd VOC reductions by

2010. Final approval of this

commitment would make the

commitment enforceable by EPA and by

citizens.

B. Emission Inventories

We have evaluated the emission

inventories in the 2004 SIP to determine

if they are consistent with EPA guidance

(General Preamble at 13502) and

adequate to support that plan's ROP and

attainment demonstrations. Chapter 3 of

the 2004 SIP presents the baseline and

projected emission inventories relied on

for the attainment and ROP

demonstrations. This chapter also

discusses the methodology used to

determine 1999 emissions and identifies

the growth and control factors used to

project emissions for the 2000 baseline

inventory and the 2008 (ROP milestone)

and 2010 (attainment) projected year

inventories. The plan includes weekday

summer inventories for the base year of

2000 and projected baseline inventories

for 2008 and 2010 for all major source

categories. Emissions are calculated for

the two major ozone precursors-NOx

and VOC-as well as for the less

significant precursor, carbon monoxide

(CO). 2004 SIP at Table 3-1. Motor

vehicle emissions were based on

estimates of vehicle miles traveled

(VMT) provided by the regional

transportation planning agencies and

the California Department of

Transportation. The plan uses ARB's

EMission FACtor (EMFAC) 2002,

version 2.2, to calculate the emission

factors for cars, trucks and buses. At the

time the 2004 SIP was developed,

EMFAC 2002 was the mobile source

model approved for use in California's

SIPs 68 FR 15720 (April 1, 2003).

We have determined that the 2000

baseyear emission inventory in the 2004

SIP was comprehensive, accurate, and

current at the time it was submitted on

November 15, 2004 and that this

inventory as well as the 2008 and 2010

projected inventories were prepared

consistent with EPA guidance.

Accordingly, we propose to find that

these inventories provide an appropriate

basis for the ROP and attainment

demonstrations in the 2004 SIP.

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C. Rate of Progress Demonstrations

1. Requirements for Rate of Progress

Demonstrations

CAA section 172(c) requires

nonattainment area plans to provide for

reasonable further progress (RFP) which

is defined in section 171(1) as such

annual incremental reductions in

emissions as are required in part D or

may reasonably be required by the

Administrator in order to ensure

attainment of the relevant ambient

standard by the applicable date.

CAA sections 182(c)(2) and (e) require

that serious and above area SIPs include

ROP quantitative milestones that are to

be achieved every 3 years after 1996

until attainment. For ozone areas

classified as serious and above, section

182(c)(2) requires that the SIP must

provide for reductions in ozone-season,

weekday VOC emissions of at least 3

percent per year net of growth averaged

over each consecutive 3-year period.

This is in addition to the 15 percent

reduction over the first 6-year period

required by CAA section 182(b)(1) for

areas classified as moderate and above.

The CAA requires that these milestones

be calculated from the 1990 inventory

after excluding, among other things,

emission reductions from "[a]ny

measure related to motor vehicle

exhaust or evaporative emissions

promulgated by the Administrator by

January 1, 1990" and emission

reductions from certain Federal gasoline

volatility requirements. CAA section

182(b)(1)(B)-(D). EPA has issued

guidance on meeting 1-hour ozone ROP

requirements. See General Preamble at

13516 and "Guidance on the Post-1996

Rate-of-Progress Plan and the

Attainment Demonstration," EPA-452/

R-93-015, OAQPS, EPA, February 18,

1994 (corrected).

CAA section 182(c)(2)(C) allows for

NOx reductions that occur after 1990 to

be used to meet the post-1996 ROP

emission reduction requirements,

provided that such NOx reductions

meet the criteria outlined in the CAA

and EPA guidance. The criteria require

that: (1) the sum of all creditable VOC

and NOx reductions must meet the 3

percent per year ROP requirement; (2)

the substitution is on a percent-forpercent of adjusted base year emissions

for the relevant pollutant; and (3) the

sum of all substituted NOx reductions

cannot be greater than the cumulative

NOx reductions required by the

modeled attainment demonstration. See

General Preamble at 13517 and "NOx

Substitution Guidance," OAQPS, EPA,

December 1993.

Our guidance in the General Preamble

states that by meeting the specific ROP

milestones discussed above, the general

RFP requirements in CAA section

172(c)(2) will also be satisfied. General

Preamble at 13518.

Rate of progress reductions as well as

the NOx requirements of CAA section

182(f) remain applicable requirements

under the 8-hour ozone implementation

rule for areas that are nonattainment for

both the 1-hour and 8-hour ozone

standards. See § 51.905(a)(1)(i) and

§ 51.900(f)(4) and (12).

2. Rate of Progress Demonstrations in

the 2004 SIP and the 2008 Clarifications

Chapter 7 of the 2004 SIP, updated by

Table 2 in the 2008 Clarifications,

provides a demonstration that the SJV

area meets both the 2008 and 2010 ROP

milestones. We have summarized this

ROP demonstration in Table 4.

