1

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0516; FRL- ]

Approval and Promulgation of Implementation Plans; California;

2008 San Joaquin Valley PM2.5 Plan and 2007 State Strategy

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving in part and disapproving in part 

state implementation plan (SIP) revisions submitted by 

California to provide for attainment of the 1997 fine 

particulate matter (PM2.5) national ambient air quality 

standards in the San Joaquin Valley (SJV). These SIP revisions 

are the SJV 2008 PM2.5 Plan (revised 2010 and 2011) and SJVrelated provisions of the 2007 State Strategy (revised 2009 and 

2011). EPA is approving the emissions inventory, the reasonably 

available control measures/reasonably available control 

technology demonstration, reasonable further progress

demonstration, attainment demonstration and associated air 

quality modeling, and the transportation conformity motor 

vehicle emissions budgets. EPA is also granting California's 

request to extend the attainment deadline for the SJV to April 

5, 2015 and approving commitments to measures and reductions by 

the SJV Unified Air Pollution Control District and the 

California Air Resources Board. Finally, it is disapproving the 
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SIP‟s contingency provisions and issuing a protective finding 

for transportation conformity determinations under 40 CFR 

93.120(a)(3) for this disapproval.

DATE: The rule is effective [insert date 60 days from the date 

of publication in the Federal Register].

ADDRESSES: EPA has established docket number EPA-R09-OAR-2010-

0516 for this action. The index to the docket is available 

electronically at www.regulations.gov and in hard copy at EPA 

Region 9, 75 Hawthorne Street, San Francisco, California. While 

all documents in the docket are listed in the index, some may be 

publicly available only at the hard copy location (e.g., 

copyrighted material) and some may not be publicly available at 

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 below.

Copies of the SIP materials are also available for 

inspection at the following locations:

California Air Resources Board, 1001 I Street, Sacramento, 

California 95812

San Joaquin Valley Air Pollution Control District, 1990 E. 

Gettysburg, Fresno, California 93726.

The SIP materials are also electronically available at: 
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www.valleyair.org/Air_Quality_Plans/PM_Plans.htm and 

www.arb.ca.gov/planning/sip/sip.htm.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Air Planning 

Office (AIR-2), U.S. Environmental Protection Agency, Region 9, 

(415) 972-3957, wicher.frances@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 2008 

State Implementation Plan for Attainment of the 1997 PM2.5 

Standards in the San Joaquin Valley 

II. Response to Public Comments Received on the Proposals 

III. Approval Status of the Control Strategy Measures and Final 

Actions on the Attainment Demonstration and Enforceable 

Commitments

IV. Approval of the Motor Vehicle Emissions Budgets and Trading 

Mechanism for Transportation Conformity

V. Final Actions and Resulting Clean Air Act Consequences

VI. Statutory and Executive Order Reviews

I. Summary of EPA’s Proposed and Final Actions on the 2008 

State Implementation Plan for Attainment of the 1997 PM2.5 

Standards in the San Joaquin Valley 
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On July 13, 2011, EPA proposed to approve in part and 

disapprove in part California‟s state implementation plan (SIP) 

for attaining the 1997 fine particulate (PM2.5) national ambient 

air quality standards (NAAQS) in the San Joaquin Valley (SJV). 

See 76 FR 41338. California developed this SIP to provide for 

expeditious attainment of the PM2.5 standards in the SJV and to 

meet other applicable PM2.5 planning requirements in Clean Air 

Act (CAA) section 172(c) and EPA‟s PM2.5 implementation rule.1

In all, California has made six submittals to address the 

PM2.5 SIP planning requirements for the SJV. The two principal 

ones are the SJV Unified Air Pollution Control District‟s 

(SJVUAPCD or District) 2008 PM2.5 Plan (amended 2010 and 2011) 

and the California Air Resources Board‟s (CARB) State Strategy 

for California‟s 2007 State Implementation Plan (amended 2009 

and 2011).2 Together, the 2008 PM2.5 Plan and the 2007 State 

 

1 “The Clean Air Fine Particle Implementation Rule for the 1997 

PM2.5 NAAQS,” 72 FR 20586 (April 25, 2007) and codified at 40 

CFR part 51, subpart Z (PM2.5 implementation rule).

2 These SIP submittals are: 

1. SJVUAPCD, 2008 PM2.5 Plan, adopted on April 30, 2008 by 

the SJVUAPCD and on May 22, 2008 by CARB, submitted on 

June 30, 2008. 

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.
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Strategy present a comprehensive and innovative strategy for 

attaining the 1997 PM2.5 standards in the SJV.

In our July 2011 notice, EPA proposed multiple approval 

actions on the SJV 2008 PM2.5 SIP. First, we proposed to approve 

the SIP‟s reasonably available control measure/reasonably 

available control technology (RACM/RACT) demonstration, 

reasonable further progress (RFP) demonstration, attainment 

demonstration and associated air quality modeling, base year 

emissions inventory; air quality modeling; and motor vehicle 

emissions budgets.3 Second, we proposed to approve enforceable 

commitments by both the District and CARB to certain measures 

 

4. SJVUAPCD, 2008 PM2.5 Plan Amendment to Extend the Rule 

4905 Amendment Schedule, adopted on June 17, 2010 by the 

SJVUAPCD, submitted on September 15, 2010

5. CARB, 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 (Appendices B, C 

and D only), adopted on April 28, 2011 by CARB, submitted on 

May 18, 2011. “2011 Progress Report”

6. CARB, 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 Revisions”) Only 

the PM2.5 motor vehicle emissions budgets in this submittal are 

addressed in today‟s action.

3 The 2011 Progress Report contained budgets that were not 

approvable because they included emissions reductions from a 

rule that was ineligible for SIP credit. These budgets also 

included data entry errors. See 76 FR 41338, 41360. We proposed 

instead to approve alternative budgets that CARB had developed 

and posted for public comment as part of its 2011 Ozone SIP 

Revisions and stated that the approval was contingent on our 

receipt of the SIP revision containing the revised budgets. Id. 

CARB submitted that SIP revision on July 29, 2011. 
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and specific amounts of emissions reductions. Third, we proposed

to concur with the State‟s determination that volatile organic 

compounds (VOC) and ammonia are not attainment plan precursors 

for attainment of the 1997 PM2.5 NAAQS in the SJV. Lastly, we

proposed to grant California's request to extend the attainment 

date for the San Joaquin Valley PM2.5 nonattainment area to 

April 5, 2015. See 76 FR 41338, 41361.

EPA also proposed to disapprove the contingency measures 

provisions of the SJV 2008 PM2.5 SIP for failing to provide 

sufficient emissions reductions.4 Id.

A more detailed discussion of each of California‟s SIP 

submittals for the SJV area, the CAA and EPA requirements 

applicable to them, and our evaluation and proposed actions can 

be found in our July 2011 proposal (76 FR 41338) and the 

technical support document (TSD) for this final action.5

 

4 We also proposed to disapprove a commitment by the District to 

adopt revisions to its Rule 4702 “Reciprocating Internal 

Combustion Engines” by December 2010 because that date had

passed and the District had not adopted revisions to the rule. 

We stated in the proposal that we would not finalize this 

proposed disapproval if the District adopted revisions to the 

rule by the time of our final action on the SIP. See 76 FR 

41338, 41361. On August 18, 2011, the District adopted the 

revisions to Rule 4702; therefore, we are not finalizing our 

proposed disapproval of this commitment.

5 “Technical Support Document and Response to Comments Final 

Rule on the San Joaquin Valley 2008 PM2.5 State Implementation 

Plan,” Air Division, U.S. EPA Region 9, September 30, 2011. The 

TSD can be found in the docket for this rulemaking.
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Our July 2011 proposal was the second time that EPA 

proposed action on California‟s SJV 2008 PM2.5 SIP. On November 

30, 2010 (75 FR 74518), EPA proposed to disapprove the majority 

of the provisions in this SIP. During the comment period for the 

November 2010 proposal, we received several comment letters from 

the public as well as comment letters from CARB and the 

District. Subsequent to the close of the comment period, CARB 

adopted and submitted revisions to the SJV PM2.5 Plan and 2007 

State Strategy. After considering information contained in the 

comment letters and the supplemental SIP submittals, we issued 

the July 2011 proposed rule which substantially amended our 

November 2010 proposal. 

EPA is today approving most elements of the SJV 2008 PM2.5 

SIP based on our conclusion that they comply with applicable CAA 

requirements and provides for expeditious attainment of the 1997 

PM2.5 standards in the San Joaquin Valley. We are also today 

disapproving the SIP‟s contingency measure provisions because 

they do not provide sufficient emissions reductions. We are 

continuing to working with the State and District to identify 

additional control measures and incentive programs that meet the 

CAA's requirements for contingency measures consistent with EPA 

regulations and policy.

II. Response to Public Comments Received on the Proposals 
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As part of this final action, EPA has considered and 

provided responses to the comments submitted in response to both

the November 2010 and the July 2011 proposals Comments on our 

proposals were received from: 

The Center on Race, Poverty & the Environment on behalf of 

the Association of Irritated Residents (AIR) and other San 

Joaquin Valley-based environmental and community organizations. 

AIR submitted comments on both proposals.

Earthjustice, on behalf of Medical Advocates for Healthy 

Air and other San Joaquin Valley-based environmental and 

community organizations. Earthjustice submitted comments on both 

proposals. 

SJVUAPCD provided comments on the November 2010 proposal.

CARB provided two comment letters on our November 2010 

proposal. The first transmitted air quality modeling 

documentation and the second provided comments on the proposal.6

Tom Frantz, President, AIR, submitted comments on our 

November 2010 proposal

Arthur D. Unger submitted comments on our November 2010 

proposal. 

 

6 The majority of CARB‟s and the District‟s comments addressed 

the November 2010 proposed disapprovals and EPA‟s grounds for 

them. These comments were, for the most part, addressed by our 

July 2011 amended proposal.
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A copy of these comment letters and their attachments can 

be found in the docket for this final rule.

In the following sections, we summarize our responses to 

the most significant comments received on the proposals. Our 

full responses to all comments received can be found in the 

“Response to Comments” section (section III) of the TSD for this 

final rule.

A. Comments on the Proposed Action on the Emissions Inventory

Comment: Earthjustice comments on the importance of emissions

inventories, noting that CAA section 172(c)(3) requires that 

nonattainment plans “include a comprehensive, accurate, current 

inventory of actual emissions from all sources of the relevant 

pollutant or pollutants in such area.” Earthjustice objects to 

EPA‟s proposal to approve the inventories in the 2008 PM2.5 SIP 

because they were current and accurate “at the time the Plan was 

developed and submitted,” arguing that such language is not in 

the CAA and is not a reasonable extension of Congress‟s intent, 

which is to ensure the adoption and approval of SIPs that will 

achieve clean air meeting the NAAQS. Earthjustice argues that an 

inventory that is “known to be wrong” undermines the modeling 

demonstration of the emissions reductions needed to attain, and 

that EPA‟s interpretation suggests that revisions to an 

inventory are needed only when it is found that the inventory is 
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not current or accurate as of the date it is submitted. 

Earthjustice argues that such an interpretation undermines any 

assurance that “the requirements of [Part D of the CAA] are 

met.” Finally, Earthjustice asserts that “EPA cannot approve 

these inventories as complying with the requirements of section 

172(c)(3) knowing that the data are not valid for purposes of 

building an attainment plan.” 

Response: EPA does not dispute the importance of emissions 

inventories. We evaluated the emissions inventories in the 2008 

PM2.5 Plan to determine whether they satisfy the requirements of 

CAA section 172(c)(3) and adequately support the Plan‟s RACM, 

RFP and attainment demonstrations. Based on this evaluation, we 

have concluded that the Plan‟s 2005 base year emissions

inventory was based on the most current and accurate information 

available to the State and District at the time the Plan was 

developed and submitted and comprehensively addresses all source 

categories in the SJV area, consistent with applicable CAA 

requirements and EPA guidance. See 76 FR 41338 at 41342-41343 

and 2011 Proposal TSD7 at section IIA; see also “General Preamble 

for Implementation of Title I of the Clean Air Act Amendments of 

 

7 “Technical Support Document for the Revised Proposed 

Rulemaking Action on the San Joaquin Valley 2008 PM2.5 Plan and 

the San Joaquin Valley Portions of the Revised 2007 State 

Strategy,” Air Division, U.S. EPA, Region 9, June 29, 2011,

“2011 Proposal TSD.” 
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1990,” 57 FR 13498 at 13502 (April 16, 1992) (“General 

Preamble”). 

We do not agree with Earthjustice's suggestion that EPA 

interprets the CAA to require revisions to an emissions 

inventory only when it is found that such inventory is not 

current or accurate as of the date it is submitted. Significant 

changes to a base year inventory that undermine the assumptions 

in an attainment demonstration may, on a case by case basis, 

call for a reevaluation of the modeling or other planning 

analyses supporting that demonstration. In this case, however, 

as discussed in the proposed rule (76 FR 41562, 41567) and in 

section II.A. below, we have concluded that the State‟s changes 

to its methodologies for estimating future emissions do not 

significantly affect the 2002 base year inventories and, 

consequently, do not undermine the modeling or other analyses 

that rely on those inventories and that support the attainment 

demonstration in the Plan. Based on this technical assessment, 

we have concluded that it is not necessary in this case for the 

State to submit a revised base year inventory. We note that 

states are required to report comprehensive emissions 

inventories to EPA every three years under the Air Emissions 

Reporting Requirements in 40 CFR part 51, subpart A. See 40 CFR 

§ 51.30(b).
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CAA section 172(b) provides that “the State containing [a 

nonattainment] area shall submit a plan or plan revision 

(including the plan items) meeting the applicable requirements 

of [section 172(c) and section 110]” on the schedule established 

by EPA, and section 172(c) contains, inter alia, the requirement 

that nonattainment plans “shall include a comprehensive, 

accurate, current inventory of actual emissions from all sources 

of the relevant pollutant or pollutants in such area.” We 

believe it is reasonable to read these provisions together as 

requiring that the State submit an inventory that is 

“comprehensive, accurate, [and] current” at the time the State 

submitted it to EPA, rather than requiring that the State 

continually revise its plan as new emissions data becomes 

available. See Brief of Respondents, EPA, in Sierra Club, et al. 

v. U.S. EPA, et al., Case Nos. 10-71457 and 10-71458 

(consolidated), May 5, 2011. States could never effectively plan 

for air quality improvements if they had to constantly revise 

their inventories as new data became available. Air quality 

planning is an iterative process and states and EPA must rely on 

the best available data at the time the plans are created.

Comment: Throughout its comments, AIR uses the term “recession 

reductions” which it defines as “the emissions reductions the 

[C]ARB claims have occurred as a result of the recession.” 
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Response: In its comments, AIR calculates what it considers 

“the total reductions from baseline reductions without recession 

reductions” as 11 tpd of PM2.5, 195 tons per day (tpd) of 

nitrogen oxides (NOx), and 0.9 tpd of sulfur oxides (SOx). These 

figures are the same as the calculated reductions from the 

baseline measures prior to the updates to the 2014 baseline 

inventory.8 Based on these calculations, AIR seems to consider 

the “recession reductions” to be the difference between the 2014 

baseline inventory submitted with the 2008 PM2.5 Plan in 2008 

and the revised 2014 baseline inventory submitted with the 2011 

Progress Report in 2011. By labeling this difference as 

“recession reductions,” AIR attributes the differences entirely 

to revisions to the economic forecasts. This is not entirely 

correct. 

Changes to the 2014 baseline inventory include revisions 

not only to the economic forecasts but also to a variety of 

other factors (out-of-state vehicle miles traveled (VMT)

 

8 See line D on Table 7 in the November 30, 2010 proposed action 

on the SJV PM2.5 SIP at 75 FR 74518. On this table, the baseline 

NOx reductions are listed as 199.2 tpd but include 4.2 tpd of 

uncreditable reductions that are not included in AIR‟s numbers.

By “baseline inventories” or “projected baseline inventories, we 

mean projected emissions inventories for future years that 

account for, among other things, the ongoing effects of economic 

growth and adopted emissions control requirements. A 2014 

baseline inventory is important because this year is the 

“attainment year,” the year by which all reductions needed for 

attainment need to be in place for the SJV. See 40 CFR 

51.1007(b).
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estimates, cumulative mileage, equipment populations, load 

factors, and hours of use, etc.) used to calculate emissions 

from trucks, buses, and certain off-road equipment categories. 

See 2011 Progress Report, Appendix E. CARB estimates that 

revisions to the truck inventory excluding recession impacts 

reduced truck emissions statewide by 10 percent from the 2014 

baseline levels estimated when the Truck rule was adopted in 

2008 while recession impacts reduced the baseline level by a 

further 7 percent. See 2010 Truck Rule ISOR, p. 19.9 For off-road 

equipment, CARB estimates that inventory changes independent of 

the recession were responsible for half the overall reduction in 

projected statewide emissions. See 2010 Off Road Rule ISOR, p. 

17.10 We note that these figures are average statewide figures 

and not specific to the SJV.

Comment: AIR contends that in the 2011 Progress Report, CARB 

first claims that the reduced economic activity caused by the 

recession has reduced 2014 emissions levels in the SJV by 2.7 

tpd of PM2.5, 63.1 tpd of NOx and 0.1 tpd of SOx. AIR further 

 

9 CARB, “Staff Report: Initial State of Reasons for Proposed 

Rulemaking, Proposed Amendments to the Truck and Bus 

Regulations, The Drayage Truck Regulation and the TractorTrailer Greenhouse Gas Regulation,” October 2010 (“2010 Truck 

Rule ISOR”).

10 CARB Staff Report: Initial Statement of Reasons for Proposed 

Amendments to the Regulation for In-Use Off-Road Diesel-Fueled 

Fleets and the Off-Road Large Spark-Ignition Fleet Requirements, 

October 2010, including Appendix D1 (“2010 Off-Road Rule ISOR”).
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contends that CARB claims that the recession has caused current 

inventories of the goods movement and construction sectors to be 

lower than projected in the 2008 PM2.5 Plan. Finally, citing 

EPA‟s statement in the 2011 Proposal TSD about the effect of the 

2007-2009 economic recession on activity levels in the State‟s 

construction and goods movement sectors, AIR asserts that 

accounting for the recession through inventory adjustments is 

improper. 

Response: CARB does not claim that the recession alone has 

reduced the projected 2014 baseline emissions in the SJV nor did 

it provide the numbers cited by AIR. As discussed in the 

response to the preceding comment, revisions to the baseline 

inventory took into account not only changes to the State‟s 

economic forecasts but also updated information on out-of-state 

VMT estimates, cumulative mileage, equipment populations, and 

other data used to calculate emissions from trucks, buses, and 

certain off-road equipment. The emissions reduction figures that 

AIR ascribes to CARB are figures EPA calculated using data 

provided by CARB. 

EPA uses the phrase “adjustments to the baseline” to refer 

to the difference between the 2014 baseline initially submitted 

in the 2008 SJV PM2.5 Plan and the recently revised 2014 

baseline as submitted in the 2011 Progress Report. This 
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“adjustments to baseline” figure is nothing more than EPA‟s 

summary of the overall impact of both recession and nonrecession related changes between the two projected inventories. 

EPA calculated this adjustment from summary data CARB provided 

in Appendix E of the 2011 Progress Report. The adjustment 

represents the net results of CARB‟s changes to its inventories 

rather than the changes themselves. 

CARB revised its inventories for trucks and diesel off-road 

equipment to incorporate new and better data including new 

research on truck travel within California. See 2010 Truck Rule 

ISOR, Appendix G. These revisions were not mere adjustments to 

previous inventories but thorough reviews of much of the data 

that goes into estimating emissions from these sources. See 2010 

Truck Rule ISOR, Appendix G and 2010 Off-Road Rule ISOR, 

Appendix D.11 These inventory revisions also included review of 

current and future activity data (such as fuel consumption, 

diesel fuel sales, trucking industry tonnage reports, truck 

sales trends, and truck registration data) for these categories 

as well as economic forecasts from a number of reputable 

 

11 For an overview of these changes and their results, see the 

presentation to the CARB Board by CARB‟s Planning and Technical 

Support Division on November 18, 2010, entitled, “Diesel 

Inventory Improvements for Regulatory Development,” available at 

http://www.arb.ca.gov/board/books/2010/111810/10-10-9pres.pdf

and in the docket for this rule.
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sources.12 Throughout its development of these revisions, CARB 

held workshops seeking public review and input into its work. 

See 2010 Truck Rule ISOR, p. 13. 

Emissions projections are a function of change in activity 

(growth or decline) combined with changes in the emissions rate 

or controls applicable to emissions sources. Projected 

inventories are, therefore, necessarily affected by forecasts of 

industrial growth, population growth, and transportation growth, 

among other factors.13 EPA guidance emphasizes the importance of 

developing reliable methods for estimating future source 

activity levels as part of the SIP planning process.14

We disagree with AIR‟s assertion that “EPA claims that the 

ARB has opted to take credit for the decrease in the inventory 

in the attainment demonstration as „a line-item adjustment to 

the baseline inventories.‟” EPA stated in the 2011 Proposal TSD 

 

12 See CARB, “ARB Staff Assessment of the Impact of the Economy 

on California Trucking Activity and Emissions 2006-2014,” draft 

December 2009, available in the docket for this rule. Sources of 

economic data included California Department of Finance, 

California Legislative Analyst‟s Office, California Energy 

Commission, UCLA Anderson School, Beacon Economics, University 

of the Pacific, Congressional Budget Office, and US Energy 

Information Agency. Id. pp. 11-12.

13 See “Emission Projections,” STAPPA/ALAPCO/EPA Emissions 

Inventory Improvement Project, Volume X (December 1999) at 1-1 

(available at 

http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf).

