ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0589; FRL- ]

Approval of Air Quality Implementation Plans; California; San 

Joaquin Valley; Attainment Plan for 1997 8-hour Ozone Standards

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

ACTION: Final rule.

SUMMARY: EPA is approving state implementation plan (SIP) 

revisions submitted by California to provide for attainment of 

the 1997 8-hour ozone national ambient air quality standards in 

the San Joaquin Valley (SJV). These SIP revisions are the 2007 

Ozone Plan (revised 2008 and 2011) and SJV-related portions of 

the 2007 State Strategy (revised 2009 and 2011). EPA is 

approving the base year emissions inventory, reasonably 

available control measures demonstration, provisions for 

transportation control strategies and measures, provisions for 

advanced technology/clean fuels for boilers, reasonable further 

progress (RFP) and attainment demonstrations, transportation 

conformity motor vehicle emissions budgets for all RFP milestone 

years and the attainment year, contingency measures for failure 

to make RFP or attain, and Clean Air Act section 182(e)(5) new 

technologies provisions and associated commitment to adopt 

contingency measures. EPA is also approving commitments to 
2

measures and reductions by the SJV Air Pollution Control 

District and the California Air Resources Board.

DATES: 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-2011-

0589 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: 

http://www.valleyair.org/Air_Quality_Plans/Ozone_Plans.htm and
3

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 2007 

State Implementation Plan for Attainment of the 1997 8-Hour 

Ozone Standards in the San Joaquin Valley 

II. Response to Public Comments Received on the Proposal 

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 for 

Transportation Conformity

V. Final Actions

VI. Statutory and Executive Order Reviews

I. Summary of EPA’s Proposed and Final Actions on the 2007

State Implementation Plan for Attainment of the 1997 8-Hour 

Ozone Standards in the San Joaquin Valley 

On September 16, 2011, EPA proposed to approve California‘s 

state implementation plan (SIP) for attaining the 1997 8-hour 
4

ozone national ambient air quality standards (NAAQS) in the San 

Joaquin Valley (SJV). See 76 FR 57846. California developed this 

SIP to provide for expeditious attainment of the 1997 8-hour 

ozone standards in the SJV and to meet other applicable ozone

planning requirements in Clean Air Act (CAA) sections 172(c) and 

182 and EPA‘s 8-hour ozone implementation rule.1

California has made five SIP submittals to address the 

CAA‘s planning requirements for attaining the 1997 8-hour ozone 

standard in the San Joaquin Valley. We refer to these submittals 

collectively as the ―[SJV] 2007 8-hour Ozone SIP.‖ The two 

principal ones are the San Joaquin Valley Unified Air Pollution 

Control District‘s (SJVUAPCD) 2007 Ozone Plan (also Plan) and 

the California Air Resources Board‘s (CARB) State Strategy for 

California‘s 2007 State Implementation Plan (2007 State 

Strategy).2

 

1 See 40 CFR part 51, subpart X and 69 FR 23951 (April 30, 2004) 

and 70 FR 71612 (November 29, 2005).

2 These five SIP submittals are: 

1. SJVUAPCD, 2007 Ozone Plan, adopted on April 30, 2007 by 

the SJVUAPCD and on June 14, 2007 by CARB, submitted on 

November 16, 2007. 

2. CARB, Proposed State Strategy for California’s 2007 State 

Implementation Plan, 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 
5

Together, the 2007 Ozone Plan and the 2007 State Strategy 

present a comprehensive and innovative strategy for attaining 

the 1997 8-hour ozone standards in the SJV.

In our September 2011 notice, EPA proposed to approve as 

meeting the applicable requirements of the CAA the SJV 2007 8-

hour Ozone SIP‘s base year emissions inventory, reasonably 

available control measures demonstration, provisions for 

transportation control strategies and measures, provisions for 

advanced technology/clean fuels for boilers, reasonable further 

progress (RFP) and attainment demonstrations, transportation 

conformity motor vehicle emissions budgets (MVEB) for all RFP 

milestone years and the attainment year, contingency measures 

for failure to make RFP or attain, and CAA section 182(e)(5) 

provisions for new technologies and the associated commitment to 

adopt contingency measures.3 EPA also proposed to approve 

 

April 24, 2009, submitted on August 12, 2009. (―2009 

State Strategy Status Report‖)

4. SJVUAPCD, Amendments to the 2007 Ozone Plan (amending the 

rulemaking schedule for Measure S-GOV-5 Organic Waste 

Operations) adopted on December 18, 2008 by the SJVUAPCD,

submitted on April 24, 2009.

5. 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, 

submitted July 29, 2011. ―2011 Ozone SIP Revisions.‖

3 See letter, James Goldstene, Executive Officer, CARB, to Jared 

Blumenfeld, Regional Administrator, EPA Region 9, dated November 

18, 2011
6

commitments to measures and reductions by the District and CARB.4

76 FR 57846, 57867.

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 

 

4 We also proposed in the alternative to disapprove the SIP with 

respect to certain provisions in CAA section 182(d)(1)(A) for 

transportation control strategies and measures sufficient to 

offset any growth in emissions from growth in vehicle miles 

traveled or the number of vehicle trips. In Association of 

Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011) (AIR), 

the U.S. Court of Appeals for the Ninth Circuit held that, with 

respect to the first element, section 182(d)(1)(A) of the CAA 

requires States to adopt transportation control measures and 

strategies whenever vehicle emissions are projected to be higher 

than they would have been had vehicle miles traveled not 

increased, even when aggregate vehicle emissions are actually 

decreasing. EPA has filed a petition for rehearing on this 

issue. Docket Nos. 09-71383 and 09-71404 (consolidated), Docket 

Entry 41-1, Petition for Panel Rehearing.

At the time of our September proposal, the Ninth Circuit 

had not yet issued its mandate in the AIR case, and EPA had not 

adopted the court‘s interpretation for the reasons set forth in 

the Agency‘s petition for rehearing, pending a final decision by 

the court. We stated in our proposed rule that if the court 

denied the Agency‘s petition for rehearing and issued its 

mandate before EPA issued a final rule on the SJV 2007 8-hour 

Ozone SIP, then we anticipated that we would not be able to 

finalize approval of the SJV 2007 8-hour Ozone SIP with respect 

to the first element (i.e., offsetting emissions growth) of 

section 182(d)(1)(A). See 76 FR 57846, 57863. Therefore, we 

proposed in the alternative to disapprove the SJV 2007 8-hour 

Ozone SIP with respect to the first element of section 

182(d)(1)(A) based on the plan‘s failure to include sufficient 

transportation control strategies and TCM to offset the 

emissions from growth in VMT. Id. The court has still not issued 

its mandate; therefore, we are approving the SJV 2007 8-hour 

Ozone SIP as meeting the requirements of CAA section 

182(d)(1)(A).
7

be found in our September 2011 proposed rule (76 FR 57846) and 

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

EPA is today approving all elements of the SJV 2007 8-hour

Ozone SIP based on our conclusion that they comply with 

applicable CAA requirements and provide for expeditious 

attainment of the 1997 8-hour ozone standards in the San Joaquin 

Valley. 

II. Response to Public Comments Received on the Proposals 

EPA provided the public an opportunity to comment on its 

proposed approval of the SJV 2007 8-hour ozone SIP for 30 days 

following the proposed rule‘s September 16, 2011 publication in 

the Federal Register. We received two comment letters on the 

proposed rule. The first letter came from CARB who requested 

that we limit the approval of the SIP‘s MVEB until such time as 

the State submits and EPA finds adequate new budgets. We address 

CARB‘s request in Section IV below. The second letter was 

submitted jointly by the Center on Race, Poverty and the 

Environment; Earthjustice; and the Natural Resources Defense 

Council on behalf of themselves, the Association of Irritated 

Residents (AIR) and other San Joaquin Valley-based environmental 

and community organizations (collectively ―AIR‖). See letter 

 

5 ―Technical Support Document and Response to Comments Final 

Rule on the San Joaquin Valley 2007 8-hour State Implementation 

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

TSD can be found in the docket for this rulemaking.
8

Brent Newell, General Counsel, Center on Race, Poverty & the 

Environment, October 17, 2011. We respond to AIR‘s main comments 

below. The entire Response to Comments document received can be 

found section III of the TSD. A copy of the comment letters can 

be found in the docket for this rule.

A. Enforceable Commitments

Comment: AIR characterizes CARB‘s and the District‘s 

commitments to achieve aggregate emissions reductions in 

specific years as ―global commitments‖ and argues that they

could be interpreted as ―goals‖ unenforceable by citizens under 

Ninth Circuit precedent rather than enforceable ―strategies‖ to 

achieve those goals, citing Bayview Hunters Point Community 

Advocates v. Metropolitan Transp. Comm’n, 366 F.3d 692, 701 (9th

Cir. 2004) and El Comite Para El Bienstar de Earlimart v. 

Warmerdam, 539 F.3d 1062, 1067 (9th Cir. 2008).

