```

[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12674-12695]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4673]

[[Page 12673]]

Vol. 77

Thursday,

No. 41

March 1, 2012

Part III

Environmental Protection Agency

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40 CFR Part 52

 Approval of Air Quality Implementation Plans; California; South Coast; 
Attainment Plan for 1997 8-Hour Ozone Standards; Final Rule

Federal Register / Vol. 77 , No. 41 / Thursday, March 1, 2012 / Rules 
and Regulations

[[Page 12674]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0622; FRL-9624-6]

Approval of Air Quality Implementation Plans; California; South 
Coast; Attainment Plan for 1997 8-Hour Ozone Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving state implementation plan (SIP) revisions 
submitted by California to provide for attainment of the 1997 8-hour 
ozone national ambient air quality standards in the Los Angeles-South 
Coast area (South Coast). These SIP revisions are the South Coast 2007 
Air Quality Management Plan (South Coast 2007 AQMP) (revised 2011) and 
South Coast-related portions of the 2007 State Strategy (revised 2009 
and 2011). EPA is approving the base year emissions inventory; 
reasonably available control measures demonstration; provisions for 
transportation control strategies and transportation control measures; 
the reasonable further progress (RFP) and attainment demonstrations; 
the transportation conformity motor vehicle emissions budgets for all 
RFP milestone years and the attainment year; contingency measures for 
failure to make reasonable further progress and to attain; and Clean 
Air Act section 182(e)(5) new technologies provisions and associated 
commitment to adopt contingency measures. EPA is also approving 
commitments to measures and reductions by the South Coast Air Quality 
Management District and the California Air Resources Board.

DATES: This rule is effective on April 30, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0622 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region IX, 75 
Hawthorne Street, San Francisco, California. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., 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.
    Copies of the SIP materials are also available for inspection in 
the following locations:
     California Air Resources Board, 1001 I Street, Sacramento, 
CA 95812.
     South Coast Air Quality Management District, 21865 E. 
Copley Drive, Diamond Bar, CA 91765.
    The SIP materials are also electronically available at http://www.aqmd.gov/aqmp/07aqmp/index.html and http://www.arb.ca.gov/planning/sip/2007sip/2007sip.htm.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 947-4192, 
tax.wienke@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Summary of EPA's Proposed and Final Actions on the 2007 State 
Implementation Plan for Attainment of the 1997 8-Hour Ozone 
Standards in the South Coast Nonattainment Area
II. Summary of Public Comments Received on the Proposal and EPA 
Responses
III. Approval Status of the Control Strategy Measures and Final 
Actions on the Attainment Demonstration and Enforceable Commitments
IV. Approval of Motor Vehicle Emissions Budgets for Transportation 
Conformity
V. Final Actions
VI. Statutory and Executive Order Reviews

I. Summary of EPA's Proposed and Final Actions on the 2007 State 
Implementation Plan for Attainment of the 1997 8-Hour Ozone Standards 
in the South Coast Nonattainment Area

    On September 16, 2011, EPA proposed to approve California's state 
implementation plan (SIP) for attaining the 1997 8-hour ozone national 
ambient air quality standards (NAAQS) in the Los Angeles-South Coast 
Air Basin Area (South Coast).\1\ See 76 FR 57872. California developed 
this SIP to provide for expeditious attainment of the 8-hour ozone 
standards in the South Coast and to meet other applicable 8-hour ozone 
planning requirements in Clean Air Act (CAA) sections 172(c) and 182 
and EPA's 8-hour ozone implementation rule.\2\
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    \1\ The area referred to as ``Los Angles-South Coast Air Basin'' 
(South Coast Air Basin or ``South Coast'') includes Orange County, 
the southwestern two-thirds of Los Angeles County, southwestern San 
Bernardino County, and western Riverside County. For a precise 
description of the boundaries of the Los Angeles-South Coast Air 
Basin, see 40 CFR 81.305.
    \2\ Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standards--Phase I; Final rule. 69 FR 23951 (April 30, 
2004) and and codified at 40 CFR part 51, subpart Z (8-hour ozone 
implementation rule).
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    California has made five submittals to address the CAA planning 
requirements for attaining the 1997 8-hour ozone standards in the South 
Coast. We refer to these submittals collectively as the ``South Coast 
2007 8-hour ozone plan'' or the ``8-hour ozone plan.'' The two 
principal ones are the South Coast Air Quality Management District 
(SCAQMD or District) Final 2007 South Coast Air Quality Management Plan 
(AQMP) (amended 2011) and the California Air Resources Board (CARB) 
Final 2007 State and Federal Strategy (2007 State Strategy) (amended 
2009 and 2011).\3\ Together, the South Coast 2007 AQMP and the 2007 
State Strategy present a comprehensive and innovative strategy for 
attaining the 1997 8-hour ozone standards in the South Coast.
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    \3\ These SIP submittals are:
    1. SCAQMD, Final 2007 Air Quality Management Plan (AQMP), 
adopted on June 1, 2007 by the SCAQMD and September 27, 2007 by 
CARB, submitted on November 28, 2007.
    2. CARB, Proposed State Strategy for California's 2007 State 
Implementation Plan, as amended and adopted on September 27, 2007 by 
CARB, submitted on November 16, 2007.
    3. CARB, Status Report on the State Strategy for California's 
2007 State Implementation Plan (SIP) and Proposed Revisions to the 
SIP Reflecting Implementation of the 2007 State Strategy (pages 11-
27 only), adopted on April 24, 2009 by CARB, submitted on August 12, 
2009.
    4. Progress Report on Implementation of PM2.5 State 
Implementation Plans (SIP) for the South Coast and San Joaquin 
Valley Air Basins and Proposed SIP Revisions, adopted on April 28, 
2011 by CARB, submitted with the adopting resolution and other 
supporting documentation by CARB on May 18, 2011.1 See CARB Board 
Resolution 11-24, April 28, 2011 and letter, James N. Goldstene, 
Executive Officer, CARB, to Jared Blumenfeld, Regional 
Administrator, EPA Region 9, May 18, 2011 with enclosures. Appendix 
F of this SIP revision contained the SCAQMD's Revisions to the 2007 
PM2.5 and Ozone State Implementation Plans for the South 
Coast Air Basin and Coachella Valley (SIP Revisions), adopted on 
March 4, 2011 by the SCAQMD Governing Board and approved by the CARB 
Board on April 28, 2011. This SIP revision includes an update on 
District rule implementation and commitments provided by SCAQMD for 
the 2007 AQMP for ozone and PM2.5. This SIP revision was 
included as Appendix F in CARB's 2011 Progress Report and will be 
referred to as such.
    5. CARB, Proposed 8-Hour Ozone State Implementation Plan 
Revisions and Technical Revisions to the PM2.5 State 
Implementation Plan Transportation Conformity Budgets for the South 
Coast and San Joaquin Valley Air Basins, adopted on July 21, 2011 by 
CARB and submitted on July 29, 2011. (2011 Ozone SIP Revision).
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    In our September 2011 notice, EPA proposed to approve the SIP's 
base year emissions inventory, reasonably available control measures 
(RACM) demonstration, the reasonable further progress (RFP) and 
attainment demonstrations, provisions for advanced technology/clean 
fuels for boilers, provisions for transportation control strategies and 
transportation control measures (TCMs), transportation conformity motor 
vehicle emissions budgets (budgets) for all milestone years and the 
attainment year, contingency

[[Page 12675]]

measures for failure to make RFP or attain, and CAA section 182(e)(5) 
new technologies provisions and the associated commitment to adopt 
contingency measures \4\ as meeting the applicable requirements of the 
CAA. We also proposed to approve enforceable commitments by both the 
District and CARB to certain measures and emissions reductions.\5\ See 
76 FR 57872.
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    \4\ See letter, James Goldstene, Executive Officer, CARB, to 
Jared Blumenfeld, Regional Administrator, EPA Region 9, dated 
November 18, 2011.
    \5\ We also proposed in the alternative to disapprove the SIP 
with respect to certain provisions in CAA section 182(d)(1)(A)for 
transportation control strategies and measures sufficient to offset 
any growth in emissions from growth in vehicle miles traveled or the 
number of vehicle trips. In Association of Irritated Residents v. 
EPA, 632 F.3d 584 (9th Cir. 2011), the U.S. Court of Appeals for the 
Ninth Circuit held that, with respect to the first element, section 
182(d)(1)(A) of the CAA requires States to adopt transportation 
control measures and strategies whenever vehicle emissions are 
projected to be higher than they would have been had vehicle miles 
traveled not increased, even when aggregate vehicle emissions are 
actually decreasing. EPA has filed a petition for rehearing on this 
issue. Docket Nos. 09-71383 and 09-71404 (consolidated), Docket 
Entry 41-1, Petition for Panel Rehearing.
    At the time of our September proposal, the Ninth Circuit had not 
yet issued its mandate in the AIR case, and EPA had not adopted the 
court's interpretation for the reasons set forth in the Agency's 
petition for rehearing, pending a final decision by the court. We 
stated in our proposal that if the court denied the Agency's 
petition for rehearing and issued its mandate before EPA issued a 
final rule on the South Coast 2007 8-Hour Ozone SIP, then we 
anticipated that we would not be able to finalize approval of the 
South Coast 2007 8-Hour Ozone SIP with respect to the first element 
(i.e., offsetting emissions growth) of section 182(d)(1)(A). See 76 
FR 57872, 57890. Therefore, we proposed in the alternative to 
disapprove the South Coast 2007 8-Hour Ozone SIP with respect to the 
first element of section 182(d)(1)(A) based on the plan's failure to 
include sufficient transportation control strategies and TCM to 
offset the emissions from growth in VMT. Id. The court has still not 
issued its mandate; therefore, we are approving the South Coast 2007 
8-Hour Ozone SIP as meeting the requirements of CAA section 
182(d)(1)(A).
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    A more detailed discussion of each of California's SIP submittals 
for the South Coast area, the CAA and EPA requirements applicable to 
them, and our evaluation and proposed actions, can be found in the 
September 16, 2011 Federal Register notice (76 FR 57872) and the 
technical support document (TSD) for this final action.\6\
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    \6\ ``Final Technical Support Document and Response to Comments 
for the Final Rulemaking Action on the South Coast 2007 8-hour Ozone 
Plan and the South Coast Portions of the Revised 2007 State 
Strategy,'' Air Division, U.S. EPA Region 9, December 2011. The TSD 
can be found in the docket for this rulemaking.
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    EPA is today approving all elements of the South Coast 2007 8-hour 
Ozone Plan based on our conclusion that they comply with applicable CAA 
requirements and provide for expeditious attainment of the 1997 8-hour 
ozone standards in the South Coast nonattainment area.

II. Summary of Public Comments Received on the Proposal and EPA 
Responses

    EPA provided the public an opportunity to comment on our proposed 
approval of the South Coast 2007 8-hour ozone plan for 30 days 
following the proposal's September 16, 2011 publication in the Federal 
Register. We received three comment letters in response to our 
September 16, 2011 proposal. In the following section, we summarize our 
responses to the most significant comments that we received on the 
proposals. Our complete responses to comments can be found in the 
``Response to Comments'' section of the TSD section III accompanying 
today's rulemaking.
    The first letter came from CARB requesting that we limit the 
approval of the SIP's transportation conformity motor vehicle emissions 
budgets until such time the State submits and EPA finds adequate new 
budgets. See letter, Douglas Ito, Chief, Air Quality and Transportation 
Planning Branch; California Air Resources Board, October 17, 2011. We 
address CARB's request in Section V below. We received a comment letter 
from the Natural Resources Defense Council (NRDC) representing various 
organizations. See letter, Adrian Martinez, Attorney, Natural Resources 
Defense Council, October 17, 2011. We respond to NRDC's comments below. 
We also received comments from Ian Scott, a private citizen, on our 
September proposal. A copy of the comment letters can be found in the 
docket for today's rule.

A. Control Strategy and Enforceable Commitments

1. Enforceable Commitments
    Comment: California Communities Against Toxics, Communities for a 
Better Environment, Natural Resources Defense Council, and Physicians 
for Social Responsibility--Los Angeles (commenters) assert that the 
CARB and District commitments to achieve total tonnage reductions in 
the South Coast 8-hour ozone plan are not enforceable. Commenters 
assert that the commitments to achieve total tonnages (which they refer 
to as ``global commitments'') could be interpreted as ``goals,'' rather 
than ``strategies,'' and are not enforceable because they are 
discretionary and open-ended. Commenters cite Bayview Hunters Point 
Community Advocates v. Metropolitan Transportation Commission, 366 F.3d 
692 (9th Cir. 2004) and El Comite Para El Bienstar de Earlimart v. 
Warmerdam, 539 F.3d 1062, 1067 (9th Cir. 2008). Commenters assert that 
enforcement of the ``global commitments'' by citizens is not possible 
because neither citizens nor EPA can determine whether CARB has met the 
``global commitments,'' and because CARB and the District determine 
compliance with the ``global commitment'' target, thus leaving them in 
a situation faced by plaintiffs in Warmerdam. Commenters assert that 
the ``global commitments'' are also not enforceable because there are 
no measures submitted for inclusion into the SIP to satisfy the tonnage 
commitment and there are no reporting requirements for ARB and the 
District, and they cite to EPA's General Preamble at 57 FR 13568 which 
states, ``[a] regulatory limit is not enforceable if, for example, it 
is impractical to determine compliance with the published limit.'' 
Finally, commenters assert that in order to enforce the ``global 
commitments,'' which depend on how CARB and the District calculate 
emissions reductions, the methodology that determines how emissions 
reductions are calculated must also be enforceable. Commenters state 
that in Warmerdam the court found neither the baseline nor methodology 
enforceable and thus, the plaintiffs were not able to enforce.
    Response: Under CAA section 110(a)(2)(A), SIPs must include 
enforceable emission limitations and other control measures, means or 
techniques necessary to meet the requirements of the Act, as well as 
timetables for compliance. Similarly, section 172(c)(6) provides that 
nonattainment area SIPs must include enforceable emission limitations 
and such other control measures, means or techniques ``as may be 
necessary or appropriate to provide for attainment'' of the NAAQS by 
the applicable attainment date.
    Control measures, including commitments in SIPs, are enforced 
directly by EPA under CAA section 113, and also through CAA section 
304(a), which provides for citizen suits to be brought against any 
person who is alleged ``to be in violation of * * * an emission 
standard or limitation. * * *'' ``Emission standard or limitation'' is 
defined in subsection (f) of section 304.\7\ As observed in 
Conservation Law Foundation, Inc. v. James Busey et al., 79 F.3d 1250, 
1258 (1st Cir. 1996):
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    \7\ EPA can also enforce SIP commitments pursuant to CAA section 
113.

    Courts interpreting citizen suit jurisdiction have largely 
focused on whether the particular standard or requirement plaintiffs

[[Page 12676]]

sought to enforce was sufficiently specific. Thus, interpreting 
citizen suit jurisdiction as limited to claims ``for violations of 
specific provisions of the act or specific provisions of an 
applicable implementation plan,'' the Second Circuit held that suits 
can be brought to enforce specific measures, strategies, or 
commitments designed to ensure compliance with the NAAQS, but not to 
enforce the NAAQS directly. See, e.g., Wilder, 854 F.2d at 613-14. 
Courts have repeatedly applied this test as the linchpin of citizen 
suit jurisdiction. See, e.g., Coalition Against Columbus Ctr. v. 
City of New York, 967 F.2d 764, 769-71 (2d Cir. 1992); Cate v. 
Transcontinental Gas Pipe Line Corp., 904 F. Supp. 526, 530-32 (W.D. 
Va. 1995); Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 
---------------------------------------------------------------------------
1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).

    Thus courts have found that the citizen suit provision cannot be 
used to enforce the aspirational goal of attaining the NAAQS, but can 
be used to enforce specific strategies to achieve that goal including 
enforceable commitments to develop future emissions controls.

    We describe CARB's and the District's commitments in the 2007 State 
Strategy (revised in 2009 and 2011) and the 2007 AQMP in detail in our 
proposal (76 FR 57872).\8\ The 2007 State Strategy includes commitments 
to propose defined new measures and an enforceable commitment for 
emissions reductions sufficient, in combination with existing measures 
and the District's commitments, to attain the 1997 8-hour ozone NAAQS 
in the South Coast by June 15, 2024. See CARB Resolution 07-28, 
Attachment B at p. 4 and 2009 State Strategy Status Report, p. 20. For 
the South Coast, the State's emissions reductions commitments, as 
submitted in 2007 and revised by the 2009 State Strategy Update, are to 
achieve 152 tpd of NOX and 46 tpd of VOC in the South Coast 
area by 2014, and 141 tpd NOX and 54 tpd VOC in the South 
Coast area by 2023. See 76 FR 57872, at 57881; 2009 State Strategy 
Status Report, p. 20.
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    \8\ The 2011 Ozone SIP Revision revised the State's emissions 
estimates for certain source categories and projection years and 
provided additional information on the State and District's progress 
to date in achieving their total emission reduction commitments. In 
this action, we are approving CARB's and the SCAQMD's emission 
reduction commitments as submitted in the 2007 State Strategy, as 
revised by the 2009 State Strategy Update, and South Coast 2007 AQMP 
because we do not have sufficient information to determine how the 
2011 SIP Revision alters the State's near-term and long-term 
emission reduction commitments. We note that the amount and relative 
proportion of reductions from measures scheduled for long-term 
adoption under section 182(e)(5), as compared to measures already 
adopted or scheduled for near-term adoption, should decrease in any 
future SIP update.
