1D Sr 1 .‘‘ . UNITED STATES ENVIRONMENTAL PROTECTIONAGENCY REGIONIX 75 HawthorneStreet

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# I San Francisco, CA 94105 l 

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### 10, 2011 Memorandum Subject: TypographicalCorrectionstoFinalRulemakingNotice, “ApprovalofAirQuality ImplementationPlans; California; SouthCoast; AttainmentPlanforthe 1997 8-Hour Ozone Standards To: SouthCoastDocketFileEPA-R09-OAR-201 1-0622 From: WienkeTax, EPARegion9,AirPlanningOffice PermyconversationwithDarrylAdamsofEPA’s OfficeofPolicy, Economics, andInnovation(OPEl) today, I amdocumentingthatImadetypographical correctionstopages 9, 13, 20, and 81 ofthe subject finalrulemakingdocumentafterRegionalAdministratorsignature. Darryl confirmedthatOPEldoesnot needtoreviewthesecorrections. Ihaveattachedpages 9, 13, 20, and 81 oftherulemakingdocumentto this covermemo andhavemarked, signedanddatedthechanges. IwillbesendingthecorrectedversiontoEPA’sOfficeofPolicy, RegulatoryManagementDivision, tomorrow.

Attachments9 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 ( 9 th 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.13 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 measures20 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/to81 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