TABLE 4-SAN JOAQUIN RATE OF PROGRESS DEMONSTRATIONS

[Summer planning tons per day]

Base-year Milestone year

1990 2008 2010

VOC Calculations

A . 1990 B ase line V O C ................................................................................................................ 633 .2 633 .2 633 .2

B . C A P re-1990 M V standards adjustm ent ................................................................................. ........................ 120 .1 123 .8

C. Adjusted 1990 baseline VOC in the milestone year (Line A-Line B) ............................................................. 513.1 509.4

D. Cumulative VOC reductions needed to meet milestone ........................................................ ........................ 261.7 209.4

E. Target level of VOC needed to meet ROP requirement (Line C-Line D) ...................................................... 251.4 219.0

F. Projected level (baseline) of VOC in milestone year with adopted controls only .................. 369.4 362.7

G . V O C R O P shortfall (Line F- Line E) ....................................................................................... . ........................ 118 .0 143 .7

H. VOC ROP shortfall (% of adjusted baseline) ......................................................................... ........................ 23.0% 28.2%

NO× Calculations

A . 199 0 B ase line N O . ................................................................................................................. 8 05 .1 8 05 .1 80 5 .1

B . C A P re-1990 M V standards adjustm ent ................................................................................. . ........................ 114 .0 116 .6

C. Adjusted 1990 baseline NO× in the milestone year (Line A-Line B) ............................................................. 691.1 688.5

D. Projected level (baseline) of NO× in milestone year with adopted controls only .................. 411.0 384.5

E. Change in NO× since 1990 (Line C-Line D) .......................................................................... ........................ 280.1 304.0

F. Change in NO× since 1990 (% of adjusted baseline) ............................................................ ........................ 40.5% 44.2%

G . V O C R O P sh o rtfa ll ....................................... .......................................................................... ........................ 2 3 .0 % 2 8 .2 %

H. % Surplus NO× reductions after offsetting VOC ROP shortfall available for contingency

m ea su re s (Line F- Line G ) ....................................................................................................... . ........................ 17 .5 % 16 .0 %

20 The ROP demonstration relies on "the emission

control program as it existed when the Valley's

2004 SIP was submitted * * " 2008 Clarification

at 6. As discussed in section III.C.2.c.i. above, all

baseline measures are either federal, SIP-approved,

proposed for approval, or otherwise creditable in

ROP demonstrations.

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Because there are insufficient VOC

reductions to meet the milestones, the

ROP demonstration relies on NON

substitution, consistent with EPA's

guidance, to show that the area meets

the emission reduction requirements for

2008 and 2010. The demonstration does

not depend on reductions from any

measures that are not either Federal,

SIP-approved, proposed for approval or

State waiver measures or on reductions

from any measures that are not

creditable under the terms of section

182(b)(1). 20

3. EPA's Evaluation of the Rate of

Progress Demonstrations in the SIP

Submittals

The 2008 Clarifications follow EPA's

guidance on addressing the pre-1990

motor vehicle program adjustments,

using the pre-1990 California motor

vehicle exhaust and evaporative

standards in lieu of the national motor

vehicle control program. 21 Because the

2004 SIP and the 2008 Clarifications

demonstrate that sufficient emission

reductions have or will be achieved to

meet the 2008 and 2010 ROP

milestones, we propose to approve the

ROP provisions in these documents as

meeting the requirements of CAA

section 182(c)(2). As stated above, if the

ROP milestones are met, we deem the

general RFP requirements of CAA

section 172(c)(2) to also have been met.

Therefore, we also propose to approve

the ROP provisions as meeting the

requirements of CAA sections 172(c)(2).

D. Attainment Demonstration

1. Requirements for Attainment

Demonstrations

One-hour ozone nonattainment areas

classified as extreme under CAA section

181(b)(3) must demonstrate attainment

"as expeditiously as practicable" but

not later than the date specified in CAA

section 181(a), November 15, 2010. CAA

Section 182(c)(2)(A) requires serious,

severe and extreme areas to use

photochemical grid air quality modeling

or an analytical method EPA determines

to be as effective.

For areas such as the SJV area that did

not have a fully approved attainment

demonstration for the 1-hour ozone

20 The ROP demonstration relies on "the emission

control program as it existed when the Valley's

2004 SIP was submitted * * " 2008 Clarification

at 6. As discussed in section III.C.2.c.i. above, all

baseline measures are either federal, SIP-approved,

proposed for approval, or otherwise creditable in

ROP demonstrations.

21 See "How to calculate non-creditable

reductions for motor vehicle programs in California

as required for reasonable further progress (RFP)

SIPs," EPA, Office of Transportation and Air

Quality, Transportation and Regional Program

Division, September 6, 2007.

standard at the time they were

designated nonattainment for the 8-hour

ozone standard, the Phase 1 rule

required the submission of the 1-hour

ozone attainment demonstration or,

alternatively, the early submission of an

8-hour attainment demonstration or an

early increment of progress toward

attainment of the 8-hour standard. See

40 CFR 51.905(a)(1)(ii). For the SJV area,

California submitted an attainment

demonstration for the 1-hour ozone

standard.

2. Air Quality Modeling in the 2004 SIP

For purposes of demonstrating

attainment, CAA section 182(c)(2)(A)

requires extreme areas to use

photochemical grid modeling or an

analytical method EPA determines to be

as effective. EPA guidance identifies the

features of a modeling analysis that are

essential to obtain credible results.22

The photochemical grid modeling

analysis is performed for days when the

meteorological conditions are conducive

to the formation of ozone. For purposes

of developing the information to put

into the model, the State must select

days in the past with elevated ozone

levels that are representative of the

ozone pollution problem in the

nonattainment area and a modeling

domain that encompasses the

nonattainment area. The State must then

develop both meteorological data

describing atmospheric conditions for

the selected days and an emission

inventory to evaluate the model's ability

to reproduce the monitored air quality

values. Finally, the State needs to verify

that the model is properly simulating

the chemistry and atmospheric

conditions through diagnostic analyses

and model performance tests. Once

these steps are satisfactorily completed,

the model can be used to generate future

year air quality estimates to support an

attainment demonstration. A future-year

emissions inventory, which includes

growth and controls through the

attainment year, is developed for input

2 2 EPA has issued the following guidance

regarding air quality modeling used to demonstrate

attainment of the 1-hour ozone NAAQS: "Guideline

for Regulatory Application of the Urban Airshed

Model," EPA-450/4-91-013 (July 1991); "Guidance

on Use of Modeled Results to Demonstrate

Attainment of the Ozone NAAQS," EPA-454/B-95-

007 (June 1996); "Guidance for the 1-hour Ozone

Nonattainment Areas that Rely on Weight-ofEvidence for Attainment Demonstrations, MidCourse Review Guidance" (March 28, 2002); and

"Guidance for Improving Weight-of-Evidence

Through Identification of Additional Emission

Reduction Not Modeled" (Nov 99). Copies of these

documents may be found on EPA's Web site at

http://www.epa.govlttnlscram and in the docket for

this proposed rule.

to the model to predict air quality in the

attainment year.