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    The SCAQMD's commitments as submitted in 2007 (and revised in 2011) 
were to achieve 9.2 tpd NOX and 19.3 tpd VOC by 2023. See 76 
FR 57872, Table 2, at 57878; see also 2011 Progress Report, Appendix F, 
Tables 2 and 3, and SCAQMD Board Resolution 11-9, March 4, 2011. As 
discussed above, the State's total emissions reduction commitment is 
for 152 tpd of NOX and 46 tpd of VOC by 2014, and 141 tpd of 
NOX and 54 tpd of VOC by 2023, which the State remains 
obligated to achieve through the adoption of enforceable measures by 
2023. See TSD, Table D-5; see also CARB Resolution 07-28, Attachment B 
at p. 4. The language used in the Board's resolution adopting the South 
Coast 2007 AQMP to describe its commitment is mandatory and unequivocal 
in nature:

    Be it further resolved, that the District will develop, adopt, 
submit and implement the short- and mid-term control measures as 
identified in Tables 4-2A and 4-2B of the 2007 AQMP (Main Document) 
as expeditiously as possible in order to meet or exceed the 
commitments identified in Table 4-10 of the 2007 AQMP (Main 
Document), and to substitute any other measures as necessary to make 
up any emission reduction shortfall. [emphasis added]
    SCAQMD Board Resolution No. 07-9, p. 10.

Thus, CARB's commitments here are to adopt and implement measures that 
will achieve specific amounts of NOX and VOC reductions by 
specific years. These are not mere aspirational goals to ultimately 
achieve the standards. Rather, the State and District have committed to 
adopt enforceable measures that will achieve these specific amounts of 
emission reductions by the RFP year of 2014 and the attainment year 
(2023). See 40 CFR 51.908(d) (requiring implementation of all control 
measures needed for expeditious attainment no later than the beginning 
of the year prior to the attainment date) and 70 FR 71633, 71612 
(November 29, 2005). All of these control measures are subject to State 
and local rulemaking procedures and public participation requirements, 
through which EPA and the public may track the State/District's 
progress in achieving the requisite emission reductions. EPA and 
citizens may enforce these commitments under CAA sections 113 and 
304(a), respectively, should the State/District fail to adopt measures 
that achieve the requisite amounts of emission reductions by the 
specified year. We conclude that these enforceable commitments to adopt 
and implement additional control measures to achieve aggregate emission 
reductions on a fixed schedule are appropriate means, techniques, or 
schedules for compliance under sections 110(a)(2)(A) and 172(c)(6) of 
the Act.

    Commenters cite Bayview as support for their contention that the 
plan's commitments are unenforceable aspirational goals. Bayview does 
not, however, provide any such support. That case involved a provision 
of the 1982 Bay Area 1-hour ozone SIP, known as TCM 2, which states in 
pertinent part:

    Support post-1983 improvements identified in transit operator's 
5-year plans, after consultation with the operators adopt ridership 
increase target for 1983-1987.
    Emission Reduction Estimates: These emission reduction estimates 
are predicated on a 15% ridership increase. The actual target would 
be determined after consultation with the transit operators.
    Following a table listing these estimates, TCM 2 provided that 
``[r]idership increases would come from productivity improvements * 
* *.''

Ultimately the 15% ridership estimate was adopted by the Metropolitan 
Transportation Commission (MTC), the implementing agency, as the actual 
target. Plaintiffs subsequently attempted to enforce the 15% ridership 
increase. The court found that the 15% ridership increase was an 
unenforceable estimate or goal. In reaching that conclusion, the court 
considered multiple factors, including the plain language of TCM 2 
(e.g., ``[a]greeing to establish a ridership `target' is simply not the 
same as promising to attain that target,'' Bayview at 698); the logic 
of TCM 2, i.e., the drafters of TCM 2 were careful not to characterize 
any given increase as an obligation because the TCM was contingent on a 
number of factors beyond MTC's control, id. at 699; and the fact that 
TCM 2 was an extension of TCM 1 that had as an enforceable strategy the 
improvement of transit services, specifically through productivity 
improvements in transit operators' five-year plans, id. at 701. As a 
result of all of these factors, the Ninth Circuit found that TCM 2 
clearly designated the productivity improvements as the only 
enforceable strategy. Id. at 703.
    The commitments in the 2007 State Strategy (revised in 2009 and 
2011) and South Coast 2007 AQMP are in stark contrast to the ridership 
target that was deemed unenforceable in Bayview. The language in CARB's 
and the District's commitments, as stated multiple times in multiple 
documents, is specific; the intent of the commitments is clear; and the 
strategy of adopting measures to achieve the required reductions is 
completely within CARB's and the District's control. Furthermore, as 
stated previously, CARB and the District

[[Page 12677]]

identify specific emission reductions that they will achieve, how they 
could be achieved and the time by which these reductions will be 
achieved, i.e., by the 2023 attainment year. See Tables 3 and 4.
    CARB's and the District's commitments here are analogous to the 
terms of the contingency measures in Citizens for a Better Environment 
v. Deukmejian, 731 F. Supp. 1448 (N.D. Cal. 1990), [known as CBE I], 
for the transportation sector in the 1982 Bay Area 1-hour ozone SIP. 
The provision states: ``If a determination is made that RFP is not 
being met for the transportation sector, MTC will adopt additional TCMs 
within 6 months of the determination. These TCMs will be designed to 
bring the region back within the RFP line.'' The court found that 
``[o]n its face, this language is both specific and mandatory.'' Id. at 
1458. In CBE I, CARB and MTC argued that TCM 2 could not constitute an 
enforceable strategy because the provision fails to specify exactly 
what TCMs must be adopted. The court rejected this argument, finding 
that ``[w]e discern no principled basis, consistent with the Clean Air 
Act, for disregarding this unequivocal commitment simply because the 
particulars of the contingency measures are not provided. Thus we hold 
that the basic commitment to adopt and implement additional measures, 
should the identified conditions occur, constitutes a specific 
strategy, fully enforceable in a citizen's action, although the exact 
contours of those measures are not spelled out.'' Id. at 1457. In 
concluding that the transportation and stationary source contingency 
provisions were enforceable, the court stated: ``Thus, while this Court 
is not empowered to enforce the Plan's overall objectives [footnote 
omitted; attainment of the NAAQS]--or NAAQS--directly, it can and 
indeed, must, enforce specific strategies committed to in the Plan.'' 
Id. at 1454; see also Citizens for a Better Environment v. Metropolitan 
Tranp. Comm'n, 746 F. Supp. 976, 980 (N.D. Cal. 1990) [known as CBE II] 
(rejecting defendants' argument that RFP and the NAAQS are coincident 
and stating that the court's enforcement of the contingency plan, an 
express strategy for attaining NAAQS, is distinct from simply ordering 
that NAAQS be achieved).
    As in the CBE cases, CARB and the District commit to propose or 
adopt measures, which are not specifically identified, to achieve 
specific tonnages of emission reductions by specified years. Thus, the 
commitment to specific tonnage reductions is comparable to a commitment 
to achieve RFP. Similarly, a commitment to achieve a specific amount of 
emission reductions through adoption and implementation of unidentified 
measures is comparable to the commitments to adopt unspecified TCMs and 
stationary source measures. The key is that the commitment must be 
clear in terms of what is required, e.g., a specified amount of 
emissions reductions or the achievement of a specified amount of 
progress (i.e., RFP). CARB's and the District's commitments are thus a 
specific enforceable strategy rather than an unenforceable aspirational 
goal.
    Commenters' reliance on El Comite (referred to as Warmerdam) to 
argue that CARB's commitments are not enforceable is misplaced. In El 
Comite, The plaintiffs in the district court attempted to enforce a 
provision of the 1994 California 1-hour ozone SIP known as the 
Pesticide Element. The Pesticide Element relied on an inventory of 
pesticide VOC emissions to provide the basis to determine whether 
additional regulatory measures would be needed to meet the SIP's 
pesticides emissions target. To this end, the Pesticide Element 
provided that ``ARB will develop a baseline inventory of estimated 1990 
pesticidal VOC emissions based on 1991 pesticide use data * * *.'' El 
Comite Para El Bienestar de Earlimart v. Helliker, 416 F. Supp. 2d 912, 
925 (E.D. Cal. 2006). CARB subsequently employed a different 
methodology that it deemed more accurate to calculate the baseline 
inventory. The plaintiffs sought to enforce the commitment to use the 
original methodology, claiming that the calculation of the baseline 
inventory constitutes an ``emission standard or limitation.'' The 
district court disagreed:

    By its own terms, the baseline identifies emission sources and 
then quantifies the amount of emissions attributed to those sources. 
As defendants argue, once the sources of air pollution are 
identified, control strategies can then be formulated to control 
emissions entering the air from those sources. From all the above, I 
must conclude that the baseline is not an emission ``standard'' or 
``limitation'' within the meaning of 42 U.S.C. 7604(f)(1)-(4).

Id. at 928. In its opinion, the court distinguished Bayview and CBE I, 
pointing out that in those cases ``the measures at issue were designed 
to reduce emissions.'' Id.
    On appeal, the plaintiffs shifted their argument to claim that the 
baseline inventory and the calculation methodology were necessary 
elements of the overall enforceable commitment to reduce emissions in 
nonattainment areas. The Ninth Circuit agreed with the district court's 
conclusion that the baseline inventory was not an emission standard or 
limitation and rejected plaintiffs' arguments attempting ``to transform 
the baseline inventory into an enforceable emission standard or 
limitation by bootstrapping it to the commitment to decide to adopt 
regulations, if necessary.'' Id. at 1073.
    While commenters cite the Ninth Circuit's El Comite opinion, its 
utility in analyzing the CARB and District commitments here is limited 
to that court's agreement with the district court's conclusion that 
neither the baseline nor the methodology qualifies as an independently 
enforceable aspect of the SIP. Rather, it is the district court's 
opinion, in distinguishing the commitments in CBE and Bayview, that 
provides insight into the situation at issue in our action. As the 
court recognized, a baseline inventory or the methodology used to 
calculate it, is not a measure to reduce emissions. It instead 
``identifies emission sources and then quantifies the amount of 
emissions attributed to those sources.'' In contrast, as stated 
previously, in the 2007 State Strategy (revised 2009 and 2011) and 
South Coast 2007 AQMP, CARB and the District commit to adopt and 
implement measures sufficient to achieve specified amounts of emission 
reductions by a date certain. As described above, a number of courts 
have found commitments substantially similar to CARB's here to be 
enforceable under CAA section 304(a).
2. Baseline Measures, Baseline Inventories, and Attainment 
Demonstration
    Comment: NRDC asserts that EPA's approval of the inventory in the 
Plan would violate CAA sections 172(c)(3) and 182(a)(1) because the 
baseline inventory includes emissions reduction credit for both 
``waiver measures'' and ``non-waiver measures'' adopted before 2007 
(together referred to as ``baseline measures'') that have not been 
approved into the SIP. NRDC argues that EPA has not evaluated each of 
these baseline measures to determine if they are creditable or 
quantified the emissions reductions attributed to each of these 
measures. Additionally, NRDC asserts that EPA should disapprove the 
attainment demonstration because EPA has not approved mobile source 
baseline measures as part of the SIP. NRDC asserts that ``[t]he total 
tonnage attributed to these unsubmitted and non-SIP approved measures 
in the attainment demonstration is not clear, because EPA does not 
differentiate between reductions from SIP-approved measures, waiver 
measures, and those

[[Page 12678]]

that have not received EPA approval.'' Thus, NRDC argues, ``a 
significant amount of emission reductions claimed in the attainment 
demonstration are not SIP creditable, a finding that EPA must make 
before approving the attainment demonstration.'' NRDC references CAA 
sections 110(a)(2)(A) and 172(c)(6) in support of these assertions and 
argues that ``EPA has failed to find that the reductions from the 
unsubmitted rules have occurred, are enforceable, or are otherwise 
consistent with the Act, EPA's implementing regulations, and the 
General Preamble.''
    NRDC identifies the following rules as examples of ``non-waiver'' 
baseline measures that have not been SIP-approved:
     Requirements to Reduce Idling Emissions from New and In-
Use Trucks (adopted October 20, 2005);
     Heavy Duty Diesel Chip Reflash (adopted March 27, 2004);
     Diesel Particulate Matter Control Measure for On-Road 
Heavy-Duty Diesel-Fueled Vehicles Owned or Operated by Public Agencies 
and Utilities (adopted December 8, 2005);
     Solid Waste Collection Vehicle Rule (adopted September 24, 
2003);
     Fork Lifts and Other Industrial Equipment (adopted May 26, 
2006).
    Response: We disagree with these assertions. We explained in our 
proposal TSD (section II.A.3.) our reasons for concluding both that the 
2002 base year inventory in the SIP is comprehensive, accurate, and 
current as required by CAA section 182(a)(1) and that the projected 
baseline inventories provide adequate bases and support for the RFP and 
attainment demonstrations in the South Coast 2007 8-hour Ozone plan.\9\
---------------------------------------------------------------------------

    \9\ For ozone nonattainment areas, a State that satisfies the 
specific inventory requirements of CAA section 182(a)(1) also 
satisfies the general inventory requirements of CAA section 
172(c)(3). See 57 FR 13498, 13503 (April 16, 1992).
---------------------------------------------------------------------------

    Specifically, with respect to mobile source emissions, we believe 
that credit for emissions reductions from implementation of California 
mobile source rules that are subject to CAA section 209 waivers 
(``waiver measures'') is appropriate in the attainment and RFP 
demonstrations and for other SIP purposes notwithstanding the fact that 
such rules are not approved as part of the California SIP. In the 
proposal TSD, we explained why we believe such credit is appropriate. 
See proposal TSD at section II.D.3.c.i. Historically, EPA has granted 
credit for the waiver measures because of special Congressional 
recognition, in establishing the waiver process in the first place, of 
the pioneering California motor vehicle control program and because 
amendments to the CAA (in 1977) expanded the flexibility granted to 
California in order ``to afford California the broadest possible 
discretion in selecting the best means to protect the health of its 
citizens and the public welfare'' (H.R. Rep. No. 294, 95th Congr., 1st 
Sess. 301-2 (1977)). In allowing California to take credit for the 
waiver measures notwithstanding the fact that the underlying rules are 
not part of the California SIP, EPA treated the waiver measures 
similarly to the Federal motor vehicle control requirements, which EPA 
has always allowed States to credit in their SIPs without submitting 
the program as a SIP revision.
    EPA's historical practice has been to give SIP credit for motor-
vehicle-related waiver measures in attainment and RFP demonstrations 
and for other SIP purposes by allowing California to include motor 
vehicle emissions estimates made by using California's EMFAC (and its 
predecessors) motor vehicle emissions factor model in SIP inventories. 
EPA verifies the emissions reductions from motor-vehicle-related waiver 
measures through review and approval of EMFAC, which is updated from 
time to time by California to reflect updated methods and data, as well 
as newly-established emissions standards. (Emissions reductions from 
EPA's motor vehicle standards are reflected in an analogous model known 
as MOVES.\10\) The South Coast 2007 8-hour ozone plan was developed 
using a version of the EMFAC model referred to as EMFAC2007, which EPA 
has approved for use in SIP development in California. See 73 FR 3464 
(January 18, 2008). Thus, the emissions reductions that are from the 
California on-road ``waiver measures'' and that are estimated through 
use of EMFAC are as verifiable as the emissions reductions relied upon 
by states other than California in developing their SIPs based on 
estimates of motor vehicle emissions made through the use of the MOVES 
model. All other states use the MOVES model (and prior to release of 
MOVES, the MOBILE model) in their baseline inventories without 
submitting the federal motor vehicle regulations for incorporation into 
their SIPs.
---------------------------------------------------------------------------

    \10\ MOVES replaced the MOBILE model as EPA's on-road mobile 
source emission estimation model for use in SIPs and conformity in 
2010.
---------------------------------------------------------------------------

    Similarly, emissions reductions that are from California's waiver 
measures for non-road engines and vehicles (e.g., agricultural, 
construction, lawn and garden and off-road recreation equipment) are 
estimated through use of CARB's OFFROAD emissions factor model.\11\ 
(Emissions reductions from EPA's non-road engine and vehicle standards 
are reflected in an analogous model known as NONROAD). Since 1990, EPA 
has treated California non-road standards for which EPA has issued 
waivers 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. In so doing, 
EPA has treated the California non-road standards similarly to the 
Federal non-road standards, which are relied upon, but not included in, 
various SIPs. See generally TSD at section II.D.3.c.i.
---------------------------------------------------------------------------

    \11\ Information about CARB's emissions inventories for on-road 
and non-road mobile sources, and the EMFAC and OFFROAD models used 
to project changes in future inventories, is available at http://www.arb.ca.gov/msei/msei.htm.