AIR argues that the plans‘ global commitments are not 

enforceable for two reasons. First, AIR claims that enforcement 

is not practical because it is not possible for citizens or EPA 

to determine whether the CARB and the District have met the 

global commitments. AIR argues further that because 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 argues that there are no provisions for 
9

CARB and the District to report to EPA and the public what 

actions they have taken to comply with the tonnage commitments

and thus EPA and citizens are left to determine, based on 

information exclusively held and maintained by CARB and the 

District, whether the commitments have in fact been met.

Second, AIR claims that because ―enforcing the global 

commitment ultimately turns on how the ARB and the District 

calculate emissions reductions achieved through the measures,‖ 

CARB‘s and the District‘s emissions reduction commitments are 

not enforceable unless the methodology for calculating the 

reductions is also enforceable. Otherwise, AIR argues, 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. In conclusion, AIR asserts that the CAA ―does not 

condone a discretionary commitment and EPA should not approve 

the ARB‘s latest attempt to achieve a reduction target based on 

discretionary actions.‖

Response: Under CAA section 110(a)(2)(A), SIPs must include 

enforceable emissions limitations and other control measures, 

means or techniques as 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 
10

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 is 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 
11

F.2d at 613-14. Courts have repeatedly applied this 

test as the linchpin of citizen suit jurisdiction. 

See, e.g., Coalition Against Columbus Ctr. v. City of 

New York, 967 F.2d 764, 769-71 (2d Cir. 1992); Cate v. 

Transcontinental Gas Pipe Line Corp., 904 F. Supp. 

526, 530-32 (W.D. Va. 1995); Citizens for a Better 

Env't v. Deukmejian, 731 F. Supp. 1448, 1454-59 (N.D. 

Cal.), modified, 746 F. Supp. 976 (1990).

Thus courts have found that the citizen suit provision 

cannot be used to enforce the aspirational goal of attaining the 

NAAQS, but can be used to enforce specific strategies to achieve 

that goal, including enforceable commitments to develop future 

emissions controls.

We describe CARB‘s and the District‘s commitments in the 

2007 State Strategy (revised in 2009 and 2011) and the 2007 

Ozone Plan in detail in our proposed rule. See 76 FR 57846, 

57851-57856 and 57857-57860. The 2007 State Strategy includes 

commitments to propose defined new measures and an enforceable 

commitment for emissions reductions sufficient, in combination 

with existing measures, the District‘s commitments, and the new 

technology provisions to attain the 1997 8-hour ozone NAAQS in 

the SJV by June 15, 2024. See CARB Resolution 07-28, Attachment 

B at pp. 3 and 6 and 2009 State Strategy Status Report, p. 21. 
12

For the SJV, CARB‘s emissions reductions commitments as 

submitted in 2007 and 2009 are to specific reductions of NOx and 

VOC in 2014, 2017, 2020, and 2023 as well as additional 

reductions from CAA section 182(e)(5) measures in 2023. These 

commitments are shown in Table 8 of the proposed rule (76 FR 

57846, 57854) and Table D-6 of the TSD.

SJVUAPCD‘s commitments as submitted in 2007 are also to 

specific reductions of NOx and VOC in 2008, 2011, 2012, 2014, 

2017, 2020 and 2023 and are shown Table 6-1 of the 2007 Ozone 

Plan (as revised in 2008). These commitments are also shown (for 

all years except for 2008) on Table 3 of the proposed rule (76 

FR 57846, 578524) and Table D-2 of the TSD. The language used in 

the Board‘s resolution adopting the 2007 8-hour Ozone Plan at 

page 5 to describe its commitment is mandatory and unequivocal 

in nature: 

10. The District Governing Board commits to adopt and 

implement the rules and measures in the 2007 Ozone

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 
13

than those committed to in the Plan, the District 

Governing Board commits to adopt, submit, and 

implement substitute rules and measures that will 

achieve equivalent reductions in emissions of ozone 

precursors in the same adoption and implementation 

timeframes or in the timeframes needed to meet CAA 

milestones.

SJVUAPCD Board Resolution No. 07-04-11a, p. 6. (Emphasis added).

Thus, CARB‘s and the District‘s commitments here are to 

adopt and implement measures that will achieve specific amounts 

of NOx and VOC emissions reductions by specific years. These are 

not mere aspirational goals to ultimately achieve the standards. 

Rather, the State and District have committed to adopt 

enforceable measures that will achieve these specific amounts of 

emissions reductions by specified milestone years and ultimately 

by the attainment year (2023). See 70 FR 71612, 71633 (November 

29, 2005) and 40 CFR 51.910(a)(1) and 51.908(d) (requiring 

implementation of all control measures needed for expeditious 

attainment no later than the beginning of the year prior to the 

attainment date). 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 
14

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 each specified year. 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.

AIR cites Bayview as support for their contention that the 

SIP‘s commitments are unenforceable aspirational goals. Bayview

does not, however, provide any such support. That case involved 

a provision of the 1982 Bay Area 1-hour ozone SIP, known as TCM 

2, which states in pertinent part:

Support post-1983 improvements identified in transit 

operator‘s 5-year plans, after consultation with the 

operators adopt ridership increase target for 1983-

1987.

EMISSION REDUCTION ESTIMATES: These emission 

reduction estimates are predicated on a 15% ridership 

increase. The actual target would be determined after 

consultation with the transit operators.
15

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 

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.
16

The commitments in the 2007 State Strategy (revised in 2009 

and 2011) and 2007 Ozone 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 could be achieved and the time 

by which these reductions will be achieved. See 76 FR 57846, 

57854 (Table 8) (listing CARB‘s commitments) 57852 (Table 3) 

(listing the District‘s commitments). 

CARB‘s and the District‘s commitments here are analogous to 

the terms of the contingency measures for the transportation 

sector in the 1982 Bay Area 1-hour ozone SIP in Citizens for a 

Better Environment v. Deukmejian, 731 F.Supp.1448 (N.D. Cal. 

1990) (known as CBE I). 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.‖ 
17

Id. at 1458. In CBE I, CARB and MTC argued that TCM 2 could not 

constitute an enforceable strategy because the provision fails 

to specify exactly what TCMs must be adopted. The court rejected 

this argument, finding that ―[w]e discern no principled basis, 

consistent with the Clean Air Act, for disregarding this 

unequivocal commitment simply because the particulars of the 

contingency measures are not provided. Thus we hold that the 

basic commitment to adopt and implement additional measures, 

should the identified conditions occur, constitutes a specific 

strategy, fully enforceable in a citizen‘s action, although the 

exact contours of those measures are not spelled out.‖ Id. at 

1457. In concluding that the transportation and stationary 

source contingency provisions were enforceable, the court 

stated: ―Thus, while this Court is not empowered to enforce the 

Plan's overall objectives [footnote omitted; attainment of the 

NAAQS]--or NAAQS--directly, it can and indeed, must, enforce 

specific strategies committed to in the Plan.‖ Id. at 1454; see 

also Citizens for a Better Environment v. Metropolitan Tranp. 

Comm’n, 746 F. Supp. 976, 980 (N.D.Cal. 1990) [known as CBE II]

(rejecting defendants‘ argument that RFP and the NAAQS are 

coincident and stating that the court‘s enforcement of the 

contingency plan, an express strategy for attaining NAAQS, is 

distinct from simply ordering that NAAQS be achieved).
18

As in the CBE cases, CARB and the District commit to 

propose or adopt measures, which are not specifically 

identified, to achieve a specific tonnage of emissions

reductions by specific years. 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 

the commitment must be clear in terms of what is required, e.g., 

a specified amounts of emissions reductions or the achievement 

of a specified amount of progress (i.e., RFP). CARB‘s and the 

District‘s commitments are thus a specific enforceable strategy 

rather than an unenforceable aspirational goal.

AIR‘s reliance on El Comite (also referred to as Warmerdam) 

to argue that CARB‘s commitments are not enforceable is also 

misplaced. In El Comite, the plaintiffs in the district court 

attempted to enforce a provision of the 1994 California 1-hour 

ozone SIP known as the Pesticide Element. The Pesticide Element 

relied on an inventory of pesticide VOC emissions to provide the 

basis to determine whether additional regulatory measures would 

be needed to meet the SIP‘s pesticides emissions target. To this 

end, the Pesticide Element provided that ―ARB will develop a 
19

baseline inventory of estimated 1990 pesticidal VOC emissions 

based on 1991 pesticide use data....‖ El Comite Para El Bienestar 

de Earlimart v. Helliker, 416 F. Supp. 2d 912, 925 (E.D. Cal. 