14 See “Procedures for Preparing Emissions Projections,” EPA 

Office of Air Quality Planning and Standards, EPA-450/4-91-019 

(July 1991) at p. 6 and section III.
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(pg. 18) that “California is reflecting these recession impacts 

as a line-item adjustment to the baseline inventories.” This 

statement was incorrect and should have read that EPA (not CARB) 

is reflecting the recession impacts as a line-item adjustment to 

the baseline inventories. EPA believes this adjustment is 

appropriate in light of the impact of these emissions changes on 

the baseline. We should have also been clearer that the 2014 

adjustments included the technical revisions to the inventory 

that are discussed on page 19 of the 2011 Proposal TSD.

Finally, we note that although AIR objects categorically to 

the revisions to the projected emissions inventories based on 

CARB‟s revised economic forecasts, it provides no information to 

refute CARB‟s extensive documentation of the impact of the 

economic recession on air pollution generating activity. It also 

provides no information to refute CARB‟s non-recession related 

revisions to the projected inventories.

B. Comments on the Proposed Action on the Air Quality Modeling

Comment: Earthjustice and AIR comment that CARB‟s emissions 

inventory update necessitates new attainment demonstration 

modeling. AIR alleges that EPA‟s 2011 Proposal TSD stated that 

updates should trigger new modeling. AIR notes EPA‟s statement 

in that TSD that the model underpredicts. In addition, AIR 

questions EPA‟s reliance on unreviewed model sensitivity results 
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from CARB as the basis for not requiring new modeling. 

Earthjustice comments that the difficulty of performing new 

modeling is not a valid reason for approving an erroneous 

attainment demonstration. It adds that EPA‟s method for 

assessing the effect of the inventory update has the “obvious 

flaw” that it relies on design value changes to within 

hundredths of a percent, starting from design values that are,

according to Earthjustice, acknowledged to be erroneous.

Response: While some large emissions inventory changes might 

indeed necessitate new modeling, EPA does not agree that the 

inventory changes were large enough to substantially affect the 

SJV modeling conclusions, or to invalidate the SJV attainment

demonstration. As EPA stated in the 2011 Proposal TSD (p. 47),

ideally new modeling would be performed when an area‟s emissions 

inventory is changed. However, since the cost in time and 

resources of remodeling and consequent reworking of a plan is 

not trivial, administrative necessity requires a judgment call 

about when changes are large enough to merit new modeling; there 

is no automatic trigger. An important criterion in making this 

judgment is whether the changes would affect the conclusion that

the plan‟s emissions reductions are adequate for attaining the 

NAAQS. Another consideration is the uncertainty inherent in 

modeling; although model results may be reported to several 
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decimal places, model performance goals for fractional bias are 

typically in the range of 30 percent. Plan‟s Regional Model 

Performance Analysis,

15 p.12, and EPA Guidance16 Appendix B. Small 

changes in the emissions inventory could be in the range of the 

“noise” of the model. This is not to discount the importance of 

an accurate emissions inventory, but rather to make the point 

that relatively small changes in inventory estimates do not 

necessarily invalidate a model application. EPA finds that the 

5-6 percent base year emissions decreases due to the inventory 

updates in this case are relatively small.

EPA did assess the effect of the emissions inventory 

improvements on the attainment demonstration, using a procedure 

described in the 2011 Proposal TSD and other supporting 

documents. EPA did note in the 2011 Proposal TSD (p.48) that the 

emissions update revealed some model bias. The model appears to 

be underpredicting (biased low): its emissions inputs are now 

known to be too high, so its predicted concentrations should 

have been higher, too. Model bias is an important issue that

modelers address in developing the model application for a 

specific area and pollution episode, through testing and 

 

15 The “Regional Model Performance Analysis” is an appendix to 

the 2008 PM2.5 Plan.

16 EPA “Guidance on the Use of Models and Other Analyses for 

Demonstrating Attainment of Air Quality Goals for the 8-Hour 

Ozone and PM2.5 NAAQS and Regional Haze,” April 2007. (“EPA 

Guidance”)
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refinement of a model‟s many inputs. The bias problem is 

somewhat ameliorated by the use of models in a relative sense 

via “relative reduction factors” (RRFs), as recommended in EPA 

Guidance (p. 20). The various influences that lead to model 

underestimation in the base year would also be expected to cause 

underestimation in the attainment year, and these tend to cancel 

out in the RRF ratio calculation used to project the future 

effect of controls. In other words, the effect of model bias is 

minimized when it is accounted for at both end points, the base 

and attainment years. In a similar vein, EPA assessed the effect 

of the emissions update on the attainment demonstration, 

essentially by removing the bias revealed by the update from 

both the base year and the attainment year.

17 The bias was 

estimated by combining the emissions changes with an estimate of 

model PM2.5 sensitivity per unit of emissions change. The effect 

of removing the bias by this procedure was to increase predicted 

attainment year annual PM2.5 design values by 1-2 percent. EPA 

finds that this is small enough to be considered within the 

 

17 This procedure is in some ways parallel to but not the same 

as the RRF calculation and could be applied even if the model 

were not used in a relative sense. The inventory estimates the 

emissions reduction between the base and future years. An RRF 

scales the monitored design value using the relative model 

response to a given emissions reduction estimate, in order to 

account for that reduction. The procedure here scales the 

model‟s future predictions using model sensitivity, in order to 

account for changes in the emissions reduction estimate.
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“noise” of the model and does not change the overall modeling 

conclusions. But even with this increase added in, the predicted 

concentrations meet the NAAQS. This is a quantitative showing 

that the emissions updates are small enough that they do not 

invalidate the attainment demonstration.

As described in the 2011 Proposal TSD (section II.B), EPA 

reviewed the development of the model application, the 

procedures used to develop the model inputs, model testing 

methods and performance statistics, and the methods used to 

compute RRFs and attainment year PM2.5 design values. EPA finds 

that CARB applied these methods appropriately, including to the 

sensitivity results and believes that these modeling inputs and 

RRF calculations were carried out as described by CARB. As a 

result, we find that the sensitivity results provide a 

reasonable basis for assessing the effect of the inventory 

update on the attainment demonstration.

EPA does not agree with Earthjustice that starting from the 

Plan‟s modeled design values and ending with small design value 

changes constitute flaws in the procedure for estimating the 

effect of the baseline inventory revisions. All modeling has 

uncertainty and bias including any new modeling that would be 

done using the updated emissions inventory estimates. Every 

modeling result is an approximation and is likely to contain 
23

errors. Administrative necessity, therefore, requires a judgment 

call about whether such problems are substantial enough to 

impact regulatory decisions. Modeling experts from regulatory 

agencies, academia, and consulting firms were involved in

developing the SJV modeling. It underwent successful diagnostic 

testing and performs well. EPA finds that it continues to 

constitute an adequate basis for the attainment demonstration. 

Further, EPA believes that the original modeling is 

basically sound in how it portrays SJV atmospheric chemistry and 

transport and that results derived from model sensitivity tests 

are a reasonable approximation to what would result from new 

modeling with the updated inventory. EPA‟s procedure for 

estimating the effect of the inventory changes using model 

sensitivity results does make a number of assumptions: emissions 

changes are small enough that the model response is linear, 

model sensitivity is similar in the starting and ending years, 

and the spatial and temporal distribution of emissions is little 

changed with the inventory update. EPA believes that these 

assumptions are reasonable and that the procedure it used 

provides strong evidence for the attainment demonstration‟s 

validity. 

As for the smallness of the design value changes resulting 

from the procedure, EPA does not believe this is a substantive 
24

issue. Any procedure (even new modeling) that starts with small 

emissions changes will necessarily result in small design value 

changes. Within a small range, over which the chemistry does not 

shift fundamentally, ambient concentrations are approximately 

proportional to emissions, by the law of conservation of matter. 

This is not a case of an overly precise tiny number being added 

to a large erroneous random number, but rather of an adjustment 

ratio applied to a number derived from extensive data and 

analysis. Some intermediate steps in the calculation procedure 

that EPA used to evaluate the emissions inventory change did 

involve tenths of a percent (not hundredths as stated by the 

commenter), but this is largely an artifact of showing the 

procedure in multiple steps for comprehensibility. EPA could 

have done the calculation in a single step to avoid this 

artifact. When modeling a 10 percent change in NOx emissions 

results in a design value change of 1.4 percent, a calculation 

using this model sensitivity result will necessarily involve 

fractions of 1 percent or less. In this case, the emissions 

inventory update involved a change in NOx emissions of less than 

10 percent, and thus, would also be expected to yield relatively 

small design value changes. 

Comment: Earthjustice comments that a simple screening analysis 

cannot substitute for an unmonitored area analysis, as it is 
25

inadequate to address the sharp ambient concentration gradients

that occur in near-highway areas.

Response: EPA agrees that the simple screening analysis in the 

Plan as originally submitted in June 2008 is not an adequate 

substitute for an unmonitored area analysis (UAA) and noted this 

deficiency in our November 2010 proposal. See 75 FR 74518, 

74530. As noted in the 2011 proposal (76 FR 41388, 41348), CARB 

subsequently submitted a modeling supplement that included a UAA 

that follows EPA Guidance. See CARB modeling supplement, p. 

139.18 The UAA led to the conclusion that there would not be any 

NAAQS violations at locations away from monitors, and EPA has 

evaluated and accepted that conclusion. 

As for whether the UAA itself adequately addresses the 

commenter‟s underlying concern about sharp concentration 

gradients, the EPA Guidance states: 

“The unmonitored area analysis is intended to be the 

primary means for identifying high PM2.5 concentrations 

outside of traditionally monitored locations. ... Based on 

the monitoring guidance, we believe that an unmonitored 

area analysis conducted at 12 km or finer resolution is 

sufficient to address unmonitored PM2.5 for the annual 

 

18 Letter and enclosure, John DaMassa, Chief, Modeling and 

Meteorology Branch; California Air Resources Board, January 28, 

2011 (“CARB modeling supplement”).
26

NAAQS. Conducting the unmonitored analysis at 4 km or finer 

resolution will provide an even more detailed analysis of 

the spatial gradients of primary PM2.5, especially when 

evaluating violations of the 24-hr. NAAQS.” 

This modeling guidance recommendations are consistent with the 

requirements of the EPA‟s PM2.5 monitoring rules. The modeling 

guidance UAA spatial scale recommendations are intended to 

capture neighborhood scale and larger areas, since the 

monitoring rules do not require micro or middle scale monitors 

for either the annual or 24-hr PM2.5 standards. CARB‟s UAA was 

conducted at a resolution of 4 km, so it is more detailed than 

EPA‟s recommended approach for UAA. In addition, it is intended 

for areas with a large primary PM2.5 contribution (that is, 

directly emitted rather than formed chemically over time), and 

relying on local primary PM controls to reach attainment. EPA 

Guidance, p.100. By contrast, the attainment demonstration in 

the 2008 PM2.5 Plan mainly relies on area-wide control of NOx, a 

PM2.5 precursor, rather than on control of local primary PM2.5.

Comment: Earthjustice comments that air quality worsened after 

2005 despite the economic downturn, so that new air quality 

modeling should be performed to account for this upward trend.

Response: EPA did review the evaluation of air quality progress 

presented in the Plan and also independently examined air 
27

quality data. See 2011 Proposal TSD, p.6 and p.45. Air quality 

monitoring data is useful for a general understanding of the 

SJV‟s air quality problem, as well as for use in supplemental 

analyses that accompany the modeled attainment demonstration. 

Downward trending emissions and ambient concentrations would 

tend to support the conclusion that the area is on track toward 

attainment of the NAAQS, although evaluation of such trends 

should account for the particular location, time period, and air 

quality metric examined. In addition, overall trends may be hard 

to discern given the year-to-year variability of meteorology and 

other factors.

The Plan used the data that was available at the time it 

was developed, focusing on 2001-2006, for which the Plan‟s 

Weight of Evidence analysis makes a strong case for air quality 

progress according to several metrics, including design value 

concentrations, frequency of high concentrations, concentration 

of PM2.5 component species, and emissions. We conclude that 

these analyses adequately support the attainment demonstration. 

EPA also looked at a longer period, 2000-2010, and found that 

the slight PM2.5 concentration increase shown in the Plan for 

2006 continued through 2008 and flattened in 2009. Although 

PM2.5 concentrations continued to improve in 2010, the 

Bakersfield area‟s annual and 24-hour PM2.5 design values 
28

calculated from 2008-2010 data were the highest in the U.S. See

76 FR 41338, 41339. We note, however, that data over the longer 

time frame shows there has been substantial air quality progress 

over the past decade. See TSD, section I.B.1.

The concentration increases during 2006-2009 are not well 

understood but may have been partly a result of unfavorable 

meteorology during that time. District and CARB efforts to 

evaluate the effect of meteorology on air quality trends are 

under way. The higher values during that period do weaken the 

case made in the Plan‟s Weight of Evidence analysis, which is a 

supplemental analysis to the attainment demonstration itself, 

but are not themselves grounds for disapproving the attainment 

demonstration or the Plan.

Comment: Citing 40 CFR 51.1000 and 72 FR at 20600, Earthjustice 

asserts that attainment of the PM2.5 NAAQS by April 5, 2015 will 

require review of ambient data from 2012, 2013, and 2014. 

Earthjustice also asserts that the majority of emissions 

reductions in the Plan are delayed until 2014 and argues that 

modeling ambient concentration in 2014 does not provide an 

accurate picture of what emissions will be in 2012 and 2013. It 

further states that the modeling year must be adjusted to give a 

more reasonable prediction of what a 3-year average 

concentration from 2012-2014 will be since it is this 
29

concentration that will determine if the Valley has attained the 

PM2.5 standards by the attainment date. Finally, Earthjustice 

asserts that the fact that the majority of reductions are in 

2014 violates the reasonable further progress requirement.

Response: We disagree with Earthjustice‟s assertion that the 

Plan delays the majority of emissions reductions until 2014 and 

therefore fails to satisfy RFP requirements. As explained in our 

amended proposal (76 FR 41338 at 41355-41357) and further in 

section II.H. of the TSD, the majority of the reductions needed 

for attainment occur well before 2014. The Plan‟s RFP 

demonstration shows that more than 87 percent of the NOx, 80 

percent of the PM2.5 and all the SOx reductions needed for 

attainment will occur by 2012. See 2011 Progress Report, 

Appendix C, p. 1. We explain further in section II.H. of the TSD 

our reasons for concluding that the 2008 PM2.5 SIP provides for 

RFP consistent with the CAA and the PM2.5 implementation rule.

19

We also explain in section II.D. our reasons for concluding that 

the Plan demonstrates that all control measures needed for 

attainment of the 1997 PM2.5 standards will be in place as 

expeditiously as practicable and no later than the beginning of 

2014, consistent with the CAA and 40 CFR 51.1007(b) (requiring 

 

19 Clean Air Fine Particulate Implementation Rule, 72 FR 20586 

(April 25, 2007), codified at 40 CFR part 51, subpart Z “PM2.5

implementation rule.”
30

“implementation of all control measures needed for attainment as 

expeditiously as practicable, but no later than the beginning of 

the year prior to the attainment date”). See section II.G. and 

II.D. of the TSD.

We also concluded that the attainment demonstration in the 

Plan was developed consistent with procedures in EPA's modeling 

guidance. In addition, to a degree the modeling procedures 

already reflect the expected continuing emissions decreases 

during the years before the attainment year. The monitored base 

year design value reflects an emissions decrease over the three 

years of 2004-2006, not just the single 2005 emissions year. The 

projected design value reflects a modeled change to that 

monitored design value, so it too is consistent with some 

decreases occurring over multiple years, not just the single 

year of 2014.

Finally, we note that Earthjustice conflates the 

requirements governing EPA‟s action on an attainment 

demonstration under CAA section 172(c)(1) with those governing 

an attainment determination under CAA section 179(c). 

Earthjustice appears to assume that a demonstration of 

attainment by April 5, 2015, requires a demonstration that the 

area will have air quality measurements at or below the levels

of the standards three years prior to that date. This is 
31

incorrect. An attainment determination under CAA 179(c) is a 

fact-based determination made after the attainment date based on 

air quality monitoring data.20 An attainment demonstration, on 

the other hand, is a predictive tool for assessing what air 

quality will be at a future time. An attainment demonstration is 

based on air quality modeling showing that the projected design 

value of the relevant pollutant in attainment year will be at or 

below the level of the relevant ambient air quality standard. 

See 72 FR from 20605 to 20609. 

Additionally, for a PM2.5 nonattainment area subject only 

to the requirements of subpart 1 of title I, part D of the CAA,

a State may demonstrate that in the attainment year, the area 

will have air quality such that the area could be eligible for 

the first of two one-year extensions allowed under CAA section 

172(a)(2)(C). Under CAA section 172(a)(2)(C), an area that does 

not have three years of monitored data demonstrating attainment 

of the PM2.5 NAAQS but has complied with all requirements and 

commitments pertaining to the area in the applicable SIP, and 

that has no more than minimal number of exceedances of the NAAQS 

 

20 A determination of attainment of the 1997 annual PM2.5

standard is based on monitoring data that shows a 3-year average 

of annual mean PM2.5 concentrations of less than 15 microgram 

per cubic meter (μ/m3), and a determination of the attainment of 

the 1997 24-hour PM2.5 standard is based on monitoring data that 

shows the 3-year average of 98th percentile 24-hour 

concentrations is less than 65 μ/m3. See 40 CFR § 50.7.
32

in the attainment year, may receive a one-year extension of its 

attainment date. If the same conditions are met in the following 

year, the area may receive an additional one-year extension. 

Should the SJV area qualify for both of these extensions, the 

relevant 3-year period for determining whether the area has 

attained the PM2.5 NAAQS would be 2014-2016.21

Comment: Earthjustice comments that given the problems it has 

described with the air quality modeling, the 9:1 NOx to PM2.5

relative effectiveness ratio cannot be used for transportation 

conformity or other purposes, unless it is supported with new 

modeling.

Response: EPA does not agree with Earthjustice that the 

modeling problems are substantial enough to invalidate the 9:1 

ratio for NOx to direct PM2.5 emissions trading in the 

transportation conformity context. As discussed above, EPA 

believes that the modeling is basically sound, including the 

model‟s (relative) sensitivity to emissions changes. There is no 

established method for determining trading ratios in conformity, 

 

21 EPA has long interpreted analogous provisions for ozone 

nonattainment areas in CAA sections 181(a)(5) and 182(c)(2) in 

this same manner. See Brief of Respondents, EPA, in Sierra Club, 

et al. v. U.S. EPA, et al., Case Nos. 10-71457 and 10-71458 

(consolidated), May 5, 2011; see also Environmental Defense v. 

U.S .EPA, 369 F.3d 193 (2nd Cir. 2004) (denying petition for 

review of EPA‟s approval of New York‟s 1-hour ozone attainment 

plan based on, inter alia, EPA‟s reasonable interpretation of 

the extension provision in CAA section 181(a)(5)).
33

but as discussed in the 2011 Proposal TSD (p.148), EPA finds

that the model sensitivity-based method used by CARB for 

determining an equivalency or relative effectiveness ratio is 

adequate for assessing the effect of area-wide emissions 

changes, such as are used in conformity budgets. The method 

modeled “across the board” emissions changes over the entire 

modeling domain; emissions considered in transportation 

conformity are also domain-wide. Trading in other contexts could 

involve additional consideration of spatial and temporal 

variation of the emissions, and would require an additional 

technical demonstration by the State and evaluation by EPA. EPA 

is not approving the trading ratio for any other purpose than in 

conformity budgets.

C. Comments on the Identification of PM2.5 Attainment Plan 

Precursors

Comment: Earthjustice comments that EPA should rely on the 

November 2010 proposal‟s technical demonstration that VOC should 

be considered a PM2.5 plan precursor and should disapprove the 

Plan for its failure to address control of VOC emissions. The 

commenter states that EPA reversed its earlier VOC finding 

without receiving any new credible evidence on the issue.

Response: The PM2.5 implementation rule establishes a 

presumption that VOC is not a PM2.5 plan precursor requiring 
34

controls. See 40 CFR 51.1002(c)(3). This presumption may be 

overturned if either EPA or the State provides an appropriate 

technical demonstration showing that VOC emissions from sources 

in the State significantly contribute to PM2.5 concentrations in 

the nonattainment area. See 40 CFR 51.1002(c)(3)(i) and (ii). 

The preamble to the implementation rule suggests various 

analyses that could be part of such a demonstration, such as 

emissions inventory, speciation data, modeling information, or 

other special studies. But the preamble is not prescriptive on 

required technical demonstrations, and neither the preamble nor 

the rule defines “significantly.” Under the rule, excluding VOC 

as an attainment plan precursor does not require a showing that 

VOC controls are ineffective or counterproductive. Rather, since 

VOC is already excluded by presumption, the lack of a clear 

showing that VOC controls are effective is sufficient for it to 

remain excluded.

For the November 2011 proposal, EPA reviewed various 

monitoring and modeling studies on the role of VOC as a PM2.5 

precursor in the SJV. EPA proposed to find that these studies 

constitute a technical demonstration that VOC is a PM2.5

attainment plan precursor, and used that as a basis to propose 

disapproval of the Plan, which lacks VOC controls.
35

Earthjustice correctly notes that CARB did not submit any 

new study results per se in response to our 2010 proposal but 

rather reinterpretation of the same modeling studies that EPA 

had already examined. For the 2011 proposal, EPA reviewed and 

accepted several of CARB‟s arguments made in its VOC 

supplement.

22 CARB noted the importance of considering 

simultaneous VOC and NOx reductions, a more realistic scenario 

than VOC-only or NOx-only reductions, given the various controls 

that are already in place for the ozone plan. The only study to 

consider simultaneous reductions found a disbenefit from VOC 

control, while NOx control continued to be beneficial. CARB 

discounted one study that had found VOC control to be beneficial 

by noting that it had used artificially doubled VOC emissions in 

order to perform reasonably well at predicting PM2.5. For 

another study, CARB pointed out some features of the multi-day 

model response to VOC reductions that are inconsistent with the 

photochemical VOC pathway to PM2.5 formation and that the 

benefits from VOC reduction were seen only at high PM2.5 

concentrations that are seldom seen today. 