---------------------------------------------------------------------------

    CARB's EMFAC and OFFROAD models employ complex routines that 
predict vehicle fleet turnover by vehicle model years and include 
control algorithms that account for all adopted regulatory actions 
which, when combined with the fleet turnover algorithms, provide future 
baseline projections. See 2007 State Strategy, Appendix F at 7-8. For 
stationary sources, the California Emission Forecasting System (CEFS) 
projects future emissions from stationary and area sources (in addition 
to aircraft and ships) using a forecasting algorithm that applies 
growth factors and control profiles to the base year inventory.\12\ See 
id. at 7. The CEFS model integrates the projected inventories for both 
stationary and mobile sources into a single database to provide a 
comprehensive statewide forecast inventory, from which nonattainment 
area inventories are extracted for use in establishing future baseline 
planning inventories. See id. In 2011, CARB updated the baseline 
emissions projections for several source categories to account for, 
among other things, more recent economic forecasts and improved 
methodologies for estimating emissions from the heavy duty truck and 
construction source categories. See 2011 Ozone SIP Revisions, Appendix 
B. These methodologies for projecting future emissions based on growth 
factors and existing Federal, State, and local controls were consistent 
with EPA guidance on developing projected baseline inventories. See TSD 
at section

[[Page 12679]]

II.A; see also ``Procedures for Preparing Emissions Projections,'' EPA 
Office of Air Quality Planning and Standards, EPA-450/4-91-019, July 
1991; ``Emission Projections,'' STAPPA/ALAPCO/EPA Emission Inventory 
Improvement Project, Volume X, December 1999 (available at http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf). In sum, the 
2002 base year and future projected baseline inventories in the South 
Coast 2007 8-hour Ozone plan were prepared using a complex set of CARB 
methodologies to estimate and project emissions from stationary 
sources, in addition to the most recent emissions factors and models 
and updated activity levels for emissions associated with mobile 
sources, including: (1) The latest EPA-approved California motor 
vehicle emissions factor model (EMFAC2007) and the most recent motor 
vehicle activity data from each of the MPOs in the South Coast area; 
(2) improved methodologies for estimating emissions from specific 
source categories; and (3) CARB's non-road mobile source model (the 
OFFROAD model). See TSD, section II.A. (referencing, inter alia, 2007 
State Strategy at Appendix F) and 2011 Ozone SIP Revision. EPA has 
approved numerous California SIPs that rely on base year and projected 
baseline inventories including emissions estimates derived from the 
EMFAC, OFFROAD, and CEFS models. See, e.g., 65 FR 6091 (February 8, 
2000) (proposed rule to approve 1-hour ozone plan for South Coast) and 
65 FR 18903 (April 10, 2000) (final rule); 70 FR 43663 (July 28, 2005) 
(proposed rule to approve PM-10 plan for South Coast and Coachella 
Valley) and 70 FR 69081 (November 14, 2005) (final rule); 74 FR 66916 
(December 17, 2009) (direct final rule to approve ozone plan for 
Monterey Bay); 76 FR 41338 (July 13, 2011) (proposed rule to approve in 
part and disapprove in part the PM2.5 plan for the San 
Joaquin Valley) and 76 FR 69896 (November 9, 2011) (final rule); and 76 
FR 41562), (July 14, 2011) (proposed rule to approve in part and 
disapprove in part the PM2.5 plan for the South Coast Air 
Basin) and 76 FR 69928 (November 9, 2011) (final rule). The commenter 
has provided no information to support a claim that these methodologies 
for developing base year inventories and projecting future emissions in 
the South Coast are inadequate to support the RFP and attainment 
demonstrations in the South Coast 2007 8-hour Ozone plan.
---------------------------------------------------------------------------

    \12\ Information on base year emissions from stationary point 
sources is obtained primarily from the districts, while CARB and the 
districts share responsibility for developing and updating 
information on emissions from various area source categories. See 
2007 State Strategy, Appendix F at 21.
---------------------------------------------------------------------------

    For all of these reasons and as discussed in our proposal (76 FR 
57872, 57876), we conclude that the 2002 base year inventory in the 
2007 8-hour Ozone plan is a ``comprehensive, accurate, current 
inventory of actual emissions from all sources of the relevant 
pollutant or pollutants'' in the South Coast area, consistent with the 
requirements for emissions inventories in CAA section 182(a)(1), 40 CFR 
51.915, and 40 CFR part 51, subpart A. In addition, we conclude that 
the projected future year baseline inventories were prepared consistent 
with EPA's guidance on development of emissions inventories and 
attainment demonstrations and, therefore, provide an adequate basis for 
the RFP and attainment demonstrations in the Plan under CAA sections 
172(c)(2), 181(a)(1), and 182(c)(2). See TSD at section II.A.4.
    Finally, we disagree with NRDC's assertion that EPA has not 
identified the total amount of emission reductions attributed to 
baseline measures in the projected inventories. The total amounts of 
emission reductions attributed to baseline measures in the South Coast 
2007 8-Hour Ozone SIP, as revised in 2011, are 352 tpd of VOC and 531 
tpd of NOX. See 76 FR 57872, 57885, Table 8 at line E; see 
also TSD, Table D-6 at line B.
    As to the five specific baseline measures that NRDC asserts should 
be SIP-approved before crediting in the RFP and attainment 
demonstrations:
     Requirements To Reduce Idling Emissions from New and In-
Use Trucks (effective November 15, 2006) \13\ and Fork Lifts and Other 
Industrial Equipment Rule (adopted May 26, 2006). Both of these mobile 
source measures are pending EPA waiver determinations under CAA section 
209(b) or section 209(e).\14\ We expect that EPA will act on these 
requests for waivers of preemption or authorization under CAA section 
209 in the near term, and that our final approval of the South Coast 
2007 8-hour Ozone plan based in part on its reliance on the emissions 
reductions associated with these rules is, therefore, reasonable and 
appropriate. If, however, EPA either denies or does not issue the 
State's requested waiver for any of these measures prior to the 
effective date of today's action, we will take appropriate remedial 
action to ensure that our action on the plan is fully supportable or to 
reconsider that action.
---------------------------------------------------------------------------

    \13\ EPA is currently reviewing a request from CARB for a 
determination as to whether certain requirements of these anti-
idling rules are preempted by sections 209(a) of the CAA; certain 
provisions are conditions precedent pursuant to section 209(a) of 
the Act; certain provisions are within-the-scope of previous waivers 
and authorizations issued pursuant to sections 209(b) and 209(e) of 
the Act, respectively; and at least one provision requires and 
merits a full authorization pursuant to section 209(e) of the Act. 
See 75 FR 43975 (July 27, 2010). CARB estimates that the operational 
requirement of the anti-idling rule, which is not subject to a CAA 
section 209 waiver, achieves 1.3 tpd of NOX in the South 
Coast. See Memorandum, Doris Lo, Air Division, Planning Office (AIR-
2), to San Joaquin Valley PM2.5 Docket No. EPA-R09-OAR-
2010-0516 ``South Coast and San Joaquin Valley Emissions Reductions 
from ARB's Operational Idling Requirements, ``September 28, 2011, in 
the docket for today's action.
    \14\ See letter, James Goldstene, Executive Officer, CARB to 
Stephen L. Johnson, Administrator, EPA RE: Request for Authorization 
Determination Pursuant to Clean Air Act Section 209(e) for 
Amendments to California's Off-Road Emissions Standards Regulation 
for large Spark-Ignition (LSI) Engines and Fleet Requirement for In-
Use LSI Forklifts and Other Industrial Equipment and California 
State Motor Vehicle and Nonroad Engine Pollution Control Standards; 
Truck Idling Requirements; Opportunity for Public Hearing and 
Request for Public Comment; Notice Of Opportunity For Public Hearing 
And Comment. 75 FR 43975 (July 27, 2010)
---------------------------------------------------------------------------

     Diesel Particulate Matter Control Measure for On-Road 
Heavy-Duty Diesel-Fueled Vehicles Owned or Operated by Public Agencies 
and Utilities (adopted December 8, 2005). CARB's staff report on this 
measure indicates that the projected emissions reductions from this 
measures are 0.18 tpd NOX and 0.11 tpd VOC statewide in 2015 
and 0.09 tpd NOX and 0.05 tpd VOC statewide in 2020. See 
Staff Report: Proposed Diesel Particulate Matter Control Measure for 
On-Road Heavy-Duty Diesel-Fueled Vehicles Owned or Operated by Public 
Agencies and Utilities, October 2005, at pp. 56-57. South Coast has 
approximately 35 percent of the statewide fleet (id.); therefore, the 
de minimis amounts of emission reductions attributed to this measure in 
the South Coast 2007 8-hour Ozone plan do not affect our evaluation of 
its attainment and RFP demonstrations.
     Solid Waste Collection Vehicle Rule (adopted September 24, 
2003). CARB's staff report on this measure indicates that the projected 
emissions reductions from this measure are 2.3 tpd NOX and 
0.72 tpd VOC statewide in 2015 and 0.6 tpd NOX and 0.34 tpd 
VOC statewide in 2020. See Supplemental Staff Report: Proposed Diesel 
Particulate Matter Control Measure for On-Road Heavy-Duty Residential 
and Commercial Solid Waste Collection Vehicles, August 8, 2003, at pg. 
20. South Coast has approximately 35 percent of the statewide fleet 
(id.); therefore, the de minimis amounts of emission reductions 
attributed to this measure in the South Coast 2007 8-hour Ozone plan do 
not affect our evaluation of its attainment and RFP demonstrations.
     Heavy Duty Diesel Engine-Chip Reflash rule (adopted March 
27, 2004)

[[Page 12680]]

(``Chip Reflash'' rule). This rule was intended to ensure expeditious 
compliance with CARB's NOX emission standard for heavy-duty 
diesel (HDD) engines by requiring installation of ``Low-NOX 
Software.'' The Chip Reflash rule was invalidated in part by a 
California State Court, and CARB repealed the related regulations in 
June 2007. The emission reduction credit attributed to Chip Reflash in 
CARB's baseline inventories is limited to vehicles that have been 
``reflashed,'' i.e., physically installed the Low-NOX 
Software,\15\ removal of which would constitute a violation of the CAA 
and/or California state law. See the statutory anti-tampering laws in 
CAA section 203(a)(3) and California Vehicle Code section 27156. Thus, 
the NOX emissions reductions attributed to ``reflashed'' 
engines are enforceable under the CAA and/or California state laws.
---------------------------------------------------------------------------

    \15\ The 2007 State Strategy, Appendix A, ``Emission Inventory 
Output Tables'' documents the adjustment in the baseline that CARB 
made to account for Chip Reflash (or Heavy-Duty Diesel Engine 
Software Upgrade). As described in appendix A, CARB staff estimates 
that the overall benefits of the software upgrade regulation plus 
related actions provided approximately 38 tons per day of 
NOX emissions reductions statewide in year 2007. CARB 
also indicates that it took into account the fact that the software 
upgrade regulation had been invalidated by including no additional 
emissions reductions from chip reflash other than those that had 
already occurred due to compliance with the regulation (prior to 
invalidation by the court), voluntary upgrade programs, ongoing 
engine rebuilds, engines upgrades by manufacturers exempt from the 
regulation, and interstate trucks. CARB staff confirmed that the 
baseline adjustment for chip reflash in the 2007 State Strategy 
reflects emission reduction credit only for engines that have been 
``reflashed.'' See Memorandum, Doris Lo, Air Division, Planning 
Office (AIR-2); to the San Joaquin Valley PM2.5 Docket 
No. EPA-R09-OAR-2010-0516, ``SIP Credit for Heavy-Duty Diesel Engine 
Low-NOX Software (``Chip Reflash'');'' September 28, 2011 
in the docket for today's action.
---------------------------------------------------------------------------

    Comment: NRDC asserts that EPA has not approved any CARB mobile 
source baseline measures as part of the SIP or reviewed those measures 
to consider whether they achieve the reductions claimed by CARB, and 
that EPA cannot approve the Plan when such a ``huge component of the 
control strategy'' has not been SIP-approved. NRDC also asserts that 
CARB has not submitted copies of its mobile source baseline measures to 
EPA as part of this plan. NRDC also asserts that waiver measures may 
not be used in attainment demonstrations because EPA makes no finding 
during the waiver process that the rules achieve the reductions claimed 
or that the measures are SIP creditable. NRDC also notes that these 
issues are the subject of litigation in the 9th Circuit U.S. Court of 
Appeals in Sierra Club v. EPA, Consolidated Case Nos. 10-71457 and 10-
71458.
    Response: We continue to believe that credit for emissions 
reductions from implementation of California mobile source rules that 
are subject to CAA section 209 waivers (``waiver measures'') is 
appropriate notwithstanding the fact that such rules are not approved 
as part of the California SIP. In our September 16, 2011 proposed rule 
and the technical support document (TSD) for that proposal, we 
explained why we believe such credit is appropriate. See 76 FR 57872, 
at 57879-57880 and the proposal TSD, pp. 86-90. Historically, EPA has 
granted credit for the waiver measures because of special Congressional 
recognition, in establishing the waiver process in the first place, of 
the pioneering California motor vehicle control program and because 
amendments to the CAA (in 1977) expanded the flexibility granted to 
California in order ``to afford California the broadest possible 
discretion in selecting the best means to protect the health of its 
citizens and the public welfare,'' (H.R. Rep. No. 294, 95th Congr., 1st 
Sess. 301-2 (1977)). In allowing California to take credit for the 
waiver measures notwithstanding the fact that the underlying rules are 
not part of the California SIP, EPA treated the waiver measures 
similarly to the Federal motor vehicle control requirements, which EPA 
has always allowed States to credit in their SIPs without submitting 
the program as a SIP revision. As we explained in the Proposal TSD (p. 
87), credit for Federal measures, including those that establish on-
road and nonroad standards, notwithstanding their absence in the SIP, 
is justified by reference to CAA section 110(a)(2)(A), which 
establishes the following content requirements for SIPs: ``* * * 
enforceable emission limitations and other control measures, means, or 
techniques (including economic incentives such as fees, marketable 
permits, and auctions of emissions rights), * * *, as may be necessary 
or appropriate to meet the applicable requirements of this chapter.'' 
(emphasis added). Federal measures are permanent, independently 
enforceable (by EPA and citizens), and quantifiable without regard to 
whether they are approved into a SIP, and thus EPA has never found such 
measures to be ``necessary or appropriate'' for inclusion in SIPs to 
meet the applicable requirements of the Act. Section 209 of the CAA 
establishes a process under which EPA allows California's waiver 
measures to substitute for Federal measures, and like the Federal 
measures for which they substitute, EPA has historically found, and 
continues to find, based on considerations of permanence, 
enforceability, and quantifiability, that such measures are not 
``necessary or appropriate'' for California to include in its SIP to 
meet the applicable requirements of the Act.
    First, with respect to permanence, we note that, to maintain a 
waiver, CARB's on-road waiver measures can be relaxed only to a level 
of aggregate equivalence to the Federal Motor Vehicle Control Program 
(FMVCP). See section 209(b)(1). In this respect, the FMVCP acts as a 
partial backstop to California's on-road waiver measures (i.e., absent 
a waiver, the FMVCP would apply in California). Likewise, Federal 
nonroad vehicle and engine standards act as a partial backstop for 
corresponding California nonroad waiver measures. The constraints of 
the waiver process thus serve to limit the extent to which CARB can 
relax the waiver measures for which there are corresponding EPA 
standards, and thereby serve an anti-backsliding function similar in 
substance to those established for SIP revisions in CAA sections 110(l) 
and 193. Meanwhile, the growing convergence between California and EPA 
mobile source standards diminishes the difference in the emissions 
reductions reasonably attributed to the two programs and strengthens 
the role of the Federal program in serving as an effective backstop to 
the State program. In other words, with the harmonization of EPA mobile 
source standards with the corresponding State standards, the Federal 
program is becoming essentially a full backstop to most parts of the 
California program.
    Second, as to enforceability, we note that the waiver process 
itself bestows enforceability onto California to enforce the on-road or 
nonroad standards for which EPA has issued the waiver. CARB has as long 
a history of enforcement of vehicle/engine emissions standards as EPA, 
and CARB's enforcement program is equally as rigorous as the 
corresponding EPA program. The history and rigor of CARB's enforcement 
program lends assurance to California SIP revisions that rely on the 
emissions reductions from CARB's rules in the same manner as EPA's 
mobile source enforcement program lends assurance to other state's SIPs 
in their reliance on emissions reductions from the FMVCP. While it is 
true that citizens and EPA are not authorized to enforce California 
waiver measures under the Clean Air Act (i.e., because they are not in 
the SIP), citizens and EPA are authorized to enforce EPA standards in 
the event that

[[Page 12681]]

vehicles operate in California without either California or EPA 
certification.
    As to quantifiability, EPA's historical practice has been to give 
SIP credit for motor-vehicle-related waiver measures by allowing 
California to include motor vehicle emissions estimates made by using 
California's EMFAC (and its predecessors) motor vehicle emissions 
factor model in SIP inventories. EPA verifies the emissions reductions 
from motor-vehicle-related waiver measures through review and approval 
of EMFAC, which is updated from time to time by California to reflect 
updated methods and data, as well as newly-established emissions 
standards. (Emissions reductions from EPA's motor vehicle standards are 
reflected in an analogous model known as MOVES.) The EMFAC model is 
based on the motor vehicle emissions standards for which California has 
received waivers from EPA but accounts for vehicle deterioration and 
many other factors. The motor vehicle emissions estimates themselves 
combine EMFAC results with vehicle activity estimates, among other 
considerations. See the 1982 Bay Area Air Quality Plan, and the related 
EPA rulemakings approving the plan (see 48 FR 5074 (February 3, 1983) 
for the proposed rule and 48 FR 57130 (December 28, 1983) for the final 
rule) as an example of how the waiver measures have been treated 
historically by EPA in California SIP actions.\16\ The South Coast 8-
hour ozone plan was developed using a version of the EMFAC model 
referred to as EMFAC2007, which EPA has approved for use in SIP 
development in California. See 73 FR 3464 (January 18, 2008). Thus, the 
emissions reductions that are from the California on-road ``waiver 
measures'' and that are estimated through use of EMFAC are as 
verifiable as are the emissions reductions relied upon by states other 
than California in developing their SIPs based on estimates of motor 
vehicle emissions made through the use of the MOVES model.