2006). CARB subsequently employed a different methodology that

it deemed more accurate to calculate the baseline inventory. The 

plaintiffs sought to enforce the commitment to use the original 

methodology, claiming that the calculation of the baseline 

inventory constitutes an ―emission standard or limitation.‖ The 

district court disagreed:

By its own terms, the baseline identifies 

emission sources and then quantifies the amount of 

emissions attributed to those sources. As defendants 

argue, once the sources of air pollution are 

identified, control strategies can then be formulated 

to control emissions entering the air from those 

sources. From all the above, I must conclude that the 

baseline is not an emission ―standard‖ or ―limitation‖

within the meaning of 42 U.S.C. § 7604 (f)(1)-(4).

Id. at 928. In its opinion, the court distinguished Bayview and 

CBE I, pointing out that in those cases ―the measures at issue 

were designed to reduce emissions.‖ Id.

On appeal, the plaintiffs shifted their argument to claim 

that the baseline inventory and the calculation methodology were 
20

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 AIR 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 ―identifies 

emission sources and then quantifies the amount of emissions 

attributed to those sources.‖ In contrast, as stated previously, 

in the 2007 State Strategy (revised 2009 and 2011) and SJV 2007 

Ozone Plan, CARB and the District commits to adopt and implement 

measures sufficient to achieve specified amounts of emissions 
21

reductions by specified dates. As described above, a number of 

courts have found commitments substantially similar to CARB‘s 

here to be enforceable under CAA section 304(a).

B. Baseline Measures, Baseline Inventories, and Attainment 

Demonstration

Comment: AIR asserts that EPA‘s approval of the inventory in 

the Plan would violate CAA sections 172(c)(3) and 182(a)(1) 

because the baseline inventory includes emissions reduction 

credit for both ―waiver measures‖ and ―non-waiver measures‖ 

adopted before 2007 (together referred to as ―baseline 

measures‖) that have not been approved into the SIP. AIR argues 

that EPA has not evaluated each of these baseline measures to 

determine if they are creditable or quantified the emissions 

reductions attributed to each of these measures. Additionally, 

AIR asserts that EPA should disapprove the attainment 

demonstration because EPA has approved neither mobile source 

baseline measures nor pesticide measures as part of the SIP. AIR 

asserts that ―[t]he total tonnage attributed to these 

unsubmitted and non-SIP approved measures in the attainment 

demonstration is not clear, because EPA does not differentiate 

between reductions from SIP-approved measures, waiver measures, 

and those that have not received EPA approval.‖ Thus, AIR 

argues, ―a significant amount of emission reductions claimed in 
22

the attainment demonstration are not SIP creditable, a finding 

that EPA must make before approving the attainment 

demonstration.‖ AIR references CAA sections 110(a)(2)(A) and 

172(c)(6) in support of these assertions and argues that ―EPA 

has failed to find that the reductions from the unsubmitted 

rules have occurred, are enforceable, or are otherwise 

consistent with the Act, EPA‘s implementing regulations, and the 

General Preamble.‖

Response: We disagree with these assertions. We explained in 

our Proposal TSD (section II.A.3.) our reasons for concluding 

both that the 2002 base year inventory in the SIP is 

comprehensive, accurate, and current as required by CAA section 

182(a)(1) and that the projected baseline inventories provide 

adequate bases and support for the RFP and attainment 

demonstrations in the SJV 2007 8-hour Ozone SIP.

6

Specifically, with respect to mobile source emissions, we 

believe that credit for emissions reductions from implementation 

of California mobile source rules that are subject to CAA 

section 209 waivers (―waiver measures‖) is appropriate in the 

attainment and RFP demonstrations and for other SIP purposes 

notwithstanding the fact that such rules are not approved as 

 

6 For ozone nonattainment areas, a State that satisfies the 

specific inventory requirements of CAA section 182(a)(1) also 

satisfies the general inventory requirements of CAA section 

172(c)(3). See General Preamble at 13503 (April 16, 1992).
23

part of the California SIP. In the Proposal TSD, we explained 

why we believe such credit is appropriate. See Proposal TSD at 

section II.D.3.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 allowing 

California to take credit for the waiver measures 

notwithstanding the fact that the underlying rules are not part 

of the California SIP, EPA treated the waiver measures similarly 

to the Federal motor vehicle control requirements, which EPA has 

always allowed States to credit in their SIPs without submitting 

the program as a SIP revision.

EPA‘s historical practice has been to give SIP credit for 

motor-vehicle-related waiver measures in attainment and RFP 

demonstrations and for other SIP purposes by allowing California 

to include motor vehicle emissions estimates made by using 

California‘s EMFAC (and its predecessors) motor vehicle 

emissions factor model in SIP inventories. EPA verifies the 
24

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.

7) The SJV 2007 8-hour Ozone 

SIP was developed using a version of the EMFAC model referred to 

as EMFAC2007, which EPA has approved for use in SIP development 

in California. See 73 FR 3464 (January 18, 2008). Thus, the 

emissions reductions that are from the California on-road 

―waiver measures‖ and that are estimated through use of EMFAC 

are as verifiable as are the emissions reductions relied upon by 

states other than California in developing their SIPs based on 

estimates of motor vehicle emissions made through the use of the 

MOVES model. 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 

 

7 MOVES replaced the MOBILE model as EPA‘s on-road mobile source 

emission estimation model for use in SIPs and conformity in 

2010.
25

recreation equipment) are estimated through use of CARB‘s 

OFFROAD emissions factor model.8 (Emissions reductions from EPA‘s 

non-road engine and vehicle standards are reflected in an 

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

California non-road standards for which EPA has issued waivers 

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

allowing credit for standards subject to the waiver process 

without requiring submittal of the standards as part of the SIP. 

In so doing, EPA has treated the California non-road standards 

similarly to the Federal non-road standards, which are relied 

upon, but not included in, various SIPs. See generally TSD at 

section II.D.3.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 Emission Forecasting System (CEFS) projects future 

emissions from stationary and area sources (in addition to 

aircraft and ships) using a forecasting algorithm that applies 

 

8 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.
26

growth factors and control profiles to the base year inventory.9

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

inventories for both stationary and mobile sources into a single 

database to provide a comprehensive statewide forecast 

inventory, from which nonattainment area inventories are 

extracted for use in establishing future baseline planning 

inventories. See id. In 2011, CARB updated the baseline 

emissions projections for several source categories to account 

for, among other things, more recent economic forecasts and 

improved methodologies for estimating emissions from the heavy 

duty truck and construction source categories. See 2011 Ozone 

SIP Revisions, Appendix B. These methodologies for projecting 

future emissions based on growth factors and existing Federal, 

State, and local controls were consistent with EPA guidance on 

developing projected baseline inventories. See TSD at section 

II.A; see also ―Procedures for Preparing Emissions Projections,‖ 

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

019, July 1991; ―Emission Projections,‖ STAPPA/ALAPCO/EPA 

Emission Inventory Improvement Project, Volume X, December 1999 

 

9 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.
27

(available at http://www.epa.gov/ttnchie1 

/eiip/techreport/volume10/x01.pdf). 

In sum, the 2002 base year and future projected baseline

inventories in the SJV 2007 8-hour Ozone SIP were prepared using

a complex set of CARB methodologies to estimate and project 

emissions from stationary sources, in addition to the most 

recent emissions factors and models and updated activity levels 

for emissions associated with mobile sources, including: (1) the 

latest EPA-approved California motor vehicle emissions factor 

model (EMFAC2007) and the most recent motor vehicle activity 

data from each of the MPOs in the San Joaquin Valley; (2) 

improved methodologies for estimating emissions from specific

source categories; and (3) CARB's non-road mobile source model 

(the OFFROAD model). See TSD, section II.A. (referencing, inter 

alia, 2007 State Strategy at Appendix F) and 2011 Ozone SIP 

Revisions. 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 
28

rule); 74 FR 66916 (December 17, 2009) (direct final rule to 

approve ozone plan for Monterey Bay); 76 FR 41338 (July 13, 

2011) (proposed rule to approve in part and disapprove in part 

the PM2.5 plan for the San Joaquin Valley) and 76 FR 69896 

(November 9, 2011) (final rule); and 76 FR 41562), (July 14, 

2011) (proposed rule to approve in part and disapprove in part 

the PM2.5 plan for the South Coast Air Basin) and 76 FR 69928 

(November 9, 2011) (final rule). The commenter has provided no 

information to support a claim that these methodologies for 

developing base year inventories and projecting future emissions 

in the SJV are inadequate to support the RFP and attainment 

demonstrations in the SJV 2007 8-hour Ozone SIP.

For all of these reasons and as discussed in our proposed 

rule (76 FR 57846, 57850), we conclude that the 2002 base year 

inventory in the 2007 8-hour Ozone SIP is a ―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 182(a)(1), 40 CFR 51.915, and 40 CFR part 51, 

subpart A. In addition, we conclude that the projected future 

year baseline inventories were prepared consistent with EPA‘s 

guidance on development of emissions inventories and attainment 

demonstrations and, therefore, provide an adequate basis for the 
29

RFP and attainment demonstrations in the SIP under CAA sections 

172(c)(2), 182(a), and 182(c)(2). See TSD at section II.A.3. 