For the 1-hour ozone standard, the

modeled attainment test compares

model-predicted 1-hour daily maximum

ozone concentrations in all grid cells for

the attainment year to the level of the

standard. For the 1-hour ozone

standard, a predicted concentration

above 0.124 parts per million (ppm)

indicates that the area is expected to

exceed the standard in the attainment

year and a prediction at or below 0.124

ppm indicates that the area is expected

to attain the standard.

Attainment is demonstrated when all

predicted concentrations inside the

modeling domain are at or below the

standard or at an acceptable upper limit

above the NAAQS permitted under

certain conditions by EPA's guidance.

When the predicted concentrations are

above the standard, a weight of evidence

determination, which incorporates other

analyses such as air quality and

emissions trends, may be used to

address the uncertainty inherent in the

application of photochemical grid

models.

EPA recommended that States use the

Urban Airshed Model (UAM) version IV

as the ozone model of choice for the

grid-point modeling required by the

CAA for 1-hour ozone attainment

demonstrations.23 Other models are

allowed if the State shows that they are

scientifically valid and they perform as

well as (i.e., are just as reliable), or

better than, UAM IV. California selected

the Comprehensive Air Quality Model

with Extensions (CAMx) based on

slightly better performance for the SJV

area than the other tested models.

Details on the model and its selection

can be found in Appendix D to the 2004

SIP. The meteorological modeling was

based on a hybrid approach, using the

Meso-scale Model 5 (MM5) and Calmet

models, because of the ability of this

modeling system to reproduce the

measured design value near the Fresno

monitoring site.

Information on how the CAMX

modeling meets EPA guidance is

summarized here and detailed in the

State's submittals. 2004 SIP at Chapter

5 and Appendix D. The air quality

modeling domain extends from the

Oregon border in the north to Los

Angeles County in the south, and from

the Pacific Ocean in the west to Nevada

in the east.

EPA's Guideline on the use of

photochemical grid models

recommends that areas model three or

23 EPA has not recommended a model for

attainment demonstrations for the 8-hour ozone

standard.

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more episodes, including the types of

weather conditions most conducive to

ozone formation. The final

photochemical grid modeling submitted

by California focused on the CAMx

modeling for one several day episode,

July 27 to August 2, 2000. This episode

represents high measured ozone, with a

peak measured concentration of 151

parts per billion (ppb) at Bakersfield on

August 2, 2000. The episode was typical

of the worst case meteorology (i.e., the

highest potential for ozone formation) of

episodes in the San Joaquin Valley.

The CAMx model was run using the

MM5/CALMET meteorological

processor with State emission

inventories for the 2000 base year and

with projected emissions representing

grown and controlled emissions for the

attainment year. The projected 2010

emissions inventory was developed for

modeling simulations and included the

effects of projected growth and control

measures adopted prior to September

2002, as discussed in section II.C.

below.

The CAMx simulation for July 30,

with the emission inventory for the year

2010, was used to develop targets for

reduction of VOC and NOx in the

attainment year.

EPA has established the following

guidelines for model performance:

unpaired peak ratio 0.80-1.2,

normalized bias +/- 15 percent, and

gross error less than 35 percent. The

model performance is presented in

Appendix D to the 2004 SIP for the

Fresno and Bakersfield areas,

representing areas of highest 1-hour

ozone levels in the SJV area and shows

that the CAMx model predicts ozone

within the quality limits recommended

in EPA guidance on most days for most

subregions of the modeling domain. On

those days for which a subregion had

peak measured ozone concentrations

above 125 ppb, the model performance

meets the EPA recommended criteria.

We conclude that the modeling is

consistent with the CAA and EPA

modeling guidance; therefore, we

propose to find that the modeling

analysis is adequate to support the

attainment demonstration in the 2004

SIP. For more information on EPA's

review of the modeling, see the TSD,

section II.

3. The Attainment Demonstration in the

2004 SIP

The 2004 SIP's air quality modeling

identified the SJV area's 2010

attainment target as 343.5 tpd NOx and

314.4 tpd VOC or a reduction of 213.3

tpd of NOx and 129.1 tpd of VOC from

the 2000 projected baseline emissions.

2004 SIP, section 5.6; ARB Staff Report,

section III.C. See also Table 1 above.

The 2004 SIP shows that Federal

rules, rules approved or proposed for

approval by EPA, the State's waiver

measures, and the State's commitment

for the SJV area in the 2003 State

Strategy reduce the 2000 projected

baseline emissions by 219.8 tpd of NOx

and 129.5 tpd of VOC by the beginning

of the 2010 ozone season. These levels

represent a decrease in emissions from

the 2000 baseline of 38 percent NOx and

29 percent VOC and are in excess of the

reductions needed for attainment in the

SJV area. Table 5 provides a summary

of the 2004 SIP's attainment

demonstration.