 

22 Letter, James N. Goldstene, Executive Officer, CARB, to 

Frances Wicher, Office of Air Planning, EPA Region 9, January 

28, 2011, Attachment 4, “Air Resources Board comments on U.S. 

EPA‟s November 30, 2010 proposal that VOC be considered a 

significant PM2.5 Precursor for the San Joaquin Valley 2008 

PM2.5 State Implementation Plan (SIP).” (“CARB VOC supplement”)
36

EPA found these arguments persuasive enough to raise 

questions about the efficacy of VOC controls for reducing PM2.5 

levels in the SJV. Even setting aside the concern that VOC 

control could worsen PM2.5 concentrations in some circumstances, 

EPA finds that the evidence of the effectiveness of VOC controls 

is at this time not clear enough to overcome the presumption in 

the PM2.5 implementation rule that VOC should not be an 

attainment plan precursor. However, EPA also believes it is 

important that reductions of VOC, ammonia, and other PM2.5 

precursors be more thoroughly explored with realistic model 

sensitivity and other analyses as part of future modeling 

efforts in the SJV.

In its comment letter, Earthjustice also included 

additional information in favor of VOC as a precursor. We have 

reviewed this information (which mainly duplicates information 

EPA has already reviewed) and concluded that it does not provide 

sufficient grounds to reverse the presumption that VOC is not a 

PM2.5 attainment plan precursor in the SJV. Our complete 

analysis of Earthjustice‟s information can be found in the 

response to comments section (section III.D.) of the TSD. 

D. Comments on the Proposed Action on the Reasonably Available 

Control Measures/Reasonably Available Control Technology 

Demonstration
37

Comment: Earthjustice asserts that EPA must disapprove the 

Plan‟s RACM/RACT demonstration because many of the rules that 

the District and CARB rely on have not been approved as 

satisfying RACT requirements. Earthjustice also states that the 

demonstration fails to address VOC controls or to provide 

adequate air quality modeling documentation. Finally, 

Earthjustice asserts that several of the rules intended to 

provide the majority of NOx and PM reductions from stationary 

sources in the Valley were adopted with substantially weakened 

controls from what was anticipated during plan development and 

will now provide only a fraction of what is needed to bring the 

area into attainment by 2014.

Response: Section 172(c)(1) of the CAA requires that each 

attainment plan “provide for the implementation of all 

reasonably available control measures as expeditiously as 

practicable (including such reductions in emissions from 

existing sources in the area as may be obtained through the 

adoption, at a minimum, of reasonably available control 

technology), and shall provide for attainment of the national 

primary ambient air quality standards.” For over 30 years, EPA 

has consistently interpreted this provision to require that 

States adopt only those “reasonably available” measures 

necessary for expeditious attainment and to meet RFP 
38

requirements. 40 CFR 51.1010; see also 44 FR 20372 (April 4, 

1979) (Part D of title I of the CAA “does not require that all 

sources apply RACM if less than all RACM will suffice for [RFP] 

and attainment”); 57 FR 13498 at 13560 (April 16, 1992) (“where 

measures that might in fact be available for implementation in 

the nonattainment area could not be implemented on a schedule 

that would advance the date for attainment in the area, EPA 

would not consider it reasonable to require implementation of 

such measures”); “Guidance on the Reasonably Available Control 

Measures (RACM) Requirement and Attainment Demonstration 

Submissions for Ozone Nonattainment Areas,” November 30, 1999 

(1999 Seitz Memo) (a State may justify rejection of a measure as 

not “reasonably available” for that area based on technological 

or economic grounds); and 70 FR 71612 (November 29, 2005) at 

71661 (noting that States “need adopt measures only if they are 

both economically and technologically feasible and will advance 

the attainment date or are necessary for RFP”). EPA‟s 

interpretation of section 172(c)(1) has been upheld by several 

courts. See, e.g., Sierra Club v. EPA, et al., 294 F. 3d 155

(D.C. Cir. 2002); Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 

2002).

Under the PM2.5 implementation rule at 40 CFR 51.1010, a 

RACM demonstration must include “the list of the potential 
39

measures considered by the State, and information and analysis 

sufficient to support the State‟s judgment that it has adopted 

all RACM, including RACT.” 40 CFR 51.1010(a). In addition, 

“[p]otential measures that are reasonably available considering 

technical and economic feasibility must be adopted as RACM if, 

considered collectively, they would advance the attainment date 

by one year or more.” As explained in the preamble to the PM2.5

implementation rule, Congress provided EPA and States broad 

discretion to determine what measures to include in an 

attainment plan, and the language in section 172(c)(1) requiring

only “reasonably available” measures and implementation of these 

measures “as expeditiously as practicable” indicates that 

Congress intended for the RACT/RACM requirement to be driven by 

an overall requirement that the measure be “reasonable.” 72 FR 

20586 at 20610 (April 25, 2007). Thus, the rule of “reason” 

drives the decisions on what controls to apply, what should be 

controlled, by when emissions must be reduced, and finally, the 

rigor required in a State‟s RACT/RACM analysis. See id. States

may, as part of a RACM analysis, consider the costs of potential 

control measures and whether the measures can be readily and 

effectively implemented without undue administrative burden. See 

id. (citing 55 FR 38327 and 66 FR 26969).
40

As a threshold matter, we note that VOC controls are not a 

required element of the RACM demonstration in the 2008 PM2.5

Plan because EPA agrees with the State‟s determination that VOCs 

are not attainment plan precursors for purposes of the 1997 

PM2.5 NAAQS in the SJV area. See 76 FR at 41343 (citing 40 CFR 

51.1002(c) and 51.1010) and our responses to comments on 

attainment plan precursors, in section II.C. above. 

Second, as to air quality modeling documentation, we 

explain in section II.B. above in our responses to comments on

the air quality modeling our reasons for concluding that the 

modeling in the 2008 PM2.5 Plan adequately supports the Plan‟s 

RACM and attainment demonstration. 

Third, as to Earthjustice‟s assertions about RACT, we note 

that although CAA section 182(b)(2) requires States to implement 

RACT for specific types of sources in ozone nonattainment areas 

classified as moderate or above, there is no specific RACT 

control mandate for PM2.5 purposes that applies to specific 

sources in PM2.5 nonattainment areas. Rather, under the PM2.5

implementation rule, RACT and RACM are those measures that a 

state finds are both reasonably available and contribute to 

attainment as expeditiously as practicable in the specific 

nonattainment area. See 76 FR at 41343 (citing 40 CFR 51.1010 

and 72 FR 20586 at 20612). EPA has, therefore, evaluated the 
41

collection of reasonably available control measures that CARB 

and the District have adopted and submitted with the attainment 

demonstration in the 2008 PM2.5 Plan to meet the RACM/RACT 

requirement in CAA section 172(c)(1) and 40 CFR 51.1010. See 76 

FR 41338 at 41343-41346 and 2011 Proposal TSD at section II.D.

Finally, as to the specific NOx and PM control options that 

Earthjustice asserts should also be required as RACM, we have 

considered whether these additional control options are 

reasonably available for implementation in SJV considering 

technical and economic feasibility, and as to those measures 

that are potentially reasonable, whether they would considered 

collectively would advance the attainment date in the SJV by one 

year or more. For the reasons discussed below, we conclude that 

the control options identified by Earthjustice are not required 

RACM for purposes of the 1997 PM2.5 NAAQS in the SJV area.

Comment: Earthjustice states that EPA should not approve Rule 

4692 (Commercial Charbroiling) as RACT because there is no 

justification for the District‟s decision to exclude control 

requirements for under-fired charbroilers (UFC) from the rule. 

In support of this assertion, Earthjustice states, among other 

things, that: (1) SJVUAPCD had initially found certain control 

options for UFC units to be cost-effective and that its later 

revisions to these cost estimates in response to comments were 
42

based on inappropriate criteria, such as its “10 percent of the 

industry‟s profits” test; (2) that BAAQMD‟s adoption of UFC 

control requirements in 2007 indicates that such controls are 

considered feasible; and (3) that SJVUAPCD‟s failure to control 

UFCs means that PM emissions reductions from this rule are 

reduced from more than 2 tons per day (tpd) to just 0.02 tpd.

Response: EPA recently determined that Rule 4692 satisfied 

applicable CAA requirements and fully approved the rule into the 

SJV portion of the California SIP.23 See 76 FR 38340 (June 30, 

2011) (proposed rule) and “Revisions to the California State 

Implementation Plan, San Joaquin Valley Unified Air Pollution 

Control District" final rule, pre-publication notice signed 

September 30, 2011 (Rule 4692). As part of that action, EPA 

reviewed the District‟s evaluation of potential UFC controls and 

concurred with the District‟s conclusion that those controls are 

not reasonably available for implementation in the SJV area at 

this time, considering technological and economic feasibility 

(see EPA‟s June 9, 2011 Proposal TSD at pp. 4-5). Given EPA‟s 

 

23 As explained in our June 30, 2011 proposal to approve Rule 

4692 (76 FR 38340), the specific ozone RACT requirement in CAA 

section 182(b)(2) does not apply to this rule because there are 

no Control Techniques Guideline (CTG) documents for this source 

category and no major sources of NOx or VOC subject to this rule 

in the SJV area. See 76 FR at 38341. We therefore interpret the 

commenters‟ reference to RACT as referring to the general 

requirement for reasonably available control measures (including 

RACT for stationary sources) in CAA section 172(c)(1). See 40 

CFR 51.1010. 
43

long-standing position that States may justify rejection of 

certain control measures as not “reasonably available” based on 

economic grounds (among others), we believe that it is 

appropriate for the District to consider the cost of controls at 

sources actually located within the specific area to determine 

if they are economically feasible with respect to those sources. 

Although we do not endorse the District‟s use of a “10 percent 

of the industry‟s profit” test for economic feasibility, we 

agree with the District‟s conclusion that UFC controls are not 

economically feasible based on the facts and circumstances 

related to actual cost of those controls in the SJV area. For 

the reasons stated in our separate proposed and final rules on 

Rule 4692, we conclude in this final action on the 2008 PM2.5

Plan that Rule 4692 requires all RACM for charbroilers in SJV, 

and that the additional controls for UFC identified by 

Earthjustice are not required RACM for purposes of the 2008 

PM2.5 Plan because they are not reasonably available considering 

technological and economic feasibility.

Comment: Earthjustice asserts that Rule 4103 (Open Burning) 

achieves far less than what was anticipated in the Plan, and 

that the District had inappropriately relied on the 10 percent 

of profits test to exempt from control the three largest source 

categories of NOx, PM, and VOC covered by the Rule. Earthjustice 
44

asserts that this resulted in foregone emissions reductions of 

1,030 tpy NOx, 1,262 tpy PM2.5 and 1,138 tpy VOC.

Response: EPA recently determined that Rule 4103 satisfied 

applicable CAA requirements and fully approved the rule into the 

SJV portion of the California SIP. See 76 FR 40660 (July 11, 

2011) (proposed rule) and “Revisions to the California State 

Implementation Plan, San Joaquin Valley Unified Air Pollution 

Control District;" final rule, pre-publication notice signed 

September 30, 2011 (Rule 4103)). As part of that action, EPA 

reviewed the District‟s evaluation of the postponements of 

certain burning prohibitions for certain agricultural crop

categories and concurred with the District‟s conclusion that 

alternatives to open burning for these crop categories are not 

reasonably available for implementation in the SJV area at this 

time, considering technological and economic feasibility (see, 

e.g., EPA‟s June 2011 TSD at pp. 5-7). For the reasons stated in 

those separate proposed and final rules on Rule 4103, we 

conclude in this final action on the 2008 PM2.5 Plan that Rule 

4103 requires all RACM for open burning in SJV, and that the 

additional controls identified by Earthjustice are not required 

RACM for purposes of the 2008 PM2.5 Plan because they are not 

reasonably available considering technological and economic 

feasibility.
45

Comment: Earthjustice stated that SJVUAPCD added a contingency 

provision to Rule 4901 (Wood Burning Fireplaces and Wood Burning 

Heaters) stating that, should the Valley fail to attain the 1997 

PM2.5 standards by the attainment date, the PM2.5 concentration 

triggering a mandatory wood burning curtailment would be lowered 

from 30 to 20 μg/m3. Earthjustice contends that, given the 

underperformance of other SJVUAPCD rules, this “contingency”

should be adopted now to achieve additional reductions before 

the attainment date.

Response: EPA determined that Rule 4901 satisfied applicable 

CAA requirements and fully approved the rule into the SJV 

portion of the California SIP. See 74 FR 57907 (November 10, 

2009). As part of that action, EPA reviewed the District‟s 

evaluation of available controls and concluded that Rule 4901 

requires implementation of Best Available Control Measures under 

CAA section 189(b) for particulate matter of 10 microns or less 

(PM-10) in the SJV area. This conclusion was based in part on 

our finding that SJV‟s 30 μg/m3 threshold for mandatory wood 

burning curtailment is more stringent than the 35 μg/m3 

threshold adopted in other areas such as Sacramento, South Coast 

and Bay Area. See SJVUAPCD, “Final Draft Staff Report, Proposed 

Amendments to Rule 4901 “Wood Burning Fireplaces and Wood 

Burning Heaters,” October 16, 2008, at pp. 5-6.
46

Earthjustice has provided no information to support an 

argument that reducing the threshold for mandatory wood burning 

curtailment in the SJV from 30 to 20 μg/m3 is a “reasonably 

available” control measure, nor any information to support an 

argument that such a measure would, individually or in 

combination with other reasonable measures, advance attainment 

of the 1997 PM2.5 standards in the SJV by at least a year. We 

have, nonetheless, evaluated in the section entitled “Evaluation 

of potential to advance attainment” below the additional PM 

emissions reductions that could be achieved by implementing a 

mandatory wood burning curtailment at a 20 μg/m3 threshold (1.6 

tons per winter average day, see 76 FR at 41358) to determine 

whether this measure could, in combination with other 

potentially reasonable measures, advance attainment in the SJV 

area. 

Comment: Earthjustice asserts that the exemption in Rule 4354 

(Glass Melting Furnaces) for furnaces that actually emit less 

than 8 tons per year of NOx or VOC (but are located at major 

sources) is “illegal” because the CAA requires that RACT be 

implemented for all major sources. Earthjustice states that this 

exemption cost the Valley 1.6 tons per day of SOx reductions and 

2.9 tons per day of PM reductions. Earthjustice also states that 

the District had adopted a previous version of Rule 4354 that 
47

had earlier compliance deadlines than the version EPA ultimately 

approved into the SIP. Earthjustice asserts that the District 

should have removed the exemption for small furnaces at large 

facilities and should not have delayed compliance requirements, 

and that “it is unacceptable for the District to forego any

emissions reductions in the years leading up to attainment.”

Response: EPA recently determined that Rule 4354 satisfied 

applicable CAA requirements and fully approved the rule into the 

SJV portion of the California SIP. 24 See 76 FR 53640 (August 29, 

2011). As part of that action, we determined that the VOC and 

NOx emission limits in Rule 4354 meet the CAA section 182(b)(2) 

and (f) RACT requirements for major sources of VOC and NOx. The 

compliance schedule for NOx and VOC limits in the SIP-approved 

rule requires implementation of all technologically and 

economically feasible controls by January 2014. See SJVUAPCD, 

Final Draft Staff Report, “Proposed Amendments to Rule 4354 

(Glass Melting Furnaces),” August 19, 2010, at pp. 10-12. We 

conclude, therefore, that this rule implements all VOC and NOx

 

24 As explained in our June 30, 2011 proposal to approve Rule 

4692 (76 FR 38340), the specific ozone RACT requirement in CAA 

section 182(b)(2) does not apply to this rule because there are 

no Control Techniques Guideline (CTG) documents for this source 

category and no major sources of NOx or VOC subject to this rule 

in the SJV area. See 76 FR at 38341. We therefore interpret the 

commenters‟ reference to RACT as referring to the general 

requirement for reasonably available control measures (including 

RACT for stationary sources) in CAA section 172(c)(1). See 40 

CFR 51.1010. 
48

controls that are reasonably available for this source category

in the SJV. We did not fully evaluate in that action the 

stringency of the rule‟s requirements for SOx and PM10

emissions, as there is no specific RACT control mandate for SOx

or PM10 purposes that necessarily applies to sources covered by 

this rule.25 We disagree with Earthjustice‟s assertion that the 

exemption from the SOx and PM10 limits for certain furnaces that 

actually emit less than 8 tpy of VOC or NOx (see Rule 4354, 

section 4.3) is “illegal,” as the CAA does not establish a 

specific RACT control mandate for major sources of SOx or PM10.

Under CAA section 172(c)(1), however, the State/District are 

required to adopt all RACM necessary to demonstrate attainment 

as expeditiously as practicable and to meet RFP requirements. 40 

CFR 51.1010. Given the need for substantial NOx and PM2.5

emissions reductions in the SJV to meet both the 1997 PM2.5

standards and the more stringent 2006 PM2.5 standard by the 

applicable attainment dates, we encourage the SJVUAPCD to 

reevaluate the PM10 control requirements in Rule 4354 and to 

adopt, as expeditiously as practicable, any additional PM10 and 

PM2.5 control requirements that are reasonably available for 

 

25 The CAA requires implementation of RACT at any major source 

of NOx or VOC in ozone nonattainment areas classified as 

moderate or above (see CAA 182(b)(2)(C) and 182(f)) but does not 

contain such a major source RACT control mandate for SOx or PM 

purposes.
49

implementation in the Valley. For purposes of the 2008 PM2.5

Plan, additional PM control requirements for glass melting 

facilities may, upon SIP approval, be credited toward the 

District‟s remaining enforceable commitments. See 76 FR at 

41354, Table 8.

Earthjustice asserts that the exemption in Rule 4354 for 

furnaces emitting less than 8 tpy of NOx or VOC cost the Valley 

1.6 tons per day of SOx reductions and 2.9 tons per day of PM 

reductions. For purposes of the 2008 PM2.5 Plan, the foregone 

SOx emissions reductions do not affect the RACM and attainment

demonstration because SJV has exceeded its target level of SOx 

reductions needed for attainment. See 76 FR at 41354, Table 8. 

As to PM, we have evaluated the additional emissions reductions 

that Earthjustice claims could have been achieved from glass 

melting facilities26 in our evaluation below of the potential for 

such additional controls, in combination with other potential 

control options, to advance attainment of the 1997 PM2.5

standards in the SJV. See section “Evaluation of potential to 

advance attainment” below.

Comment: Earthjustice states that EPA recently rejected all of 

the NOx emission limits in Rule 4352 (Solid Fuel-Fired Boilers, 

 

26 For this assessment, we use Earthjustice‟s estimate of the 

foregone PM reductions and assume conservatively that all such 

PM reductions are PM2.5 reductions.
50

Steam Generators and Process Heaters) for failing to satisfy 

RACT and asserts that substantial NOx reductions could be 

achieved if the District amended this rule to meet the stringent 

limits in place in other areas of the Country.

Response: Earthjustice correctly notes that EPA recently 

disapproved all of the NOx emission limits in Rule 4352 based on 

our conclusion that the District had failed to adequately 

demonstrate that these limits satisfy CAA section 182 RACT 

requirements. See 75 FR 60623 (October 1, 2010). Earthjustice 

did not provide any specific information about additional 

control measures that are reasonably available, nor has it 

provided information about the amount of emissions reductions 

that might be achieved by such controls. We have, however,

developed a conservative (high) estimate of the additional NOx

reductions that could be achieved under this rule if the 

emission limits are strengthened. We developed this estimate 

based on the NOx emission limits in the SIP-approved version of 

Rule 4352, the emissions attributed in the 2008 PM2.5 plan to 

solid fuel-fired boilers, steam generators, and process heaters 

in the SJV, emissions data from existing solid fuel-fired 

boilers in the SJV, and technical information about available 

control options from EPA‟s 1994 Alternative Control Techniques 

Document for NOx Emissions from 
51

Industrial/Commercial/Institutional Boilers, US EPA 453/R-94-022

(1994 Boiler ACT). Based on this information, we have 

conservatively estimated that more stringent control 

requirements for solid fuel-fired boilers, steam generators, and 

process heaters in SJV could achieve an additional 3.16 tpd of 

NOx reductions.

27

Comment: Earthjustice states that EPA‟s proposal fails to 

address the fact that the RACM/RACT analysis “does not include 

reasonable controls for condensable [PM2.5] emissions” and 

contains no discussion of such controls. Earthjustice references 

40 CFR 51.1002(c) to support its assertion that “[t]he 

transition period allowing agencies to ignore controls on 

condensable emissions ended on January 1, 2011,” and also quotes 

EPA‟s statement in the preamble to the PM2.5 implementation rule

(72 FR at 20652) that “[w]e expect States to address the control 

of direct PM2.5 emissions, including condensables with any new 

actions taken after January 1, 2011.” Earthjustice asserts that 

EPA must disapprove the RACM demonstration for failure to assess 

reasonably available controls on condensable emissions.