---------------------------------------------------------------------------

    \16\ EPA's historical practice in allowing California credit for 
waiver measures notwithstanding the absence of the underlying rules 
in the SIP is further documented by reference to EPA's review and 
approval of a May 1979 revision to the California SIP entitled, 
``Chapter 4, California Air Quality Control Strategies.'' In our 
proposed approval of the 1979 revision (44 FR 60758, October 22, 
1979), we describe the SIP revision as outlining California's 
overall control strategy, which the State had divided into vehicular 
sources and non-vehicular (stationary source) controls. As to the 
former, the SIP revision discusses vehicular control measures as 
including technical control measures and transportation control 
measures. The former refers to the types of measures we refer to 
herein as waiver measures, as well as fuel content limitations, and 
a vehicle inspection and maintenance program. The 1979 SIP revision 
included several appendices, including appendix 4-E, which refers to 
``ARB vehicle emission controls included in title 13, California 
Administrative Code, chapter 3 * * *,'' including the types of 
vehicle emission standards we refer to herein as waiver measures; 
however, California did not submit the related portions of the 
California Administrative Code (CAC) to EPA as part of the 1979 SIP 
revision submittal. With respect to the CAC, the 1979 SIP revision 
states: ``The following appendices are portions of the California 
Administrative Code. Persons interested in these appendices should 
refer directly to the code.'' Thus, the State was clearly signaling 
its intention to rely on the California motor vehicle control 
program but not to submit the underlying rules to EPA as part of the 
SIP. In 1980, we finalized our approval as proposed. See 45 FR 63843 
(September 28, 1980).
---------------------------------------------------------------------------

    Moreover, EPA's waiver review and approval process is analogous to 
the SIP approval process. First, CARB adopts its emissions standards 
following notice and comment procedures at the state level, and then 
submits the rules to EPA as part of its waiver request. When EPA 
receives new waiver requests from CARB, EPA publishes a notice of 
opportunity for public hearing and comment and then publishes a 
decision in the Federal Register following the public comment period. 
Once again, in substance, the process is similar to that for SIP 
approval and supports the argument that one hurdle (the waiver process) 
is all Congress intended for California standards, not two (waiver 
process plus SIP approval process). Second, just as SIP revisions are 
not effective until approved by EPA, changes to CARB's rules (for which 
a waiver has been granted) are not effective until EPA grants a new 
waiver, unless the changes are ``within the scope'' of a prior waiver 
and no new waiver is needed. Third, both types of final actions by 
EPA--i.e., final actions on California requests for waivers and final 
actions on state submittals of SIPs and SIP revisions may be challenged 
under section 307(b)(1) of the CAA in the appropriate United States 
Court of Appeals.
    NRDC correctly notes that EPA's treatment of California waiver 
measures in SIP actions is the subject of current litigation in Sierra 
Club v. EPA, Consolidated Case Nos. 10-71457 and 10-71458 (9th 
Circuit).
    Comment: NRDC argues that our reliance on the general savings 
clause in CAA section 193 for the proposal to grant emissions reduction 
credit to California's waiver measures without first having California 
submit and EPA approve them into the SIP is inappropriate for two 
reasons. First, NRDC argues that CAA section 193 only saves those 
``formal rules, notices, or guidance documents'' promulgated before the 
effective date of the 1990 amendment that are not inconsistent with the 
CAA. It asserts that the plain language of the CAA requires that 
California submit the control measures, rules and regulations used to 
meet CAA requirements as part of the SIP and that nothing in CAA title 
II or section 209 provide a basis for EPA's position. Second, NRDC 
argues that there is no automatic presumption that Congress is aware of 
an agency's interpretations and we have not provided any evidence that 
Congress was aware of our interpretation regarding the SIP treatment of 
California's mobile source control measures. NRDC also argues that our 
positions that Congress must expressly disapprove of EPA's long-
standing interpretation and Congressional silence equates to a 
ratification of EPA's interpretation are incorrect.
    Response: In the Proposal TSD (pp. 89-90), we indicated that we 
believe that section 193 of the CAA, the general savings clause added 
by Congress in 1990, effectively ratified our long-standing practice of 
granting credit for the California waiver rules because Congress did 
not insert any language into the statute rendering EPA's treatment of 
California's motor vehicle standards inconsistent with the Act. Rather, 
Congress extended the California waiver provisions to most types of 
nonroad vehicles and engines, once again reflecting Congressional 
intent to provide California with the broadest possible discretion in 
selecting the best means to protect the health of its citizens and the 
public welfare. Requiring the waiver measures to undergo SIP review in 
addition to the statutory waiver process is not consistent with 
providing California with the broadest possible discretion as to on-
road and nonroad vehicle and engine standards, but rather, would add to 
the regulatory burden California faces in establishing and modifying 
such standards, and thus would not be consistent with Congressional 
intent. In short, we believe that Congress intended California's mobile 
source rules to undergo only one EPA review process (i.e., the waiver 
process), not two.
    In summary, we disagree that our interpretation of CAA section 193 
is fundamentally flawed. EPA has historically given SIP credit for 
waiver measures in our approval of attainment demonstrations and other 
planning requirements such as reasonable further progress and 
contingency measures submitted by California. We continue to believe 
that section 193 ratifies our long-standing practice of allowing credit 
for California's waiver measures notwithstanding the fact they are not 
approved into the SIP, and correctly reflects Congressional intent to 
provide

[[Page 12682]]

California with the broadest possible discretion in the development and 
promulgation of on-road and nonroad vehicle and engine standards.\17\
---------------------------------------------------------------------------

    \17\ In this regard, we disagree that we are treating the waiver 
measures inconsistently with other California control measures, such 
as consumer products and fuels rules, for the simple reason that, 
unlike the waiver measures, there is no history of past practice or 
legislative history supporting treatment of other California 
measures, such as consumer products rules and fuels rules, in any 
manner differently than is required as a general rule under CAA 
section 110(a)(2)(A), i.e., state and local measures that are relied 
upon for SIP purposes must be approved into the SIP.
---------------------------------------------------------------------------

B. Pre-Baseline Emission Reduction Credits

    Comment: NRDC comments that the 8-hour Ozone Plan allows for the 
use of emissions reduction credits (ERC) from sources that have 
shutdown prior to the Plan's baseline date of 2002. NRDC asserts that 
these pre-baseline ERCs represent an allowance for unmitigated growth 
in emissions. It argues that allowing this growth is inconsistent with 
the Plan's claim that existing opportunities for controlling emissions 
do not exist and therefore it is necessary to rely on future 
technologies to attain the 8-hour standards and undermines EPA's 
ability to demonstrate compliance with the CAA. It further argues that 
EPA cannot claim that the Plan provides for expeditious attainment if 
it allows this unmitigated emissions growth, and that EPA's RACM 
analysis is undermined because these avoided emissions coupled with 
reasonably available controls could be adequate to advance attainment 
by more than a year. Finally, NRDC argues that in order to comply with 
the RACM requirement of section 172(c)(1), EPA must evaluate what 
additional reductions would be needed if the combined impact of these 
VOC and NOX emissions were avoided.
    Response: The District accounted for the existing pre-base year 
ERCs in its RFP and attainment inventories in a manner consistent with 
the CAA requirements set forth in Part D and 40 CFR part 51.\18\ This 
means that all emission reductions for which ERCs were granted were 
modeled as being in the air.\19\ The CAA requires this demonstration in 
anticipation of new sources that will utilize these ERCs as offsets in 
order to obtain NSR permits.
---------------------------------------------------------------------------

    \18\ See the South Coast 2007 AQMP, Appendix III, Tables 2-8 and 
Appendix III, Attachment B, Table B-8.
    \19\ See the South Coast 2007 AQMP, Appendix III, pg 2-28.
---------------------------------------------------------------------------

    Under the NSR program, all new major sources (i.e., those with a 
potential to emit more than 10 tpy of VOC or NOX) and any 
increase of permitted emissions of these pollutants, must install 
control technologies in order to meet the most stringent emissions 
limitations that have been achieved in practice by comparable sources 
(that is, they must meet the lowest achievable emissions rate (LAER) as 
defined in CAA section 171(3)). [South Coast Rule 1303--Requirements 
(paragraph (a))] Thus, these future emissions already reflect the use 
of the most stringent technologies currently available to limit 
emissions. To further reduce these future emissions would require the 
development of new or improved technologies, as is the case with 
existing emission sources already subject to RACT. Accordingly, we do 
not agree with the NRDC's assertion that allowing this emissions growth 
is inconsistent with the Plan's determination that additional 
opportunities for controlling emissions do not currently exist and 
therefore the area must rely on development of new technologies to 
attain.
    Finally, we disagree with NRDC's claims that the 8-hour Ozone Plan 
cannot provide for expeditious attainment if it allows this growth in 
emissions and that the RACM analysis is undermined because these 
``avoided emissions coupled with reasonably available controls could be 
adequate to advance attainment by more than a year.'' As stated above, 
the growth in ozone precursor emissions coming from sources emitting 
more than 10 tpy, will occur only after the source installs controls 
that achieve the lowest achievable emission rate, which is a higher 
control level than RACM. In addition, such sources with emission 
increases are required to provide emission offsets at a 1 to 1.2 ratio, 
meaning that for each new ton of emissions a source wishes to emit, it 
must provide a 1.2 ton reduction from the South Coast 8-hour Ozone Plan 
emission inventory. [South Coast Rule 1303--Requirements (paragraph 
(b)(2))] Thus overall, NSR provides a backstop mechanism to ensure 
attainment is provided as expeditiously as possible.

C. Rule Effectiveness in District Rules

    Comment: NRDC asserts that the SCAQMD should not assume a 100 
percent rule effectiveness rate for its control measures. Citing EPA's 
definition of ``rule effectiveness'' in 40 CFR 51.50 and EPA guidance 
on accounting for rule effectiveness in preparing emissions estimates, 
NRDC argues that ``EPA recommends an effectiveness factor of 80% for 
all stationary source and non-tailpipe mobile source control measures 
for future controlled scenarios'' and that the District's use of a 100 
percent rule effectiveness factor is unsupported and inconsistent with 
EPA guidance. NRDC claims that ``EPA's approval of this plan in light 
of these unrealistic and unlawful rule effectiveness assumptions would 
be arbitrary and capricious.''
    Specifically, NRDC asserts that the District's use of a 100% rule 
effectiveness factor amounts to an assertion that it can ``ensure 
complete and continual compliance at all sources covered by the 
regulation'' and that the Plan does not meet this standard. NRDC quotes 
from the 2007 AQMP, in which the District describes enforcement, source 
monitoring, and compliance verification programs, to argue that the 
2007 AQMP ``relies on anecdotal information to support this 100% 
assumption.'' NRDC asserts that the SCAQMD's approach ignores the need 
for rule effectiveness improvements when in fact a CARB audit showed 
lower reported compliance rates. NRDC also states that for the gasoline 
transfer and dispensing operations category (Rule 461), the SCAQMD had 
correctly identified an emission-related non-compliance rate of 37% and 
``adjusted the base and future year emissions estimates by 75% in this 
category to reflect a 25% compliance rate.'' In support of these 
assertions, NRDC references the following EPA guidance documents: 
``Rule Effectiveness Guidance: Integration of Inventory, Compliance, 
and Assessment Applications'' (EPA 452/R-94-001, January 1994) (``1994 
RE Guidance''); ``Guidelines for Estimating and Applying Rule 
Effectiveness for Ozone/CO State Implementation Plan Base Year 
Inventories,'' EPA-452-R-92-010, November 1992 (``1992 RE 
Guidelines''); and Memorandum from Sally Shaver, Director, Air Quality 
Strategies & Standards Division, EPA, to EPA Air Division Directors, 
Regions I-X, ``Ozone Nonattainment Planning: Decentralization of Rule 
Effectiveness Policy, April 27, 1995 (``1995 Shaver Memo'').
    Response: We note as a threshold matter that it is not clear which 
specific element of the South Coast 2007 Ozone SIP the commenter's 
concerns apply to. Assuming that NRDC intended to argue that the 
SCAQMD's assumption of 100 percent rule-effectiveness in its estimates 
of base year and/or projected year emissions led to defects in the 
emissions inventories and in the RACM, RFP or attainment demonstrations 
that rely on those inventories, we disagree for the reasons provided 
below.
    CAA section 182(a)(1) requires each State having an ozone 
nonattainment area to submit a ``comprehensive, accurate, current 
inventory of actual

[[Page 12683]]

emissions from all sources'' as described in CAA section 172(c)(3) and 
``in accordance with guidance provided by the Administrator.'' See also 
40 CFR 51.915 and part 51, subpart A. This ``base year'' emissions 
inventory reflects the State's best estimates of actual emissions \20\ 
from all sources of the relevant pollutant(s) in the area in a recent 
calendar year \21\ and provides the starting point for measuring the 
area's progress toward attainment. See, e.g., CAA sections 182(c)(2)(B) 
and 182(b)(1)(B); see also 70 FR 71612, 71677 (November 29, 2005) 
(noting that several CAA ozone planning requirements, including 
milestones that measure progress toward attainment, are ``keyed to'' 
the emissions inventory). After developing a base year emissions 
inventory, States use modeling and other analyses to calculate 
projection year (or future ``baseline'') inventories and target 
emission levels, which then inform the State's development of progress 
milestones and control strategies for attaining the NAAQS. See General 
Preamble, 57 FR 13498 at 13507-13510.
---------------------------------------------------------------------------

    \20\ Base year emissions inventories should include both 
anthropogenic and biogenic sources of ozone precursor emissions from 
stationary, area, and mobile sources capable of affecting air 
quality within the nonattainment area. See ``General Preamble for 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 
57 FR 13498, 13502 (April 16, 1992) (``General Preamble''). Because 
most emission sources do not monitor and report emissions 
continuously, emissions inventories are by nature ``estimates of 
actual releases to the atmosphere.'' 70 FR 71612, 71666 (November 
29, 2005).
    \21\ For areas designated nonattainment for the 1997 8-hour 
ozone standard in 2004, EPA recommended that States use 2002 as the 
base year for SIP planning purposes. See Memorandum dated November 
18, 2002, from Lydia Wegman, Air Quality Strategies and Standards 
Division, EPA, to Regional Air Division Directors, ``2002 Base Year 
Emission Inventory SIP Planning: 8-hr Ozone, PM2.5 and 
Regional Haze Programs.''
---------------------------------------------------------------------------

    Rule effectiveness (``RE'') is a term that describes a method to 
account for the reality that not all facilities covered by a rule are 
in compliance with the rule 100% of the time. See ``Emissions Inventory 
Guidance for Implementation of Ozone and Particulate Matter National 
Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations,'' 
EPA-454/R-05-001, August 2005, Appendix B (``2005 RE Guidance'') at B-
3; see also 40 CFR 51.50 (defining ``rule effectiveness'' for purposes 
of air emissions reporting requirements). Additionally, RE accounts for 
the fact that control equipment does not always operate at its assumed 
control efficiency. See id. EPA recommends that States consider RE as 
part of the calculation of emission estimates for stationary point and 
non-point (or ``area'') sources when developing base year and 
projection year emissions inventories. See 2005 RE Guidance at B-1. 
Rule effectiveness adjustments are generally not applied to mobile 
sources because the effects of mobile source noncompliance have been 
integrated into the inputs of EPA's mobile source emissions factor 
models. See ``Rule Effectiveness Guidance: Integration of Inventory, 
Compliance, and Assessment Applications'' (EPA 452/R-94-001, January 
1994) (``1994 RE Guidance'') at 1-4 and 3-9.
    EPA policy on RE applies only to emissions estimates involving the 
use of a control device or control technique and states that in some 
cases, even where control devices or techniques are used, RE 
adjustments may not be necessary. For example, when emissions can be 
calculated by means of a direct determination, an RE adjustment is not 
necessary because the emissions estimate is not contingent on the 
effectiveness of controls. See ``Rule Effectiveness Guidance: 
Integration of Inventory, Compliance, and Assessment Applications'' 
(EPA 452/R-94-001, January 1994) (``1994 RE Guidance'') See 1994 RE 
guidance at 3-5; see also 2005 RE Guidance at B-3. A direct 
determination is one in which emissions are calculated directly (e.g., 
based on explicit records for each type of coating and/or solvent used) 
rather than from estimates of uncontrolled emissions and level of 
control. See ``Guidelines for Estimating and Applying Rule 
Effectiveness for Ozone/CO State Implementation Plan Base Year 
Inventories,'' EPA-452/R-92-010, November 1992 (``1992 RE 
Guidelines''), at 12. In addition, uncontrolled sources are not subject 
to an RE adjustment, and sources with directly determined emission 
estimates in the base year inventory should not have RE applied in a 
projected inventory. See 1994 RE Guidance at 3-19.