TABLE 5-2004 SIP ATTAINMENT DEMONSTRATION SUMMARY AS UPDATED BY 2008 CLARIFICATIONS

NOx (tpd) VOC (tpd)

2 0 0 0 b a s e lin e ...................................................................................................................................................... 5 5 6 .8 4 4 3 .5

2 0 10 a tta in m e nt ta rg e t ......................................................................................................................................... 3 4 3 .5 3 14 .4

T otal reductions needed to attain in 2010 ................................................................................................... 2 13.3 129 .1

Reductions from creditable baseline measures and interim measures .............................................................. 172.2 80.8

Reductions from SIP-approved (or proposed for approval) rules ....................................................................... 27.6 33.3

Reductions from enforceable State commitment ................................................................................................ 20 15

Total reductions from Federal rules, measures approved or proposed for approval, waiver measures,

and e nfo rceable co m m itm ents .................................................................................................................. 2 19 .8 129 .1

The reductions needed for attainment

of the 1-hour ozone standard in the SJV

area derive from ambitious State and

District rule development projects to

adopt or amend new regulations to

tighten controls expeditiously on

existing sources and to regulate a few

previously uncontrolled sources. 24

Moreover, both agencies set tight

compliance schedules for their amended

and newly adopted rules, requiring full

compliance in most cases within one

year or less. Attainment reductions also

come from the benefits of mobile source

fleet turnover to meet increasingly

stringent Federal and State emission

standards. Finally, as discussed

24 We note that the majority of emission

reductions needed to demonstrate attainment (63%

of the VOC and 810% of the NOx) come from

baseline or interim measures, i.e., from measures

adopted prior to October, 2004. See Table 2 above.

previously, no other reasonably

available control measure or set of

RACMs have been identified that can

advance attainment of the 1-hour ozone

standard in the SJV area.

Based on our evaluation of the State's

submittals, we propose to approve the

2004 SIP's demonstration of attainment

as meeting the requirements of CAA

sections 172 and 181 and 40 CFR

51.905(a)(1)(ii) that areas classified as

extreme demonstrate attainment as

expeditiously as practicable but no later

than November 15, 2010.

E. Contingency Measures

1. Requirements for Contingency

Measures

Sections 172(c)(9) and 182(c)(9) of the

CAA require that SIPs contain

contingency measures that will take

effect without further action by the State

or EPA if an area fails to attain the

ozone standard by the applicable date

(section 172(c)(9)) or fails to meet a ROP

milestone (section 182(c)(9)).

The Act does not specify how many

contingency measures are needed or the

magnitude of emission reductions that

must be provided by these measures.

However, EPA provided initial guidance

interpreting the contingency measure

requirements in the General Preamble at

13510. Our interpretation is based upon

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

182(c)(9) in conjunction with the

control measure requirements of

sections 172(c), 182(b) and 182(c)(2)(B),

the reclassification and failure to attain

provisions of section 181(b) and other

provisions. In the General Preamble,

EPA indicated that states with moderate

and above ozone nonattainment areas

should include sufficient contingency

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measures so that, upon implementation

of such measures, additional emission

reductions of 3 percent of the emissions

in the adjusted base year inventory (or

such lesser percentage that will cure the

identified failure) would be achieved in

the year following the year in which the

failure is identified. The States must

show that the contingency measures can

be implemented with minimal further

action on their part and with no

additional rulemaking actions.

In subsequent guidance, EPA stated

that contingency measures could be

implemented early, i.e., prior to the

milestone or attainment date. 25 Under

this policy, States are allowed to use

excess reductions from already adopted

measures to meet the CAA sections

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

measures requirement. The key is that

the CAA requires extra reductions that

are not relied on for ROP or attainment

and that will provide a cushion while

the plan is being revised to fully address

the failure. Nothing in the CAA

precludes a State from implementing

such measures before they are triggered.

This approach has been approved by

EPA in numerous SIPs. See 62 FR 15844

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

18, 1997); 66 FR 30811 (June 8, 2001);

66 FR 586 and 66 FR 634 (January 3,

2001). A recent court ruling upheld this

approach. See LEANv. EPA, 382 F.3d

575 (5th Cir. 2004). 70 FR 71611, 71651.

As discussed in section II above, EPA

initially determined that contingency

measures for the 1-hour ozone standard

would not be required once the standard

was revoked. See 70 FR 30592 (May 26,

2005). However, the D.C. Circuit in

South Coast vacated the provision of the

Phase 1 rule that waived the 1-hour

contingency measure requirements.

Consequently, States subject to the antibacksliding requirements must continue

to meet the CAA sections 172(c)(9) and

182(c)(9) requirements. We have

recently proposed to revise § 51.900(f)

in order to remove the vacated provision

and to add language consistent with the

Court's holding that contingency

measures for failure to attain or to make

reasonable further progress toward

attaining the 1-hour standard continue

to apply in such areas. See 74 FR 2936

(January 16, 2009).

2. Contingency Measures in the 2004

SIP and 2008 Clarifications

Table 2 in the 2008 Clarifications

provides an updated ROP

demonstration that shows that, after

25 See Memorandum from G.T. Helms, EPA, to

EPA Air Branch Chiefs, Regions I-X, entitled "Early

Implementation of Contingency Measures for Ozone

and Carbon Monoxide (CO) Nonattainment Areas,"

August 13, 1993.

meeting the VOC ROP milestones for

2008 and 2010 with NOx substitution,

there are still creditable NOx reductions

of 17.5 percent of the adjusted baseline

for the 2008 milestone and 16 percent

for the 2010 milestones. See also Table

4 in this proposed rule. The reductions

shown in Table 2 in the 2008

Clarifications come from creditable

measures adopted prior to September

2002 and not from any interim or

control strategy measures. 2008

Clarifications, page 6.

