1D Sr 1

.‘‘ . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION IX

75 Hawthorne Street

. I San Francisco, CA 94105

l

January 10, 2011

Memorandum

Subject: Typographical Corrections to Final Rulemaking Notice, “Approval of Air Quality

Implementation Plans; California; South Coast; Attainment Plan for the 1997 8-Hour

Ozone Standards

To: South Coast Docket File EPA-R09-OAR-201 1-0622

From: Wienke Tax, EPA Region 9, Air Planning Office

Per my conversation with Darryl Adams of EPA’s Office of Policy, Economics, and Innovation (OPEl)

today, I am documenting that I made typographical corrections to pages 9, 13, 20, and 81 ofthe subject

final rulemaking document after Regional Administrator signature. Darryl confirmed that OPEl does not

need to review these corrections. I have attached pages 9, 13, 20, and 81 of the rulemaking document to

this cover memo and have marked, signed and dated the changes.

I will be sending the corrected version to EPA’s Office of Policy, Regulatory Management Division,

tomorrow.

Attachments
9

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) . Corrimenters

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

1fth..E

Warmerdam the court found neither the baseline nor --h-e-+-o-gy / l//

enforceable and thus, the plaintiffs were not able to enforce.
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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. Eemphasis 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 R-P

year of 2014 and the attainment year (2023) . See 40 CFR

51.908(d) (requiring implementation of all control measures
20

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 rionattainment 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 Cornite

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
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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 REP 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 REP

and to implement TCMs as necessary to demonstrat 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