Finally, we disagree with AIR‘s assertion that EPA has not 

identified the total amount of emissions reductions attributed 

to baseline measures in the projected inventories. The total 

amounts of emissions reductions attributed to baseline measures 

in the 2007 8-hour Ozone SIP, as revised in 2011, are 54.2 tpd 

of VOC and 338.6 tpd of NOx. See 76 FR 57846, 57858, table 9 at 

line E; see also TSD, Table F-4 at line D.

Comment: AIR asserts that EPA has not approved any CARB mobile 

source baseline measures as part of the SIP or reviewed those 

measures to consider whether they achieve the reductions claimed 

by CARB, and that EPA cannot approve the SJV 2007 8-hour Ozone 

SIP when such a ―huge component of the control strategy‖ has not 

been SIP-approved. AIR also asserts that CARB has not submitted 

copies of its mobile source baseline measures to EPA as part of 

this plan. AIR also asserts that waiver measures may not be used 

in attainment demonstrations because EPA makes no finding during 

the waiver process that the rules achieve the reductions claimed 

or that the measures are SIP creditable. AIR 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.
30

Response: We continue to believe that credit for emissions 

reductions from implementation of California mobile source rules 

that are subject to CAA section 209 waivers (―waiver measures‖) 

is appropriate notwithstanding the fact that such rules are not 

approved as part of the California SIP. In our September 16, 

2011 proposed rule and the technical support document (TSD) for 

that proposal, we explained why we believe such credit is 

appropriate. See 76 FR 57872, at 57879-57880 and the Proposal 

TSD, pp. 86-90. Historically, EPA has granted credit for the 

waiver measures because of special Congressional recognition, in 

establishing the waiver process in the first place, of the 

pioneering California motor vehicle control program and because 

amendments to the CAA (in 1977) expanded the flexibility granted 

to California in order "to afford California the broadest 

possible discretion in selecting the best means to protect the 

health of its citizens and the public welfare," (H.R. Rep. No. 

294, 95th Congr., 1st Sess. 301-2 (1977)). In allowing 

California to take credit for the waiver measures 

notwithstanding the fact that the underlying rules are not part 

of the California SIP, EPA treated the waiver measures similarly 

to the Federal motor vehicle control requirements, which EPA has 

always allowed States to credit in their SIPs without submitting 

the program as a SIP revision. As we explained in the Proposal 
31

TSD (p. 87), credit for Federal measures, including those that 

establish on-road and nonroad standards, notwithstanding their 

absence in the SIP, is justified by reference to CAA section 

110(a)(2)(A), which establishes the following content 

requirements for SIPs: ―... enforceable emission limitations and 

other control measures, means, or techniques (including economic 

incentives such as fees, marketable permits, and auctions of 

emissions rights),... as may be necessary or appropriate to meet 

the applicable requirements of this chapter.‖ (emphasis added). 

Federal measures are permanent, independently enforceable (by 

EPA and citizens), and quantifiable without regard to whether 

they are approved into a SIP, and thus EPA has never found such 

measures to be ―necessary or appropriate‖ for inclusion in SIPs 

to meet the applicable requirements of the Act. Section 209 of 

the CAA establishes a process under which EPA allows 

California‘s waiver measures to substitute for Federal measures, 

and like the Federal measures for which they substitute, EPA has 

historically found, and continues to find, based on 

considerations of permanence, enforceability, and 

quantifiability, that such measures are not ―necessary or 

appropriate‖ for California to include in its SIP to meet the 

applicable requirements of the Act. 
32

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

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

only to a level of aggregate equivalence to the Federal Motor 

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

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

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

apply in California). Likewise, Federal nonroad vehicle and 

engine standards act as a partial backstop for corresponding 

California nonroad waiver measures. The constraints of the 

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

relax the waiver measures for which there are corresponding EPA 

standards, and thereby serve an anti-backsliding function 

similar in substance to those established for SIP revisions in 

CAA sections 110(l) and 193. Meanwhile, the growing convergence 

between California and EPA mobile source standards diminishes 

the difference in the emissions reductions reasonably attributed 

to the two programs and strengthens the role of the Federal 

program in serving as an effective backstop to the State 

program. In other words, with the harmonization of EPA mobile 

source standards with the corresponding State standards, the 

Federal program is becoming essentially a full backstop to most 

parts of the California program.
33

Second, as to enforceability, we note that the waiver 

process itself bestows enforceability onto California to enforce 

the on-road or nonroad standards for which EPA has issued the 

waiver. CARB has as long a history of enforcement of 

vehicle/engine emissions standards as EPA, and CARB‘s 

enforcement program is equally as rigorous as the corresponding 

EPA program. The history and rigor of CARB‘s enforcement program 

lends assurance to California SIP revisions that rely on the 

emissions reductions from CARB‘s rules in the same manner as 

EPA‘s mobile source enforcement program lends assurance to other 

state‘s SIPs in their reliance on emissions reductions from the 

FMVCP. While it is true that citizens and EPA are not authorized 

to enforce California waiver measures under the Clean Air Act 

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

authorized to enforce EPA standards in the event that 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 
34

measures through review and approval of EMFAC, which is updated 

from time to time by California to reflect updated methods and 

data, as well as newly-established emissions standards. 

(Emissions reductions from EPA‘s motor vehicle standards are 

reflected in an analogous model known as MOVES.) The EMFAC model 

is based on the motor vehicle emissions standards for which 

California has received waivers from EPA but accounts for 

vehicle deterioration and many other factors. The motor vehicle 

emissions estimates themselves combine EMFAC results with 

vehicle activity estimates, among other considerations. See the 

1982 Bay Area Air Quality Plan, and the related EPA rulemakings 

approving the plan (see 48 FR 5074 (February 3, 1983) for the 

proposed rule and 48 FR 57130 (December 28, 1983) for the final 

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

historically by EPA in California SIP actions.10 The South Coast 

 

10 EPA‘s historical practice in allowing California credit for 

waiver measures notwithstanding the absence of the underlying 

rules in the SIP is further documented by reference to EPA‘s 

review and approval of a May 1979 revision to the California SIP 

entitled, ―Chapter 4, California Air Quality Control 

Strategies.‖ In our proposed approval of the 1979 revision 

(44 FR 60758, October 22, 1979), we describe the SIP revision as 

outlining California‘s overall control strategy, which the State 

had divided into vehicular sources and non-vehicular (stationary 

source) controls. As to the former, the SIP revision discusses 

vehicular control measures as including technical control 

measures and transportation control measures. The former refers 

to the types of measures we refer to herein as waiver measures, 

as well as fuel content limitations, and a vehicle inspection 

and maintenance program. The 1979 SIP revision included several 
35

8-hour ozone plan was developed using a version of the EMFAC 

model referred to as EMFAC2007, which EPA has approved for use 

in SIP development in California. See 73 FR 3464 (January 18, 

2008). Thus, the emissions reductions that are from the 

California on-road ―waiver measures‖ and that are estimated 

through use of EMFAC are as verifiable as are the emissions 

reductions relied upon by states other than California in 

developing their SIPs based on estimates of motor vehicle 

emissions made through the use of the MOVES model.

Moreover, EPA‘s waiver review and approval process is 

analogous to the SIP approval process. First, CARB adopts its 

emissions standards following notice and comment procedures at 

the state level, and then submits the rules to EPA as part of 

its waiver request. When EPA receives new waiver requests from 

CARB, EPA publishes a notice of opportunity for public hearing 

 

appendices, including appendix 4–E, which refers to ―ARB vehicle 

emission controls included in title 13, California 

Administrative Code, chapter 3 * * *,‖ including the types of 

vehicle emission standards we refer to herein as waiver 

measures; however, California did not submit the related 

portions of the California Administrative Code (CAC) to EPA as 

part of the 1979 SIP revision submittal. With respect to the 

CAC, the 1979 SIP revision states: ―The following appendices are 

portions of the California Administrative Code. Persons 

interested in these appendices should refer directly to the 

code.‖ Thus, the State was clearly signaling its intention to 

rely on the California motor vehicle control program but not to 

submit the underlying rules to EPA as part of the SIP. In 1980, 

we finalized our approval as proposed. See 45 FR 63843 

(September 28, 1980).
36

and comment and then publishes a decision in the Federal 

Register following the public comment period. Once again, in 

substance, the process is similar to that for SIP approval and 

supports the argument that one hurdle (the waiver process) is 

all Congress intended for California standards, not two (waiver 

process plus SIP approval process). Second, just as SIP 

revisions are not effective until approved by EPA, changes to 

CARB‘s rules (for which a waiver has been granted) are not 

effective until EPA grants a new waiver, unless the changes are 

―within the scope‖ of a prior waiver and no new waiver is 

needed. Third, both types of final actions by EPA--i.e., final 

actions on California requests for waivers and final actions on 

state submittals of SIPs and SIP revisions may be challenged 

under section 307(b)(1) of the CAA in the appropriate United 

States Court of Appeals.