In addition, Table 3 in the 2008

Clarifications, which is reproduced as

Table 6 below, shows that on-road fleet

turnover will continue to deliver

substantial reductions in 2011 from

adopted and creditable measures, i.e.,

an additional 10 tpd NOx and 5 tpd

VOC beyond the reductions shown in

Tables 1 and 2 in the 2008

Clarifications. These reductions are

available to serve as additional

contingency reductions in 2011.

3. EPA's Evaluation of the Contingency

Measures in the SIP Submittals

Table 2 of the 2008 Clarifications and

Table 4 above show that there are

significant additional NOx reductions

beyond the levels needed to meet the

2008 and 2010 ROP milestones in the

SJV area. These reductions are more

than the 3 percent excess reductions

suggested by EPA's policy for

contingency measures and come from

fully adopted and creditable measures

and occur in or prior to the milestone

year. We therefore propose to approve

the ROP contingency measures

provisions in the SJV extreme area plan

as meeting CAA section 182(c)(9).

For the attainment year, 2010, the

requirement is to show that there are

fully adopted contingency measures that

will achieve emission reductions in

excess of the levels needed for

attainment and sufficient to provide

continued ROP in the year after the

attainment date, i.e., 3 percent

reductions from the pre-1990 adjusted

baseline, if triggered by a failure to

attain. Consistent with the ROP

demonstration, an additional 3 percent

equates to approximately 15.3 tpd of

VOC or 20.7 tpd of NOx with NOx

substitution. 26

Table 4 above shows that there are no

excess reductions from adopted

measures in the 2004 SIP's attainment

demonstration and that, in addition to

the adopted measures that make

significant reductions toward

26 States may use a combination of NOx and VOC

reductions to meet the 3 percent contingency

requirement. See General Preamble at 13520,

footnote 6.

attainment, the plan relies on

commitments to adopt measures to

achieve the additional reductions

needed to demonstrate attainment.

Table 6 below shows that there are 10

tpd NOx and 5 tpd VOC in reductions

in 2011 from adopted on-road mobile

source measures that could serve to

fulfill a portion of the attainment

contingency measure requirement.

However, these amounts collectively

provide just a 2.4 percent rate of

progress in 2011, short of the suggested

3 percent.

Based on our analysis and the

information currently available to EPA,

there are not enough excess reductions

to satisfy the contingency measure

requirement for the attainment

demonstration. We therefore propose to

disapprove the attainment contingency

measures provision in the San Joaquin

Valley extreme area plan as not meeting

the requirements of CAA section

172(c)(9). The State may remedy this

failure by submitting either new

contingency measures or a

demonstration that existing creditable

measures provide, consistent with the

guidance cited above, sufficient

emission reductions in 2011.

F. Proposed Findings on Other

Requirements for Extreme

Nonattainment Areas

1. TCMs To Offset Growth in Motor

Vehicle Emissions Under CAA Section

182(d)(1)

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

that extreme areas submit transportation

control measures (TCMs) sufficient to

offset any growth in emissions from

growth in VMT or the number of vehicle

trips, and to provide (along with other

measures) the reductions needed to

meet ROP. This VMT offset requirement

is a continuing applicable requirement

for 1-hour ozone nonattainment areas

under EPA's 8-hour ozone

implementation rule. See 40 CFR

51.900(f)(11). EPA interprets this CAA

provision to allow areas to meet the

requirement by demonstrating that

emissions from motor vehicles decline

each year through the attainment year.

General Preamble at 13522.

Information in the 2008 Clarifications

and reproduced in Table 6 below shows

that on-road mobile source emissions of

VOC and NOx decline steadily from

2000 to 2011. This decline in emissions

is due to EPA's and California's on-road

mobile source programs. As discussed

above, these programs are fully

creditable in attainment and ROP

demonstrations and therefore can also

be used to demonstrate compliance with

CAA section 182(d)(1). Because

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emissions decline each year for both growth; therefore, we propose to find 2008 Clarifications meets this CAA

VOC and NOx, the plan need not that the 2004 SIP as amended by the requirement.

include additional TCMs to offset

TABLE 6-BASELINE MOTOR VEHICLE EMISSIONS 2000-2011

[San Joaquin Valley, Summer Planning, in tons per day]

Year 00 01 02 03 04 05 06 07 08 09 10 11

VOC ................................................................... 115 107 100 93 88 82 77 72 67 63 59 54

NOx ................................................................... 223 218 211 201 192 184 176 166 157 148 137 127

The emission levels in Table 6 are

derived from the inventory used in the

modeling analysis for the 2004 SIP and

are calculated using EMFAC2002,

version 2.2, and the same transportation

activity projections used in the 2004

SIP.

2. Clean Technology and/or Fuels for

Boilers

CAA section 182(e)(3) provides that

SIPs for extreme areas must require each

new, modified, and existing electric

utility and industrial and commercial

boiler that emits more than 25 tpy of

NOx to burn as its primary fuel natural

gas, methanol, or ethanol (or a

comparably low polluting fuel), or use

advanced control technology (such as

catalytic control technology or other

comparably effective control methods).

This requirement is a continuing

applicable requirement for 1-hour ozone

nonattainment areas under EPA's Phase

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

51.900(f)(7).

Further guidance on this requirement

is provided in the General Preamble at

13523. According to the General

Preamble, boilers should generally be

considered as any combustion

equipment used to produce steam and

would generally not include a process

heater that transfers heat from

combustion gases to process streams.

General Preamble at 13523. In addition,

boilers with rated heat inputs less that

15 million Btu (MMBtu) per hour which

are oil or gas fired may generally be

considered not subject to these

requirements since it is unlikely that

they will exceed the 25 tpy NOx

emission limit. General Preamble at

13524.

