12674 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Rules and Regulations 

1The 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. 

2Final 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). 

3These 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). 

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. 

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 Coastrelated 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

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. 

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 


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4See letter, James Goldstene, Executive Officer, 

CARB, to Jared Blumenfeld, Regional 

Administrator, EPA Region 9, dated November 18, 

2011. 

5We 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). 

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. 

7EPA can also enforce SIP commitments 

pursuant to CAA section 113. 

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. 

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

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): 

Courts interpreting citizen suit jurisdiction 

have largely focused on whether the 

particular standard or requirement plaintiffs 


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8The 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 nearterm 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. 

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. 

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 


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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 


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9For 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). 

10MOVES replaced the MOBILE model as EPA’s 

on-road mobile source emission estimation model 

for use in SIPs and conformity in 2010. 

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. 

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. 

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 SIPapproved: 

• 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

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. 

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 nonroad 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. 

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.12See 

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 


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13EPA 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. 

14See 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) 

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 EPAapproved 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. 

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. 

• 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 HeavyDuty 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) 


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15The 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. 

(‘‘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. 

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 antibacksliding 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 


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16EPA’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). 

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. 

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 longstanding 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 longstanding 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 


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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. 

18See the South Coast 2007 AQMP, Appendix III, 

Tables 2–8 and Appendix III, Attachment B, Table 

B–8. 

19See the South Coast 2007 AQMP, Appendix III, 

pg 2–28. 

California with the broadest possible 

discretion in the development and 

promulgation of on-road and nonroad 

vehicle and engine standards.17

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. 

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 noncompliance 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 


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20Base 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). 

21For 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.’’ 

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. 

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 nonpoint (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 <4 

tpy) not subject to the AER Program in 

this area source emissions inventory. Id. 

at 1–9. 

The projected year inventories in the 

South Coast 2007 Ozone SIP were 

developed based on emissions 

projections calculated using a CARB 

model called the California Emission 

Forecasting System (CEFS). The CEFS 

model projects future emissions from 

stationary point 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. See 2007 State 

Strategy, Appendix F at 7. Mobile 

source emission projections are 

estimated using CARB’s EMFAC and 

OFFROAD emission factor 


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22CARB’s EMFAC and OFFROAD models for 

estimating emissions from on-road and non-road 

mobile sources 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. Information about the 

EMFAC and OFFROAD models is available at 

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). 

23By ‘‘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. 

24For 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 sourcespecific 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. 

25See 68 FR 65637 (November 21, 2003) (final 

rule approving revisions to SCAQMD’s title V 

operating permits program effective January 1, 

2004). 

26For 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. 

models.22See 2007 State Strategy, 

Appendix F at 7–8. The CEFS model 

then 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 by the 

districts for use in establishing future 

baseline planning inventories. See id. at 

7, 8. 

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. 

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. 

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 


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27We 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. 

28Consumer 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. 

RE factors (86 to 100%) in projecting 

emissions from area sources of VOC 

emissions in the South Coast area. 

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. 

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. 

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 


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29Throughout this notice we use the terms ‘‘longterm 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. 

31For 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. 

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 onroad truck standards in 2010, full offroad Tier 4 

standards in 2014, and the recent U.S. EPAproposed 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 

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. 

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. 

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 


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NOX carrying capacity by 133 tpd. See 2007 State 

Strategy, p. 54. 

33We 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)). 

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 nearterm 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. 

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 longterm 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. 

As explained above and in our 

proposed rule, EPA interprets the Act to 

allow EPA to approve the State’s 


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34EPA’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. 

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

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 


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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 longterm 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 


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35The 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. 

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 

District rule Adoption date Current SIP approval status 

Rule 445—Woodburning fireplaces and wood 

stoves.

03/07/08 ........................................................... 74 FR 27716, 6/11/09. 

Rule 461—Gasoline transfer and dispensing .... 03/07/08 ........................................................... 71 FR 18216, 4/11/06. 

Rule 1110.2—Liquid and gaseous fuels—stationary ICEs.02/01/08 ........................................................... 74 FR 18995, 4/27/09. 

Rule 1111—Further NOX reductions from space 

heaters.

11/06/09 ........................................................... 75 FR 46845, 08/04/10. 

Rule 1127—Livestock Waste ............................. 08/06/04 ........................................................... Under EPA review. 