Response: EPA‟s PM2.5 implementation rule states that “[a]fter 

January 1, 2011, for purposes of establishing emission limits 

under 51.1009 and 51.1010, States must establish such limits 

 

27 Documentation of this estimate can be found in the TSD, 

section III.E.
52

taking into consideration the condensable fraction of direct 

PM2.5 emissions.” 40 CFR 51.1002(c). Prior to this date, the 

rule required that nonattainment area SIPs identify and evaluate 

sources of PM2.5 direct emissions and PM2.5 attainment plan 

precursors as part of the RFP and RACM/RACT demonstrations but 

did not specifically require states to address condensable 

PM2.5. See id.28 Because the attainment, RFP and RACM 

demonstrations in the 2008 PM2.5 Plan were adopted on May 22, 

2008 (see 76 FR at 41340), California was not required to 

address condensable PM in establishing the emission limits 

contained in these demonstrations as originally submitted, or in 

adopting any other PM emission limits under 40 CFR sections

51.1009 and 51.1010 prior to January 1, 2011. Consistent with 

these requirements, EPA has evaluated the RFP and RACM 

demonstrations in the 2008 PM2.5 Plan and concluded that these 

elements of the Plan appropriately address all sources of direct 

PM2.5 emissions and PM2.5 attainment plan precursors (SO2 and 

NOx) in the SJV. See 76 FR 41338 at 41343.29

 

28 See also Letter dated April 25, 2011, from Lisa P. Jackson, 

EPA, to Paul Cort, Earthjustice, denying Petition for 

Reconsideration with respect to the deferral of the requirement 

to establish emission limits for condensable particulate matter 

(CPM) until January 1, 2011.

29 In our proposed rule, we noted that the SJVUAPCD has deferred 

limits for CPM in its rules but that this limited deferral does 

not affect the Plan‟s RACM/RACT and expeditious attainment 

demonstrations. 76 FR 41338 at 41342, n. 12. We also noted that 
53

The 2008 PM2.5 Plan relies on several rules regulating 

direct PM2.5 emissions as part of the PM2.5 control strategy 

(e.g., Rule 4692 (Commercial Charbroiling, adopted 9/17/09), 

Rule 4103 (Open Burning, adopted 4/15/10), Rule 4354 (Glass 

Melting Furnaces, adopted 9/16/10) and Rule 4901 (Wood Burning 

Fireplaces and Wood Burning Heaters, adopted 10/16/08)) as well 

as rules controlling NOx and SOx emissions. See 2011 Proposal 

TSD at Tables F-2, F-3, and F-4. Of the rules that control 

direct PM2.5 emissions, only two establish emission limits for 

particulate matter (Rule 4692 (Commercial Charbroiling) and Rule 

4354 (Glass Melting Furnaces)). EPA has not yet acted on any 

District rule adopted or revised after January 1, 2011 that 

regulates direct PM2.5 emissions. As part of our action on any 

such rule, we will evaluate the emission limits in the rule to 

ensure that they appropriately address CPM as required by 40 CFR 

51.1002(c). We note that the revised version of Rule 4692 

(Commercial Charbroiling) that EPA has recently proposed to 

approve (see 76 FR 38340 (June 30, 2011)) requires testing in 

accordance with the SCAQMD Protocol, which requires measurement 

of both condensable and filterable PM in accordance with South 

 

we would evaluate any PM2.5 rule adopted or revised by the 

District after January 1, 2011 to assure that it appropriately 

addresses CPM. See id.
54

Coast Air Quality Management District (SCAQMD) Test Method 5.1.30

We also note that the SIP-approved version of Rule 4354 (Glass 

Melting Furnaces) requires testing for condensable PM emissions 

using EPA Method 202. See 76 FR 53640 (August 29, 2011).

Evaluation of potential to advance attainment

Table E-2 of our 2011 Proposal TSD indicates that to 

advance attainment of the 1997 PM2.5 standards in the SJV by one 

year, i.e., from 2014 to 2013, the area would need an additional 

15.6 tpd of NOx reductions and an additional 3.9 tpd of direct 

PM2.5 reductions. These figures represent the difference between 

the 2013 “controlled inventory” and the 2014 “NOx emissions 

level needed for PM2.5 attainment.” See 2011 Proposal TSD at 

Table E-2 (pg. 80).31 The 2013 “controlled inventory” figures 

were based on the District‟s expected emissions reductions from 

individual measures as identified in the 2008 PM2.5 Plan. See 

 

30 See SCAQMD Protocol, Determination of Particulate and 

Volatile Organic Compound Emissions from Restaurant Operations, 

November 14, 1997 (available at 

http://yosemite.epa.gov/R9/R9Testmethod.nsf/0/ 

3D4DEB4D21AB4AAF882570AD005DFF69/$file/SC%20Rest%20emiss.pdf) 

and SCAQMD Test Method 5.1, Determination of Particulate Matter 

Emissions from Stationary Sources Using a Wet Impingement Train, 

March 1989 (available at http://aqmd.gov/tao/methods/stm/stm005-1.pdf).

31 For NOx, 15.6 tpd represents the difference between the 2013 

“controlled inventory” (306.8 tpd) and the 2014 “NOx emissions 

level needed for PM2.5 attainment” (291.2 tpd). For PM2.5, 3.9 

tpd represents the difference between the 2013 “controlled 

inventory” (67.2 tpd) and the 2014 “Direct PM2.5 emissions level 

needed for PM2.5 attainment” (63.3 tpd).
55

Plan at pp. 6-11 and 6-12 (Table 6-3).

32 Following adoption of 

these measures, however, the District updated its estimates of 

the emissions reductions associated with several of these 

measures. See 2011 Proposal TSD at Table F-4 (pg. 91). Based on 

these updated estimates of the reductions associated with 

specific control measures, which alter the 2013 “controlled 

inventory” estimates, we have re-calculated the amount of PM2.5

reductions needed to advance attainment by one year as 6.4 tpd.33

As discussed above, with respect to Rule 4692 

(Charbroiling) and Rule 4103 (Open Burning), we have concluded 

that the additional PM emissions control options that 

Earthjustice identified are not reasonably available considering 

economic and technical feasibility. Therefore, these potential 

control measures are not required RACM for purposes of the 1997 

PM2.5 standards in the Valley. With respect to Rule 4901 (Wood 

Burning), Rule 4354 (Glass Melting Furnaces), and Rule 4352 

(Solid Fuel-Fired Boilers), we assume for purposes of this 

analysis that additional control options are reasonably 

 

32 For example, the 2013 “controlled inventory” for PM2.5 (67.2 

tpd) is the sum of the expected emissions reductions from four 

PM2.5 control measures identified in Table F-2. See 2011 

Proposal TSD at Table E-2 (pg. 87). 

33 The updates to the PM2.5 emissions reduction estimates reduced 

the creditable reductions from 6.7 tpd to 4.2 tpd, which in turn 

increased the 2013 “controlled inventory” from 67.2 tpd to 69.7 

tpd. 6.4 tpd is the difference between the updated 2013 

“controlled inventory” (69.7 tpd) and the 2014 “Direct PM2.5

emissions level needed for PM2.5 attainment” (63.3 tpd).
56

available for implementation in the SJV. We therefore evaluate 

whether the emissions reductions from these additional control 

options would, collectively, advance attainment of the 1997 

PM2.5 standards in the SJV by at least one year. 

Our estimate of the total reductions of direct PM2.5 that 

could be achieved by the potential control options for wood 

burning (1.6 tpd) and glass melting furnaces (2.9 tpd) 

identified by Earthjustice is 4.5 tpd. As to NOx reductions, 

although Earthjustice did not provide any estimate of the 

reductions that could be achieved by more stringent requirements 

for solid fuel-fired boilers, steam generators, and process 

heaters, we have conservatively estimated that such controls 

could result in an additional 3.12 tpd of NOx reductions from 

existing emissions units in the SJV. These combined emissions 

reductions (4.5 tpd of direct PM2.5 and 3.12 tpd of NOx) are 

significantly lower than the total reductions necessary to 

advance attainment by one year in the SJV (6.4 tpd of direct 

PM2.5 and 15.6 tpd of NOx). Therefore, even assuming that 

additional control options for these three source categories are 

reasonably available for implementation in the SJV, they are not 

required RACM for purposes of the 1997 PM2.5 standards because 

they would not advance the attainment date in SJV by at least 

one year. See 40 CFR 51.1010(b).
57

Conclusion on RACM demonstration

For all of these reasons and as discussed in our proposed 

rule (76 FR 41338) and 2011 Proposal TSD, we conclude that the 

2008 PM2.5 Plan includes all RACM (including RACT for stationary 

sources) necessary for RFP and expeditious attainment of the 

1997 PM2.5 standards in the SJV and, therefore, satisfies the 

requirements of CAA section 172(c)(1) and 40 CFR 51.1010.

E. Comments on the Proposed Actions on the Control Strategy and 

Enforceable Commitments

1. Baseline Measures 

Comment: Earthjustice and AIR assert that the baseline 

inventories are flawed because they include emissions reduction 

credit from both “waiver measures” and “non-waiver measures” 

adopted before December 2006 (together referred to as “baseline 

measures”) that have not been approved into the SIP, and that 

the inclusion of credit for these baseline measures undermines 

the attainment and progress demonstrations attached to these 

inventories. For example, both commenters object to the 

inclusion of credit for CARB‟s anti-idling requirements in the 

baseline inventories because these requirements have never been 

submitted for SIP approval, and Earthjustice suggests that EPA 

should have adjusted the credit for these anti-idling 

requirements based on CARB‟s failure to enforce them. Both 
58

commenters assert that EPA has not specifically evaluated these 

baseline measures to determine how they should be credited in 

the baseline inventories, and Earthjustice asserts that the 

measures upon which the attainment and progress demonstrations 

rely must be enforceable, creditable controls approved into the 

SIP subject to the CAA‟s anti-backsliding provisions. 

In addition, based on information provided in Table 7 of 

the 2011 Proposal and tables F-7 and F-9 of the 2011 Proposal 

TSD, AIR provides its own calculations of the total amount of 

emissions reduction credits attributed to baseline measures and 

requests that EPA confirm the accuracy of AIR‟s calculations. 

Finally, AIR asserts that these additional “non-waiver” 

baseline measures should also be SIP-approved: 

Heavy Duty Diesel Chip Reflash (adopted March 27, 2004);

Diesel Particulate Matter Control Measure for On-Road HeavyDuty 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); 

Pesticides – Field Fumigant Limits (submitted to EPA October 

12, 2009).
59

Response: We disagree that there is any inadequacy in the 

emissions projections that undermines the RACM, RFP or

attainment demonstrations in the 2008 PM2.5 Plan. We explained 

in our 2011 proposal (76 FR 41338 at 41342, 41343) our reasons 

for concluding both that the 2005 base year inventory in the 

2008 PM2.5 Plan is comprehensive, accurate, and current as 

required by CAA section 172(c)(3) and that the projected 

baseline inventories for 2009, 2012 and 2014 provide adequate 

bases for the RACM, RFP and attainment demonstrations in the 

Plan.

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 notwithstanding 

the fact that such rules are not approved as part of the 

California SIP. In the TSD supporting our 2011 proposal, we 

explained why we believe such credit is appropriate. See 2011 

Proposal TSD at section II.F.4.a.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 
60

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 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.

34) The 2008 PM2.5 Plan was 

developed using a version of the EMFAC model referred to as 

 

34 MOVES replaced the MOBILE model as EPA‟s on-road mobile 

source emissions estimation model for use in SIPs and conformity 

in 2010.
61

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. 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.35 (Emissions reductions from 

EPA‟s non-road engine and vehicle standards are reflected in an 

analogous model known as NONROAD). Since 1990, EPA has treated 

California non-road standards for which EPA has issued waivers 

in the same manner as California motor vehicle standards, i.e., 

allowing credit for standards subject to the waiver process 

 

35 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.
62

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 2011 

Proposal TSD at section II.F.4.a.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 Emissions 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.36

See id. at 7. The CEFS model integrates the projected 

inventories for both stationary and mobile sources into a single 

database to provide a comprehensive statewide forecast 

inventory, from which nonattainment area inventories are 

extracted for use in establishing future baseline planning 

 

36 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.
63

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 Progress 

Report at Appendix E. 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 2011 Proposal 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; “Emissions Projections,” 

STAPPA/ALAPCO/EPA Emissions Inventory Improvement Project, 

Volume X, December 1999 (available at 

http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf).

In sum, the 2005 base year and future projected baseline 

inventories in the 2008 PM2.5 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 
64

each of the metropolitan planning organizations (MPO) in the San 

Joaquin Valley; (2) improved methodologies for estimating 

emissions from specific source categories; and (3) CARB's nonroad mobile source model (the OFFROAD model). See TSD Section 

II.A (referencing, inter alia, 2007 State Strategy at Appendix 

F) and 2011 Progress Report. 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). The 

commenter has provided no information to support a claim that 

these methodologies for developing base year inventories and 

projecting future emissions in the SJV are inadequate to support 

the RACM, RFP, and attainment demonstrations in the 2008 PM2.5 

Plan.

For all of these reasons and as discussed in our 2011 

proposal (76 FR 41338 at 41342, 41343), we have concluded that 

the 2005 base year inventory in the 2008 PM2.5 Plan is a 
65

“comprehensive, accurate, current inventory of actual emissions 

from all sources of the relevant pollutant or pollutants” in the 

SJV area, consistent with the requirements for emissions 

inventories in CAA section 172(c)(3), 40 CFR 51.1008, and 40 CFR 

part 51, subpart A. In addition, we conclude that the projected 

baseline inventories for 2009, 2012 and 2014 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 2011 Proposal TSD at section 

II.A.

As to the six specific baseline measures that CRPE asserts 

should be SIP-approved, we note first that the SJV 2008 PM2.5

SIP does not rely on credit for emissions reductions from the 

Pesticides regulations (Field Fumigant Limits) as those 

regulations address only VOC and therefore do not apply to any 

pollutant that is a PM2.5 attainment plan precursor in the SJV 

(PM2.5, NOx, or SO2). 

Second, both the Requirements to Reduce Idling Emissions 

from New and In-Use Trucks (effective November 15, 2006)37 and 

 

37 EPA is currently reviewing a request from CARB for a 

determination as to whether certain requirements of these antiidling 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 
66

the Fork Lifts and Other Industrial Equipment measure (adopted 

May 26, 2006) are pending EPA waiver determinations under CAA 

section 209(b) or section 209(e).38 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 2008 PM2.5 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.

 

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 

0.2 tpd of NOx in the SJV. 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 HeavyDuty Diesel Engine Low-NOx Software (“Chip Reflash”)”; from, 

September 28, 2011.

38 See letter, James Goldstene, Executive Officer, CARB to 

Stephen L. Johnson, Administrator, EPA RE: Request for 

Authorization Determination Pursuant to Clean Air Act Section 

209(e) for Amendments to California‟s Off-Road Emissions 

Standards Regulation for large Spark-Ignition (LSI) Engines and 

Fleet Requirement for In-Use LSI Forklifts and Other Industrial 

Equipment and California State Motor Vehicle and Nonroad Engine 

Pollution Control Standards; Truck Idling Requirements; 

Opportunity for Public Hearing and Request for Public Comment; 

Notice Of Opportunity For Public Hearing And Comment. 75 FR 

43975 (July 27, 2010)
67

Third, as to the 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 

baseline inventories have attributed emissions reductions of 0.1 

tpd PM2.5 and 0.18 tpd NOx statewide to this measure. 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 pg. 55. Assuming 

less than 25 percent of these reductions are attributed to the 

SJV area, the de minimis amounts of emissions reductions 

attributed to this measure in the 2008 PM2.5 SIP do not affect 

our evaluation of the attainment and RFP demonstrations in the 

2008 PM2.5 SIP.

Similarly, as to the Solid Waste Collection Vehicle Rule 

(adopted September 24, 2003), CARB‟s staff report on this 

measure indicates that the projected baseline inventories have 

attributed emissions reductions of 0.17 tpd PM2.5 and 2.3 tpd 

NOx statewide to this measure. See Supplemental Staff Report: 

Proposed Diesel Particulate Matter Control Measure for On-Road 

Heavy-Duty Residential and Commercial Solid Waste Collection 

Vehicles, August 8, 2003, at pg. 18. Assuming less than 25 

percent of these reductions are attributed to the SJV area, the 
68

de minimis amounts of emissions reductions attributed to this 

measure in the 2008 PM2.5 SIP also do not affect our evaluation 

of the attainment and RFP demonstrations in the 2008 PM2.5 SIP. 

Finally, the Heavy Duty Diesel Engine-Chip Reflash rule

(adopted March 27, 2004) (“Chip Reflash” rule) was intended to 

ensure expeditious compliance with CARB‟s NOx emissions 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 emissions 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,39 removal of which would 

 

39 The 2007 State Strategy, Appendix A, “Emissions 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 recently confirmed that the baseline adjustment for 

chip reflash in the 2007 State Strategy reflects emissions 

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-
69

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 law.

As to AIR‟s calculation of the reductions from baseline 

measures, AIR calculates what it considers “the total reductions 

from baseline reductions without recession reductions” to be 11 

tpd of PM2.5, 195 tpd of NOx, and 0.9 tpd of SOx. These figures 

are not correct because they do not take into account CARB‟s 

recent updates to the projected 2014 inventory. 

For the 2008 PM2.5 SIP, “baseline reductions” are 

calculated by subtracting the 2005 base year inventory form the 

projected 2014 pre-control-strategy inventory. As we have 

discussed above, CARB revised its projected 2014 inventories to 

incorporate not only the continuing effects of the recent 

economic recession but also many non-recession related changes. 

These revisions have resulted in a more accurate projected 2014 

inventory.

As we have discussed previously, projected emissions 

inventories are a function in part of changes in activity. 

Projected inventories are, therefore, necessarily affected by 

 

0516, “SIP Credit for Heavy-Duty Diesel Engine Low-NOx Software 

(“Chip Reflash”)”; from, September 28, 2011.
70

forecasts of industrial growth, population growth, and 

transportation growth, among other factors. EPA guidance 

emphasizes the importance of developing reliable methods for 

estimating future source activity levels as part of the SIP 

planning process. We believe that CARB has done this.

2. Waiver Measures

Comment: Earthjustice and CRPE object to our proposal to grant 

emissions reduction credit to California‟s mobile source control 

measures that have received a waiver of preemption under CAA 

section 209 without first approving them into the SIP. Both 

commenters argue that our reliance for this proposal on the 

general savings clause in CAA section 193 is inappropriate for 

several reasons.

First, the commenters assert that CAA section 193 only 

saves those “formal rules, notices, or guidance documents” that 

are not inconsistent with the CAA. They argue that both the CAA 

and EPA‟s long-standing policies and regulations require SIPs to 

contain the state and local emission limitations and control 

measures that are necessary for attainment and RFP and to meet 

other CAA requirements. They assert that our position on the 

treatment of California‟s waived measures is inconsistent with 

this requirement. CRPE asserts that EPA has, in contrast, 

approved other (non-mobile source) state measures into the SIP, 
71

e.g., the consumer products rules and fuel standards. 

Earthjustice also argues that only SIP approval provides for the 

CAA‟s enforcement oversight (CAA sections 179 and 304) and antibacksliding (CAA section 110(l) and 193) safeguards.

Second, the commenters argue that we cannot claim that our 

position was ratified by Congress because section 193 saves only 

regulations, standards, rules, notices, orders and guidance 

“promulgated or issued” by the Administrator and we have not 

identified documents promulgated or issued by EPA that establish 

our position here. Earthjustice further asserts that our 

interpretation has not been expressed through any affirmative 

statements and the only statements of relevant statutory 

interpretations are contrary to our position on California‟s 

waived measures.

Third, Earthjustice 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. 

Similarly, CRPE argues that our positions that Congress must 

expressly disapprove of EPA‟s long-standing interpretation and 

Congressional silence equates to a ratification of EPA‟s 

interpretation are incorrect.
72

Finally, CRPE argues 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. CRPE 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 2011 proposal and 

the 2011 Proposal TSD, we explained why we believe such credit 

is appropriate. See 76 FR 41338 at 41345 and 2011 Proposal TSD 

at section II.F.4.a.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 
73

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 2011 

Proposal TSD (pp. 100-102), 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 
74

for which they substitute, EPA has historically found, and 

continues to find, based on considerations of permanence, 

enforceability, and quantifiability, that such measures are not 

“necessary or appropriate” for California to include in its SIP 

to meet the applicable requirements of the Act. 

First, with respect to permanence, we note that, to 

maintain a waiver, CARB‟s on-road waiver measures can be relaxed 

only to a level of aggregate equivalence to the Federal Motor 

Vehicle Control Program (FMVCP). See section 209(b)(1). In this 

respect, the FMVCP acts as a partial backstop to California‟s 

on-road waiver measures (i.e., absent a waiver, the FMVCP would 

apply in California). Likewise, Federal nonroad vehicle and 

engine standards act as a partial backstop for corresponding 

California nonroad waiver measures. The constraints of the 

waiver process thus serve to limit the extent to which CARB can 

relax the waiver measures for which there are corresponding EPA 

standards, and thereby serve an anti-backsliding function 

similar in substance to those established for SIP revisions in 

CAA sections 110(l) and 193.

40 Meanwhile, the growing 

 

40 In addition, the commenters' concerns over the potential for 

relaxation by the State of the waiver measures because the 

underlying regulations are not subject to EPA review and 

approval as a SIP revision are not a practical concern for this 

particular plan given that the plan's horizon is very short term 

(next couple of years), and the on-road and nonroad vehicles 

that in part will determine whether the area attains the 
75

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 

 

standard are already in operation or in dealer showrooms. There 

is no practical means for the State to relax the standards of 

vehicles already manufactured, even if the State wanted to relax 

the standards.
76

(i.e., because they are not in the SIP), citizens and EPA are 

authorized to enforce EPA standards in the event that 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 
77

rule) as an example of how the waiver measures have been treated

historically by EPA in California SIP actions. The San Joaquin 

Valley 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 onroad “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 
78

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.

In the 2011 Proposal TSD (pp. 102-103), 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 
79

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 California with the broadest possible discretion in the 

development and promulgation of on-road and nonroad vehicle and 

engine standards.41

 

41 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 
80

CRPE 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).

3. Enforceable Commitments

Comment: AIR argues that EPA cannot make a finding that the 

“recession reductions” are an “enforceable” measure within the 

meaning of CAA section 110(a)(2)(A) and 172(c)(6) because 

“recession reductions” are only voluntary behavior to reduce 

activity for economic reasons and nothing prevents such an 

increase in activity as the economy improves. Based on this 

argument, AIR asserts that EPA‟s approval of the attainment 

demonstration is arbitrary and capricious and not in accordance 

with the law. AIR asserts that CARB concedes that the reductions 

coming from reduced activity may change in the future. 