AIR correctly notes that EPA‘s treatment of California 

waiver measures in SIP actions is the subject of current 

litigation in Sierra Club v. EPA, Consolidated Case Nos. 10-

71457 and 10-71458 (9th Circuit).

Comment: AIR argues that our reliance on the general savings 

clause in CAA section 193 for the proposal to grant emissions 

reduction credit to California‘s waiver measures without first 

having California submit and EPA approve them into the SIP is 
37

inappropriate for two reasons. First, AIR argues that CAA 

section 193 only saves those ―formal rules, notices, or guidance 

documents‖ promulgated before the effective date of the 1990 

amendment that are not inconsistent with the CAA. It asserts 

that the plain language of the CAA requires that California 

submit the control measures, rules and regulations used to meet 

CAA requirements as part of the SIP and that nothing in CAA 

title II or section 209 provide a basis for EPA‘s position. 

Second, AIR 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. AIR also argues that our 

positions that Congress must expressly disapprove of EPA‘s longstanding interpretation and Congressional silence equates to a 

ratification of EPA‘s interpretation are incorrect.

Response: In the Proposal TSD (pp. 89-90), we indicated that we 

believe that section 193 of the CAA, the general savings clause 

added by Congress in 1990, effectively ratified our longstanding practice of granting credit for the California waiver 

rules because Congress did not insert any language into the 

statute rendering EPA's treatment of California's motor vehicle 

standards inconsistent with the Act. Rather, Congress extended 
38

the California waiver provisions to most types of nonroad 

vehicles and engines, once again reflecting Congressional intent 

to provide California with the broadest possible discretion in 

selecting the best means to protect the health of its citizens 

and the public welfare. Requiring the waiver measures to undergo 

SIP review in addition to the statutory waiver process is not 

consistent with providing California with the broadest possible 

discretion as to on-road and nonroad vehicle and engine 

standards, but rather, would add to the regulatory burden 

California faces in establishing and modifying such standards, 

and thus would not be consistent with Congressional intent. In 

short, we believe that Congress intended California's mobile 

source rules to undergo only one EPA review process (i.e., the 

waiver process), not two.

In summary, we disagree that our interpretation of CAA 

section 193 is fundamentally flawed. EPA has historically given 

SIP credit for waiver measures in our approval of attainment 

demonstrations and other planning requirements such as 

reasonable further progress and contingency measures submitted 

by California. We continue to believe that section 193 ratifies 

our long-standing practice of allowing credit for California's 

waiver measures notwithstanding the fact they are not approved 

into the SIP, and correctly reflects Congressional intent to 
39

provide California with the broadest possible discretion in the 

development and promulgation of on-road and nonroad vehicle and 

engine standards.11

C. Reasonably Available Control Measures

Comment: AIR takes issue with EPA‘s policy interpretation of the 

RACM requirement in CAA section 172(c)(1) that a SIP meets the 

RACM requirement if it includes all reasonably available 

measures that individually or in combination with other such 

measures can advance attainment of the relevant standard by at 

least one year. The commenter claims this interpretation is ―not 

based on the language of the statute and is irrational and 

perverse in the context of the SIP approval here.‖ Specifically, 

AIR argues that because the 2007 8-hour Ozone SIP includes a 

―black box,‖ under EPA‘s reasoning no controls would need to be

adopted as RACM because even the controls that the District and 

State have identified as RACM would not advance attainment by a 

year. 

 

11 In this regard, we disagree that we are treating the waiver 

measures inconsistently with other California control measures, 

such as consumer products and fuels rules, for the simple reason 

that, unlike the waiver measures, there is no history of past 

practice or legislative history supporting treatment of other 

California measures, such as consumer products rules and fuels 

rules, in any manner differently than is required as a general 

rule under CAA section 110(a)(2)(A), i.e., state and local 

measures that are relied upon for SIP purposes must be approved 

into the SIP.
40

In addition, AIR claims that the 2007 8-hour Ozone SIP 

neither provides for attainment nor identifies the controls 

needed to attain, and that it is not rational to suggest that 

additional, feasible controls need not be adopted. AIR asserts 

that if a control is economically and technically feasible, then 

it is reasonably available and must be adopted. Finally, AIR 

argues that such controls could advance attainment and that 

―[a]s technology is developed, it very well could allow for 

earlier attainment, especially if the Plan minimizes the 

magnitude of emissions reductions put into the  ̳black box.‘‖

Response: Section 172(c)(1) of the Act 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 

requirements. See 40 CFR 51.912(d) and 51.1010; 44 FR 20372 

(April 4, 1979) (Part D of title I of the CAA ―does not require 
41

that all sources apply RACM if less than all RACM will suffice 

for [RFP] and attainment‖); General Preamble12 at 13560 (―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‖)13; ―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 

71660, 71661 (noting that ―to require areas to adopt and 

implement as RACM every control technology or measure that 

obtains a small amount of emissions reductions--even if such 

 

12 The ―General Preamble for the Implementation of Title I of 

the Clean Air Act Amendments of 1990,‖ published at 57 FR 13498 

on April 16, 1992, describes EPA‘s preliminary view on how we 

would interpret various SIP planning provisions in title I of 

the CAA as amended in 1990, including those planning provisions 

applicable to the 1-hour ozone standard. EPA continues to rely 

on certain guidance in the General Preamble to implement the 8-

hour ozone standard under title I.

13 EPA also believes it is not reasonable to require the 

adoption of measures that are absurd, unenforceable, or 

impracticable. See General Preamble at 13560; see also 55 FR 

38236 (September 18, 1990) (revoking prior EPA guidance to the 

extent it suggested or stated that areas with severe pollution 

problems must implement every conceivable control measure 

including those that would cause severe socioeconomic 

disruption.
42

measure would not advance the attainment date or is not required 

to meet RFP requirements--is not justified" as it "would be 

extremely burdensome to planning agencies, would detract from 

the effort to develop more reasonable and effective controls to 

meet the NAAQS, and would not be necessary to meet the statutory 

goal of expediting attainment‖); see also preamble to PM2.5

Implementation Rule, 72 FR 20586 at 20613, 20615 (April 25, 

2007) (stating that a RACM demonstration should ―focus on the 

most effective measures with the greatest possibility for 

significant air quality improvements‖). 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). 

Second, we disagree with AIR‘s assertion that our approach 

to RACM is ―irrational‖ or ―perverse‖ in the context of a plan 

that includes a ―black box,‖ – i.e., an attainment demonstration 

that relies to some extent on the development of new control 

techniques or improvement of existing control technologies in 

accordance with CAA section 182(e)(5). Congress first enacted 

the RACM requirement as part of the CAA Amendments of 1977, 

which required SIPs for all nonattainment areas to provide for 

application of all ―reasonably available control measures,‖14

 

14 The term ―reasonably available control measures‖ is not 
43

including RACT for all stationary sources. See 44 FR 53761 at 

53762 (September 17, 1979) (citing sections 172(b)(2) and (b)(3) 

of the 1977 CAA).15 As part of the 1990 Amendments to the CAA, 

Congress created specific nonattainment area planning 

requirements for ozone, including section 182(e)(5) of the Act, 

which allows for approval of a plan for an extreme ozone 

nonattainment area that relies in part on the development of new 

control techniques or improvements to existing technologies.

Notably, however, Congress did not substantively alter the RACM 

requirement, although it moved the provision from section 

172(b)(2) to section 172(c)(1) of the amended Act. Following the 

1990 Amendments, EPA has consistently reaffirmed its preexisting interpretation of the RACM requirement, i.e., that only 

 

specifically defined in the CAA. EPA first interpreted the term 

in guidance issued in 1979. See 44 FR 20,372 (April 4, 1979). 

That guidance established the principle that RACM is determined 

based on evaluation of a collection of control measures 

submitted as part of the reasonable further progress (RFP) plan 

and attainment demonstration for a particular NAAQS. See id. at 

20, 375; see also id. at 20,373 (noting that ―states often have 

flexibility to obtain more or less emission reduction from any 

one measure, as long as a group of measures in the plan is 

adequate‖).

15 Section 172(b) of the 1977 CAA stated, in relevant part, as 

follows: ―The plan provisions required by subsection (a) of this 

section [for nonattainment areas] shall— (2) provide for the 

implementation of all reasonably available control measures as 

expeditiously as practicable; [and] (3) require, in the interim, 

reasonable further progress... including such reduction in 

emissions from existing sources in the area as may be obtained 

through the adoption, at a minimum, of reasonably available 

control technology; . . .‖ 
44

those measures that would advance attainment or that are needed 

to meet reasonable further progress requirements are ―reasonably 

available‖ within the meaning of section 172(c)(1). See, e.g., 

57 FR 13498 at 13560 (April 16, 1992); 1999 Seitz Memo; 40 CFR 

51.912(d) and 70 FR 71612 at 71660, 71661 (November 29, 2005); 

see also Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002) 

(concluding that section 193 of the 1990 CAA expresses Congress‘ 

intent to preserve EPA‘s pre-1990 interpretation of the RACM 

requirement).