The 2004 SIP, which addresses the

CAA section 182(e)(3) requirements on

page 4-37, states that District Rules

4305, 4306, and 4352 address NOx from

affected boilers and that these rules

meet the requirements of the CAA.

Since submittal of the 2004 SIP, Rule

4305 has been superseded by Rules

4306, 4307, and 4308.

Rule 4306 "Boilers, Steam Generators,

and Process Heaters-Phase 3" as

revised on September 18, 2003, applies

to any gaseous fuel or liquid fuel fired

boiler, steam generator, or process

heater with a total rated heat input

greater than 5 million Btu per hour. The

emission limits in the rule, which range

from 5 ppm to 30 ppm for gaseous fuels

and is 40 ppm for liquid fuels, cannot

be achieved without the use of advance

control technologies. See "Alternative

Control Techniques Document-NOx

Emissions from Industrial/Commercial/

Institutional (ICI) Boilers," Emissions

Standards Division, EPA, March 1994.

We approved Rule 4306 as a SIP

revision on May 18, 2004 at 69 FR

28061.

Rule 4307 "Boilers, Steam Generators,

and Process Heaters-2.0 MMBtu/hr to

5.0 MMBtu/hr," as revised on April 20,

2006, applies to any gaseous fuel or

liquid fuel fired boiler, steam generator,

or process heater with a total rated heat

input greater than 2.0 MMBtu per hour

but less than 5.0 MMBtu per hour. Rule

4308 "Boilers, Steam Generators, and

Process Heaters-0.075 MMBtu/hr to 2.0

MMBtu/hr," as revised on October 20,

2005, applies to any gaseous fuel or

liquid fuel fired boiler, steam generator,

or process heater with a total rated heat

input greater than 0.075 MMBtu per

hour but less than 2.0 MMBtu per hour.

The limits in these rules, which are 30

ppm for gaseous fuels and for 40 ppm

for liquid fuels for units between 2 and

5 MM Btu/hour and between 30 ppm

and 77 ppm for units between 0.75 and

5 MM Btu/ hour, could not be met

without the use of advance control

technologies. We approved both rules as

SIP revisions on May 30, 2007 at 72 FR

29887.

Rule 4352 "Solid Fuel Fired Boilers,

Steam Generators And Process Heaters,"

as revised May 18, 2006, applies to any

boiler, steam generator or process heater

fired on solid fuel at a source that has

a potential to emit more than 10 tons

per year of NOx or VOC. In order to

meet the emission limitations in this

rule, which are between 115 and 200

ppm, sources use advance NOx control

technologies. See "Reasonably Available

Control Technology (RACT)

Demonstration and Negative Declaration

for Two Source Categories Covered By

EPA Control Techniques Guidelines,

SJVAPCD, April 2009, p. 4-67. We

proposed to approve Rule 4352 on May

30, 2007 at 72 FR 29901.27

Based on our review of the emission

limitations in SJVAPCD's rules, we

propose to find that the SJV area meets

the clean fuel/clean technology for

boilers requirement in CAA section

182(e)(3).

3. Adequate Resources and Enforcement

Authority

CAA Section 110(a)(2)(E)(i) requires

that implementation plans provide

necessary assurances that the State (or

the general purpose local government)

will have adequate personnel, funding

and authority under State law to carry

out the submitted plan. Under this

section, a State needs to provide

assurances of adequate personnel,

funding and authority for its submitted

implementation plan. These

requirements are further defined in

EPA's regulations at 40 CFR part 51,

subpart L (authority) and §§ 51.280

(resources). States and responsible local

agencies must demonstrate that they

have the legal authority to adopt and

enforce provisions of the SIP and to

obtain information necessary to

determine compliance. SIPs must also

describe the resources that are available

or will be available to the State and

local agencies to carry out the plan, both

at the time of submittal and during the

5-year period following submittal.

The 2004 SIP and 2003 State Strategy

do not directly address the resources

requirement in EPA regulations.

However, as submitted, the 2004 SIP

and 2003 State Strategy consist of a

description of the result of technical

work already completed by ARB and the

District to develop emission inventories,

perform air quality modeling, analyze

potential controls, and to evaluate the

effect of those controls on attainment

and ROP in the SJV nonattainment area.

The 2004 SIP contains commitments by

the District to adopt certain rules or rule

27 Concurrent with the 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). This withdrawal,

however, left the proposed action in place.

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revisions and commitments by the

District and ARB to achieve certain

emission reductions. At this point in

time, the District has adopted all the

rules it committed to adopt. See Table

2 of this proposal. California has also

made substantial progress in adopting

rules to fulfill its commitment and has

an ambitious rulemaking schedule for

2009 and 2010. See section III.C.l.c. of

this proposal. By carrying out their

commitments in these plans, which

were submitted in November 2004

(almost 5 years ago), both the District

and ARB have demonstrated that they

have adequate resources.

The District's and State's authorities

to adopt and enforce plans, rules and

regulations to achieve and maintain

Federal air quality standards are listed

in the resolutions of adoption that

accompany the plans' submittals. See

ARB Resolutions 04-29, October 28,

2004 (adopting the SJV 1-hour ozone

plan) and 03-22 (October 23, 2003)

(adopting the 2003 State Strategy).

These authorities are found in

California's Health and Safety Code

(HSC) at sections 40000, 40002, 40701,

40702, and 41650 for the District and

39002, 39500, 39602, 40469, 41650, and

part 5 for ARB. These authorities are

sufficient to meet CAA and EPA

requirements.

EPA regulations at 40 CFR 51.111 also

require that plans describe procedures

for monitoring compliance, procedures

for handling violations, and designation

of the agency responsible for

enforcement.