Response: EPA is not making a finding that emissions 

“reductions” related to the economic recession are “enforceable” 

measures under CAA sections 110(a)(2)(A) and 172(c)(6). As 

explained in our amended proposal (76 FR 41338 at 41354-41356), 

we are concluding that CARB‟s 2011 SIP revisions, which updated 

the State‟s projected (“baseline”) emissions inventories based 

 

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.
81

on improved methodologies for estimating emissions and more 

recent growth factors, reduced the total amount of emissions 

reductions needed for attainment and that the control strategy 

in the 2008 PM2.5 Plan, as revised in 2011, demonstrates 

expeditious attainment of the 1997 PM2.5 NAAQS in the SJV from 

the revised baseline. 

Section 110(a)(2)(A) of the CAA requires that each 

implementation plan submitted by a State include “enforceable 

emission limitations and other control measures, means, or 

techniques... as well as schedules and timetables for compliance, 

as may be necessary or appropriate to meet the applicable 

requirements of [the CAA].” Section 172(c)(6) contains 

substantively identical requirements for all nonattainment area 

plans. Baseline emissions inventories, however, are not 

“enforceable emission limitations and other control measures, 

means, or techniques” or “schedules and timetables for 

compliance” that are necessary or appropriate to meet CAA 

requirements. See El Comite Para El Bienestar de Earlimart v. 

Warmerdam, 539 F.3d 1062 (9th Cir. 2008) (concluding that a 

baseline inventory is not an enforceable “standard or 

limitation” as defined by the CAA and is not, therefore, an 

independently enforceable aspect[] of the SIP”). Rather, 

baseline emissions inventories provide the basis for, among 
82

other things, the demonstrations of attainment and progress 

toward attainment required by CAA sections 172(c)(1) and 

172(c)(2). Specifically, CAA section 172(c)(3) requires that 

each plan for a nonattainment area include “a comprehensive, 

accurate, current inventory of actual emissions from all sources 

of the relevant pollutant or pollutants in such area...”). After 

developing this “base year” emissions inventory, States use 

modeling and other analyses to calculate future emissions 

projections and “target” emissions levels, which then inform the 

State‟s development of progress milestones and control 

strategies for attaining the NAAQS. See General Preamble at 

13507-13510. In short, emissions inventories provide estimates 

of current and future emissions that, in turn, provide the 

starting point for the State‟s attainment demonstration and 

enforceable control strategy. 

Nothing in the CAA precludes a State from revising a 

submitted plan to take into account revised emissions estimates 

and projections. All projections of future emissions-generating 

activity (including the original projections in the 2008 PM2.5 

Plan that AIR would have CARB and EPA continue to use) are based 

on projections of population and employment and other growth 

factors that reflect voluntary behavior, all of which can 

increase or decrease as economic conditions change. However, 
83

reliance on projections from reputable sources of economic 

behavior based on established methods of predicting such 

behavior is the historic practice for development of emissions 

inventories. CARB‟s revised projections of future emissionsgenerating activity are based on reputable sources, represent 

the most current understanding of expected economic conditions 

through at least 2014, and were subject to extensive public 

review and comment before CARB adopted its 2011 SIP revisions 

containing these updated projections. Given the magnitude of the 

economic recession‟s impact on emissions-generating activity in 

SJV and other parts of California, and the resulting impact on 

the State‟s assessment of the control strategy necessary to 

demonstrate attainment of the 1997 PM2.5 standards, we conclude 

that it is appropriate to take these updated emissions 

projections into account as part of our action on the 2008 PM2.5 

Plan. Other than asserting generally that CARB and EPA should 

not rely on the revised economic data to determine the 

reductions needed for attainment and that future conditions may 

change, AIR provides no information that undermines the State‟s 

revised economic data or the related changes to the projected 

inventories. 

We disagree with AIR‟s unsupported assertion that “CARB 

concedes that the reductions coming from reduced activity may 
84

change in the future.” CARB has stated that it will continue to 

track emissions trends to ensure that the 2014 emissions targets 

are met and maintains its commitment to adopt and implement 

additional control requirements, incentive programs, or other 

measures as appropriate to reduce emissions to the levels 

necessary to attain. See 2011 Progress Report, p. 4.

Moreover, as discussed above, the revisions to the 2014 

baseline inventory that AIR characterizes as “recession 

reductions” took into account not only the State‟s revised 

economic forecasts but numerous other factors, including updated 

activity data and growth projections. See section II.A

(“Comments on the Proposed Actions on the Emissions Inventory”) 

above. 

Comment: AIR asserts that the Plan relies on emissions 

reductions caused by the recent economic recession to 

demonstrate attainment, rather than requiring reductions from 

diesel trucks and other diesel equipment in 2014. Noting CARB‟s 

recent revisions to five of its in-use rules,42 AIR argues that 

these rule revisions “reduc[ed] the amount of reductions that 

those five in-use rules would have achieved by 2014,” and that 

CARB has equated recession-related emissions reductions with the 

 

42 These five in-use rules are CARB‟s Truck rule, Heavy-Duty 

Vehicle Greenhouse Gas Emission Reduction Regulation, In-Use OnRoad Diesel-Fueled Heavy-Duty Drayage Trucks Regulation, OffRoad rule), and the LSI regulation (collective “in-use rules”).
85

reductions necessary to meet the 2014 tonnage targets. AIR 

asserts that the difference between the pre-recession and 

recession inventories in the Valley is 40 tons per day of NOx. 

Response: As discussed above, CARB‟s revisions to the 2014 

baseline inventories took into account not only the State‟s 

revised economic forecasts but numerous other factors, including 

updated activity data and growth projections. See section II.A

above. These improvements to the emissions estimates reduced the 

projected 2014 emissions levels for trucks, buses and certain 

off-road equipment compared to the levels expected when CARB 

initially adopted its rules for these sources in 2007 and 2008. 

These revised projections, in turn, reduced the State‟s 

assessment of the amount of emissions reductions needed from 

these emissions sources to provide for attainment of the 1997 

PM2.5 NAAQS in the SJV and allowed CARB to provide some economic 

relief to the affected industries.43 We note that because EPA has 

 

43 To determine the extent to which it could revise its in-use

rules to provide economic relief and still meet the attainment 

target, CARB evaluated whether the lower emissions from the 

revised inventories for both trucks, buses and off-road 

equipment, when combined with the effects of the recession, 

provided greater emissions reductions from the in-use rules than 

were initially expected. CARB referred to these greater-thanexpected emissions reductions as the “emission margin.” Because 

the in-use diesel rules reduced both direct PM2.5 and NOx and 

both pollutants contribute to ambient levels of PM2.5, CARB 

calculated the margin on a “NOx equivalent” basis and found that 

the margin for the SJV was 40 tpd of NOx equivalents. See 2010 

Truck Rule ISOR, p. 23. 
86

not previously approved California‟s in-use truck rules into the 

SIP, EPA‟s approval of these rules strengthens the SIP and meets 

the requirements of CAA section 110(l). See CAA 110(l) 

(prohibiting EPA from approving a revision of a plan “if the 

revision would interfere with any applicable requirement 

concerning attainment and reasonable further progress . . . or 

any other applicable requirement of [the Act]”).

Both the revised Truck rule and the revised Off-Road rule

continue to require reductions from diesel trucks and other 

diesel equipment in 2014 and future years. See 2010 Truck Rule 

ISOR, p. 45 and 2010 Off-Road Equipment ISOR, p. 38; see also, 

76 FR 41338, 41346 (Table 6). 

Comment: AIR claims that the 2011 Progress Report shows CARB 

considers “recession reductions” as a part of its “global” 

emissions reduction commitment. In support of this claim, AIR 

quotes the 2011 Progress Report at page 4: 

As a result of the recession, actual emissions decreases 

moved California closer to the emissions levels needed for 

attainment in 2014. The recession has reduced economic 

activity and emissions, most notably in the goods movement 

sector. This has allowed ARB to maintain the State‟s SIP 

commitments in the South Coast and San Joaquin Valley while 
87

also providing some near-term economic relief to affected 

industries.

As the economy recovers, ARB will continue to track 

emissions trends to ensure the 2014 emissions targets are 

met. If future emissions were to exceed the SIP target, the 

State‟s commitment could be made up with additional 

controls, incentive programs, or other programs to bring 

emissions down to the necessary levels. A discussion of how 

ARB accounted for the recession is found later in this 

report. 

Response: EPA is not treating any “recession reductions” as part 

of the State‟s enforceable commitments. As explained above, we 

are approving the attainment demonstration and control strategy 

in the 2008 PM2.5 Plan based on our conclusion that the Plan, as 

revised by CARB‟s 2011 revisions to the projected baseline 

inventories, demonstrates expeditious attainment of the PM2.5 

standards in the SJV. EPA interprets the quoted language as a 

statement of CARB‟s future plans to revise the SIP as necessary 

should economic activity change significantly in the future.

Comment: AIR claims that in proposing to disapprove the CARB‟s 

global commitment in November 2010, EPA recognized that the 

Truck rule could reduce that percentage of reductions remaining 

as commitments below 10 percent. It then asserts that EPA cannot 
88

now approve the commitment and the attainment demonstration 

because CARB‟s relaxation of the Truck rule and the Off-Road 

rule to delay reductions beyond 2014 mean that the percentages 

of PM2.5 and NOx reductions needed for attainment that remain as 

commitments are still well above the 10 percent threshold. AIR 

states that based on its calculations, the percentage of total 

reductions remaining as commitments, if adjustments to the 

baseline are not included, would be 25.1 percent for PM2.5 and 

26.7 percent for NOx.

Response: EPA did not propose to disapprove CARB‟s aggregate

commitments in its 2010 proposal. We proposed then and again in 

our 2011 proposal to approve CARB‟s aggregate emissions 

reductions commitments as described in CARB Resolution 07-28, 

Attachment B. See 75 FR 74518 at 74541 and 76 FR 41338 at 41361. 

EPA did initially propose to disapprove the attainment 

demonstration based in part on our finding that the percentage 

of the emissions reductions needed for attainment that remained 

as commitments was too high. See 75 FR at 74541. As explained in 

our 2011 proposal, however, additional submittals from CARB have 

reduced the percentages of emissions reductions remaining as 

commitments to 13.2 percent for direct PM2.5 and 4.5 percent for 

NOx. These percentages are reasonably close to the 10 percent 

range that EPA has historically accepted as appropriate for 
89

enforceable commitments in approving attainment demonstrations. 

See 76 FR at 41355, 41356. Because the State‟s revisions to the 

projected baseline inventories in the SJV 2008 PM2.5 SIP have 

reduced the total tonnage of emissions reductions necessary to 

attain the 1997 PM2.5 standards (see section II.A above), we 

disagree with AIR‟s calculation of the percentage of total 

reductions remaining as commitments.

Comment: Earthjustice comments that EPA has outlined a threefactor test to assess whether the commitments in the SJV 2008 

PM2.5 SIP are reasonable but has not documented, under the first 

factor, how we determine the level of remaining reductions and 

what is meant by “reasonably close.”

Response: In our 2011 proposal we provide a detailed discussion 

of the emissions reductions needed for attainment and how they 

have been or will be achieved. See generally 76 FR 41339, 41344-

41347 and 41354-41357 and 2011 Proposal TSD, sections II.F. and 

G. These reductions include those from measures adopted prior to 

2007 (baseline measures), measures adopted since 2007 and 

measures that are yet to be adopted (i.e., enforceable 

commitments). The expected reductions from each of these sets of 

measures are provided in the 2011 proposal, as are EPA‟s

calculations of the percentages of needed reductions remaining 

as commitments. See 76 FR 41338 at 41354, Table 8; see also 2011 
90

Proposal TSD at pp. 105-106 and 113-114. As provided in the 

tables in our 2011 proposal and 2011 Proposal TSD, the 

reductions remaining as commitments are 12.9 tpd of NOx and 3.0 

tpd of PM2.5. Id. These reductions represent 4.5 percent and 

13.2 percent of the total NOx and PM2.5 emissions reductions

(respectively) needed for attainment. Id. 

In support of our statement that these percentages (4.5 

percent of NOx and 13.2 percent of PM2.5) are “reasonably close 

to the 10 percent range that EPA has historically accepted in 

approving attainment demonstrations,” we referenced several 

prior EPA approvals of SIPs relying on similar enforceable 

commitments. See 76 FR 41339 at 41355 and n. 30. We also 

explained our legal rationale for approving such enforceable 

commitments and referenced several court decisions that support 

our interpretation of the CAA. See id. at n. 27 and 28. Based on 

our evaluations, we proposed to allow the State to rely on these 

limited enforceable commitments as part of the attainment 

demonstration in the 2008 PM2.5 Plan and 2007 State Strategy.

Id. at 41356. Earthjustice does not explain why these 

explanations were not adequate or why reliance on enforceable 

commitments consistent with these court cases is inappropriate.

Comment: Earthjustice comments that it is not reasonable to 

approve a “plan to make a plan,” which is what they believe the 
91

District and CARB have provided. Earthjustice states that the 

District and CARB are asking EPA to trust them that they will 

find emissions reductions needed to meet the standards by 2015. 

Earthjustice states that this is not what the CAA contemplates, 

citing section 110(a)(2)(A) of the CAA (requiring plans to 

include “enforceable emission limitations and other control 

measures ... necessary or appropriate to meet the applicable 

requirements of this Act”). Earthjustice states that there is no 

point in having a plan which does not specifically identify how 

it plans to accomplish the needed reductions.

Response: We disagree with Earthjustice‟s assertion that the 

2008 PM2.5 SIP does not identify how CARB and the SJVUAPCD plan 

to accomplish the reductions needed for attainment of the 1997 

PM2.5 standards in the SJV by 2015. As discussed in our amended 

proposal, the 2008 PM2.5 Plan relies principally on adopted 

measures approved into the SIP or given waivers under CAA 

section 209 rules to achieve the emissions reductions needed to 

attain the 1997 PM2.5 standards in the SJV by April 5, 2015, 

including baseline (pre-2007) measures that continue to achieve

emissions reductions through 2014. See 76 FR at 41356. The 

balance of the needed reductions is currently in the form of 

enforceable commitments that account for 13.2 percent of the 

direct PM2.5 and 4.5 percent of the NOx emissions reductions 
92

needed from 2005 levels to attain. See id. These SIP-approved or 

CAA-waived control measures and enforceable commitments satisfy 

the requirement in CAA section 110(a)(2)(A) to include 

“enforceable emission limitations and other control measures, 

means or techniques . . . as well as schedules and timetables 

for compliance, as may be necessary or appropriate to meet the 

applicable requirements” of the CAA. See id. at 41355, n. 27. 

Although CARB‟s and the District‟s enforceable commitments to 

achieve additional emissions reductions are expressed in 

aggregate tonnages and not tied to specific measures, both CARB 

and the District have provided a list of potential measures that

may achieve the additional reductions needed to attain the 

standards, together with expeditious rule development, adoption, 

and implementation schedules consistent with EPA‟s policy on 

acceptable enforceable commitments. See id. at 41355, 41356. 

Both CARB and the District have also made significant progress 

to date in meeting their enforceable commitments. Id.

Comment: AIR notes that one of EPA‟s criteria for evaluating an 

attainment demonstration that relies on commitments is whether 

the state is capable of fulfilling the commitment. AIR argues 

that CARB is not capable of fulfilling its commitment given 

CARB‟s alleged use of “recession reductions” instead of actual 

measures to meet its commitment when diesel emissions can change 
93

based on economic forces that the State cannot control. It also 

claims that CARB‟s decision to revise its five in-use rules is 

evidence that CARB can and likely will amend rules in the future 

that may undermine its commitment.

Response: We disagree with AIR‟s assertion that CARB‟s 

revisions to the in-use rules or to its projected emissions 

levels based on updated economic forecasts undermine its 

commitments or demonstrate that the State is not capable of 

fulfilling its commitment. We discussed above in section II.A 

our reasons for concluding that the revisions to the 2014 

baseline emissions inventories are legitimate.

Contrary to AIR‟s assertions, CARB‟s rulemaking record for 

the revisions to its in-use rules indicate that the State 

intends to ensure that any future revisions to the rules will 

not undermine its SIP commitment. See, e.g., 2010 Truck Rule 

ISOR, p. 2 and 2010 Off-Road Rule ISOR, p. 2 (stating that rule 

revisions should “continue progress toward cleaner air” and 

“meet state implementation plan (SIP) commitments”). Before 

revising its in-use rules, CARB calculated the maximum level of 

relief it could provide without violating it SIP commitment. 

This “SIP margin” was calculated as 40 tpd in NOx equivalent (a 

weighted combination of NOx and PM2.5 emissions) in the SJV. See

2010 Truck Rule ISOR, p. 23 and 2010 Off-Road Rule ISOR, p. 20. 
94

The revisions to the in-use rules did not decrease their 

combined benefits by more this amount. See 2010 Truck Rule ISOR, 

p. 51 and 2010 Off-Road Rule ISOR, p. 43. Thus, CARB‟s actions 

did not reflect any lack of intention to fully meet its 

enforceable commitments to provide emissions reductions 

sufficient for timely attainment.

Comment: Earthjustice also contends that the second factor for 

determining whether to approve an attainment demonstration that 

relies on commitments, whether the state is capable of meeting

its commitment, is not met because CARB has repeatedly fallen 

short of achieving its estimated emissions reduction from its 

rules and has not begun to develop its Agricultural Equipment 

Rule which was to achieve 5 to 10 tons per day of NOx in the SJV 

and be adopted by 2009. To support its argument, it points to 

the methodology changes associated with the Truck Rule and OffRoad Rule and the “massive recession reductions” that have 

resulted in fewer reductions being needed from these rules. 

Earthjustice concludes that it does not believe that CARB is 

capable of meeting the “massive, last-minute commitments” relied 

upon in the Plan given CARB‟s history of avoiding satisfying its 

commitments. It also argues that CARB cannot rely on changes to 

the inventory to lessen the reductions from its rules without 

reassessing the relationship between emissions and ambient 
95

concentrations of fine particulates and that the “massive 

recession reductions” are neither permanent nor enforceable. 

Response: We disagree with Earthjustice‟s assertion that CARB 

has a history of not satisfying its commitments or that the 

State‟s recent revisions to its future emissions projections 

indicate it is not capable of meeting its commitments. We 

discussed above in section II.A. our reasons for concluding that 

the revisions to the 2014 baseline emissions inventories are 

valid. We also note that Earthjustice has provided no 

information or data to undermine CARB‟s revisions to its future 

emissions projections based on its revised economic forecasts 

and updated methodologies for estimating emissions.

In addition, Earthjustice‟s assertion that CARB‟s actions 

with respect to regulation of in-use agricultural equipment 

indicate it will not meet its enforceable commitment is 

unsupported. CARB recently adopted changes to its rulemaking 

schedule to establish an adoption date of 2013 for regulation of 

in-use agricultural equipment. See 2011 Ozone SIP Revisions, p. 

3. The 2007 State Strategy indicates that this measure is 

expected to achieve 5 to 10 tpd NOx reductions in 2017, well 

after the period covered by the 2008 PM2.5 SIP. See 2009 State 

Strategy Status Report, p. 18. CARB did not quantify emissions 

reductions for this measure for 2014. See id. at 16. The fact 
96

that the State revised its adoption schedule for a measure that 

is not relied on for attainment or RFP in the SJV 2008 PM2.5 SIP 

does not establish that the State is generally incapable of 

meeting its enforceable commitments in that SIP. As discussed in 

the 2011 proposal and its TSD and in our response to comments on 

the air quality modeling above in section II.B., EPA has 

concluded as a technical matter that the revisions to the base 

year inventory are not significant enough to change the basic 

conclusions drawn from the air quality modeling or to warrant a 

new air quality modeling assessment at this time. See 76 FR 

41338, 41349 and 2011 Proposal TSD, section II.B. 

Comment: Earthjustice states that CAA sections 110(a)(2)(A) and 

172(c)(6) require SIPs to contain “enforceable limitations...as 

may be necessary or appropriate” to achieve attainment. 

Earthjustice further states that, while section 110(k)(4) allows

EPA to grant “conditional approval” of a SIP lacking certain 

statutory elements “based on a commitment of the state to adopt 

specific enforceable measures” by a date certain, the statute 

provides that the conditional approval automatically becomes a 

disapproval if the state fails to comply with the commitment 

within one year. Earthjustice then claims that EPA appears to be

trying to avoid this limitation by treating open-ended promises 

of the State to reduce emissions as enforceable commitments even 
97

though the State has never specified exactly what it commits to 

do. Earthjustice states that courts have rejected similar 

attempts to circumvent the statute‟s limitations on conditional 

approval and cites Sierra Club v. EPA, 356 F.3d 296, 298(D.C. 

Cir. 2004) as overturning EPA‟s conditional approval of SIPs 

based in part on the fact that the commitments identified no 

specific measures the state would implement.

Response: As pertinent to the comment, Sierra Club involved 

EPA‟s conditional approval under section 110(k)(4) of SIPs 

lacking in their entirety RACM and rate-of-progress (ROP)

demonstrations and contingency measures based on letters 

submitted by states that committed to cure these deficiencies. 

The court rejected EPA‟s construction of section 110(k)(4) as 

contrary to the unambiguous statutory language requiring the 

state to commit to adopt specific enforceable measures. Sierra 

Club at 302. The court found that EPA‟s construction turned the 

section 110(k)(4) conditional approval into a means of 

circumventing SIP deadlines. Id. at 303.