Thus, the CAA explicitly contemplates that, for an extreme 

ozone nonattainment area, even where all RACM necessary for 

expeditious attainment and RFP are implemented, additional 

control measures based on new or improved control techniques 

(i.e., control measures yet to be defined) may be necessary to 

attain the ozone NAAQS. These new or improved control techniques 

are, by definition, not reasonably available for current

implementation in the nonattainment area. AIR‘s comment suggests 

that our approval of a plan containing only those RACM necessary 

for expeditious attainment and RFP under CAA section 172(c)(1), 

together with new technology provisions under CAA section 

182(e)(5) and other plan elements required under subpart 2 of 

part D, is somehow absurd. For the reasons discussed above, 

however, we believe Congress intended to allow for approval of 
45

both those reasonably available measures that contribute to 

expeditious attainment and new technology provisions as elements 

of a reasonable strategy for attaining the ozone NAAQS in the 

SJV area. We therefore disagree with AIR‘s claim that the 2007 

8-hour Ozone SIP fails to provide for attainment of the 1997 8-

hour ozone standard.

As explained in our proposed rule, the 2007 Ozone Plan 

includes an enforceable commitment by the SJVUAPCD to adopt 19 

control measures in the near term, all but one of which the 

District has since adopted. See 2007 Ozone Plan, Table 6-1 and 

76 FR 57846, 57851 (Table 2).16 Also as part of the near term 

emissions reductions, CARB committed to bring 11 measures to its 

Board that would contribute emissions reductions to the SJV and 

now has completed rulemaking on many of them including 

requirements for in-use off-road equipment and in-use heavy duty 

diesel trucks that are the first of their kind nationwide. See

76 FR 57846, 57853 (Table 5). We anticipate that these measures 

will accelerate introduction of the most stringent currently 

available new engine and retrofit technologies for these sources 

and result in almost full deployment of these technologies by 

 

16 The one measure that the SJVUAPCD has not adopted is a 

measure regulating aviation fuel storage (Control Measure S-PET3), which the District determined was infeasible. See SJVUAPCD, 

―Final Draft Staff Report, Revised Proposed Amendments to Rules 

2020, 4621, 4622, and 4624,‖ December 20, 2007, p. 2.
46

2023.17 These new measures are in addition to the many rules and 

regulations adopted by the District and State prior to the 

development of the SJV 8-Hour Ozone SIP (baseline measures), 

which collectively achieve more than 80 percent of NOx and 47 

percent of VOC reductions needed to attain the 8-hour ozone

standard. See 76 FR 57846, 87859 (Table 10); see also Appendices 

A and B of TSD. Thus, contrary to the implication of AIR‘s 

argument, this is not a situation where the area is not adopting 

and implementing a variety of control measures that have been 

determined reasonable for other areas. In fact, SJVUAPCD is on 

the cutting edge of the type and level of controls it has 

required for sources in the area.18

Finally, we do not dispute AIR‘s statement that ―[a]s 

technology is developed, it very well could allow for earlier 

attainment‖ and reduce the magnitude of emissions reductions put 

into the ―black box‖ – i.e., attributed to the plan provisions 

for new and improved technologies. At this time, however, we are 

not aware of currently available technologies or control 

measures that would achieve emissions reductions sufficient to 

 

17 The California Bureau of Automotive Repair, which implements 

California‘s SmogCheck program, and the California Department of 

Pesticides also have adopted measures as part of the 2007 State 

Strategy. See 2009 State Strategy Status Report, p. 4. 

18 Neither the District nor CARB rejected any potential RACM 

based on a finding that it would not advance attainment (alone 

or in combination with other potential measures), and AIR has 

not identified any such measures.
47

advance attainment of the ozone NAAQS in the SJV, and AIR has 

not identified any such measures.

Comment: AIR disputes EPA‘s statement that the process and 

criteria the District used to select certain measures and reject 

others are consistent with EPA‘s RACM guidance, asserting that 

the District‘s approach to evaluating economic feasibility is 

not consistent with EPA guidance because the District rejects 

control options based on the ―affordability‖ of controls for a 

particular industry. Citing, for example, the District‘s 

―Revised Proposed Staff Report and Recommendations on 

Agricultural Burning,‖ at p. 1-4 (May 20, 2010), AIR states that 

the District rejects controls ―not based solely on the costeffectiveness of controls but based on an overly simplistic 

ratio of costs to profits for the industry,‖ referred to as the 

― ̳10 percent of profits‘ test, to determine whether controls are 

economically feasible.‖ AIR also asserts that this 10-percentof-profits test ―has no connection to whether an industry is 

actually capable of bearing the costs of control, let alone 

whether the control should be considered cost-effective on a 

dollars per ton of emission reduction basis.‖ 

In support of these assertions, AIR quotes from EPA‘s 

Supplement to the General Preamble (57 FR 18070, 18074 (April 

28, 1992)) and states that EPA ―presumes that it is reasonable 
48

for similar sources to bear similar costs of emission 

reductions‖ because ―[e]conomic feasibility rests very little on 

the ability of a particular source to  ̳afford‘ to reduce 

emissions to the level of similar sources.‖ AIR further quotes 

from this same document to assert that ―capital costs, 

annualized costs, and cost effectiveness . . . should be 

determined for all technologically feasible emissions reduction

options‖ and notes that cost effectiveness is the cost per 

amount of emissions reduction (in tons) per year.

Response: We agree generally that an economic feasibility 

analysis based on the use of a ―10 percent of profits‖ test is 

not a sufficient basis for rejecting a control option from 

consideration as RACM under CAA section 172(c)(1). As AIR 

correctly notes, under EPA‘s long-standing guidance on 

evaluating economic feasibility for RACM/RACT under CAA section 

172(c)(1), EPA presumes that the cost of using a control measure 

is reasonable if those same costs are borne by other comparable 

facilities. See, e.g., 57 FR 18070, 18074 (April 28, 1992) and 

59 FR 41998, 42009 (August 16, 1994). EPA guidance provides that

economic feasibility is largely determined by evidence that 

other sources in a source category have in fact applied the

control technology in question and may also be based on cost 

effectiveness (i.e., calculation of the cost per amount of 
49

emissions reduction in $/ton). Id. However, we note that our 

policy merely establishes a presumption and RACT is determined 

based on a source category or single source analysis; therefore, 

states can present additional or other evidence of what 

constitutes RACT for a source category or a single source. 

For that reason, we disagree, with AIR‘s suggestion that

cost effectiveness must be the sole criterion for evaluating

economic feasibility. EPA‘s Supplement to the General Preamble

(57 FR 18070, April 28, 1992), which AIR quotes from, provides 

that a state ―may give substantial weight to cost effectiveness 

in evaluating the economic feasibility of an emissions reduction 

technology‖ but does not indicate that cost effectiveness is the 

only acceptable criterion.19 See 57 FR 18070, 18074 (emphasis 

added). To the contrary, in numerous guidance documents EPA has 

 

19 In the Supplement to the General Preamble, EPA stated that 

―[c]ost effectiveness provides a value for each emission 

reduction option that is comparable with other options and other 

facilities‖ but also stated that companies may provide other 

source-specific information about costs for consideration in an 

economic feasibility analysis:

If a company contends that it cannot afford the technology 

that appears to be RACT for that source or group of 

sources, the claim should be supported with such 

information as impact on:

1. Fixed and variable production cost ($/unit),

2. Product supply and demand elasticity,

3. Product prices (cost absorption vs cost passthrough)

4. Expected costs incurred by competitors,

5. Company profits, and

6. Employment.

57 FR 18070, 18074.
50

identified cost effectiveness as one of several factors that 

states may consider in evaluating the economic feasibility of an 

available control option. See, e.g., 57 FR at 18074 (―[t]he 

capital costs, annualized costs, and cost effectiveness of an 

emissions reduction technology should be considered in 

determining its economic feasibility‖) (emphasis added); 57 FR 

55620 at 55625 (November 25, 1992) (―NOx Supplement to General 

Preamble‖) (―comparability‖ of a NOx RACT control level ―shall be 

determined on the basis of several factors including, for 

example, cost, cost-effectiveness, and emission reductions‖); 59 

FR 41998 at 42013 (August 16, 1994) (―PM-10 Addendum to General 

Preamble‖) (―capital costs, annualized costs, and cost 

effectiveness of an emission reduction technology should be 

considered in determining its economic feasibility‖); and 

Memorandum from D. Kent Berry, EPA, Air Quality Management 

Division, to Air Division Directors, EPA Regions I – X, ―CostEffective Nitrogen Oxides (NOx) Reasonably Available Control 

Technology (RACT)‖ (―[w]hile cost effectiveness... is an important 

consideration, it must be noted that other factors should be 

integrated into a RACT analysis [such as] emissions reductions 

and environmental impact...‖).20

 

20 EPA also included guidance on economic feasibility 

determinations in the preamble to its 2007 PM2.5 Implementation 

Rule. See 72 FR 20586, 20619-20620 (April 25, 2007). In June 
51

We also disagree with AIR‘s suggestion that the 

―affordability‖ of controls for a particular industry cannot 

play any role as part of an economic feasibility analysis. 