The District has primary

responsibility under California law to

adopt and enforce rules controlling air

pollution from nonvehicular source

rules. CA HSC 40001. See also ARB

Resolution 04-29, October 28, 2004.

ARB has primary responsibility under

California law to adopt and enforce

rules controlling air pollution form

vehicular (including fuels) and

consumer products. CA HSC 39002,

39500, part 5, and 41712.

The 2004 SIP and 2003 State Strategy

do not describe procedures for

monitoring compliance and for handling

violations; however, this information is

readily available on the Internet. The

District's source monitoring and

enforcement programs, including its

procedures for handling violations, are

described on its Web site at http://

www.valleyair.org under "Compliance

Assistance." ARB's source monitoring

and enforcement programs including its

procedures for handling violations, are

described at http://www.arb.ca.gov/enfl

enf.htm. Specific compliance

monitoring procedures (such as test

methods, recordkeeping and/or

continuous monitoring) are evaluated as

part of EPA's action on individual rules.

See, for example, proposed action on

several SJVAPCD surface coating rules

at 74 FR 28467 (June 15, 2009).

IV. SJVAPCD Rule 9310 School Bus

Fleets

On September 21, 2006, SJVAPCD

adopted Rule 9310, "School Bus

Fleets," to regulated NOx, PM, and

diesel toxic air contaminants from inuse school bus fleets. The rule was

submitted to EPA by the State on

December 29, 2006. See letter, Michael

S. Scheible, ARB, to Wayne Nastri, EPA,

December 29, 2006. We found the

submittal complete on February 13,

2007. See Letter, Deborah Jordan, EPA

to Catherine Weatherspoon, ARB. A

copy of the adopted rule and the

material submitted with it can be found

in the docket for this proposed action.

Estimated reductions from the rule for

2010 are listed in Table 2 above.

Rule 9310 applies to all school bus

fleet operators with one or more buses,

including both public and private

operators and any contractors who

provide school bus services. Under

provisions of the rule, fleet operators

must replace by no later than January 1,

2016 any diesel school buses in their

fleet manufactured before January 1,

1978 with buses that meet the

applicable ARB or EPA emission

standards for the year the bus is

delivered to the operator. For diesel

buses manufactured after January 1,

1978, fleet operators have the option to

replace them with buses that meet the

applicable ARB and EPA emission

standards for the delivery year, retrofit

them with an Approved Diesel Emission

Control Strategy (i.e., ARB level 3

verified technologies to reduce PM and

or other precursor emissions by at least

85%), or repower them with an engine

meeting the ARB or EPA emissions

standards that are applicable to engines

produced on and after October 1, 2002.

Rule 9310, section 5.1.1.

The rule also requires existing

alternative or gasoline-fueled school

buses and any diesel school buses

manufactured after October 1, 2002 to

operate per manufacturers' specification

and, if replaced, the operator must

replace with a school bus that meets all

applicable emissions standards for the

delivery year. Rule 9310, section 5.1.2.

New school buses and additions to

school bus fleets must meet all ARB and

EPA applicable emissions standards for

the delivery year. See Rule 9310, section

5.2.

Administrative requirements in Rule

9310 require each operator to provide

the District with a list identifying

existing school bus fleets by January 1,

2007 and to include information

specific to each affected bus and an

explanation of how each school bus will

comply with the requirements of Rule

9310. See Rule 9310, section 6.1

Rule 9310 requires operators to

maintain records for a minimum of five

years of each school bus annual mileage,

amount of fuel purchased by fuel type,

and travel records beginning on and

after September 21, 2006. These records

must be made available for inspection

by the District's Air Pollution Control

Officer (APCO) upon request. Rule 9130,

section 6.4.

Rule 9310 is enforced by the APCO

under the authority of the California

HSC, Sections 40001, 40702, 40752, and

40753, and by all officers and

employees empowered by Sections

40120 and 41510. Enforceability is

mainly tied to school bus fleet

operators' reporting requirements.

In reviewing a rule for SIP approval,

EPA looks to assure that the rule is

enforceable as required by CAA section

110(a)(2)(A), is consistent with all

applicable EPA guidance, and does not

relax existing SIP requirements as

required by sections 110(1) and 193.

We have determined that the

recordkeeping and reporting

requirements in Rule 9310 are sufficient

for enforceability. EPA has not issued

any guidance applicable to rules such as

Rule 9310. There are no previous

versions of Rule 9310 and, as such, its

approval would strengthen the SIP.

EPA's approval of Rule 9310 would also

not interfere with attainment,

reasonable further progress or any other

requirement of the CAA. We therefore

propose to approve SJVAPCD Rule 9130

under CAA section 110(k)(3) as part of

California SIP for the SJV area.

V. Proposed Actions

A. Summary

1. EPA is proposing to approve

pursuant to CAA section 110(k)(3), the

following elements of the 2004 SIP and

the 2008 Clarifications:

a. The rate of progress demonstration

as meeting the requirements of CAA

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

b. The rate-of-progress contingency

measures as meeting the requirements of

CAA section 182(c)(9); and

c. The attainment demonstration as

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

and 181(a).28

28 The 2004 SIP also included motor vehicle

emission budgets (MVEB) for NOx and VOC for the

milestone year of 2008 and attainment year of 2010.

We do not address these budgets in this proposal

because they are no longer required for the 1-hour

ozone standard. Furthermore, the budgets in the

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The proposed approval of the

attainment demonstration is predicated

in part on emission reductions from a

number of State and District rules that

we have proposed to approve in

separate actions. These proposed-forapproval rules, combined with

previously approved rules and other

creditable measures, provide more than

the minimum reductions needed for

attainment of the 1-hour standard in the

SJV area. See Table 5 above. Should we

be unable to finalize approval of one or

more of these rules and, as a result,

there is a shortfall in the needed

emission reductions, we will not be able

to finalize our proposed approval of the

attainment demonstration.