    Earlier EPA guidance recommended that where a RE should apply, 
States should generally use a default value of 80 percent RE. See, 
e.g., ``Guidelines for Estimating and Applying Rule Effectiveness for 
Ozone/CO State Implementation Plan Base Year Inventories,'' EPA-452/R-
92-010, November 1992 (``1992 RE Guidelines'') at 2. In 2005, EPA 
revised its policy in recognition that RE can vary widely between 
different types of industry and in different states or areas. See 
generally 2005 RE Guidance; see also Memorandum from Sally Shaver, 
Director, Air Quality Strategies & Standards Division, EPA, to EPA Air 
Division Directors, Regions I-X, ``Ozone Nonattainment Planning: 
Decentralization of Rule Effectiveness Policy, April 27, 1995 (``1995 
Shaver Memo'') (providing alternatives to EPA's recommended 80 percent 
default value for RE). The 2005 RE Guidance provides that instead of 
assuming an across the board 80% default value for RE, States should 
consider a list of the factors that are most likely to affect RE in 
developing base year and projection year inventories.
    The base year inventory in the South Coast 2007 Ozone SIP is an 
inventory of actual emissions estimates for year 2002. According to the 
Plan, information on base year emissions from stationary point sources 
in California is obtained primarily from the districts, while CARB and 
the districts share responsibility for developing and updating 
information on emissions from various non-point (i.e., area) source 
categories. See 2007 State Strategy, Appendix F at 21; South Coast 2007 
AQMP, Appendix III at pp. 1-9 through 1-15 (describing the SCAQMD's and 
CARB's methodologies for developing 2002 base year emissions estimates 
for stationary point and area sources). The 2002 point source emission 
inventory was developed using emissions data reported by stationary 
point sources subject to the 2002/2003 Annual Emissions Reporting (AER) 
Program, which applies to facilities emitting at least 4 tons per year 
(tpy) of VOC or NOX, among other sources. See South Coast 
2007 AQMP, Appendix III at pp. 1-9. Because these emissions were based 
on direct emissions data, no RE adjustments were necessary for these 
emission estimates. The 2002 area source emission inventory was 
developed using source-specific methodologies based on activity data, 
emission factors, and other information. Id. at 1-10 through 1-15. The 
SCAQMD included emissions from smaller industrial point sources 
(emitting http://www.arb.ca.gov/msei/msei.htm. The most recent 
EMFAC model that EPA has approved for use in SIP development in 
California is EMFAC2007. See 73 FR 3464 (January 18, 2008).
---------------------------------------------------------------------------

    The South Coast 2007 AQMP describes how the District developed the 
future baseline inventories \23\ in the Plan, based in part on the 
emissions data and baseline projections provided by CARB and other 
California agencies. See generally South Coast 2007 AQMP, Appendix III. 
The District's projections took into account the controls implemented 
under SCAQMD rules adopted as of June 2006, most CARB regulations 
adopted by June 2005, and a specific set of growth rates from the 
Southern California Association of Governments (SCAG) for population, 
industry, and motor vehicle activity, among other factors. See id. at 
2-3. In 2011, CARB updated the baseline emissions projections for 
several source categories to account for, among other things, more 
recent economic forecasts and improved methodologies for estimating 
emissions from the heavy duty truck and construction source categories. 
See 2011 Ozone SIP Revision at Appendix B. These methodologies for 
projecting future emissions based on growth factors and existing 
Federal, State, and local controls were consistent with EPA guidance on 
developing projected baseline inventories. See TSD at section II.A; see 
also ``Procedures for Preparing Emissions Projections,'' EPA Office of 
Air Quality Planning and Standards, EPA-450/4-91-019, July 1991; 
``Emission Projections,'' STAPPA/ALAPCO/EPA Emission Inventory 
Improvement Project, Volume X, December 1999 (available at http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf). NRDC correctly 
notes that the stationary point and the area source emissions 
projections that the SCAQMD developed as inputs to these projected 
future baseline inventories generally included an assumption of 100% 
RE. See South Coast 2007 AQMP, Appendix IV at A-7; see also Memorandum 
to File dated December 5, 2011, Wienke Tax, EPA Region 9, RE: ``SCAQMD 
Emissions Estimation Methodology.'' In response to the comment, we have 
further evaluated the projected baseline inventories in the Plan to 
determine whether an assumption of 100% RE was appropriate and to what 
extent it may have affected the control strategy. As explained below, 
we believe the SCAQMD's methodologies for projecting emissions were 
reasonable and that, even assuming that the District should not have 
used 100% RE for certain source categories, the impact on the overall 
emissions projections would have been insignificant.
---------------------------------------------------------------------------

    \23\ By ``future baseline inventories'' or ``projected baseline 
inventories,'' we mean projected emissions inventories for future 
years that account for, among other things, the effects of economic 
growth and adopted emissions control requirements.
---------------------------------------------------------------------------

    With respect to both NOX and VOC emissions from 
stationary point sources, which account for roughly 80% of the total 
NOX projections for stationary sources and roughly 13% of 
the total VOC projections for stationary sources, no RE adjustments 
were necessary because the base year emissions estimates were developed 
from reported emissions data (i.e., direct determinations). Moreover, 
the SCAQMD's compliance and enforcement programs generally meet the 
recommended criteria in EPA's 2005 RE Guidance for use of the highest 
range of RE factors for stationary sources.\24\ For example, all 
stationary point sources in the South Coast that emit or have the 
potential to emit at least 10 tons per year of VOC or NOX 
are subject to the District's EPA-approved title V operating permits 
program in SCAQMD Regulation XXX \25\ (see SCAQMD Rule 3001), which 
requires subject facilities to regularly report compliance information 
to the SCAQMD. See, e.g., SCAQMD Rule 3004(a)(4)(f) (requiring semi-
annual reports) and (a)(10) (requiring annual compliance 
certifications). In addition, the SCAQMD's Regional Clean Air 
Incentives Market (RECLAIM) program, which generally applies to 
stationary point sources that emit 4 tons or more per year of 
NOX or SOX in the year 1990 or subsequent years 
(see SCAQMD Rule 2001(b)), also contains stringent compliance 
monitoring and reporting requirements. See, e.g., SCAQMD Rule 
2012(c)(2) (requiring NOX sources to install, maintain and 
operate a Continuous Emissions Monitoring System or other equivalent 
monitoring device) and SCAQMD Rule 2012(c)(3) (requiring NOX 
sources to install, maintain and operate a reporting device to 
electronically report daily NOX emissions to the District 
and to submit monthly emissions reports). Thus, even in the absence of 
direct determination, these compliance requirements and programs would 
adequately support the SCAQMD's use of the highest range of RE factors 
(94 to 100%) in projecting emissions from stationary point sources of 
VOC and NOX emissions in the South Coast area.
---------------------------------------------------------------------------

    \24\ For stationary point sources, the 2005 RE Guidance provides 
that the following factors, among others, may support the use of the 
highest RE range (94 to 100%) in developing emissions estimates: the 
regulatory agency requires source-specific monitoring for compliance 
purposes and frequent submittal of monitoring records; the agency 
conducts inspections involving compliance test methods with a high 
degree of accuracy, such as stack testing or other types of precise 
emissions measurements; and/or the agency has authority to impose 
punitive measures, including monetary fines, towards violators such 
as in delegated title V operating permit programs. See 2005 RE 
Guidance at B-6.
    \25\ See 68 FR 65637 (November 21, 2003) (final rule approving 
revisions to SCAQMD's title V operating permits program effective 
January 1, 2004).
---------------------------------------------------------------------------

    The SCAQMD's regulations for VOC area sources that were accounted 
for in the projected baseline inventories (i.e., rules adopted as of 
June 2006) also contain stringent recordkeeping and reporting 
requirements which generally meet EPA's recommended criteria for use of 
the highest range of RE factors for area sources.\26\ See, e.g., SCAQMD 
Rule 109 (as amended May 2, 2003) (requiring numerous types of VOC area 
sources to keep daily records of types of coatings and/or solvents 
used); see also Memorandum to File dated December 9, 2011, Wienke Tax, 
EPA Region 9, RE: ``SCAQMD Compliance and Enforcement Programs.'' The 
SCAQMD also administers numerous compliance assistance programs, 
including classroom instruction, web-based tutorials, and mailings. 
See, e.g., http://www.aqmd.gov/comply/index.html, http://www.aqmd.gov/aqmd/aqmd_training.htm, and http://www.aqmd.gov/pubinfo/Publications/Advisor/2011/Nov2011Advisor.pdf, page 8). These compliance requirements 
and programs generally support the SCAQMD's use of the highest range of

[[Page 12685]]

RE factors (86 to 100%) in projecting emissions from area sources of 
VOC emissions in the South Coast area.
---------------------------------------------------------------------------

    \26\ For stationary area sources, the 2005 RE Guidance provides 
that the following factors, among others, may support the use of the 
highest RE range (86 to 100%) in developing emissions estimates: 
Over 90% of facilities inspected in the source category are in 
compliance; the regulatory agency requires sources to submit some 
type of compliance certification; and/or a compliance assistance 
program exists and is adequately staffed. See 2005 RE Guidance at B-
9.
---------------------------------------------------------------------------

    We expect that at least some of these VOC area sources are 
uncontrolled and therefore do not require any RE adjustment. 
Additionally, of those VOC area sources that are subject to controls, 
we understand many are subject to compliance requirements that enable 
the District to make direct determinations of emissions estimates 
(e.g., through ``mass balance'' accounting of the types of coatings 
and/or solvents used), which also would not require any RE adjustment. 
See, e.g., SCAQMD Rule 109 (as amended May 2, 2003).
    Assuming conservatively, however, that some RE adjustments may have 
been appropriate for area sources, we have evaluated the impact that 
such adjustments may have had on the overall NOX and VOC 
emissions projections for 2023. With respect to NOX 
emissions, area sources account for about 20% of projected 
NOX emissions from stationary sources and less than 3% of 
the total NOX inventory for the 2023 projection year. See 
South Coast 2007 AQMP, Appendix III, Attachment B at Table B-9, and 
Memorandum to File, Wienke Tax, EPA Region 9 Air Planning Office, dated 
December 14, 2011. Thus, even assuming conservatively that a lower RE 
factor is appropriate for all area sources of NOX emissions, 
the impact of such an adjustment on the future baseline NOX 
emission inventory would affect less than 3% of the total projected 
NOX inventory (roughly 14 tpd). Assuming that application of 
an 86% \27\ rather than 100% factor would directly increase these 
NOX emissions estimates by 14 percent, then the projected 
2023 NOX emissions inventory would increase by less than 3 
tpd. This amount is adequately covered by CARB's enforceable commitment 
to achieve 141 tpd of NOX by 2023. 76 FR 57872, 57881 (Table 
6). CARB's 2011 SIP Revision reduced the 2023 projected NOX 
inventory by 12 tpd compared to the Plan as submitted in 2007, 
indicating a surplus in NOX reductions of 12 tpd in the Plan 
as revised. See letter dated August 10, 2011, from Lynn Terry, CARB, to 
Deborah Jordan, EPA Region 9, with attachment (transmitting emission 
inventory improvement information). Because the State's and District's 
enforceable commitments have not been revised, CARB remains obligated 
to achieve the total amount of emission reductions identified in its 
original commitment (141 tpd). The NOX surplus of 12 tpd 
included in this enforceable commitment adequately covers the potential 
increase of 3 tpd due to RE adjustments.
---------------------------------------------------------------------------

    \27\ We believe an RE factor of 86%, which is the lowest factor 
under ``Range 1'' for non-point (area) sources in EPA's 2005 RE 
Guidance, is a reasonable assumption for these calculations given 
the rigorous compliance requirements in SCAQMD's area source 
regulations and the District's compliance assistance programs.
---------------------------------------------------------------------------

    With respect to VOC emissions, roughly half of the total projected 
VOC summer planning inventory for 2023 is attributed to stationary 
point and area sources. See South Coast 2007 AQMP, Appendix III, 
Attachment B at Table B-9. Of these stationary source VOC emissions, 
approximately 40% are attributed to consumer products (see id.), which 
prior to 2007 were not subject to any SCAQMD VOC regulations that the 
District would have accounted for in its emissions projections.\28\ 
Most of the remaining VOC emissions (roughly 130 tpd) are attributed to 
area sources that are either uncontrolled or subject to SCAQMD 
regulations, such as cleaning and surface coating operations, 
architectural coating operations, and farming operations (e.g., 
fertilizer applications). See South Coast 2007 AQMP, Appendix III, 
Attachment B at Table B-9. As NRDC correctly notes (and does not take 
issue with), the SCAQMD made significant RE adjustments to the gasoline 
transfer and dispensing source category subject to SCAQMD Rule 461 
(petroleum marketing), which accounts for roughly 15% (20 tpd) of these 
remaining VOC area source emissions. This leaves approximately 110 tpd 
of VOC emissions attributed to area sources under the SCAQMD's 
jurisdiction for which RE adjustments may have been appropriate but for 
which California has not specifically provided data on whether they 
were made. All together, these area sources account for approximately 
20% of the total projected VOC summer planning inventory for 2023. See 
South Coast 2007 AQMP, Appendix III, Attachment B at Table B-9.
---------------------------------------------------------------------------

    \28\ Consumer products in California are generally subject to 
CARB's Consumer Products Regulations (CPR) in title 17, sections 
94500-94575 of the California Code of Regulations (CCR). In March 
2009, the SCAQMD adopted VOC content requirements for certain 
consumer products not subject to CARB's CPR, but these District 
regulations are not accounted for in the South Coast 2007 Ozone 
SIP's emissions inventories. See SCAQMD Rule 1143.
---------------------------------------------------------------------------

    Assuming conservatively that all of these VOC emissions are from 
regulated area sources for which direct determinations of emission 
cannot be made, and that a lower RE factor is appropriate for the 
emissions projections for all of these sources, the impact of such an 
adjustment on the future baseline VOC emission inventory for 2023 would 
affect only about 20% of the total projected VOC inventory (roughly 110 
tpd). Further assuming that application of an 86% RE factor would 
directly increase these VOC emissions estimates by 14 percent, the 
projected 2023 VOC emissions inventory would increase by approximately 
15.4 tpd. We note that CARB's 2011 SIP Revision reduced the 2023 
projected VOC inventory by 5 tpd compared to the Plan as submitted in 
2007, indicating a surplus in VOC reductions of 5 tpd in the Plan as 
revised. See letter dated August 10, 2011, from Lynn Terry, CARB, to 
Deborah Jordan, EPA Region 9, with attachment (transmitting emission 
inventory improvement information). Because the State's and District's 
enforceable commitments have not been revised, CARB remains obligated 
to achieve the total amount of VOC emission reductions identified in 
its original commitment (54 tpd). See 76 FR 57872, 57881 (Table 6). 
Taking into account this 5 tpd surplus in CARB's VOC emission reduction 
commitments, we assume the potential difference in the State's 
projected VOC inventory for 2023, had the State applied an 86% RE 
factor, would have been approximately 10.4 tpd or less than 2% of the 
total projected VOC inventory for 2023. Given the multiple conservative 
assumptions leading to this small difference in the emissions estimates 
for VOC area sources, we do not believe that an RE adjustment for VOC 
area sources would have altered our evaluation of the South Coast 2007 
Ozone plan.
    For all of these reasons and as discussed in our proposal (76 FR 
57872), we have concluded that the 2002 base year inventory in the 
South Coast 2007 Ozone SIP is a ``comprehensive, accurate, current 
inventory of actual emissions from all sources of the relevant 
pollutant or pollutants'' in the South Coast area, consistent with the 
requirements for emissions inventories in CAA section 182(a)(1), 40 CFR 
51.915, and 40 CFR part 51, subpart A. In addition, we conclude that 
the projected baseline inventories for 2011, 2014, 2017, 2020, and 2023 
were prepared consistent with EPA's guidance on development of 
emissions inventories and attainment demonstrations and, therefore, 
provide an adequate basis for the RACM, RFP and attainment 
demonstrations in the Plan. See TSD at section II.A. Given the 
continuously-evolving nature of estimating emissions, however, we will 
continue to work with CARB and the

[[Page 12686]]

SCAQMD to ensure that their base year and projection year SIP emissions 
inventories accurately account for rule effectiveness and reflect the 
best available estimates of current and future emissions.

D. CAA Section 182(e)(5) New Technology Provisions

    Comment: Commenters (NRDC, CCAT, DCAP, PSR-LA and CBE) state that 
California's reliance on ``black box'' measures in the South Coast 2007 
Ozone SIP fails to meet the requirements and intent of the Clean Air 
Act by allowing the State to defer its responsibility to attain federal 
standards. Commenters state that there are three problems with how the 
State and District are using 182(e)(5).
    First, commenters state that it is arbitrary for EPA to approve a 
``black box'' with 281 tons per day or 55% of the reductions needed, 
given its lack of definition. Another commenter (private citizen) also 
asserts that the SIP relies too heavily on unknown ``black box'' 
solutions, which the commenter claims make up 49.6% of needed 
NOX reductions and 43% of combined VOC and NOX 
reductions.