EPA does not dispute the holding of Sierra Club. However 

that case is not germane to EPA‟s approval of CARB‟s and the 

District‟s commitments here because the Agency is not approving 

those commitments under section 110(k)(4). The relevant 

precedent is instead BCCA Appeal Group v. EPA, 355 F.3d 817 (5th 
98

Cir. 2003). The facts in BCCA were very similar to those 

presented here. In BCCA, EPA approved an enforceable commitment 

in the Houston ozone SIP to adopt and implement unspecified NOx

controls on a fixed schedule to achieve aggregate emissions 

reductions. Petitioners claimed that EPA lacked authority under 

the CAA to approve a SIP containing an enforceable commitment to 

adopt unspecified control measures in the future. The court 

disagreed and found that section 110(k)(4) conditional approvals 

do not supplant EPA's practice of fully approving enforceable 

commitments:

Nothing in the CAA speaks directly to enforceable 

commitments. The CAA does, however, provide EPA with great 

flexibility in approving SIPs. A SIP may contain 

"enforceable emission limitations and other control 

measures, means, or techniques . . . as well as schedules 

and timetables for compliance, as may be necessary or 

appropriate" to meet the CAA's requirements.... Thus, 

according to the plain language of the statute, SIPs may 

contain "means," "techniques" and/or "schedules and 

timetables for compliance" that the EPA considers 

"appropriate" for attainment so long as they are 

"enforceable." See id. § 7410(a)(2)(A). "Schedules and 

timetables" is broadly defined as "a schedule of required 
99

measures including an enforceable sequence of actions or 

operations leading to compliance with an emission 

limitation, prohibition or standard." 42 U.S.C. § 7602(p). 

The remaining terms are not defined by the Act. Because the 

statute is silent on the issue of whether enforceable 

commitments are appropriate means, techniques, or schedules 

for attainment, EPA's interpretation allowing limited use 

of an enforceable commitment in the Houston SIP must be 

upheld if reasonable.

BCCA at 839-840. The court upheld EPA‟s approval of the 

commitment, finding that “EPA reasonably concluded that an 

enforceable commitment to adopt additional control measures on a 

fixed schedule was an „appropriate‟ means, technique, or 

schedule or timetable for compliance” under sections 

110(a)(2)(A) and 172(c)(6). Id. at 841. Thus the court 

recognized that sections 110(a)(2)(A) and 172(c)(6) provide a 

basis for EPA to approve enforceable commitments as distinct 

from the commitments contemplated by section 110(k)(4), which 

are not in fact enforceable but instead lead to SIP disapproval 

if not honored. See also Environmental Defense v. EPA, 369 F.3d 

193, 209-210 (2nd Cir. 2004) (similarly upholding enforceable 

SIP commitments). As a result, contrary to Earthjustice‟s

contention, section 110(k)(4) is not a bar to EPA‟s approval of 
100

CARB‟s and the District‟s enforceable commitments and that 

approval under section 110(k)(3) is permissible as an 

appropriate means, technique or schedule or timetable for 

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

Comment: Earthjustice states that the commitments are “absurd”

because CARB may claim credit toward its aggregate commitments 

from everything from new regulations to unenforceable incentive 

programs to “actual decreases occurring in any air basin for 

which emissions reduction commitments have been made.” 

Earthjustice states this is arbitrary and that EPA needs to 

explain how the commitments offered in the plan would be 

enforced, what relief EPA or the public could demand, and when a 

suit could be brought. Earthjustice states that it does not see 

how these open-ended commitments are practically enforceable in 

a court of law and asserts that EPA must lay out a roadmap that 

can be followed by courts in the future to ensure that 

meaningful emissions reductions are achieved.

Response: As discussed in our amended proposal (76 FR at 

41355), the CAA allows approval of enforceable commitments that 

are limited in scope where circumstances warrant the use of such 

commitments in place of adopted control measures. Commitments 

approved by EPA under section 110(k)(3) of the CAA are 

enforceable by EPA and citizens under, respectively, sections 
101

113 and 304 of the CAA. In the past, EPA has approved 

enforceable commitments and courts have enforced these actions 

against states that failed to comply with those commitments: 

See, e.g., American Lung Ass'n of N.J. v. Kean, 670 F. Supp. 

1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3rd Cir. 1989); NRDC, 

Inc. v. N.Y. State Dept. of Env. Cons., 668 F. Supp. 848 

(S.D.N.Y. 1987); Citizens for a Better Env't v. Deukmejian, 731 

F. Supp. 1448, recon. granted in par, 746 F. Supp. 976 (N.D. 

Cal. 1990); Coalition for Clean Air v. South Coast Air Quality 

Mgt. Dist., No. CV 97-6916-HLH, (C.D. Cal. Aug. 27, 1999). See 

76 FR at 41355, n. 27.

In response to Earthjustice‟s comment, we are clarifying in 

this final action that we are not providing SIP credit for 

“actual decreases” in air pollution emissions or “recessionrelated reductions” in approving the 2008 PM2.5 Plan. Rather, we 

are approving the 2008 PM2.5 Plan taking into account CARB‟s 

revisions to the control strategy based on the revisions to its 

projected baseline inventories.

Specifically, as explained in our 2011 proposal, CARB‟s 

aggregate emissions reduction commitment in the 2008 PM2.5 Plan 

as submitted in 2008 is to achieve 76 tpd of NOx reductions and 

5 tpd of PM2.5 reductions by 2014. See 76 FR at 41346; CARB 

Resolution 07-28, Attachment B at pp. 3-6 and 2009 State 
102

Strategy Status Report, p. 21.

44 The District‟s aggregate 

emissions reduction commitment in the Plan as submitted in 2008 

is to achieve 8.97 tpd of NOx reductions, 6.7 tpd of PM2.5

reductions, and 0.92 tpd of SO2 reductions by 2014. See 76 FR at 

41345, Table 3. More broadly, however, CARB‟s emissions 

reduction commitment is to achieve the “total emissions

reductions necessary to attain Federal standards” through “the 

implementation of control measures; the expenditure of local, 

State, or federal incentive funds; or through other enforceable 

measures.” See CARB Resolution 07-28, Attachment B at pp. 3-6. 

The updates and improvements to the inventories as presented in 

CARB‟s 2011 Progress Report altered the calculation of the 

reductions needed for attainment of the 1997 PM2.5 standards in 

SJV by reducing the total reductions needed from control 

strategy measures to 9 tpd (for PM2.5), 26.1 tpd (for NOx), and 

0.8 tpd (for SO2). See 76 FR at 41354, Table 7. We therefore 

interpret CARB‟s emissions reduction commitment, together with 

the adjustments to the 2014 baseline inventories provided in 

CARB‟s 2011 SIP revision and the District‟s commitments, as 

adjusting CARB‟s total emission reduction commitment such that 

 

44 In our proposed rule (76 FR 76 FR 41338, 41346) we reference 

the 2007 State Strategy, p. 63 and CARB Resolution 07-28, 

Attachment B. p.6. Note that page 63 of the 2007 State Strategy 

was replaced with information in the 2009 State Strategy Status 

Report, pp. 20-21.
103

the CARB is now obligated to achieve 2.3 tpd of PM2.5 reductions 

and 17.1 tpd of NOx reductions45 by 2014 through enforceable 

control measures to provide for attainment of the 1997 PM2.5

NAAQS in SJV. The District‟s aggregate emissions reduction 

commitment in the Plan as submitted in 2008 (8.97 tpd of NOx

reductions, 6.7 tpd of PM2.5 reductions, and 0.92 tpd of SO2

reductions by 2014) remains unchanged. See Table 3 below. 

We also note that we do not agree with CARB‟s position that 

“actual decreases occurring in any air basin for which emissions 

reduction commitments have been made” or incentive programs may 

be counted as SIP credit toward CARB‟s enforceable commitment, 

unless the State provides a demonstration that such emissions 

decreases are actually enforceable or otherwise meet EPA‟s 

requirements for SIP creditability.

CARB‟s commitment is to adopt and implement measures that 

will achieve specific reductions of NOx and PM2.5 emissions and 

are, as such, specific strategies designed to achieve the SIP‟s 

overall objectives. Further, if CARB fails to meet its 

commitments, EPA could make a finding of failure to implement 

the SIP under CAA Section 179(a), which starts an 18-month 

period for the State to correct the non-implementation before 

 

45 Note that the District has already achieved all of the 

SOx reductions necessary to attain. See 76 FR 41338, 41354, 

Table 8.
104

mandatory sanctions are imposed, or alternatively either EPA or 

citizens could enforce the commitments directly against CARB 

under CAA section 113 or 304, respectively.

Comment: Earthjustice states that courts “may only enforce SIP 

strategies” and that “[m]ere approval of an aspirational goal or 

non-specific promise into the SIP does not convert that goal or 

promise into an enforceable commitment.” In support of these 

assertions, Earthjustice cites Bayview Hunters Point Community 

Advocates v. Metropolitan Transp. Comm’n, 366 F.3d 692, 701 (9th

Cir. 2004) and Citizens for a Better Environment v. Metropolitan 

Tranp. Comm’n, 746 F. Supp. 976, 980 (N.D.Cal. 1990) [known as 

CBE II]. In addition, Earthjustice singles out El Comite Para El 

Bienstar de Earlimart v. Warmerdam, 539 F.3d 1062, 1067 (9th Cir. 

2008), stating that in El Comite the court explained that 

because an inventory in a SIP is not a “standard or limitation” 

as defined by the CAA, it was not an independently enforceable 

aspect of the SIP. Thus, Earthjustice reasons, in order to be 

enforceable, not only must a state‟s commitment to adopt 

additional measures to attain emission standards be specific and 

announced in plain language, but any data or rubric that will be 

used to determine when and how the state will adopt those 

measures must be enforceable.
105

Similarly, citing Bayview and El Comite, AIR characterizes

CARB‟s and the District‟s commitments to achieve aggregate 

emissions reductions by the attainment year as “global 

commitments” that could be interpreted as “goals” unenforceable 

by citizens under Ninth Circuit precedent, rather than 

enforceable “strategies” to achieve those goals. AIR argues that 

the plans‟ global commitments are not enforceable for two 

reasons. First, enforcement is not practical because it is 

virtually impossible for citizens or EPA to determine whether 

the CARB and the District have, in fact, met the global 

commitments. Second, the manner in which CARB and the District 

determine compliance with the tonnage target is left to their 

discretion, and citizens and EPA would be placed in the 

situation held by the plaintiffs in Warmerdam. 

AIR adds that even if the commitments are viewed as 

“strategies” enforcement is not practical because when no 

measures are submitted to EPA for inclusion into the SIP, 

citizens have no idea which measures CARB has used to satisfy 

the total tonnage commitments. AIR also states that there are no 

provisions for CARB and the District to report to EPA and the 

public what actions they have taken to comply with the tonnage 

commitments. EPA and citizens are left to determine, based on 
106

information collected by CARB and the District, whether the 

commitments have in fact been met.

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. 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 sought to enforce was sufficiently 

specific. Thus, interpreting citizen suit jurisdiction as 
107

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 2008 

PM2.5 Plan in detail in our amended proposal. See 76 FR at 

41343-41347. The 2007 State Strategy includes commitments to 
108

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 PM2.5 

NAAQS in the SJV by April 5, 2015. See CARB Resolution 07-28, 

Attachment B at pp. 3-6 and 2009 State Strategy Status Report, 

p. 21. For the SJV, the CARB‟s emissions reductions commitments 

as submitted in 2008 were to achieve 76 tpd NOx and 5 tpd of 

direct PM2.5 by 2014. Id.

SJVUAPCD‟s commitments as submitted in 2008 were to achieve 

9 tpd NOx and 6.7 tpd direct PM2.5 by 2014. See 76 FR at 41345-

41346, See also 2008 PM2.5 Plan, p. 6-9, Table 6-2. The language 

used in the Board‟s resolution adopting the 2008 PM2.5 Plan at 

page 5 to describe its commitment is mandatory and unequivocal 

in nature: 

9. The District Governing Board commits to adopt and 

implement the rules and measures in the 2008 PM2.5 Plan by 

the dates specified in Chapter 6 to achieve the emissions 

reductions shown in Chapter 6, and to submit these rules 

and measures to the ARB within one month of adoption for 

transmittal to EPA as a revision to the State 

Implementation Plan. If the total emissions reductions from 

the adopted rules are less than those committed to in the 

Plan, the District Governing Board commits to adopt, 
109

submit, and implement substitute rules and measures that 

will achieve equivalent reductions in emissions of direct 

PM2.5 or PM2.5 precursors in the same adoption and 

implementation timeframes or in the timeframes needed to 

meet CAA milestones. (emphasis added).

SJVUAPCD Board Resolution No. 08-04-10, p. 5.

As discussed above, the 2011 SIP revisions reduced the 

reductions needed from new measures in 2014 to attain to 9 tpd 

of PM2.5 reductions, 26.1 tpd of NOx reductions, and 0.8 tpd of 

SOx. See 76 FR at 41354, Table 7. The District‟s aggregate 

emissions reduction commitment in the Plan as submitted in 2008 

remains unchanged (8.97 tpd of NOx reductions, 6.7 tpd of PM2.5

reductions, and 0.92 tpd of SO2 reductions by 2014). Thus, CARB

remains obligated to achieve through the adoption of enforceable 

measures by 2014, 2.3 tpd of PM2.5 and 17.1 tpd of NOx. The 

District‟s commitments remain as submitted in 2008 at 9 tpd NOx, 

6.7 tpd direct PM2.5 and 0.9 tpd SOx by 2014.See Table 3 below.

Thus, CARB‟s and the District‟s commitments here are to 

adopt and implement measures that will achieve specific amounts 

of NOx and direct PM2.5 emissions reductions by 2014. These are 

not mere aspirational goals to ultimately achieve the standards 

or emissions inventories as mentioned by Earthjustice. Rather, 

the State and District have committed to adopt enforceable 
110

measures no later than 2014 that will achieve these specific 

amounts of emissions reductions prior to the attainment date of 

April 5, 2015. 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 emissions 

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 emissions reductions by the beginning of 2014. See 40 

CFR 51.1007(b) (requiring implementation of all control measures 

needed for expeditious attainment no later than the beginning of 

the year prior to the attainment date). We conclude that these 

enforceable commitments to adopt and implement additional 

control measures to achieve aggregate emissions 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.

Both Earthjustice and AIR 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:
111

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 percent ridership estimate was adopted by 

the Metropolitan Transportation Commission (MTC), the 

implementing agency, as the actual target. Plaintiffs 

subsequently attempted to enforce the 15 percent ridership 

increase. The court found that the 15 percent 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 
112

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‟ fiveyear 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 2008 PM2.5 Plan 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 identify specific emissions reductions 

that they will achieve, how they will be achieved and the time 

by which these reductions could be achieved, i.e., by 2014.

Earthjustice also cites CBE II at 980 for the proposition 

that courts can only enforce “express” or “specific” strategies. 

However, as discussed below, there is nothing in the CBE cases 

that supports the commenter‟s view that the CARB and District 

commitments are neither express nor specific. In fact, these 
113

cases support our interpretation of CARB‟s and the District‟s 

commitments.

Citizens for a Better Environment v. Deukmejian, 731 

F.Supp.1448 (N.D. Cal. 1990), known as CBE I, concerned in part 

contingency measures 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 citizens action, although the 

exact contours of those measures are not spelled out.” Id. at 
114

1457.46 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.

Earthjustice‟s reliance on CBE II is misplaced. It also 

involves in part the contingency measures in the 1982 Bay Area 

Plan. In CBE II, defendants argued that RFP and the NAAQS are 

coincident because, had the plan‟s projections been accurate, 

then achieving RFP would have resulted in attainment of the 

NAAQS. The court rejected this argument, stating that:

the Court would be enforcing the contingency plan, an 

express strategy for attaining NAAQS. Although enforcement 

of this strategy might possibly result in attainment, it is 

distinct from simply ordering that NAAQS be achieved 

without anchoring that order on any specified strategy. 

Plainly, the fact that a specified strategy might be 

 

46 In this passage, the court was referring specifically to the 

stationary source contingency measures in the Bay Area plan 

which contained a commitment to adopt such measures if emissions 

targets were not met. The Plan identified a number of potential 

stationary sources but did not commit to any particular one. In 

discussing the transportation contingency measures, the court 

applied this same reasoning. Id. at 1456-1457.
115

successful and lead to attainment does not render that 

strategy unenforceable.

(Emphasis in original). CBE II at 980.

CARB‟s and the District‟s commitments here are analogous to 

the terms of the contingency measures in the CBE cases. CARB and 

the District commit to adopt measures, which are not 

specifically identified, to achieve a specific tonnage of 

emissions reductions. Thus, the commitment to a specific tonnage 

reduction is comparable to a commitment to achieve RFP. 

Similarly, a commitment to achieve a specific amount of 

emissions 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 

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). ARB‟s and the 

District‟s commitments are thus clearly a specific enforceable 

strategy rather than an unenforceable aspirational goal.

Earthjustice‟s reliance on El Comite is also misplaced. 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 
116

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).
117

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 Earthjustice cites 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 
118

“identifies emissions 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 SJV 2007 PM2.5 Plan, ARB and the District commits to adopt 

and implement measures sufficient to achieve specified emissions 

reductions by a date certain. As described above, a number of 

courts have found commitments substantially similar to ARB‟s 

here to be enforceable under CAA section 304(a).

Comment: Earthjustice comments that before EPA can approve the 

commitments in the PM2.5 plan it must explain how the promise to 

reduce emissions by some amount is a “standard or limitation” 

enforceable under section 113 or 304 of the Act. Moreover, 

citing CAA section 110(a)(2)(A), Earthjustice asserts that EPA 

must explain how enforcement of these commitments, which 

arguably could not even be considered until after the attainment 

deadline has come and gone, is adequate to assure the 

requirements of the Act (including timely attainment) are met.

Earthjustice contends that the strategy of relying on these 

open-ended commitments is a recipe for failure and is not a 

reasonable substitute for the detailed, enforceable plan 

envisioned and required by the Act.

Response: We disagree. As discussed above, EPA believes that 

CARB‟s and the District‟s commitments to adopt and implement 
119

control measures to achieve the specified aggregate tonnage by 

2014 are enforceable as an emission standard or limitation under 

CAA section 304. The fact that the State may meet its SIP 

obligation by adopting measures that are not specifically 

identified in the SIP, or through one of several available 

techniques, does not render the requirement to achieve the 

aggregate emissions reductions unenforceable. State and local 

control measures are subject to rulemaking procedures and public 

participation requirements, through which EPA and the public may 

track the State/District‟s progress in achieving the requisite 

emissions reductions in the years leading up to 2014 and before 

the attainment date of April 5, 2015. Should the State/District 

fail to adopt measures that achieve the requisite amounts of 

emissions reductions by the beginning of 2014 (see 40 CFR 

51.1007(b)), EPA and citizens may enforce these commitments 

under CAA sections 113 and 304(a), respectively.

F. Comments on the Proposed Action on the Attainment 

Demonstration and Attainment Date Extension

Comment: Earthjustice comments that EPA cannot grant an 

extension of the attainment date to April 5, 2015 because the 

flaws Earthjustice alleges are in the 2008 PM2.5 Plan‟s

attainment modeling and RACM/RACT analysis meant that the 

demonstration required to grant a 5-year extension have not been 
120

met. Earthjustice asserts that the alleged flaws include the 

exemptions for significant sources of emissions from the 

charbroiling, glass melting and open burning rules; the delay in 

the implementation of certain control requirements (glass 

melting and agricultural equipment), and the exclusion of 

controls for VOC and condensable PM2.5 emissions in the Plan

Response: We have evaluated Earthjustice‟s comments on the 

RACM/RACT analysis, VOC as an attainment plan precursor, and 

condensable particulate and have determined that none change our 

conclusion that the SJV 2008 PM2.5 Plan provides for RACM as 

required by CAA section 172(c)(1). 

Under the PM2.5 implementation rule, states that request an 

extension of the attainment date under CAA section 172(a)(2) 

must provide sufficient information to show that attainment by 

April 5, 2010 is impracticable due to the severity of the 

nonattainment problem in the area and the lack of available and 

feasible control measures to provide for faster attainment. 40 

CFR 51.1004(b). States must also demonstrate that all RACM and

RACT for the area are being implemented to bring about 

attainment of the standard by the most expeditious alternative 

date practicable for the area. 72 FR 20586 at 20601. As 

discussed in our 2011 proposal, we believe that California has 

met the relevant tests for granting an extension of the 
121

attainment date under CAA section 172(a)(2). See 76 FR 41388, 

41341.

Comment: Earthjustice comments that EPA should not approve the 

attainment demonstration, because of its “heavy” reliance on 

State commitments to adopt last-minute control measures and 

because the emissions reductions and the attainment targets are 

not valid given the problems in the inventory and the modeling 

analysis. Furthermore, the defective modeling results in 

inaccurate attainment target levels. 

Response: The SJV 2008 PM2.5 SIP does not rely heavily on State 

commitment to “adopt last-minute controls.” As noted previously, 

the bulk of the emissions reductions needed for attainment are 

from measures adopted prior to 2007. 76 FR 41338, 41354. 

Moreover, one of EPA‟s criteria for approving attainment 

demonstrations that rely on commitments is that the commitments 

represent a limited portion of the reductions needed for 

attainment. As we have shown, CARB‟s and the District‟s 

remaining commitments account for only 4.5 percent (12.9 tpd) of 

the NOx and 13.2 percent (3.0 tpd) of the PM2.5 reductions 

needed for attainment. Id. In comparison, already achieved 

reductions are 271 tpd of NOx and 19.7 tpd of PM2.5. See 76 FR 

41338, 41354 (Table 8) (numbers are the sum of lines B and C).

Finally, we have determined that the SJV PM2.5 Plan provides for 
122

a generally linear reduction in emissions demonstrating

reasonable further progress as required by CAA 172(c)(2).