2. EPA is proposing to find pursuant

to CAA section 110(k)(3) that the 2004

SIP and the 2008 Clarifications meet the

requirements of:

a. CAA section 182(e)(3) for clean

fuel/clean technology for boilers; and

b. CAA section 182(d)(1)(A) for TCMs

sufficient to offset any growth in

emissions from growth in VMT or the

number of vehicle trips.

3. EPA is proposing to approve

pursuant to CAA section 110(k)(3)

section 4.7 in the 2004 SIP and the

provisions of the 2003 State Strategy

and ARB Board Resolution 04-29 that

relate to aggregate emission reductions

in the San Joaquin Valley Air Basin as

meeting the requirements of CAA

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

4. EPA is proposing to approve

pursuant to CAA section 110(k)(3), the

2004 SIP, the 2003 State Strategy and

the 2008 Clarifications as meeting the

RACM (exclusive of RACT)

requirements of CAA section 172(c).

5. EPA is proposing to approve

pursuant to CAA section 110(k)(3),

SJVAPCD Rule 9310 School Bus Fleets

(adopted September 21, 2006) into the

San Joaquin Valley portion of the

California SIP.

2004 SIP have been replaced by budgets in the SJV

plan for the 1997 8-hour ozone standard.

As discussed in section II. of this proposal, EPA

has revoked the 1-hour ozone standard. As a result,

transportation conformity determinations and thus

budgets are no longer required for that standard.

Under our transportation conformity regulations, 8-

hour ozone MVEBs replace existing 1-hour ozone MVEBs once the 8-hour ozone MVEBs are found

adequate or are approved. See 40 CFR 93.109(e)(1)

and (2). Although the MVEB budgets from the 2004

SIP have been used in the initial conformity

determinations in the SJV area for the 1997 8-hour ozone standard, these budgets have now been

replaced by budgets in the SJV 8-hour ozone plan

which were found adequate on January 8, 2009. See

Letter, Deborah Jordan, EPA to James Goldstene,

ARB, "Adequacy Status of San Joaquin Valley 8-

Hour Ozone Rate of Progress and Attainment Plan

Motor Vehicle Emissions Budgets" and 74 FR 4032

(January 22, 2009). Thus, because the 1-hour ozone

budgets will have no further utility, we are not

proposing action on them here.

6. EPA is proposing to disapprove

pursuant to CAA section 110(k)(3) the

attainment contingency measures in the

2004 SIP and the 2008 Clarifications as

failing to meet the requirements of CAA

section 172(c)(9).

B. Effect of Finalizing the Proposed

Disapproval Actions

If we should finalize our disapproval

of the attainment contingency measures,

the offset sanction in CAA section

179(b)(2) will be applied in the SJV 1-

hour ozone nonattainment area 18

months after the effective date of the

final disapproval. The highway funding

sanctions in CAA section 179(b)(1) will

apply in the area 6 months after the

offset sanction is imposed. Neither

sanction will be imposed if California

submits and we approve prior to the

implementation of the sanctions

replacement attainment contingency

measures.

In addition to the sanctions, CAA

section 110(c)(1) provides that EPA

must promulgate a Federal

implementation plan addressing the 1-

hour ozone contingency measures in the

SJV area, two years after the effective

date of a disapproval should we not be

able to approve replace attainment

contingency measures adopted and

submitted by the State.

VI. Statutory and Executive Order

Reviews

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this proposed

action is not a "significant regulatory

action" and therefore is not subject to

either review by the Office of

Management and Budget or to Executive

Order 13211, "Actions Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use" (66

FR 28355, May 22, 2001).

This action merely proposes to

approve in part and disapprove in part

a State-adopted attainment plan and to

approve a State-adopted rule for the San

Joaquin Valley Air Basin and does not

impose any additional requirements.

Accordingly, the Administrator certifies

that this proposed action will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). Because this

proposed action does not impose any

additional enforceable duties, it 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).

This proposed action does not have

tribal implications as specified by

Executive Order 13175 (65 FR 67249,

November 9, 2000), because the plan is

not approved to apply in Indian country

located in the State. It will not impose

substantial direct costs on tribal

governments or preempt tribal law.

This proposed action also does not

have Federalism implications because it

does not have substantial direct effects

on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government, as

specified in Executive Order 13132 (64

FR 43255, August 10, 1999). This

proposed action merely proposes to

approve in part and disapprove in part

a State-adopted plan and to approve a

State-adopted rule and does not alter the

relationship or the distribution of power

and responsibilities established in the

CAA.

Executive Order 12898 establishes a

Federal policy for incorporating

environmental justice into Federal

agency actions by directing agencies to

identify and address, as appropriate,

disproportionately high and adverse

human health or environmental effects

of their programs, policies, and

activities on minority and low-income

populations. Today's action involves a

proposed approval in disapproval in

part of a State-adopted plan and

proposed approval of a State-adopted

rule. It will not have disproportionately

high and adverse effects on any

communities in the area, including

minority and low-income communities.

This proposed action also is not

subject to Executive Order 13045

"Protection of Children from

Environmental Health Risks and Safety

Risks" (62 FR 19885, April 23, 1997),

because it is not economically

significant. The requirements of section

12(d) of the National Technology

Transfer and Advancement Act of 1995

(15 U.S.C. 272 note) do not apply. This

proposed action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

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

Dated: June 30, 2009.

Jane Diamond,

Acting Regional Administrator, Region IX.

[FR Doc. E9-16492 Filed 7-13-09; 8:45 am]

BILLING CODE 6560-50-P

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