Although EPA has stated that ―[e]conomic feasibility rests very 

little on the ability of a particular source to  ̳afford‘ to 

reduce emissions to the level of similar sources‖ (57 FR at 

18074) (emphasis added), this does not mean that affordability 

on an industry-wide basis may not be considered as part of an 

economic feasibility analysis, among other factors.21

As we explained in our SJV 2009 RACT SIP final action,22 the 

District generally considers multiple factors in evaluating the 

 

2007, a petition to the EPA Administrator was filed on behalf of 

several public health and environmental groups requesting, among 

other things, reconsideration of elements of this economic 

feasibility guidance. See Earthjustice, Petition for 

Reconsideration, ―In the Matter of Final Clean Air Fine Particle 

Implementation Rule,‖ June 25, 2007. On April 25, 2011, EPA 

granted this petition. See Letter, Lisa P. Jackson, EPA, to Paul 

Cort, Earthjustice, April 25, 2011. EPA did not rely on the 

economic feasibility guidance in the PM2.5 implementation rule 

preamble in its review of the SJV 2007 8-hour Ozone Plan.

21 The SJVUAPCD‘s ―percent of profits‖ evaluation considers the 

economic impact of a rule or rule revision on the industries 

located within SJV as a whole rather than the economic impact 

for any particular source. See, for examples, the socioeconomic 

studies prepared for Rule 4570 found in Appendix D of the 

District‘s Final Staff Report, Revised Proposed Amendments to 

Rule 4570 (Confined Animal Facilities),October 21, and for Rule 

4311 found in Appendix D to SJVUAPCD, Final Draft Staff Report, 

Revised Proposed Amendments to Rule 4311 (―Flares‖), June 18, 

2009.

22 See ―Partial Approval and Partial Disapproval of Air Quality 

Implementation Plans; California; San Joaquin Valley; Reasonably 

Available Control Technology for Ozone;‖ Final rule, pre-
52

economic feasibility of available control options during its 

rule development processes, including capital costs, annualized 

costs, cost-effectiveness, and compliance costs as a percentage 

of profits. Given EPA's long-standing position that states may 

justify rejection of a control measure as not ―reasonably 

available‖ based on the technical and economic circumstances of 

the particular sources being regulated, it is appropriate for 

the District to consider multiple factors in evaluating the 

costs of potential control options to determine if they are 

economically feasible for sources located within the SJV. With 

respect to SJVUAPCD Rule 4103 (Open Burning), which AIR 

references as an example of the District‘s use of a ―10 percent 

of profits‖ test to evaluate economic feasibility, EPA 

previously reviewed the District‘s analyses and explained our 

bases for concluding that the rule requires all control measures 

for open burning that are technically and economically feasible 

for implementation in the SJV area. See ―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).

 

publication notice signed December 15, 2011, Response to Comment 

#4 (―SJV 2009 RACT SIP final action‖). The 2009 RACT SIP is 

SJVUAPCD‘s ―Reasonably Available Control Technology (RACT) 

Demonstration for Ozone State Implementation Plans (SIP), April 

16, 2009, which was adopted by the SJVUAPCD on April 16, 2009 

and submitted to EPA on June 18, 2009.)
53

Comment: AIR asserts that EPA cannot defend the costeffectiveness criteria used by the District because the criteria 

have not been justified based on the attainment needs of the 

area. AIR further asserts that ―EPA‘s cursory and conclusory 

analysis of the District‘s RACM demonstration is not sufficient 

to comply with the requirements and objectives of the [CAA],‖ 

and that it not possible to make a RACM demonstration for the 

SJV without explaining what is needed for attainment and using 

the attainment need to justify the thresholds used to accept or 

eliminate available control options. AIR cites EPA‘s 1992 

General Preamble at 13541 in support of these assertions.

Response: It is not clear what AIR is referring to by ―costeffectiveness criteria used by the District.‖ We are not aware 

of a specific dollar per ton threshold that the District 

routinely uses to reject control options during its rule 

development processes and AIR does not provide one. 

To the extent AIR intended to object to the District‘s use 

of a ―10 percent of profits‖ test, rather than to any particular 

―cost-effectiveness‖ criteria, we have responded to that concern 

above. We note also that since the District‘s submittal of the

8-hour ozone plan in 2007, EPA has SIP-approved a number of 

rules that the District adopted despite cost estimates exceeding

the ―10 percent of profits‖ threshold for one or more industries 
54

subject to the rule, including Rule 4311 – Flares (June 18, 

2009); Rule 4682 – Polystyrene Foam, Polyethylene and 

Polypropylene Manufacturing (September 20, 2007); and Rule 4570 

– Confined Animal Facilities (October 21, 2010).

23

We agree with AIR‘s position that it is not possible to 

make a RACM demonstration for the 1997 8-hour ozone standard in 

the SJV without explaining what is needed to attain that 

standard in the area. This explanation is provided in both the 

2007 Ozone Plan and EPA‘s proposed approval of the Plan. See

2007 Ozone Plan, Chapter 3 (―What is Needed To Demonstrate 

Attainment?‖) and 76 FR 57846, 57857 (September 16, 2011). See 

also 2007 State Strategy, p. 33 and EPA‘s TSD, section II.F. To 

provide the emissions reductions needed to attain, the State and 

District developed a four part control strategy which is 

described in the Plan. See 2007 Ozone Plan at Chapter 4 

(―Strategy‖), Chapter 6 (―District Regulatory Control Measures 

for Stationary Sources‖), Chapter 7 (―Action Plan for Reducing 

Emissions with Incentive Funds‖), Chapter 8 (―Innovative 

Strategies and Programs‖), and Chapter 9 (―Local, State, and 

 

23 EPA approved Rule 4311 at 76 FR 68106 (November 3, 2011); 

proposed a limited approval/limited disapproval of Rule 4682 at 

76 FR 41745 (July 15, 2011); and approved Rule 4570 on December 

13, 2011. See Revisions to the California State Implementation 

Plan, San Joaquin Valley Unified Air Pollution Control District; 

Final rule. Pre-publication version signed December 13, 2011.
55

Federal Controls‖). See also 2007 State Strategy, Chapter 3 

(―ARB‘s 2007 SIP State Strategy‖).

Chapter 6 of the Plan describes the process the District 

undertook to identify potential stationary source control 

measures for adoption; that is, to identify potential RACM 

within its jurisdiction.24 This measure identification process 

resulted in the development of a stationary source regulatory 

implementation schedule which lists not only the specific 

control measures that the District committed to adopt but also 

the schedule for their adoption and implementation and their 

anticipated emissions reductions by year. See 2007 Ozone Plan, 

Table 6-1, p. 6-5. It is this regulatory implementation schedule 

(and a similar one developed for the subsequent SJV 2008 PM2.5

Plan) that has in large part determined the District‘s 

rulemaking calendar over the last few years, and the anticipated 

emissions reductions listed in this implementation schedule have 

helped to define the needed stringency of the individual rules.

Supporting information for the District‘s adopted rules shows 

that during the rule-development process, the District considers

its control strategies and the emissions reductions needed for 

attainment that it has identified in its plans. For example, 

section I.A. (―Reasons for Rule Development and Implementation‖) 

 

24 The detailed evaluation of each potential controls is found 

in Appendix I of the 2007 Ozone Plan.
56

in the Rule 4320 SJV Staff Report25 discusses both the deadline 

for adoption and the anticipated reductions from these new and

revised rules in the 2007 Ozone Plan and states: ―[t]his 

rulemaking project is intended to satisfy the attainment goals 

of the District‘s 2007 Ozone plan,‖ ―[t]he plan calls for a 

total of 1.1 tons per day of NOx reductions [from large and 

medium boilers]...,‖ and ―[t]he proposed amendments...will seek to 

obtain as much reduction of [NOx] from boilers, steam generators, 

and process heaters as expeditiously [as] practicable and 

technologically and economically feasible.‖26

Comment: AIR states that RACM is not limited to major sources, 

quoting EPA‘s recommendation in the General Preamble at 13541 

that ―a State‘s control analysis for existing stationary sources 

go beyond major stationary sources and that the state require 

control technology for other sources that are reasonable in 

light of the areas attainment needs.‖ AIR claims that an 

analysis of the effect of applying additional controls to nonmajor sources has not been conducted and therefore, EPA has no 

 

25 SJVUAPCD, Final Draft Staff Report, Proposed Amendments to 

Rule 4306, Proposed Amendments to Rule 4307, and Proposed New 

Rule 4320, October 16, 2008 (Rule 4320 SJV Staff Report)

26 Most if not all District staff reports on proposed rule 

adoptions or amendments include a section discussing the reasons 

for rule develop and implementation. This section generally list 

the CAA provisions applicable to the rule (e.g., section 

182(b)(2) RACT) and identifies whether the rulemaking project is 

part of the area‘s ozone and/or PM2.5 control strategy and the 

reductions from the rule called for in the plan.
57

basis for its determination that additional reasonable controls 

are not available or that such control could not advance 

attainment. AIR further claims that the District‘s RACT 

demonstration only explores controls on sources down to 10 tons 

per year. 