    Second, commenters assert that section 182(e)(5) is intended to 
address new technologies that will develop over time but that in 
California, ``new technologies alone will not sufficiently reduce 
pollution to attain federal air quality standards.'' Citing a 
description in EPA's TSD (at pg. 79) of a potential measure described 
by CARB as ``prioritizing federal transportation funding to support air 
quality goals,'' commenters argue that ``[t]his example clearly fails 
to meet all the criteria required for Black Box use,'' and that while 
``tying air quality to transportation planning'' is important for 
attainment, the black box cannot be used as a basis for not requiring 
implementation of ``existing'' strategies such as increased public 
transit that do not require the development of new technologies.
    Finally, commenters state that the section 182(e)(5) commitments 
are vague and insufficient and that EPA cannot approve the attainment 
demonstration ``unless the Section 182(e)(5) measures comply with the 
CAA.'' Citing both section 182(e)(5) of the Act and EPA's January 8, 
1997 final rule approving the 1-hour ozone plan for several California 
nonattainment areas (62 FR 1150, 1179), commenters assert that the new 
technology measures must: (1) Contain sufficient definition; (2) 
contain schedules for development of the new technologies; (3) contain 
commitments for funding; (4) depend on development of new technologies; 
and (5) include an enforceable commitment to develop and adopt 
necessary contingency measures. Commenters assert that the South Coast 
2007 Ozone SIP ``only attempts to comply with requirement number (5),'' 
that the generalized discussion in the Plan provides little assurance 
of CARB's ability to develop these measures, and that approval of these 
measures is therefore arbitrary and capricious.
    Response: First, we disagree with the commenters' contention that 
EPA's proposed approval of the Plan is arbitrary because of the amount 
of emission reductions attributed to the ``black box'' (or ``long-term 
strategy''),\29\ or because they are undefined. As an initial matter, 
we note that the commenters' assertions about the percentages of the 
needed emission reductions attributed to the long-term strategy are not 
correct.\30\ The correct percentages of the needed NOX and 
VOC emission reductions attributed to the long-term strategy in the 
South Coast 2007 Ozone SIP are 26 and 9 percent, respectively, as 
explained further below.
---------------------------------------------------------------------------

    \29\ Throughout this notice we use the terms ``long-term 
strategy'' or ``new technology provisions'' interchangeably to refer 
to the plan provisions that anticipate development of new or 
improved control techniques under CAA section 182(e)(5), which the 
commenters refer to as the ``black box.''
    \30\ It appears that the commenters overestimated the percentage 
of ``black box'' emission reductions in the Plan by calculating the 
amount of needed NOX and VOC reductions without taking 
into account the reductions attributed to baseline measures and 
emissions inventory improvements.
---------------------------------------------------------------------------

    The CAA does not provide a quantitative limit on the extent to 
which the attainment demonstration for an extreme ozone nonattainment 
area may rely on new technology provisions under CAA section 182(e)(5). 
As we explained in our proposed rule, section 182(e)(5) of the Act 
authorizes EPA to approve provisions in an extreme area plan which 
``anticipate development of new control techniques or improvement of 
existing control technologies,'' and to approve an attainment 
demonstration based on such provisions if the State demonstrates that: 
(1) Such provisions are not necessary to achieve incremental reductions 
required during the first 10 years after the effective date of 
designation for the 1997 ozone NAAQS, and (2) the State has submitted 
enforceable commitments to submit adopted contingency measures meeting 
certain criteria no later than 3 years before proposed implementation 
of the new technology measures. See 76 FR 57872, 57881-57883. EPA 
interprets this provision to mean that the measures approved under 
section 182(e)(5) may include those that anticipate future 
technological developments as well as those that require complex 
analyses, decision making and coordination among a number of government 
agencies. See General Preamble at 13524.
    The majority of the emissions reductions in the South Coast 2007 
Ozone SIP are attributed to already adopted and near-term measures. See 
76 FR 57872, 57876-89. Our summary of South Coast's 8-hour ozone 
attainment demonstration in the proposed rule shows that the South 
Coast area needs to reduce emissions from 2002 levels by a total of 910 
tpd of NOX and 461 tpd of VOC to attain the 8-hour ozone 
standards by June 15, 2024. See 76 FR 57872, 57885 at Table 8. 
Approximately 74% of these needed NOX reductions and 91% of 
the needed VOC reductions are attributed to already adopted or near-
term measures (i.e., measures that will be adopted and implemented by 
2014). See 76 FR 57872, 57886 (Table 9) and 57879-57880 (Tables 3 and 
4) (identifying CARB and SCAQMD measures recently adopted or scheduled 
for near-term consideration). These measures include all reasonably 
available control measures and generally represent the most stringent 
air pollution control requirements for stationary, area, and mobile 
sources nationwide. See 76 FR 57872, 57877-57881. This leaves about 26% 
of the needed NOX reductions and 9% of the needed VOC 
reductions to be met through the long-term strategy under CAA section 
182(e)(5).\31\ See 76 FR 57872, 57885 at Table 9.
---------------------------------------------------------------------------

    \31\ For NOX, the long-term emission reductions are 
241 tpd in 2023 or approximately 26 percent of 910 tons, the total 
reductions needed. For VOC, the long-term emission reductions are 40 
tpd in 2023 or approximately 9 percent of the 461 tons of VOC 
reductions needed.
---------------------------------------------------------------------------

    Given the demonstrated need for emissions reductions from new and 
improved control techniques to reduce air pollution in the South Coast 
area (see TSD at 79), we believe it is reasonable for the State to 
attribute these amounts of emission reductions to the long-term 
strategy.\32\ As we stated in

[[Page 12687]]

our proposed rule, however, we expect the amount and relative 
proportion of reductions from measures scheduled for long-term adoption 
under section 182(e)(5) should decrease in any future SIP update, and 
EPA will not approve any future SIP revisions with an increase in the 
182(e)(5) reductions for 2023 without a convincing showing that the 
technologies relied upon in the near-term rules are infeasible or 
ineffective in achieving emissions reductions in the near-term. See 76 
FR 57872, 57883. Moreover, to the extent new modeling performed in any 
subsequent SIP revision demonstrates that there is an increase in the 
year 2023 carrying capacity for VOC and NOX, this change may 
not be used to decrease the amount of emissions reductions scheduled to 
be achieved by any near-term measure from the South Coast 2007 Ozone 
SIP unless CARB or the SCAQMD make the convincing showing described 
above.
---------------------------------------------------------------------------

    \32\ During development of the 2007 State Strategy, CARB staff 
analyzed whether current NOX technologies for mobile 
sources are clean enough to provide all the emission reductions 
needed for ozone attainment in the South Coast and San Joaquin 
Valley. ARB included in this analysis the phasing in of the cleanest 
new technology standards from 2007-2017 that ARB and U.S. EPA have 
already adopted for diesel engines: 0.2 g/bhp-hr on-road truck 
standards in 2010, full offroad Tier 4 standards in 2014, and the 
recent U.S. EPA-proposed low-NOX standards for locomotive 
engines starting in 2017. The totals of remaining emissions after 
full clean-up of the legacy diesel fleets in the South Coast air 
basin still exceed the NOX carrying capacity by 133 tpd. 
See 2007 State Strategy, p. 54.
---------------------------------------------------------------------------

    Second, we disagree with the commenters' suggestion that CAA 
section 182(e)(5) allows only for plan provisions that rely on ``new 
technologies'' and that this necessarily means the District must adopt 
additional ``existing strategies'' that do not rely on new 
technologies. Section 182(e)(5) of the Act allows for approval of 
extreme area plan provisions that ``anticipate development of new 
control techniques or improvement of existing control technologies,'' 
which EPA interprets to include ``those that may anticipate future 
technological developments as well as those that may require complex 
analyses and decision making and coordination among a number of 
government agencies.'' See 57 FR 13498, 13524. Thus, in addition to 
plan provisions that rely on ``new technologies,'' section 182(e)(5) 
contemplates provisions that are as of yet undefined because they 
require, for example, time for State and local agencies to evaluate 
complex technical information and to seek public participation in their 
regulatory processes.
    The commenters correctly note that EPA's TSD identified 
``prioritiz[ation of] federal transportation funding to support air 
quality goals'' among a number of potential long-term strategies that 
CARB had identified for further consideration (see TSD at 79, citing 
2007 State Strategy, pp. 55-56), but they do not describe any specific 
control measure that such budgetary decisions could support and that is 
reasonably available for current implementation in the South Coast 
area. Likewise, although the commenters assert generally that 
``increased transit'' and other ``existing strategies'' should be 
required as control measures because these do not require the 
development of new technologies, they have not identified any 
particular control measure that the State should be obligated to 
include in its plan for attaining the 1997 8-hour ozone NAAQS.
    CARB and the SCAQMD have adopted all of the control measures for 
NOX and VOC that are reasonably available for current 
implementation in the South Coast area and have submitted enforceable 
commitments to adopt additional measures achieving specific amounts of 
emission reductions by specific years. See 76 FR 57872, 57877-57881 and 
57886. These measures are not sufficient, however, to achieve the 
significant amounts of NOX and VOC reductions necessary to 
attain the 1997 8-hour ozone NAAQS in the South Coast by June 15, 2024. 
Absent new information about additional control measures that are cost-
effective and technically feasible for current implementation in the 
area, we believe it is reasonable to allow the State and District time 
to develop additional control measures based on new or improved control 
techniques under CAA section 182(e)(5).
    Third, we disagree with commenters that the section 182(e)(5) 
commitments are vague and insufficient. As discussed in our proposed 
rule, CARB has submitted enforceable commitments to achieve specific 
amounts of NOX and VOC reductions by 2023 through the 
development of new or improved control techniques under CAA section 
182(e)(5). The total tonnage commitment in the South Coast is for 241 
tpd NOX and 40 tpd VOC. See 76 FR 57872, 57881-57882 and 
2009 State Strategy Status Report, p. 20. With respect to the 
requirement for contingency measures in CAA section 182(e)(5)(B), we 
explained in our proposed rule that CARB's 2011 Ozone SIP Revision 
contains the State's enforceable commitment ``to develop, adopt, and 
submit contingency measures by 2020 if advanced technology measures do 
not achieve planned reductions'' (76 FR 57872, 57882, referencing CARB 
Resolution 11-22, July 21, 2011), and in a letter dated November 18, 
2011 to EPA Region 9, CARB confirmed that EPA's understanding of this 
enforceable commitment is correct. See letter dated November 18, 2011, 
from James N. Goldstene, Executive Officer, California Air Resources 
Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region 9.
    In addition, as explained in our proposed rule (76 FR at 57882), 
the South Coast 2007 Plan identifies numerous potential measures 
currently under consideration as part of the long-term strategy, and 
CARB has committed to submit a SIP revision by 2020 that will identify 
the additional strategies and implementing agencies needed to achieve 
the needed reductions by the beginning of the 2023 ozone season. See 
2011 Ozone SIP Revision, p. A-8; see also letter dated August 29, 2011 
from James N. Goldstene, Executive Officer, California Air Resources 
Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA, Region 9 
(describing California's climate change programs, clean car 
technologies, programs to accelerate hybrids and plug-in technologies, 
greenhouse gas emission reduction targets for passenger vehicles, and 
SCAQMD's efforts to transition to broad use of zero- and near-zero 
emission technologies for freight transportation and passenger vehicles 
and to increase energy efficiency in buildings). We note also that CARB 
has stated its intent to convene annual strategy meetings with the 
Districts and EPA to discuss progress in the development of its new 
technology measures, and to secure resources for continuing research 
and development of new technologies. See letter dated August 29, 2011, 
from James N. Goldstene, Executive Officer, California Air Resources 
Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region 9; 
see also 2009 State Strategy Status Report, pp. 25-27.
    Finally, commenters reference CAA section 182(e)(5) and EPA's final 
rule approving an ozone SIP previously submitted by California (62 FR 
1150, 1179) \33\ in support of its assertion that the long-term 
strategy must satisfy five ``requirements,'' of which, commenters 
contend, the South Coast 2007 Ozone SIP addresses only one. We disagree 
with this characterization of both the requirements of CAA section 
182(e)(5) and the provisions in the South Coast 2007 Ozone SIP.
---------------------------------------------------------------------------

    \33\ We note that although this final action included EPA's 
approval of new technology provisions under CAA section 182(e)(5) as 
part of California's SIP for the 1-hour ozone NAAQS in the South 
Coast area, this prior rulemaking action is not germane to today's 
action on the South Coast 2007 Ozone SIP. We assume that the 
commenters intended to refer, instead, to the source of the five 
criteria that EPA has recommended for consideration in evaluating 
new technology provisions under CAA 182(e)(5), which is the General 
Preamble (57 FR 13498, 13524 (April 16, 1992)).
---------------------------------------------------------------------------

    As explained above and in our proposed rule, EPA interprets the Act 
to allow EPA to approve the State's

[[Page 12688]]

conceptual new technology provisions and credit them toward the 
attainment demonstration if the state makes the required commitment to 
submit contingency measures, which then must be submitted to EPA no 
later than 3 years before proposed implementation and EPA concludes 
that the measures are not needed to achieve the first 10 years of 
required rate of progress reductions. See 76 FR 57846, 57854. The five 
``requirements'' for approval of new technology provisions that 
commenters reference are not statutory or regulatory requirements but 
recommended criteria. See General Preamble at 13524.\34\
---------------------------------------------------------------------------

    \34\ EPA's General Preamble states that in order to rely on 
``new technology provisions'' under CAA section 182(e)(5), a SIP 
must satisfy the following criteria: (1) Identify all measures, 
including the long-term measure(s) for which additional time would 
be needed for development and adoption; (2) show that the long-term 
measure(s) cannot be fully developed and adopted by the submittal 
date for the attainment demonstration and contain a schedule 
outlining the steps leading to final development and adoption of the 
measure(s); (3) contain commitments from those agencies that would 
be involved in developing and implementing the schedule for the 
measure; (4) contain a commitment to develop and submit contingency 
measures (in addition to those otherwise required for the area) that 
could be implemented if the measure is not developed or if it fails 
to achieve the anticipated reductions; and (5) not rely on the new 
technology measures to meet any emissions reductions requirements 
within the first 10 years after enactment. See 57 FR 13498, 13524 
(April 16, 1992). We note that this language is non-binding guidance 
although it is phrased in mandatory terms.
---------------------------------------------------------------------------

    As also explained in the proposed rule, CARB and the District have 
demonstrated a clear need for additional time to fully develop and 
adopt the long-term measures under consideration and have met the 
statutory requirements for approval of such conceptual measures under 
CAA section 182(e)(5). See 76 57872 57881-57883. The General Preamble 
at 13524 recommends that a SIP relying on new technology provisions 
under CAA section 182(e)(5) identify all of the specific long-term 
measures the State intends to adopt, contain a schedule outlining the 
specific steps leading to final development and adoption, and contain 
commitments from the agencies that would be involved in developing and 
implementing these measures, in addition to satisfying the statutory 
criteria. However, as discussed in our proposed rule and above, both 
the 2007 State Strategy and the South Coast 2007 AQMP provide lists of 
the types of technologies and measures that they are pursuing to 
achieve the emissions reductions needed for attainment of the 8-hour 
ozone standards in the South Coast. See 76 FR 57872, 57882-57853 and 
TSD, section II.C.2.d; see also, 2007 AQMP, Chapters 4 and 7; 2007 
State Strategy, pp. 54-57; 2009 State Strategy Update, p. 25; and 2011 
Ozone Plan Update, Appendix A. The State has also committed to share 
the results of its efforts with the public through Board meetings, 
workshops and other means. See 2009 State Strategy Update, p. 25; see 
also, letter, James Goldstene, Executive Officer, CARB, to Jared 
Blumenfeld, Regional Administrator, EPA Region 9, August 29, 2011. 
Finally, the State has committed to work to secure resources for 
continuing research and development and to develop schedules for moving 
from research to implementation. Id. We find that the State and 
District have adequately addressed the policy criteria in the General 
Preamble given the significant emissions reductions needed to attain 
the 1997 8-hour ozone NAAQS in the South Coast and the type of sources 
(i.e., mobile sources) for which technology must be developed, tested, 
and deployed in order to achieve these reductions. EPA commits to do 
its share to support the needed research and development activities of 
CARB and the District.
    Comment: Commenters state that the South Coast will exceed the 1-
hour ozone standards by 30% in 2010 and that this is relevant because 
the South Coast's 1-hour ozone plan relied heavily on ``black box'' 
measures. Commenters argue that the South Coast area failed to meet the 
1-hour standards ``because the commitments to develop and implement 
Black Box measures never fully came to fruition'' (citing EPA's 
September 14, 2011 proposal to determine that the South Coast area 
failed to attain the 1-hour ozone standards by the applicable 
attainment date (76 FR 56694)) and that EPA cannot reasonably rely on 
the continued use of the ``black box'' because the District and CARB's 
track record using this approach has not delivered the pollution 
reductions that were promised in prior plans. Commenters state that EPA 
must direct CARB to ``extract from the black box'' needed reductions 
they know will not come from future technologies, reduce the overall 
size of the black box to a reasonable level and better define where the 
remaining black box reductions are expected to come from.