G. Comments on the Proposed Actions on the Reasonable Further 

Progress Demonstration

Comment: Earthjustice comments that EPA should disapprove the 

RFP demonstration because it fails to address VOC and to show 

generally linear progress in reducing emissions. It also argues 

that because of the alleged defects in the inventory and the

alleged failure of the modeling analysis to identify the target 

level of emissions reductions, it is impossible to assess 

progress. It further argues that the RFP demonstration must also 

be updated to reflect corrections to the inventory. 

Response: For the reasons discussed in the 2011 proposal and 

response to comments on the precursor issue above, EPA has found 

that insufficient data exist to reverse the presumption in the 

PM2.5 implementation rule that VOC is not a PM2.5 attainment 

plan precursor for attainment of the 1997 PM2.5 standards in the 

SJV. See 76 FR 41350 and 2011 Proposal TSD, p. 50. Because VOC 

is not considered an attainment plan precursor, it need not be 

addressed in the RFP demonstration. See 40 CFR 51. 1009(c).

For the reasons discussed in the 2011 proposal and response 

to comments on the air quality modeling above in section II.B.,

EPA has found that the air quality modeling in the SJV 2007 
123

PM2.5 SIP is adequate to support the attainment demonstration 

and thus to establish the target level of emissions. See 76 FR 

41338, 41348 and 2011 Proposal TSD, section II.B. As discussed 

in the 2011 proposal, EPA evaluated the effect of the changes in 

the base year inventory on the RFP demonstration and determined

that it did not revise our conclusion that the Plan provided for 

RFP. See 76 FR 41338, 41357 (ftn. 32) and 2011 Proposal TSD, p. 

122.

H. Comments on the Proposed Actions on the Contingency Measures

Comment: Earthjustice states that EPA‟s analysis of the 

contingency measures in the 2008 Plan is generally sound. 

Earthjustice, however, contends that our analysis relies on an 

RFP analysis that in turn relies on invalid NOx to PM2.5 

interpollutant equivalency ratios. It further argues that

because these ratios are invalid, the assessment of the excess 

reductions in the RFP demonstration is also invalid and the 

shortfall targets must be recalculated using valid methods and 

results.

Response: EPA‟s calculation of the excess reductions in the RFP

demonstration is done on a per pollutant basis and does not 

assume any interpollutant trading. See 76 FR 41339, 41359 (Table 

10) and 2011 Proposal TSD, p. 130. In the 2011 Progress Report, 

CARB states that these reductions are equal to at least one-
124

year‟s worth of RFP when considered on a PM2.5 equivalency basis 

(see 2011 Progress Report, p. 2); however, to make this 

statement, the State relies in part on an interpollutant trading 

ratio of 1 ton of SOx reductions to 1 ton of PM2.5 reductions. 

As discussed in section II.B.4. of the 2011 Proposal TSD, EPA 

found that there was insufficient technical support for this 

ratio and EPA did not allow its use in the RFP demonstration or 

for any other purpose. Id. at 42358 and p. 129.

Comment: In its comments on the 2010 proposal, Earthjustice 

notes that the District proposes to rely on emissions reductions 

achieved by the ozone nonattainment fee and other incentive 

programs. It argues that the District does not have criteria for 

how these monies will be spent and does not provide a mechanism 

for ensuring that any claimed emissions reductions are 

enforceable and that any future reliance on funding programs to 

reduce emissions must demonstrate that the emissions reductions 

meet statutory creditability requirements including an 

explanation of how these agreements between the District and the 

subsidized source can be enforced by EPA or the public.

Response: We are not approving reductions from the District‟s 

incentive grant programs as part of the 2008 PM2.5 SIP‟s 

contingency measures provisions; therefore, comments related to 

them are not germane to this action. In both its 2010 and 2011 
125

proposals EPA proposed to disapprove the Plan‟s contingency 

measures provisions and is disapproving those provisions in 

today‟s action. See 75 FR 74518, 74539 and 76 FR 41338, 41358. 

Those provisions include the District‟s ozone nonattainment fee 

program and other incentive programs as potential contingency 

measures. 

In both proposals, we noted that while neither the CAA nor 

EPA policy bar the use of emissions reductions from incentive 

programs to meet all or part of an area‟s contingency measure 

obligation, the incentive programs must assure that the 

reductions are surplus, quantifiable, enforceable, and permanent 

in accordance with EPA‟s guidance. See “Improving Air Quality 

with Economic Incentive Programs,” EPA-452/R-01-001 

(January 2001). We also noted that the 2008 PM2.5 Plan does not 

identify the incentive grant programs expected to generate the 

emissions reductions. The Plan also does not identify the 

quantity of these emissions reductions that the District 

intended to use to meet the contingency measure requirement.

Therefore, we are unable to determine if they are SIP creditable 

or sufficient to provide in combination with other measures the 

roughly one-year‟s worth of RFP needed. For these reasons, we 

determined that programs did not currently meet the CAA 
126

requirements for contingency measures. See 75 FR 74518, 74538 

and 76 FR 41338, 41358.

Comment: While AIR agrees with EPA‟s proposed disapproval of 

the contingency measures, it argues against the use of waiver 

measures and on-road fleet turnover as contingency measures 

because waiver measures are not in the SIP and there are no 

control measures that require fleet turnover. It further argues 

that reductions from fleet turnover are derived from assumptions 

based on voluntary future activity that fail to meet the Act‟s 

requirements for enforceable measures. Finally, it asserts that 

EPA has made no finding that such fleet turnover reductions have 

actually occurred.

Response: As discussed previously, we believe that reductions 

from CAA 209 waiver measures can be used to meet CAA

requirements including the contingency measure requirement even 

though they are not in the SIP.

The measures relied on in part for contingency measure 

emissions reductions are the State and federal on- and off-road 

new engines standards. Fleet turnover is the mechanism by which 

these new engine standards are implemented, and it is how these 

standards actually result in emissions reductions in an area.

CARB calculates reductions from its mobile sources, including 

base year and future projected year, using its EMFAC2007 and 
127

OFFROAD models. These models included assumptions regarding 

fleet turnover based on historical records.47 Recent updates to 

the truck, bus, and offroad equipment inventories included 

review and adjustments of fleet turnover rates which are also 

based on available records. See 2010 Truck Rule ISOR, section F.

Comment: SJVUACPD commented that EPA‟s current requirement that 

contingency measures provide for one-year‟s worth of emissions 

reductions is not practical for areas like the SJV and that EPA 

should work towards realistic and specific solutions for future 

implementation rules. It also stated that it would continue to 

work with EPA to incorporate reductions from the District‟s

incentive programs into the SIP so that they may be used satisfy 

the contingency measures requirement. 

Response: EPA recognizes the difficulty of identifying 

contingency measures and appreciates the District‟s concerns. We 

will continue to work with the District to identify potential 

contingency measures including incentive programs that produce 

reductions that are surplus, quantifiable, enforceable, and 

permanent in accordance with EPA guidance.

 

47 See CARB, “Public Meeting to Consider Approval of Revisions 

to the State‟s On-Road Motor Vehicle Emissions Inventory, 

Technical Support Document,” May 2000, section 7.3 “Retention 

Rates” which can be found at 

http://www.arb.ca.gov/msei/onroad/doctable_test.htm.
128

I. Comments on the Proposed Actions on the Motor Vehicle 

Emissions Budgets and Trading Mechanism

Comment: Earthjustice comments that EPA cannot approve the 

revised motor vehicle emissions budgets because they are derived 

from attainment and RFP demonstrations that Earthjustice asserts 

are not approvable because they are based on invalid modeling. 

It also claims the issues with the modeling also affect the 

conformity analysis because it depends on interpollutant 

equivalency ratio between NOx and PM2.5 that is derived from the

modeling. Earthjustice notes that CARB derived this ratio by 

conducting a sensitivity analysis with the model which according 

to Earthjustice, EPA acknowledged was not a legitimate basis for 

determining interpollutant equivalency ratios, citing the 2011 

Proposal TSD at p. 47. Earthjustice further claims that these 

“defective ratios” were used to demonstrate RFP and conformity. 

Response: We agree that EPA would not be able to approve 

budgets that are derived from unapprovable or disapproved 

attainment or RFP demonstrations. However, we are approving 

these demonstrations in the SJV 2008 PM2.5 Plan and, because 

they are derived from those demonstrations and otherwise meet 

all applicable requirements for transportation conformity 

budgets, EPA‟s is also approving the budgets. For the reasons 

discussed above in our response to comments on the air quality 
129

modeling, we do not agree with Earthjustice that the modeling is 

invalid. 

CARB included a trading mechanism to be used in 

transportation conformity analyses that use the proposed budgets 

as allowed for under 40 CFR 93.124. This trading mechanism 

allows future decreases in NOx emissions from on-road mobile 

sources to offset any on-road increases in PM2.5, using a 

NOx:PM2.5 ratio of 9:1. As proposed by CARB and proposed for 

approval by EPA, the trading mechanism would only be used, if 

needed, for conformity analyses for years after 2014. Also, to 

ensure that the trading mechanism does not impact the ability of 

the SJV to meet the NOx budget, the NOx emissions reductions 

available to supplement the PM2.5 budget would only be those 

remaining after the 2014 NOx budget has been met. See 2011 

Progress Report, Appendix D, p. 2 and 76 FR 41338, 41361. We

found that the method CARB used to derive the 9:1 NOx to PM2.5 

ratio, which was based on the SIP‟s photochemical modeling, is 

adequate for purposes of assessing the effect of area-wide 

emissions changes, such as are used in RFP, contingency 

measures, and conformity budgets. See 76 FR 41338, 41349 and 

2011 Proposal TSD, p.46. 

EPA did find that the method used by CARB and the District 

(a modified rollback approach) to derive the 1:1 SOx to PM2.5 is 
130

inadequate for determining interpollutant equivalency ratios and 

stated that this issue would be better explored with a 

photochemical model. See 76 FR 41338, 41349 and 2011 Proposal 

TSD, p.47. It is this latter discussion that Earthjustice 

incorrectly cites as its basis for claiming that EPA rejected 

the interpollutant trading ratio used in establishing the 

trading mechanism for transportation conformity analyses. The 

2008 PM2.5 SIP does not establish motor vehicle emissions 

budgets for SO2 and therefore does not establish an SO2:PM2.5

trading mechanism for transportation conformity purposes.

Comment: Earthjustice claims that a transportation agency 

cannot rely on budgets derived from what it considers to be the 

unapprovable SJV 2008 PM2.5 SIP without violating CAA section 

176(c)(1) because they would not be able to assure that their 

actions would not interfere with timely attainment or reasonable 

further progress.

Response: As documented in the TSD and our 2011 proposed rule, 

EPA has found that the SJV 2008 PM2.5 SIP demonstrates 

reasonable further progress and expeditious attainment of the 

1997 PM2.5 standards consistent with the requirements of the CAA 

and EPA‟s implementing regulations. We have also concluded that 

the budgets in this SIP are consistent with these demonstrations 

and are both adequate and approvable. Therefore, the SJV MPOs 
131

must use these budgets in their transportation conformity 

determinations.

J. Comments on Other Topics Not Covered Previously

Comment: AIR claims that EPA fails to list the 2009 State 

Strategy Status Report (pages 11-23) among the documents which 

it proposes to include as part of the SIP, citing 76 FR 41338, 

41361, and that this is an error given CARB‟s intent in the 2009 

State Strategy Status Report (citing p. 11). AIR requests that 

EPA clarify its intent to approve a CARB commitment for staff to 

propose a rule to regulate in-use mobile agricultural equipment. 

AIR notes that this commitment was part of the 2007 State 

Strategy (citing CARB Resolution 07-28, Attachment B, p. 7), 

included in the 2009 State Strategy Status Report, and was a 

component of EPA‟s previous proposed approval of the 2007 State 

Strategy (citing 75 FR at ed. Reg. 74518, 74541 (November 30, 

2011)), but is not included in the updated rulemaking schedule 

in 2011 Progress Report. 

Response: EPA lists the 2009 State Strategy Status Report as 

one of five submittals that comprise the 2007 PM2.5 SIP for the 

SJV. See 76 FR 41338, 41340. We also state in section VI. (EPA‟s 

proposed Actions and Potential Consequences) that we were 

proposing to approve the SJV portions of CARB‟s 2007 State 

Strategy as revised in 2009 and 2011 addressing CAA and EPA 
132

regulations for attainment of the 1997 PM2.5 NAAQS in the SJV. 

We specifically proposed to approve CARB‟s commitments to 

propose certain defined measures as listed in Table B-1 on page 

1 of Appendix B of the 2011 Progress Report submittal based on 

CARB‟s own characterization of that submittal as its updates to 

its rulemaking schedule for the PM2.5 measures in the 2007 State 

Strategy. See 2011 Progress Report, p. 8, Table 1.

On June 20, 2011 CARB provided public notice of proposed 

revisions to the ozone portions of the 2007 State Strategy 

including revisions to the rulemaking schedule for in-use 

agricultural equipment. See CARB, Notice of Public Hearing to 

Consider a Status Report on the State Strategy for California‟s 

2007 State Implementation Plan and Consider Approval of Proposed 

Revisions for the 8-Hour Ozone and Minor Technical Revisions to 

the PM2.5 SIP Transportation Conformity Budgets,” June 20, 2011. 

As stated in the proposed revisions, CARB does not consider the 

in-use agricultural measures to be part of its PM2.5 control 

strategy and therefore did not include updates to the schedule 

for that measure in its PM2.5 SIP revision.48 2011 Ozone SIP 

Revisions, p. 3. These revisions were adopted by the Board on 

July 21, 2011, submitted to EPA on July 29, 2011 and proposed 

 

48 As discussed previously, CARB provided emissions reductions 

estimates for the in-use agricultural equipment measure only 

for 2017, which is three years after the 2014 attainment year 

for PM2.5.
133

for approval by EPA on September 16, 2011 at 76 FR 57846. This 

proposed approval includes the revised schedule for the in-use 

agricultural equipment measure. See 76 FR at 57846, 57853.

49

Comment: AIR requests clarification from EPA on whether the 

omission of the proposed commitment in the 2011 Progress Report 

is an administrative error, or whether CARB intentionally 

removed that commitment from the 2007 State Strategy. AIR notes 

that based on CARB‟s website, it appears that the omission was 

in error, because CARB continues to represent to the public that 

it is working on the in-use agricultural equipment rule. AIR 

asserts that to the extent that CARB intentionally removed the 

commitment, such action violates 40 C.F.R. 51.102 because CARB 

did not provide adequate notice to the public of this 

fundamental change to CARB‟s strategy and that the public should 

not be expected to search through “voluminous SIP-related 

material, searching out stealth amendments by omission.”

Response: As required by 40 CFR 51.102, CARB posted the draft 

2011 Progress Report including the proposed revisions to the 

rulemaking schedule in the 2007 State Strategy 30 days prior to 

the public hearing and requested public comments. See CARB, 

Notice of Public Hearing to Consider the Approval of a Progress 

 

49 AIR notes that Table F-8 in EPA‟s 2011 Proposal TSD lists the 

agricultural equipment rule as a defined measure in the 2011 

Progress Report. This was an error and has been corrected in the 

final TSD.
134

Report and Proposed State Implementation Plan Revisions for 

PM2.5, March 29, 2011. Questions and comments on the State‟s 

proposed revisions to its rulemaking schedule, including changes 

to the in-use agricultural equipment measure, should be directed 

to CARB during the State‟s public comment periods or at the 

public hearings. 

Comment: AIR comments that the 2008 PM2.5 Plan and the 2007

State Strategy fail to demonstrate a monitoring program for CARB 

mobile source measures and the pesticide regulation, stating EPA 

regulations specifically require each plan to make this 

demonstration, citing 40 CFR 51.111. It provides as an example, 

CARB‟s anti-idling rules. 

Response: EPA‟s regulation at 40 CFR 51.111 requires each plan 

include a description of enforcement methods including, but not 

limited to, procedures for monitoring compliance with each of 

the selected control measures and procedures for handling 

violations. These requirements apply to the control measures 

that are in the SIP. For the reasons discussed previously, we do 

not believe that California‟s mobile source measures that 

receive waivers under CAA section 209 need to be submitted for 

inclusion into the SIP; therefore, California need not include a 

description of the enforcement and or monitoring program for 
135

these measures in its SIP.50 As noted previously, CARB‟s antiidling regulations are pending a section 209 waiver decision. 

Should any of these provisions need to be submitted for SIP 

approval, we will evaluate their monitoring procedures at the 

time we take action to incorporate them into the SIP. As we have 

also noted previously, the pesticide regulation is not part of 

the 2008 PM2.5 SIP‟s control strategy; therefore, the lack of 

any monitoring procedures is not material to our approval of 

this SIP.

As a practical matter, to be effective, monitoring 

procedures (which includes monitoring and recordkeeping 

requirements and testing procedures) must be tailored to the 

specific emission limitation for which they are to be used. For 

example, the procedures for monitoring NOx emissions from 

utility boilers are very different from the procedures for 

monitoring the VOC content of paints. Compare, for example, Rule 

4601 (Boilers > 5 million BTU per hour), sections 5.4 

“Monitoring Requirements” and 6.0 “Administrative Requirements” 

requiring continuous emissions monitoring and annual source 

testing using specific test procedures to Rule 4601 

(Architectural Coatings), section 6.0 “Administrative 

 

50 For a description of CARB‟s source monitoring and enforcement 

programs including its procedures for handling violations, See

http://www.arb.ca.gov/enf/enf.htm.
136

Requirements” specifying label requirements, requiring 

maintenance of annual sales records, and specifying test methods 

for determining the VOC content of coatings. Because of the need 

to tailor monitoring procedures to the emission limit, EPA 

evaluates a prohibitory rule‟s monitoring, recordkeeping, and 

testing procedures at the time it reviews the rule for 

incorporation into the SIP. We note that we are not approving 

any rules or regulations as part of this specific action on the 

SJV 2008 PM2.5 SIP.

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 PM2.5

standards in the SJV, the District made specific commitments to 

adopt thirteen measures on the schedule identified in the Plan. 

See 2008 PM2.5 Plan, Table 6-2 (revised June 17, 2010). The 

District has now completed its actions on all measures except 

for revisions to Rule 4905 (Natural Gas-Fired, Fan Type 

Residential Central Furnaces) which is not scheduled for 

adoption until 2014. See Table 1 below. As Table 1 shows, EPA 

has approved all of the adopted rules with the exception of 
137

three, none of which is credited with emissions reductions in 

the demonstrations.

Table 1

San Joaquin Valley Air Pollution Control District

2008 PM2.5 Plan Specific Rule Commitments

District Rule Adoption 

Date Current SIP Approval Status

4103 – Open Burning April 

2010

Final approval signed: 

September 30, 2011

4320 – Advanced Emissions 

Reductions for Boilers, Steam 

Generators and Process Heaters 

(> 5 MMBtu/hr)

October 

2008

Approved

75 FR 1715 (January 13, 2010)

4307 - Boilers, Steam 

Generators and Process Heaters 

(2 to 5 MMBtu/hr)

October 

2008

Approved

76 FR 5276 (January 31, 2011)

4308 - Boilers, Steam 

Generators and Process Heaters 

(0.075 to < 2 MM Btu/hr)

December 

2009

Approved 

76 FR 16696 (March 25, 2011)

4703 - Stationary Gas Turbines September 

2007

Approved

74 FR 53888 (October 21, 2009)

4702 - Reciprocating Internal 

Combustion Engines

August 

2011 Submittal pending

4354 - Glass Melting Furnaces October 

2008

Approved

76 FR 37044 (June 24, 2011)

4902 - Residential Water 

Heaters

March 

2009

Approved. 

75 FR 24408 (May 5, 2010)

4905 - Natural Gas-Fired, Fan 

Type Residential Central 

Furnaces

Adoption 

scheduled 

for 2014

Most current revision of rule 

approved: October 20, 2005 at 

72 FR 29886 (May 30, 2007)

4901 - Wood Burning Fireplaces 

and Wood Burning Heaters

October 

2008

Approved 

74 FR 57907 (November 10, 2009)

4692 - Commercial Charbroiling September 

2009

Final approval signed: 

September 30, 2011

4311 – Flares June 2009 Proposed for approval 76 FR 

52623 August 23, 2011)

9410 - Employer Based Trip 

Reduction Program

December 

2009

Action pending. Emissions

reductions from this rule 

revision are not currently 

included in the attainment or 

RFP demonstration.
138

As part of its control strategy for attaining the PM2.5

standards in the SJV, CARB committed to propose certain measures 

on the schedule identified in the 2007 State Strategy. These 

commitments, which were updated in the 2011 Progress Report, 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 

Improvement,” “Cleaner In-Use Heavy Duty Trucks,” and “Cleaner 

In-Use Off-Road Engines” measures are currently credited with 

reductions in the attainment demonstration. See 76 FR 41338, 

41346 (Table 6).

Generally speaking, EPA will approve a State plan that 

takes emissions reduction credit for a control measure only 

where EPA has approved the measure as part of the SIP, or in the 

case of certain on-road and nonroad measures, where EPA has 

issued the related waiver of preemption or authorization under 

CAA section 209(b) or section 209(e). In our July 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 San 

Joaquin Valley PM2.5 Plan. See 76 FR 41338, 41346 (table 6). Two 
139

specific CARB rules on which the attainment demonstration relies 

include the Truck Rule and the Drayage Truck Rule (that 

collectively are included in a State measure referred to as 

“Cleaner In-Use Heavy Duty Trucks”). 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 SJV 2008 PM2.5 SIP 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.

We are nonetheless allowing the plan‟s attainment 

demonstration, and our final approval of it, to rely on the 

emissions reductions from the two CARB rules cited above for the 

following reasons: 

Both rules have been adopted by CARB and submitted to EPA 

as a revision to the California SIP,51 and the adopted 

versions are essentially the same as those for which EPA 

proposed approval;

The comments that we have received on our proposed approval 

of the two CARB rules (Truck Rule and Drayage Truck Rule) 

 

51 The Truck Rule and the Drayage Truck Rule were included in a 

SIP submittal dated September 21, 2011. We have included the 

September 21, 2011 SIP submittal in the docket for this 

rulemaking.
140

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 the SIP [see Union 

Electric Company v. EPA, 427 U.S. 246, 265 (1976)]; 

The remaining administrative process, which involves review 

of the final adopted rules by California‟s Office of 

Administrative Law (OAL) is essentially procedural in 

nature, and should be completed over the near term;52

CARB intends to submit the final, effective rules to EPA as 

soon as OAL completes its review and approves the rules.