Rule 1138—Restaurant Operations ................... 2012 ................................................................. 66 FR 36170, 7/11/01. 

Rule 1143—Consumer Paint Thinners and 

Multi-Purpose Solvents.

12/03/10 ........................................................... 76 FR 70888, 11/16/11. 

Rule 1144—Vanishing oils and rust inhibitors ... 07/09/10 ........................................................... 76 FR 70888, 11/16/11. 

Rule 1145—Plastic, Rubber, Leather and Glass 

Coatings.

12/3/04 ............................................................. 75 FR 40726, 07/14/10. 

Rule 1146—NOX from industrial, institutional, 

commercial boilers, steam gens, and process 

heaters.

09/05/08 ........................................................... Proposed limited approval/limited disapproval 

76 FR 40303, 7/8/11. 

Rule 1146.1—NOX from small industrial, institutional, commercial boilers, steam gens, and 

process heaters.

09/05/08 ........................................................... Proposed limited approval/limited disapproval 

76 FR 40303, 7/8/11. 

Rule 1147—NOX reductions from miscellaneous sources.12/05/08 ........................................................... 75 FR 46845, 08/04/10. 

Rule 1149—Storage Tank and Pipeline Cleaning and Degassing.05/02/08 ........................................................... 74 FR 67821, 12/21/09. 

Rule 2002—Further SOX reductions from RECLAIM.11/4/10 ............................................................. 76 FR 50128, 8/12/11. 

Rule 2301—Indirect Source Review .................. Scheduled for SCAQMD Board adoption in 

2012.

Rule 1123—Refinery Pilot Program ................... Scheduled for SCAQMD Board adoption in 

February 2012 a.

N/A. 

Rule 2449—SOON program .............................. 5/2/08 ............................................................... Under EPA review. 

AB923 Light and medium duty vehicle high 

emitter program.

No rules associated with these measures ....... N/A. 

AB923 Light and medium duty vehicle high 

emitter program.

No rules associated with these measures ....... N/A. 

aSee 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 onroad 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 InUse 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 


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36California 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. 

versions are essentially the same as 

those for which EPA proposed approval; 

• 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 of Automotive Repair).2007–2009 ............ 2008–2010; 2013 .. Elements approved 75 FR 38023 (July 1, 

2010).36

Expanded Vehicle Retirement (AB 118) ............... 2007 ...................... 2009 ...................... Adopted by CARB, June 2009; by BAR, September 2010. 

Modifications to Reformulated Gasoline Program 2007 ...................... 2010 ...................... Approved 75 FR 26653 (May 12, 2010). 

Cleaner In-use Heavy Duty Trucks (includes 

Drayage Truck Rule).

2007, 2008, 2010 .. 2011–2015 ............ Proposed approval 76 FR 40562, July 11, 2011. 

See discussion above. 

Auxiliary Ship Cold Ironing and Other Clean 

Technologies.

2007–2008 ............ 2010 ...................... Waiver granted; 76 FR 77515, December 13, 

2011. 

Cleaner Main Ship Engines and Fuels ................. Fuel: 2008–2011 ... Fuel: 2009–2015 ... Proposed approval 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 Cleaner Locomotives 2008 ...................... 2012 ...................... Prop 1B funds 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 Recreational Boats 2013 ...................... tbd ......................... Partially adopted, July, 2008; additional action 

expected 2013. 

Expanded Off-Road Recreational Vehicle Emissions Standards.2013 ...................... tbd ......................... Partially adopted, July, 2008; additional action 

expected 2013. 

Enhanced Vapor Recovery for Above Ground 

Storage Tanks.

2008 ...................... 2009–2016 ............ Adopted June, 2007. 

Additional Evaporative Emissions Standards ....... 2009 ...................... 2010–2012 ............ Partial adoption: September, 2008 (outboard marine tanks). 

Consumer Products Program (I & II) .................... 2008, 2009, 2011 .. 2010–2014 ............ Approved 74 FR 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. 

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. 


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37See 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. 

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 

aThe 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 nearterm 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

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). 


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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. 

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. 

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 costeffective 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 


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12694 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Rules and Regulations 

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 


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

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220, is amended by 

adding paragraph (c)(397) (ii)(A)(5), 

(c)(398)(ii)(A)(3) and (c)(401)(ii)(A)(1)(i) 

and (2)(i). 

§ 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 


srobinson on DSK4SPTVN1PROD with RULES3