    Response: EPA is acting today on the South Coast 2007 Ozone SIP, 
which the State submitted to meet the requirements of part D, title I 
of the CAA for the 1997 8-hour ozone standards. Neither the CAA's 
planning requirements related to attainment of the 1-hour ozone 
standards nor the State's submittals to meet the Act's requirements for 
that prior standards are germane to our action on the South Coast 2007 
SIP under CAA section 110(k). Additionally, nothing in section 
182(e)(5) of the CAA or our implementing regulations requires EPA to 
take into account the success or failure of a prior plan for a 
different NAAQS in approving extreme area plan provisions that meet the 
requirements of CAA section 182(e)(5) for the 1997 8-hour ozone 
standards. EPA's proposed rule to determine that the South Coast area 
failed to attain the 1-hour ozone standards by its applicable 
attainment date (76 FR 56694, September 14, 2011), which commenters 
reference, likewise has no bearing on our action on the South Coast 
2007 Ozone SIP under CAA section 110(k).
    Moreover, we disagree with commenters' contention that the South 
Coast area failed to meet the 1-hour ozone standards ``because the 
commitments to develop and implement Black Box measures never fully 
came to fruition.'' The failure of an area to attain a NAAQS by the 
applicable attainment date does not mean that the State has failed to 
achieve the emissions reductions anticipated in the SIP, whether under 
CAA section 182(e)(5) or otherwise. The control strategy (including the 
``black box'') that EPA previously approved for the South Coast area 
(62 FR 1150) was developed long before the attainment date using the 
best scientific information available at the time, including estimates 
of the area's carrying capacity using photochemical grid modeling and 
other technical tools and assumptions. This control strategy, however, 
has proven insufficient to attain the 1-hour ozone standards by the 
applicable attainment date of November 15, 2010, due to imperfect 
estimates as to the carrying capacity of the South Coast air basin with 
respect to the 1-hour ozone standards and other imperfections in the 
tools and assumptions upon which the prior plans were based. A State 
may fully implement all measures that are predicted as necessary to 
attain a particular NAAQS and still fail to attain that NAAQS.
    Finally, we disagree with commenters' argument that EPA must direct 
CARB to ``extract from the black box needed reductions they know will 
not come from future technologies, reduce the overall size of the black 
box to a reasonable level and better define where the remaining black 
box reductions are expected to come from.'' It is not possible at this 
point in time to know that certain emission reductions will not come 
from future technologies, and we do not believe it is reasonable to 
require the State to reduce the

[[Page 12689]]

amount of emission reductions attributed to the long-term strategy by 
either implementing measures or incremental reductions beyond those 
otherwise mandated by the Act or developing measures based on control 
techniques not yet identified or commercially available for 
implementation in the area. As explained above, the State has met the 
statutory criteria for approval of its long-term strategy under CAA 
section 182(e)(5).
    Comment: Commenters state that the commitment by CARB to submit a 
revision to EPA by 2020 provides little assurance that the black box 
strategies will work. Citing Association of Irritated Residents (AIR) 
v. EPA, 632 F.3d 584, 592 n.2 (9th Cir. 2011) (discussing the triennial 
review process in California law and the triennial inventory 
requirement under the federal Clean Air Act), commenters state that 
delaying a revision until 2020 and not requiring more frequent updates 
is arbitrary and capricious because both California law and the CAA 
contain requirements for updating clean air plans more frequently than 
every nine or ten years. Commenters also argue that delaying submittal 
of an update until 2020 is arbitrary and capricious because this is too 
late to allow time to remedy any problems that may need CARB 
regulations, transportation infrastructure and other technology 
developments that will require more than three years to develop.
    Response: As discussed in our proposed approval, CARB has committed 
to achieve all of the emission reductions attributed to the section 
182(e)(5) conceptual new technology measures by the attainment year 
(2023) and has satisfied the section 182(e)(5) criteria for approval of 
its new technology provisions by demonstrating that the measures are 
not relied on for RFP and committing to submit adopted contingency 
measures by 2020 to be implemented should the anticipated reductions 
from new or improved technologies not occur. In addition, as discussed 
above, CARB has stated its intent to continue the State's ambitious 
clean technology development programs and has committed to public 
outreach as well as annual meetings to update EPA on its progress. 
Although we recognize the commenters' concerns about the absence of any 
specific milestones or updates prior to 2020, the Act does not mandate 
that the SIP include specific enforceable actions during this period.
    The triennial review process cited in AIR is a California state law 
requirement applicable to air quality plans developed pursuant to the 
California Clean Air Act to meet California's ambient air quality 
standards. See California Health and Safety Code Section 40924(b) and 
40925(a). The CAA triennial inventory requirement cited in that 
decision is an emissions inventory requirement in CAA section 
182(a)(3), which requires States with ozone nonattainment areas to 
submit revised inventories every three years until redesignation to 
attainment. See also 40 CFR part 51, subpart A. Neither the triennial 
review requirement under the California CAA nor the periodic inventory 
requirement under the Federal CAA applies to our evaluation of new 
technology provisions under CAA section 182(e)(5).

E. CAA Section 182(d)(1)(A) Requirements

    Comment: NRDC asserts that EPA has also failed to assess the 
adequacy of the SIP's compliance with the requirement in CAA section 
182(d)(1)(A) that the SIP provide adequate enforceable control measures 
``to allow total area emissions to comply with RFP and attainment 
requirements.'' NRDC argues that, because the area has not adopted 
sufficient enforceable control measures to provide for attainment 
(citing to its comments that the attainment demonstration is not 
approvable because, inter alia, measures relied on in that 
demonstration were not in the SIP), this provision must be met and EPA 
must direct the State/District to adopt the additional measures needed 
for attainment, either as TCMs to reduce motor vehicle emissions, or as 
controls on other source categories so that total emissions reductions 
provide for attainment.
    Response: CAA section 182(d)(1)(A) requires the State to ``submit a 
revision that identifies and adopts specific enforceable transportation 
control strategies and transportation control measures * * * to attain 
reductions in motor vehicle emissions as necessary, in combination with 
other emission reduction requirements of [title 1, part D, subpart 2], 
to comply with the requirements of [sections 182] (b)(2)(B) and 
(c)(2)(B)'' and ``to consider measures specified in section 108(f) * * 
* and to choose from among and implement such measures as necessary to 
demonstrate attainment.''
    We have determined that the South Coast 2007 8-hour Ozone plan 
meets the RFP requirements in sections 182(b)(2)(B) and (c)(2)(B) and 
demonstrates attainment consistent with the subpart 2 requirements and 
thus also meets the requirements of section 182(d)(1)(A) to adopt 
transportation control strategies and TCMs as necessary to demonstrate 
RFP and attainment. See 76 FR 57872, 57890 and TSD, section II.F.3; see 
also TSD, section III.A.2. (responding to comments on the approvability 
of the baseline emissions inventory and the attainment demonstration). 
The SIP also includes documentation that the state considered the 
transportation control measures listed in CAA section 108(f), evaluated 
their effectiveness in contributing to expeditious attainment, and 
concluded that they would not. See South Coast 2007 AQMP, Appendix IV-
C; 76 FR 57872, 57879 and 57890 and TSD, sections II.C.2.b. and II.F.2.
    We disagree with NRDC's summary of the CAA section 182(d)(1)(A) 
requirements related to RFP and attainment. This specific section does 
not require that the SIP provide ``adequate enforceable control 
measures `to allow total area emissions to comply with RFP and 
attainment requirements' '' but rather it requires that the state adopt 
enforceable transportation strategies and TCM as necessary in 
combination with other emissions reduction requirement of subpart 2 to 
demonstrate RFP and to implement TCMs as necessary to demonstrate 
attainment. Thus, if other SIP provisions provide for RFP and 
attainment consistent with applicable CAA requirements (including, in 
this case, the provisions of CAA section 182(e)(5)), then the state has 
no obligation under section 182(d)(1)(A) to adopt transportation 
control strategies and TCMs for RFP and attainment purposes.

F. Comments on Motor Vehicle Emissions Budgets

    See section IV. Motor Vehicle Emissions Budgets for Transportation 
Conformity.

III. Approval Status of the Control Strategy Measures and Final Actions 
on the Attainment Demonstration and Enforceable Commitments

A. Approval Status of Control Strategy Measures

    As part of its control strategy for attaining the 8-hour ozone 
standards in the South Coast, the District made specific commitments to 
adopt or revise fifteen measures for SIP credit on the schedule 
identified in the revised 2007 AQMP. See SCAQMD, Revisions to the 2007 
PM2.5 and Ozone State Implementation Plans for the South 
Coast Air Basin and Coachella Valley (SIP Revisions), Tables 2 through 
5. The District has now completed most of its adoption actions and EPA 
has approved most of the adopted rules. See Table 1

[[Page 12690]]

below. The rules we have not yet approved have not been credited with 
emissions reductions in the attainment demonstration.

  Table 1--Approval and Submittal Status of District Rules in the South
                             Coast 2007 AQMP
------------------------------------------------------------------------
                                                    Current SIP approval
        District rule             Adoption date            status
------------------------------------------------------------------------
Rule 445--Woodburning         03/07/08............  74 FR 27716, 6/11/
 fireplaces and wood stoves.                         09.
Rule 461--Gasoline transfer   03/07/08............  71 FR 18216, 4/11/
 and dispensing.                                     06.
Rule 1110.2--Liquid and       02/01/08............  74 FR 18995, 4/27/
 gaseous fuels--stationary                           09.
 ICEs.
Rule 1111--Further NOX        11/06/09............  75 FR 46845, 08/04/
 reductions from space                               10.
 heaters.
Rule 1127--Livestock Waste..  08/06/04............  Under EPA review.
Rule 1138--Restaurant         2012................  66 FR 36170, 7/11/
 Operations.                                         01.
Rule 1143--Consumer Paint     12/03/10............  76 FR 70888, 11/16/
 Thinners and Multi-Purpose                          11.
 Solvents.
Rule 1144--Vanishing oils     07/09/10............  76 FR 70888, 11/16/
 and rust inhibitors.                                11.
Rule 1145--Plastic, Rubber,   12/3/04.............  75 FR 40726, 07/14/
 Leather and Glass Coatings.                         10.
Rule 1146--NOX from           09/05/08............  Proposed limited
 industrial, institutional,                          approval/limited
 commercial boilers, steam                           disapproval 76 FR
 gens, and process heaters.                          40303, 7/8/11.
Rule 1146.1--NOX from small   09/05/08............  Proposed limited
 industrial, institutional,                          approval/limited
 commercial boilers, steam                           disapproval 76 FR
 gens, and process heaters.                          40303, 7/8/11.
Rule 1147--NOX reductions     12/05/08............  75 FR 46845, 08/04/
 from miscellaneous sources.                         10.
Rule 1149--Storage Tank and   05/02/08............  74 FR 67821, 12/21/
 Pipeline Cleaning and                               09.
 Degassing.
Rule 2002--Further SOX        11/4/10.............  76 FR 50128, 8/12/
 reductions from RECLAIM.                            11.
Rule 2301--Indirect Source    Scheduled for SCAQMD  ....................
 Review.                       Board adoption in
                               2012.
Rule 1123--Refinery Pilot     Scheduled for SCAQMD  N/A.
 Program.                      Board adoption in
                               February 2012 \a\.
Rule 2449--SOON program.....  5/2/08..............  Under EPA review.
AB923 Light and medium duty   No rules associated   N/A.
 vehicle high emitter          with these measures.
 program.
AB923 Light and medium duty   No rules associated   N/A.
 vehicle high emitter          with these measures.
 program.
------------------------------------------------------------------------
\a\ See SCAQMD Governing Board Agenda Item 22, December 2, 2011 Board
  Meeting.

    As part of its control strategy for attaining the 8-hour ozone 
standards in the South Coast, CARB committed to propose certain 
measures on the schedule identified in the 2007 State Strategy. These 
commitments, which were updated in the 2011 Ozone SIP revision, and 
their current approval status, are shown in Table 2. Of the measures 
listed in the 2007 State Strategy's updated rulemaking schedule, we 
note that only reductions from the ``SmogCheck Improvements,'' 
``Cleaner In-Use Heavy-Duty Trucks and Buses,'' ``Cleaner In-Use Off-
Road Equipment (over 25 hp),'' ``Ship Auxiliary Engine Cold Ironing and 
Clean Technology,'' ``Cleaner Main Ship Engines and Fuel--Main 
Engines,'' ``Clean UP Existing Harbor Craft,'' and ``Consumer 
Products'' are currently credited with emissions reductions in the 
attainment demonstration. See 76 FR 57872 (Table 5).
    Generally, EPA will approve a State plan that takes emissions 
reduction credit for a control measure only where EPA has approved the 
measure as part of the SIP, or in the case of certain on-road and 
nonroad measures, where EPA has issued the related waiver of preemption 
or authorization under CAA section 209(b) or section 209(e). In our 
September 2011 proposed rule, in calculating and proposing to approve 
the State's aggregate emissions reductions commitment in connection 
with our proposed approval of the attainment demonstration, we assumed 
that full final approval, waiver, or authorization of a number of CARB 
rules would occur prior to our final action on the South Coast 8-hour 
ozone plan. See 76 FR 57872, at 57880-57881 (Table 5). Two specific 
CARB rules on which the attainment demonstration relies include the 
Truck Rule and the Drayage Truck Rule. We proposed approval of both 
rules at 76 FR 40652 (July 11, 2011), but will be unable to take final 
action on the rules until after taking final action on the plan 
because, while CARB has adopted the rules, the rules cannot take effect 
until approved by the California Office of Administrative Law (OAL) and 
such approval will not happen before EPA's final action must be taken 
on the plan. On November 9, 2011, OAL approved the Drayage Truck rule, 
and December 14, 2011 OAL approved the Cleaner In-Use Heavy Duty Truck 
rule. CARB submitted the drayage rule on December 9, and the truck rule 
on December 15, and we expect to complete action on these rules prior 
to the effective date of this rule.
    Based on anticipated approval of these CARB rules, we are allowing 
the plan's attainment demonstration, and our final approval of it, to 
rely on the emissions reductions from the CARB rules for the following 
reasons:
     Both rules have been adopted by CARB, approved by the 
California OAL, and submitted to EPA as a revision to the California 
SIP,\35\ and the adopted

[[Page 12691]]

versions are essentially the same as those for which EPA proposed 
approval;
---------------------------------------------------------------------------

    \35\ The Truck Rule and Drayage Truck Rules were included in a 
SIP submittal dated September 21, 2011. We have placed this SIP 
submittal in the docket for this rulemaking.
---------------------------------------------------------------------------

     The comments that we have received on our proposed 
approval of the CARB rules contend that the rules are costly and may 
not be economically or technologically feasible, but such 
considerations cannot form the basis for EPA disapproval of a rule 
submitted by a state as part of a SIP [see Union Electric Company v. 
EPA; 427 U.S. 246, 265 (1976)];
    We are confident that the final action on the rules will be 
completed in the near term and that, as a result, continued reliance by 
the South Coast 2007 8-hour ozone plan, and our final approval of it, 
on the emissions reductions associated with the rules is reasonable and 
appropriate. If, however, we are unable to complete a final action on 
the rules prior to the effective date of today's action, we will take 
appropriate remedial action to ensure that our action on the plan is 
fully supportable or to reconsider that action.

       Table 2--Revised 2007 State Strategy Defined Measures Schedule for Consideration and Current Status
----------------------------------------------------------------------------------------------------------------
          State measures              Expected action  year         Implementation  date        Current status
----------------------------------------------------------------------------------------------------------------
                                     Defined Measures in 2007 State Strategy
----------------------------------------------------------------------------------------------------------------
Smog Check Improvements (Bureau    2007-2009..................  2008-2010; 2013............  Elements approved
 of Automotive Repair).                                                                       75 FR 38023 (July
                                                                                              1, 2010).\36\
Expanded Vehicle Retirement (AB    2007.......................  2009.......................  Adopted by CARB,
 118).                                                                                        June 2009; by BAR,
                                                                                              September 2010.
Modifications to Reformulated      2007.......................  2010.......................  Approved 75 FR
 Gasoline Program.                                                                            26653 (May 12,
                                                                                              2010).
Cleaner In-use Heavy Duty Trucks   2007, 2008, 2010...........  2011-2015..................  Proposed approval
 (includes Drayage Truck Rule).                                                               76 FR 40562, July
                                                                                              11, 2011. See
                                                                                              discussion above.
Auxiliary Ship Cold Ironing and    2007-2008..................  2010.......................  Waiver granted; 76
 Other Clean Technologies.                                                                    FR 77515, December
                                                                                              13, 2011.
Cleaner Main Ship Engines and      Fuel: 2008-2011............  Fuel: 2009-2015............  Proposed approval
 Fuels.                                                                                       76 FR 40562, July
                                                                                              11, 2011. See
                                                                                              discussion above.
                                   Engines: 2008..............  Engines: 2011..............
Port Truck Modernization.........  2007, 2008, 2010...........  2008-2020..................  Adopted December
                                                                                              2007 and December
                                                                                              2008.
Accelerated Introduction of        2008.......................  2012.......................  Prop 1B funds
 Cleaner Locomotives.                                                                         awarded to upgrade
                                                                                              line-haul
                                                                                              locomotive engines
                                                                                              not already
                                                                                              accounted for by
                                                                                              enforceable
                                                                                              agreements with
                                                                                              the railroads.
                                                                                              Those cleaner line-
                                                                                              hauls will begin
                                                                                              operation by 2012.
Clean Up Existing Harbor Craft...  2007, 2010.................  2009-2018..................  Waiver granted; 76
                                                                                              FR 77521, December
                                                                                              13, 2011.