Therefore, 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 SJV 2008 PM2.5 SIP, and our final 

approval of it, on the emissions reductions associated with the 

rules is reasonable and appropriate. If, however, California 

does not submit the adopted and fully effective rules to EPA as 

a SIP revision prior to the effective date of today‟s action, we 

 

52 See letter from James N. Goldstene, Executive Officer, CARB, 

to Jared Blumenfeld, Regional Administrator, EPA Region IX, 

dated September 21, 2011, submitting the Truck and Drayage Truck 

rules SIP revision to EPA. CARB indicates that the Drayage Truck 

Rule will be submitted to OAL no later than September 23, 2011, 

and the Truck Rule will be submitted to OAL no later than 

October 29, 2011. Under California law, OAL must taken action 

within 30 working days.
141

will take appropriate remedial action to ensure that our action 

on the plan is fully supportable or to reconsider that action. 

Table 2

2007 State Strategy Defined Measures Schedule for

Consideration and Current Status

State Measures Expected 

Action Year

Implementation Current Status

Smog Check 

Improvements 2007-2009 2008-2010, 2013

Elements approved 75 

FR 38023 (July 1, 

2010)53

Expanded Vehicle 

Retirement (AB 

118)

2007 2009

Adopted by CARB, June 

2009; by BAR, 

September 2010.

Modification to 

Reformulated 

Gasoline Program

2007 2010 Approved, 75 FR 26653 

(May 12, 2010)

Cleaner In-Use 

Heavy Duty 

Trucks

2007, 

2008,2010 2011-2015

Proposed for approval 

76 FR 40642 (July 11,

2011

Accelerated 

Introduction of 

Cleaner 

Locomotives

2008 2012

Prop 1B bond 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.

Cleaner In-Use 

Off-Road Engines 2007, 2010 2009 Waiver action pending. 

New Emissions 

Standards for 

Recreational 

2013 To be 

determined

Partial adoption, 

July 2008, Additional 

action expected 2013.

 

53 California Assembly Bill 2289, passed in 2010, requires the 

Bureau of Automotive Repair to direct older vehicles to high 

performing auto technicians and test stations for inspection and 

certification effective 2013. Reductions shown for the SmogCheck 

program in the 2011 Progress Report do not include reductions 

from AB 2289 improvements. CARB Progress Report supplement, 

attachment 5.
142

Table 2

2007 State Strategy Defined Measures Schedule for

Consideration and Current Status

State Measures Expected 

Action Year

Implementation Current Status

Boats

Source: 2011 Progress Report, Table 1. Additional information 

from www.ca.arb.gov. Only defined measures with direct PM2.5 or 

NOx reductions in the SJV are shown here.

B. Enforceable Emissions Reductions Commitments

CARB‟s emissions reductions commitment is to achieve the 

“total emissions reductions necessary to attain Federal 

standards” through “the implementation of control measures; the 

expenditure of local, State, or federal incentive funds; or 

through other enforceable measures.” See CARB Resolution 07-28, 

Attachment B at pp. 3-6; 2009 State Strategy Status Report, p. 

20; and 2011 Progress Report, p. 6.

The updates and improvements to the inventories as 

presented in CARB‟s 2011 Progress Report altered the calculation 

of the reductions needed for attainment of the 1997 PM2.5

standards in SJV by reducing the total reductions needed from 

District and State control strategy measures to 9 tpd for PM2.5, 

26.1 tpd for NOx, and 0.8 tpd for SO2. See Table 3 below and 76 

FR at 41354, Table 7.

We are approving the 2008 PM2.5 Plan taking into account 

CARB‟s revisions to the control strategy based on the revisions 

to its projected baseline inventories and its enforceable 
143

emissions reductions commitment. Specifically, we are 

interpreting CARB‟s emissions reductions commitment, together 

with the adjustments to the 2014 baseline inventories provided 

in CARB‟s 2011 SIP revision and the District‟s commitments, as 

adjusting CARB‟s total emissions reductions commitment such that 

CARB is now obligated to achieve 2.3 tpd of PM2.5 reductions and 

17.1 tpd of NOx reductions by 2014 through enforceable control 

measures to provide for attainment of the 1997 PM2.5 NAAQS in 

SJV. SJVUAPCD‟s commitments as submitted in 2008 are to achieve 

9 tpd NOx, 6.7 tpd direct PM2.5, and 0.9 tpd SOx by 2014. See 

Table 3 below. The commitment numbers in this table do not 

include reductions from measures already adopted by CARB and the 

District to meet their commitments.

Table 3

SJVUAPCD and CARB 2014 Emissions Reductions Commitments

(tons per average annual day in 2014)

Direct 

PM2.5

NOx SO2

A Adjusted 2014 baseline 

emissions level1

72.3 317.3 25.4

B 2014 attainment target 

level2

63.3 291.2 24.6

C Reductions needed from 

control strategy measures 

(A-B)

9.0 26.1 0.8

D District commitments3 6.7 9.0 0.9

E CARB commitments (C-D) 2.3 17.1 --

1. From TSD, Table G-1.

2. 2008 PM2.5 Plan, p. 9-3.

3. 2008 PM2.5 Plan, pp. 6-11 to 6-12.
144

The level of emissions reductions remaining as commitments 

after adjusting the baseline to reflect updates and improvements 

to the inventories and crediting reductions from SIP-approved or 

otherwise SIP-creditable measures is shown in Table 4. These 

levels remain unchanged from our 2011 proposal as does our 

conclusion that the attainment demonstration in the SJV 2008 

PM2.5 SIP which relies in part on these enforceable commitments 

is approvable. See 76 FR 41338, 41354 (Table 8) and 41356.

Table 4

Reductions Needed for Attainment Remaining as 

Commitments

based on SIP-Creditable Measures

(tons per average annual day in 2014)

Direct 

PM2.5 NOx SOx

A

Total reductions needed 

from baseline and 

control strategy 

measures and other 

adjustments to the 

baseline to attain

22.7 284.2 1.8

B

Reductions from baseline 

measures and adjustments 

to baseline

13.7 258.1 1.0

C

Total reductions from 

approved measures 6.0 13.2 3.6

D

Total reductions 

remaining as commitments 

(A-B-C)

3.0 12.9 0.0

E

Percent of total 

reductions needed 

remaining as commitments

13.2% 4.5% 0.0%

IV. Approval of the Motor Vehicle Emissions Budgets and Trading 
145

Mechanism for Transportation Conformity

We noted in our July 2011 proposal that CARB had posted 

draft technical revisions to the SJV 2008 PM2.5 SIP‟s motor 

vehicle emissions budgets on June 20, 2011 (see 76 FR 41338, at 

41360 and 

http://www.arb.ca.gov/planning/sip/2007sip/2007sip.htm) to 

correct data entry errors in the budget calculations and to 

remove the emissions reductions attributable to SJVUAPCD‟s Rule 

9510 “Indirect Source Review.”54 In our July 2011 proposal, we 

proposed to approve these draft budgets contingent on our 

receiving the SIP submittal from CARB containing these budgets 

before our final action on the SJV 2008 PM2.5 SIP. The budgets 

were submitted by CARB as a SIP revision on July 29, 2011 (see 

letter, James Goldstene, Executive Officer, CARB, to Jared 

Blumenfeld, Regional Administrator, EPA Region 9, dated July 29, 

2011, with Attachments). We summarize the budgets we are 

approving today in Table 5 below. We posted the draft version of 

these budgets on our website for adequacy on July 14, 2011 for a 

30-day comment period which ended on August 15, 2011 (see 

http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). 

 

54 EPA has approved Rule 9510 into the California SIP but 

disallowed the use of emissions reductions from the rule for any 

SIP purpose including transportation conformity. See 75 FR 28509 

(May 21, 2010) and 76 FR 26609 (May 9, 2011).
146

We received no comments on our adequacy posting and have 

completed our adequacy review. (see TSD, section II.J.). 

EPA is also approving the trading mechanism in the State‟s 

submittal for use in transportation conformity analyses by the 

SJV MPOs as allowed for under 40 CFR 93.124. The trading applies 

only to:

Analysis years after the 2014 attainment year.

On-road mobile emission sources.

Trades using vehicle NOx emission reductions in excess 

of those needed to meet the NOx budget.

Trades in one direction from NOx to direct PM2.5.

A trading ratio of 9 tpd NOx to 1 tpd PM2.5.

Clear documentation of the calculations used in the trade 

would be included in the conformity analysis. See 2011 Ozone SIP 

Revision, Appendix A, p. A-6. 

Now that the approval of the budgets is finalized, the SJV 

MPOs and the U.S. Department of Transportation are required to 

use the revised budgets in transportation conformity 

determinations. Due to the formatting of the budgets (combining 

emissions changes, recession impacts and reductions from control 

measures), CARB will need to provide the MPOs with emissions

reductions associated with the control measures incorporated 

into the budgets for the appropriate analysis years so that they 
147

can include these reductions in future conformity determinations 

per 40 CFR 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 

tenth (e.g. 0.1 tpd).

Table 5

PM2.5 MVEB for the San Joaquin Valley

(tons per average annual day)

County 2012 2014

PM2.5 NOx PM2.5 NOx

Fresno 1.5 35.7 1.1 31.4

Kern (SJV) 1.9 48.9 1.2 43.8

Kings 0.4 10.5 0.3 9.3

Madera 0.4 9.2 0.3 8.1

Merced 0.8 19.7 0.6 17.4

San Joaquin 1.1 24.5 0.9 21.6

Stanislaus 0.7 16.7 0.6 14.6

Tulare 0.7 15.7 0.5 13.8

V. Final Actions and Resulting Clean Air Act Consequences

A. EPA’s Final Actions

For the reasons discussed in our July 13, 2011 proposal,

EPA approves, with the exception of the contingency measures

provisions, California‟s SIP for attaining the 1997 PM2.5 NAAQS 

in the San Joaquin Valley and grants the State‟s request for an 

extension of the attainment date to April 5, 2015. The 

California PM2.5 attainment SIP for the San Joaquin Valley is 

composed of the SJVUAPCD‟s 2008 PM2.5 Plan as revised in 2010 
148

and 2011 and the SJV-specific portions of CARB‟s 2007 State 

Strategy as revised in 2009 and 2011 that address CAA and EPA 

regulations for attainment of the 1997 PM2.5 NAAQS in the SJV.

Specifically, EPA approves under CAA section 110(k)(3) the 

following elements of the SJV PM2.5 attainment SIP:

1. the 2005 base year emissions inventories as meeting the 

requirements of CAA section 172(c)(3) and 40 CFR 51.1008;

2. the reasonably available control measures/reasonably 

available control technology demonstration as meeting the 

requirements of CAA section 172(c)(1) and 40 CFR 51.1010;

3. the reasonable further progress demonstration as meeting 

the requirements of CAA section 172(c)(2) and 40 CFR 51.1009;

4. the attainment demonstration and associated air quality 

modeling as meeting the requirements of CAA sections 172(c)(1) 

and (6) and 40 CFR 51.1007;

5. the 2012 RFP year and 2014 attainment year motor vehicle 

emissions budgets (as submitted on July 29, 2011) and CARB‟s 

trading mechanism to be used in transportation conformity 

analyses as allowed under 40 CFR 93.124;

6. SJVUAPCD's commitments to the adoption and 

implementation schedule for specific control measures listed in 

Table 6-2 (amended June 15, 2010) of the 2008 PM2.5 Plan to the 

extent that these commitments have not yet been fulfilled, and 
149

to achieve specific aggregate emissions reductions of direct 

PM2.5, NOx and SOx by year, as listed in Table 6-3 of the PM2.5 

Plan; and 

7. CARB's commitments to propose certain defined measures, 

as listed in Table B-1 on page 1 of Appendix B of the 2011 

Progress Report to the extent that these commitments have not 

yet been fulfilled and to achieve aggregate emissions reductions 

of 17.1 tpd NOx and 2.3 tpd direct PM2.5 by 2014 sufficient to 

provide for attainment of the 1997 PM2.5 NAAQS as described in 

CARB Resolution 07-28, Attachment B at pp. 3-6, the 2009 State 

Strategy Status Report, p. 21. and given in Table 3 above.

In addition, EPA concurs with the State‟s determination 

under 40 CFR 51.1002(c) that SOx and NOx are and VOC and ammonia 

are not attainment plan precursors for the attainment of the 

1997 PM2.5 NAAQS in the SJV.

EPA also grants, pursuant to CAA section 172(a)(2)(A) and 

40 CFR 51.1004(a), California's request to extend the attainment 

date for the San Joaquin Valley PM2.5 nonattainment area to 

April 5, 2015.

Finally, EPA disapproves under CAA section 110(k)(3) the 

contingency measures provisions of the SJV PM2.5 attainment SIP 

as failing to meet the requirements of CAA section 172(c)(9) and 

40 CFR 51.1012.
150

B. CAA Consequences of the Final Disapproval of the Contingency 

Measure Provisions

EPA is committed to working with the District and CARB to 

resolve the remaining issues that make the current PM2.5 

attainment SIP for the SJV not fully approvable under the CAA 

and the PM2.5 implementation rule.

Under the CAA, a final disapproval of a required CAA 

element, such as the contingency measures provisions in section 

172(c)(9), triggers sanction clocks under CAA section 179(b) 

that run from the effective date of the final action. The first 

sanction, the offset sanction in CAA section 179(b)(2), will

apply in the SJV PM2.5 nonattainment area 18 months from [insert 

date 60 days after publication in the Federal Register] The 

second sanction, highway funding sanctions in CAA section 

179(b)(1), will apply in the area six months after the offset 

sanction is imposed. Neither sanction will be imposed under the 

CAA if California submits and we approve prior to the 

implementation of the sanctions, SIP revisions that correct the 

deficiencies identified in our proposed action. In addition to 

the sanctions, CAA section 110(c)(1) provides that EPA must 

promulgate a federal implementation plan addressing the 

deficient elements in the PM2.5 SIP for the SJV nonattainment 

area, two years after [insert date 60 days after publication in 
151

the Federal Register], the effective date of this rule if we 

have not approved a SIP revision correcting the deficiencies 

within the two years.

Because we are approving the RFP and attainment 

demonstrations and the motor vehicle emissions budgets, we are 

issuing a protective finding under 40 CFR 93.120(a)(3) to the 

disapproval of the contingency measures. Without a protective 

finding, the final disapproval would result in a conformity 

freeze, under which only projects in the first four years of the 

most recent conforming Regional Transportation Plan and 

Transportation Improvement Programs can proceed. During a 

freeze, no new RTPs, TIPs or RTP/TIP amendments can be found to 

conform. See 40 CFR 93.120(a)(2). Under this protective finding, 

however, the final disapproval of the contingency measures does 

not result in a transportation conformity freeze in the San 

Joaquin PM2.5 nonattainment area.

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 
152

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 and 

partial approvals/partial disapprovals 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 partial approval/ 

partial disapproval 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 
153

reasonableness of State action. The Clean Air Act forbids EPA to 

base its actions concerning SIPs on such grounds. Union Electric 

Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 

7410(a)(2).

D. Unfunded Mandates Reform Act

Under sections 202 of the Unfunded Mandates Reform Act of 

1995 (“Unfunded Mandates Act”), signed into law on March 22, 

1995, EPA must prepare a budgetary impact statement to accompany 

any proposed or final rule that includes a Federal mandate that 

may result in estimated costs to State, local, or tribal 

governments in the aggregate; or to the private sector, of $100 

million or more. Under section 205, EPA must select the most 

cost-effective and least burdensome alternative that achieves 

the objectives of the rule and is consistent with statutory 

requirements. Section 203 requires EPA to establish a plan for 

informing and advising any small governments that may be 

significantly or uniquely impacted by the rule.

EPA has determined that the partial approval/partial 

disapproval action promulgated does not include a Federal 

mandate that may result in 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 
154

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 
155

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, 
156

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 
157

“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
158

approves certain State requirements for inclusion into the SIP

under CAA section 110 and subchapter I, part D and disapproves 

others, 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 
159

effective on [FEDERAL REGISTER OFFICE: insert date 60 days from 

date of publication of this document in the Federal Register].

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 [FEDERAL 

REGISTER OFFICE: insert date 60 days from date of publication of 

this document in the Federal Register]. Filing a petition for 

reconsideration by 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

Air pollution control, Incorporation by reference,

Intergovernmental relations, Nitrogen dioxide, Particulate 

matter, Sulfur oxides.

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

 9-30-2011 /s/ .

Dated: Jared Blumenfeld,

Regional Administrator,

EPA Region 9
160

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 paragraphs 

(c)(356)(ii)(B), (c)(392), (c)(393), (c)(394), (c)(395), and 

(c)(396).

§52.220 Identification of plan.

* * * * *

(c) * * *

(356) * * *

(i) * * *

(ii) * * *

(B) State of California Air Resources Board.

(1) Proposed State Strategy for California‟s 2007 State 

Implementation Plan, adopted on September 27, 2007.

(2) 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 SJV 

air basin, which represent 2.3 tons per day (tpd) of direct 

PM2.5 and 17.1 tpd of nitrogen oxides by 2014 for purposes of 

the 1997 PM2.5 NAAQS, as described in Resolution No. 07-28 at 

Attachment B, pp. 3-6, and modified by CARB Resolution No. 09-34 

(April 24, 2009) adopting “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” and by CARB Resolution No. 11-24 (April 

28, 2011) adopting the “Progress Report on Implementation of 
161

PM2.5 State Implementation Plans (SIP) for the South Coast and 

San Joaquin Valley Air Basins and Proposed SIP Revisions.”

(3) Executive Order S-07-002, Relating to Approval of the State 

Strategy for California‟s State Implementation Plan (SIP) for 

the Federal 8-Hour Ozone and PM2.5 Standards, November 16, 2007.

(392) A plan was submitted on June 30, 2008 by the

Governor‟s designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Unified Air Pollution

Control District.

(1) 2008 PM2.5 Plan, adopted on April 30, 2008.

(2) SJVUAPCD Governing Board, In the Matter of: Adopting the San 

Joaquin Valley Unified Air Pollution Control District 2008 PM2.5 

Plan, Resolution No. 08-04-10, April 30, 2008. Commitments to 

achieve emissions reductions (including emissions reductions of 

8.97 tpd of NOx, 6.7 tpd of direct PM2.5, and 0.92 tpd of SOx by 

2014) as described in Table 6-3a (p. 6-11), Table 6-3b (p. 6-

12), and Table 6-3c (p. 6-12) respectively of the 2008 PM2.5 

Plan and commitments to adopt and submit control measures as 

described in Table 6-2 (p. 6-9) of the 2008 PM2.5 Plan, as 

amended June 17, 2010.

(B) State of California Air Resources Board.

(1) CARB Resolution No. 08-28 with Attachment A, May 22, 2008.

(393) An amended plan was submitted on August 12, 2009 by the

Governor‟s designee.

(i) [Reserved]

(ii) Additional Material.

(A) State of California Air Resources Board.

(1) Status Report on the State Strategy for California‟s 2007 

State Implementation Plan (SIP) and Proposed Revisions to the 
162

SIP Reflecting Implementation of the 2007 State Strategy, pages 

11-17, April 24, 2009.

(2) CARB Resolution No. 09-34, April 24, 2009.

(394) An amended plan was submitted on September 15, 2010 by the

Governor‟s designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Unified Air Pollution Control District.

(1) 2008 PM2.5 Plan Amendment to Extend the Rule 4905 Amendment 

Schedule, June 17, 2010.

(2) SJVUAPCD Governing Board, In the Matter of: Proposed 

Amendments to the 2008 PM2.5 Plan to Extend the Rule Amendment 

Schedule for Rule 4905 (Natural Gas-Fired, Fan-Type Residential 

Central Furnaces), Resolution 10-06-18, June 17, 2010.

(B) State of California Air Resources Board.

(1) Executive Order S-10-003, Relating to Approval of Amendments 

to the 2008 PM2.5 Plan to Extend the Rule Amendment Schedule for 

Rule 4905 (Natural Gas-Fired, Fan-Type Residential Central 

Furnaces), September 15, 2010.

(395) An amended plan was submitted on May 18, 2011 by the

Governor‟s designee.

(i) [Reserved]

(ii) Additional Material.

(A) State of California Air Resources Board.

(1) 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, Release Date: 

March 29, 2011.

(2) CARB Resolution No. 11-24, April 28, 2011. Commitment to 

propose measures as described in Appendix B of the Progress 

Report on the Implementation of PM2.5 State Implementation Plans 
163

(SIP) for the South Coast and San Joaquin Valley Air Basins and 

Proposed SIP Revisions.

(3) Executive Order S-11-010, “Approval of Revisions to the Fine 

Particulate Matter State Implementation Plans for the South 

Coast Air Quality Management Plans for the South Coast Air 

Quality Management District and the San Joaquin Valley Air 

Pollution Control District,” May 18, 2011.

(396) An amended plan was submitted on July 29, 2011 by the

Governor‟s designee.

(i) [Reserved]

(ii) Additional Material.

(A) State of California Air Resources Board.

(1) 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 A, page A-6, (dated June 20, 

2011), adopted July 21, 2011.

(2) CARB Resolution No. 11-22, July 21, 2011.

(3) Executive Order S-11-016, “Approval of Revisions to the 8-

Hour Ozone State Implementation Plans for the South Coast Air 

Quality Management District and the San Joaquin Valley Air 

Pollution Control District,” July 29, 2011.

* * * * *