Cleaner In-Use Off-Road Engines..  2007, 2010.................  2009.......................  Waiver decision
                                                                                              pending.
New Emissions Standards for        2013.......................  tbd........................  Partially adopted,
 Recreational Boats.                                                                          July, 2008;
                                                                                              additional action
                                                                                              expected 2013.
Expanded Off-Road Recreational     2013.......................  tbd........................  Partially adopted,
 Vehicle Emissions Standards.                                                                 July, 2008;
                                                                                              additional action
                                                                                              expected 2013.
Enhanced Vapor Recovery for Above  2008.......................  2009-2016..................  Adopted June, 2007.
 Ground Storage Tanks.
Additional Evaporative Emissions   2009.......................  2010-2012..................  Partial adoption:
 Standards.                                                                                   September, 2008
                                                                                              (outboard marine
                                                                                              tanks).
Consumer Products Program (I &     2008, 2009, 2011...........  2010-2014..................  Approved 74 FR
 II).                                                                                         57074 (November 4,
                                                                                              2009), 76 FR 27613
                                                                                              (May 12, 2011),
                                                                                              and approval
                                                                                              signed December 7,
                                                                                              2011.
----------------------------------------------------------------------------------------------------------------
Sources: 2009 State Strategy Status Report, p. 23 (footnotes in original not included) and 2011 Progress Report,
  Appendix B, Table B-1. Additional information from www.ca.arb.gov. Only defined measures with 8-hour ozone,
  VOC, SOX or NOX reductions in South Coast are shown here.

     
---------------------------------------------------------------------------

    \36\ California Assembly Bill 2289, passed in 2010, requires the 
Bureau of Automotive Repair to direct older vehicles to high 
performing auto technicians and test stations for inspection and 
certification effective 2013.
---------------------------------------------------------------------------

B. Enforceable Commitments

    For the 2007 Ozone Plan, the District committed to achieve certain 
aggregate emissions reductions of NOX and VOC. See SCAQMD, 
Revisions to the 2007 PM2.5 and Ozone State Implementation 
Plans for the South Coast Air Basin and Coachella Valley (SIP 
Revisions), Table 1. EPA is approving these aggregate emissions 
reductions commitments.

     Table 3--South Coast AQMD 2007 Ozone Plan Emissions Reductions
                               Commitments
                       [2023 Tons per summer day]
------------------------------------------------------------------------
                                                         NOX       VOC
------------------------------------------------------------------------
2023................................................       9.2     19.3
------------------------------------------------------------------------
Source: SCAQMD, 2007 AQMP, Table 4-2A, page 4-10, as revised by Appendix
  F of the 2011 Progress Report.

    In the 2007 State Strategy, CARB committed to achieve certain 
aggregate emissions reductions of 141 tpd NOX and 54 tpd VOC 
in the South Coast by the attainment year of 2023 that are sufficient, 
in combination with existing SIP-creditable measures, the District's 
commitments, and commitments for reductions under the CAA section 
182(e)(5) new technologies provision, to attain the 1997 8-hour ozone 
standards in the South Coast by the applicable attainment date of June 
15, 2024. CARB also made enforceable commitments to achieve aggregate 
emissions reductions in the South Coast in the RFP milestone years of 
2014 and 2020. See 2007 State Strategy, p. 63; CARB Resolution 07-28, 
Attachment B, p. 4; and 2009 State Strategy Status Report, p. 20. See 
Table 4 below.

[[Page 12692]]

  Table 4--CARB Commitments to Specific Aggregate Emissions Reductions
                          [Tons per summer day]
------------------------------------------------------------------------
                                                         NOX       VOC
------------------------------------------------------------------------
2014................................................       152        46
2020 \a\............................................       144        52
2023................................................       141        54
2023 CAA 182(e)(5)..................................       241       40
------------------------------------------------------------------------
\a\ The 2020 commitment in the South Coast is necessary to provide for
  attainment in the downwind nonattainment areas. The South Coast 8-hour
  ozone plan does not rely on this emission reduction commitment for
  2020. Source: 2009 State Strategy Status Report, p. 20.

    The 2011 Ozone SIP Revision revised the State's emissions estimates 
for certain source categories and projection years and provided 
additional information on the State and District's progress to date in 
achieving their total emission reduction commitments. In this action, 
we are approving CARB's and the SCAQMD's emission reduction commitments 
as submitted in the 2007 State Strategy, 2009 State Strategy Update and 
the 2007 AQMP without change, because we do not have sufficient 
information to determine how the 2011 SIP Revision alters the State's 
near-term and long-term emission reduction commitments. We note that 
the amount and relative proportion of reductions from measures 
scheduled for long-term adoption under section 182(e)(5), as compared 
to measures already adopted or scheduled for near-term adoption, should 
decrease in any future SIP update.

IV. Approval of Motor Vehicle Emissions Budgets for Transportation 
Conformity

    CARB submitted revised transportation conformity motor vehicle 
emissions budgets for the South Coast nonattainment area and their 
documentation in Appendices A and C, respectively, of the 2011 Ozone 
SIP Revision. The revised budgets are for NOX and VOC for 
the RFP years of 2011, 2014, 2017 and 2020, and the attainment year of 
2023. No budgets were included for the RFP year of 2008 because it is 
no longer applicable as a conformity analysis year. Additional 
information associated with the motor vehicle emission budget 
calculations were provided in Attachment 1 of the CARB Ozone SIP 
Revision supplement and an electronic mail from CARB.\37\
---------------------------------------------------------------------------

    \37\ See electronic mail from Douglas Ito, Chief, Air Quality 
and Transportation Planning Branch, CARB, to Elizabeth Adams, Deputy 
Director, Air Division, EPA Region 9, dated August 11, 2011.
---------------------------------------------------------------------------

    As part of our review of the approvability of the budgets, we have 
evaluated the revised budgets using our adequacy criteria in 40 CFR 
93.318(e)(4). We posted the revised budgets on our Web site for 
adequacy review on September 19, 2011 for a 30-day comment period which 
ended on October 19, 2011 (see http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). We received no comments on our adequacy 
posting. We have completed our adequacy review of these budgets (see 
the TSD, Section H) and also have completed our detailed review of the 
South Coast 2007 8-hour ozone plan and supplemental submittals, 
including the 2011 Ozone SIP Revision, and are approving the SIP's 
attainment and RFP demonstrations. We have also reviewed the revised 
budgets submitted with the 2011 Ozone SIP Revision and have found that 
they are consistent with the attainment and RFP demonstrations and are 
based on control measures that have already been adopted and 
implemented. Therefore, we are approving the 2011, 2014, 2017, 2020 and 
2023 budgets as shown in Table 5 below.
    Now that the approval of the budgets is finalized, the area's 
metropolitan planning organization, the Southern California Association 
of Governments (SCAG) and the U.S. Department of Transportation are 
required to use the revised budgets in transportation conformity 
determinations after the effective date of the approval. Due to the 
formatting of the budgets (combining emissions changes, recession 
impacts and reductions from control measures), CARB will need to 
provide SCAG with emission reductions associated with the control 
measures incorporated into the budgets for the appropriate analysis 
years in future conformity determinations per 40 CFR section 93.122. In 
addition, for these conformity determinations, the motor vehicle 
emissions from implementation of the transportation plan should be 
projected and compared to the budgets at the same level of accuracy as 
the budgets in the plan, for example, emissions should be rounded to 
the nearest ton (e.g., 11 tpd).

                      Table 5--Motor Vehicle Emissions Budgets in the South Coast 2007 8-Hour Ozone SIP as Revised on July 21, 2011
                                                                  [Tons per summer day]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      2011              2014              2017              2020              2023
                                                               -----------------------------------------------------------------------------------------
                                                                  VOC      NOX      VOC      NOX      VOC      NOX      VOC      NOX      VOC      NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Coast Air Basin.........................................     172      328      136      277      119      224      108      185       99     140
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: ``8-Hour Ozone State Implementation Plan Revisions and Technical Revisions to the PM2.5 State Implementation Plan Transportation Conformity
  Budgets for the South Coast and San Joaquin Valley Air Basins,'' Appendix C, submitted July 29, 2011.

    During the comment period on the proposed approval of the South 
Coast 2007 8-hour ozone SIP, CARB requested that EPA limit the duration 
of our approval of the motor vehicle emission budgets submitted on July 
29, 2011 until the effective date of EPA's adequacy finding for any 
subsequently submitted budgets. See letter, Douglas Ito, Chief, Air 
Quality and Transportation Planning Branch, California Air Resources 
Board, October 17, 2011.
    The transportation conformity rule allows EPA to limit the approval 
of budgets. See 40 CFR 93.118(e)(1). However, we can only consider a 
state's request to limit our approval if a state adequately addresses 
three factors. First, the state must acknowledge and explain why the 
budgets under consideration have become outdated or deficient; second, 
the state must make a commitment to update the budgets as part of a 
comprehensive SIP update. Finally, the state must request that EPA 
limit the duration of its approval to the point in time when the new 
budgets have been found to be adequate for transportation conformity 
purposes. See 67 FR 69141 (November 15, 2002) (limiting our prior 
approval of budgets in certain California SIPS).

[[Page 12693]]

    Because CARB's request does not include all these elements, we 
cannot address CARB's request at this time. Once CARB has submitted 
additional information to adequately address these factors, EPA intends 
to propose to limit the duration of our approval of the budgets in the 
South Coast 2007 8-hour ozone plan and to provide the public an 
opportunity to comment.\38\ The duration of the approval of the budgets 
will not be limited until we complete the rulemaking initiated by that 
proposal.
---------------------------------------------------------------------------

    \38\ In the same comment letter, CARB also requested that we 
limit the duration of our recent approval of the PM2.5 
motor vehicle budgets. These budgets were also submitted on July 29, 
2011 as an appendix to the 2011 Ozone SIP Revision.
---------------------------------------------------------------------------

V. Final Actions

    For the reasons discussed in our September 16, 2011 proposal and 
explained further above, EPA is approving California's SIP for 
attaining the 1997 8-hour ozone NAAQS in the South Coast nonattainment 
area. California's 8-hour ozone attainment SIP for the South Coast 
nonattainment area is composed of the relevant portions of the South 
Coast 2007 AQMP as revised in 2011 and the South Coast-specific 
portions of CARB's 2007 State Strategy as revised in 2009 and 2011 that 
address CAA requirements and EPA regulations for attainment of the 1997 
8-hour ozone standards in the South Coast nonattainment area.
    Specifically, EPA is approving under CAA section 110(k)(3) the 
following elements of the South Coast 8-hour ozone attainment SIP:
    1. The revised 2002 base year emissions inventory as meeting the 
requirements of CAA section 182(a)(1) and 40 CFR 51.915;
    2. The reasonably available control measure demonstration as 
meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.912(d);
    3. The reasonable further progress demonstration as meeting the 
requirements of CAA sections 172(c)(2) and 182(c)(2)(B) and 40 CFR 
51.910;
    4. The attainment demonstration as meeting the requirements of CAA 
section 182(c)(2)(A) and 40 CFR 51.908;
    5. The provisions for the development of new technologies pursuant 
to CAA section 182(e)(5) and CARB's commitment to adopt and submit by 
2020 contingency measures to be implemented if the new technologies do 
not achieve the planned emissions reductions, in addition to additional 
attainment contingency measures meeting the requirements of CAA section 
172(c)(9), pursuant to CAA section 182(e)(5) as given in CARB 
Resolution 11-22 (July 21, 2011); and CARB's commitment to develop and 
submit by 2020, revisions to the SIP that will (1) reflect 
modifications to the 2023 emission reduction target based on updated 
science and (2) identify additional strategies and implementing 
agencies needed to achieve the needed reductions by the beginning of 
the 2023 ozone season as given in the 2011 Ozone SIP Revision, p. A-8;
    6. The contingency measure provisions for failure to make RFP and 
to attain as meeting the requirements of CAA sections 172(c)(9) and 
182(c)(9);
    7. The demonstration that the SIP provides for transportation 
control strategies and measures sufficient to offset any growth in 
emissions from growth in VMT or the number of vehicle trips, and to 
provide for RFP and attainment, as meeting the requirements of CAA 
section 182(d)(1)(A);
    8. The revised motor vehicle emissions budgets for the RFP 
milestone years of 2011, 2014, 2017 and 2020, and for the attainment 
year of 2023, because they are derived from approvable RFP and 
attainment demonstrations and meet the requirements of CAA sections 
176(c) and 40 CFR part 93, subpart A;
    9. The SCAQMD's commitments to achieve specific aggregate emission 
reductions of NOX and VOC as listed in Table 4-2A of the 
South Coast 2007 AQMP (as revised March 4, 2011) and as given in Table 
3; and
    10. CARB's commitments to propose certain defined measures, as 
listed in Appendix B, Table B-1 of the 2011 Ozone SIP Revision; to 
achieve specific aggregate emission reductions of 152 tpd of 
NOX and 46 tpd of VOC by 2014; 141 tpd of NOX and 
54 tpd of VOC from existing technologies in the South Coast 
nonattainment area by 2023; and 241 tpd of NOX and 40 tpd of 
VOC from new technologies by 2023 as provided in CARB Resolution 07-28, 
Attachment B, and the 2009 State Strategy update, p. 20; and to achieve 
the emissions reductions needed to attain the 8-hour ozone standards in 
the South Coast nonattainment area as provided in CARB Resolution 07-
28, Attachment B, p. 4, 2009 State Strategy Status Report, p. 20 and as 
given in Table 4.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because this approval action does not create any 
new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in

[[Page 12694]]

estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector. This 
Federal action approves pre-existing requirements under State or local 
law, and imposes no new requirements. Accordingly, no additional costs 
to State, local, or tribal governments, or to the private sector, 
result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a State rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves a 
State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking. In reviewing SIP submissions, EPA's role is 
to approve or disapprove state choices, based on the criteria of the 
Clean Air Act. Accordingly, this action merely approves certain State 
requirements for inclusion into the SIP under CAA section 110 and 
subchapter I, part D, and will not in-and-of itself create any new 
requirements. Accordingly, it does not provide EPA with the 
discretionary authority to address, as appropriate, disproportionate 
human health or environmental effects, using practicable and legally 
permissible methods, under Executive Order 12898.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective on April 30, 2012.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 30, 2012. Filing a 
petition for reconsideration by

[[Page 12695]]

the Administrator of this final rule does not affect the finality of 
this rule for the purposes of judicial review nor does it extend the 
time within which a petition for judicial review may be filed, and 
shall not postpone the effectiveness of such rule or action. This 
action may not be challenged later in proceedings to enforce its 
requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Oxides of nitrogen, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

     Dated: December 15, 2011.
Jared Blumenfeld,
Regional Administrator, Region 9.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220, is amended by adding paragraph (c)(397) (ii)(A)(5), 
(c)(398)(ii)(A)(3) and (c)(401)(ii)(A)(1)(i) and (2)(i).

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (397) * * *
    (ii) * * *
    (A) * * *
    (5) CARB Resolution No. 07-28 with Attachments A and B, September 
27, 2007. Commitment to achieve the total emissions reductions 
necessary to attain the Federal standards in the South Coast air basin, 
which represent 152 tpd of NOX and 46 tpd of VOC by 2014, 
and 54 tpd of VOC and 141 tpd of nitrogen oxides by 2023 for purposes 
of the 1997 8-hour ozone NAAQS, as described in Resolution No. 07-28 at 
Attachment B, p. 4, and modified by CARB Resolution No. 09-34 (April 
24, 2009) adopting the ``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.''
* * * * *
    (398) * * *
    (ii) * * *
    (A) * * *
    (3) SCAQMD Governing Board Resolution 07-9, ``A Resolution of the 
Governing Board of the South Coast Air Quality Management District 
certifying the final Program Environmental Impact Report for the 2007 
Air Quality Management Plan, adopting the Final 2007 Air Quality 
Management Plan (AQMP), to be referred to after adoption as the Final 
2007 AQMP, and to fulfill USEPA Requirements for the use of emissions 
reductions form the Carl Moyer Program in the State Implementation 
Plan,'' June 1, 2007. Commitments to achieve emissions reductions 
(including emissions reductions of 19.3 tpd of VOC and 9.2 tpd of 
nitrogen oxides by 2023) as described by SCAQMD Governing Board 
Resolution No. 07-9, p. 10, June 1, 2007, and modified by SCAQMD 
Governing Board Resolution 11-9, p. 3, March 4, 2011, and commitments 
to adopt and submit control measures as described in Table 4-2A of the 
Final 2007 AQMP, as amended March 4, 2011.
* * * * *
    (401) * * *
    (ii) * * *
    (A) * * *
    (1) * * *
    (i) Commitment to develop and submit by 2020 revisions to the SIP 
that will reflect modifications to the 2023 emissions reduction target 
based on updated science, and identify additional strategies and 
implementing agencies needed to achieve the needed reductions by 2023 
as given in the 2011 Ozone SIP Revision on page A-8.
    (2) * * *
    (i) Commitment to develop, adopt and submit by 2020 contingency 
measures to be implemented if advanced technology measures do not 
achieve the planned emissions reductions, and attainment contingency 
measures meeting the requirements of CAA section 172(c)(9), pursuant to 
CAA section 182(e)(5) as given on p. 4.
* * * * *
[FR Doc. 2012-4673 Filed 2-29-12; 8:45 am]
BILLING CODE 6560-50-P
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