Response: We agree that a RACM analysis should not be limited 

to major sources. 27 See General Preamble at 13541. We disagree, 

however, with AIR‘s assertion that the District failed to 

evaluate controls for non-major sources. The District‘s control 

measure evaluation (documented in Appendices H and I of the 

Plan) was not limited to major stationary sources but covered a 

wide variety of small stationary sources (e.g., gasoline 

stations, p. I-75), area sources (e.g., architectural coatings, 

p. I-100; asphalt roofing, p. I-56; and residential water 

heaters, p. I-28), indirect sources (e.g., employer trip 

reduction, p. I-141) and mobile sources (e.g., school buses, p. 

I-156). 

Most of the District‘s rules currently apply to sources

much smaller than major sources. See, for example, Rule 4607 –

Graphic Arts which applies to any graphic arts source that emits 

 

27 A major stationary source in an ozone nonattainment area 

classified as extreme is any stationary facility or source of 

air pollutant which directly emits or has the potential to emit 

10 tons of VOC or 10 tons of NOx per year. See CAA sections 

302(j) and 182(e).
58

more that 1.2 tpy of VOC, Rule 4308 – Boilers 0.75 – 2 MMBtu/hr 

which applies to all boilers of this size without regard to the 

source size; Rule 4622 – Gasoline Transfer into Motor Vehicles 

which applies to most retail gasoline station; and Rule 4902 –

Residential Water Heaters.28 We also note that of the 18 measures 

that the District has adopted following its submittal of the 

2007 Ozone Plan, all but two (glass melting furnaces and brandy 

and wine aging) regulate non-major sources. See 2007 Ozone Plan, 

Table 6-1. See also, Table 1 below.

As to AIR‘s claim that ―[t]he District‘s RACT demonstration 

only explores controls on sources down to 10 tons per year,‖

this statement is not germane to our evaluation of the Plan‘s 

RACM demonstration under CAA 172(c)(1). The District submitted 

the 2009 RACT SIP29 to meet the technology-based RACT 

requirements for specific types of sources in CAA section 

182(b)(2) and (f). These requirements are separate from the RACM 

obligation in CAA section 172(c)(1), and EPA therefore evaluated 

the 2009 RACT SIP for compliance only with these specific 

 

28 We have identified only seven District prohibitory rules (of 

the approximately 60 District rules that regulate NOx and/or VOC) 

which apply only to units at major sources: Rule 4354 – Solid 

Fuel Boilers (NOx); Rule 4356 – Glass Melting Furnaces (NOx and 

VOC); Rule 4311 – Flares (SOx, NOx, and VOC); Rule 4610 – Glass 

Coating Operations (VOC); Rule 4693 – Bakeries (VOC); Rule 4694 

– Wine Fermentation and Storage Tanks (VOC); and Rule 4695 –

Brandy and Wine Aging (VOC).

29 We assume here that AIR intended to refer to the SJV 2009 

RACT SIP. 
59

control technology requirements. See SJV 2009 RACT SIP final 

action.

Evaluation of Potential to Advance Attainment

As discussed above, under EPA‘s longstanding policy, a SIP 

meets the RACM requirement in CAA section 172(c)(1) if it 

includes all reasonably available measures that individually or 

in combination with other such measures can advance attainment 

of the relevant standard by one year or more. Thus to determine 

whether the SJV Ozone SIP meets this statutory requirement, we 

evaluated whether implementation of potential RACM (including 

any missing section 182 RACT controls and those identified by 

AIR in its comments (see TSD, section III.C.) would expedite 

attainment of the 1997 8-hour ozone standard in the SJV. 

Attainment of the 1997 8-hour ozone standard in the SJV 

depends on significant reductions in NOx emissions. Air quality 

modeling shows that no level of VOC reductions will bring about 

attainment of the 8-hour ozone standard in the SJV absent these 

NOx reductions and no reasonable level of VOC reductions will 

expedite attainment absent significant NOx reductions. See 2007 

Ozone Plan, Chapter 3; see also, section II.C.3. of the TSD.

Because VOC reductions will not advance attainment of the 

1997 8-hour ozone standard unless substantial NOx reductions are 

also achieved, we have focused our evaluation on the potential 
60

RACM that reduce NOx emissions. Specifically, we evaluated 

whether additional emissions reductions from the control 

measures suggested by the commenter (e..g, requiring RACT-level 

controls on major source solid fuel-fired boilers and 

prohibiting the use of pre-baseline emissions reductions credits 

as discussed in section III.C. below) and certain control 

measures not yet eligible for SIP credit, would provide 

sufficient additional reductions in 2023 to attain by June 15, 

2024 without reliance on the CAA section 182(e)(5) new 

technology provision.

30 We used 2023 rather than 2022 because 

more information is available on projected controlled emissions 

levels in that year. Fleet turnover from existing mobile source 

measures will provide an additional 10 tpd in NOx emissions 

reductions in the SJV between 2022 and 2023. Therefore, if we 

conclude that additional RACM measures would not provide 

sufficient reductions in 2023 to attain, we can also conclude 

that they would not provide sufficient emissions reductions in 

2022.

 

30 As an extreme ozone nonattainment area, SJV‘s statutory 

attainment date is as expeditiously as practicable but no later 

than June 15, 2024. 40 CFR 51.903(a). The SIP as submitted 

demonstrates that the most expeditious attainment date is June 

15, 2024. See 2007 Ozone Plan, p. 11-1. In order to attain by 

that date, the area must have all reductions needed for 

attainment in place by 2023. Thus, to advance attainment by one 

year, all reductions needed for attainment must be in place by 

2022. 
61

After analyzing the maximum potential emissions reductions 

from additional controls on source categories for which we have 

not yet approved rules meeting RACT and measures recommended by 

AIR (including eliminating the use of pre-baseline emissions 

reduction credits in the area‘s new source review program) and 

comparing them against the level of reductions needed for 

attainment in the SJV by June 15, 2024, we find that even with 

these additional controls , the 2023 NOx emissions level in the 

SJV would still be well above the level needed for attainment. 

See Table C-5 in the TSD. We conclude, therefore, that the SJV 

2007 8-hour ozone SIP provides for RACM as required by CAA 

section 172(c)(1).31

D. CAA section 182(e)(5) New Technology Provision

Comment: AIR states that California‘s reliance on ―black box‖ 

measures in the SJV 2007 8-hour Ozone SIP fails to meet the 

requirements and intent of the Clean Air Act by allowing the 

State and District to defer their responsibility to attain the 

8-hour ozone standards. AIR argues that there are three problems 

with how the State and District are using the CAA 182(e)(5) new 

technology provision. 

 

31 This finding under CAA section 172(c)(1) does not affect the 

District‘s separate obligation under CAA sections 182(b)(2) and 

(f) and 40 CFR 51.905(a)(1)(ii) to implement RACT for all major 

sources and all CTG source categories.
62

First, AIR argues that it is arbitrary for EPA to approve a 

new technology provision of 80 tons per day of NOx reductions or 

59 percent of the reductions needed for attainment given its

lack of definition. 

Second, AIR asserts that section 182(e)(5) is intended to 

address new technologies that will develop over time but that in 

California, ―new technologies alone will not sufficiently reduce 

pollution to attain federal air quality standards.‖ Citing a 

description in the Proposal TSD (at page 81) of a potential 

measure described by CARB as ―prioritizing federal 

transportation funding to support air quality goals,‖ AIR argues

that ―[t]his example clearly fails to meet all the criteria 

required for Black Box use,‖ and that while ―tying air quality 

to transportation planning‖ is important for attainment, the 

black box cannot be used as a basis for not requiring 

implementation of ―existing‖ strategies such as increased public 

transit that do not require the development of new technologies.

Third, AIR states that the section 182(e)(5) commitments 

are vague and insufficient and that EPA cannot approve the 

attainment demonstration ―unless the Section 182(e)(5) measures 

comply with the CAA.‖ Citing both CAA section 182(e)(5) and 

EPA‘s January 8, 1997 final rule approving the 1-hour ozone plan 

for several California nonattainment areas (62 FR 1150, 1179), 
63

AIR asserts that the new technology measures must: (1) contain 

sufficient definition; (2) contain schedules for development of 

the new technologies; (3) contain commitments for funding; (4) 

depend on development of new technologies; and (5) include an 

enforceable commitment to develop and adopt necessary 

contingency measures. AIR asserts that the SJV 2007 8-hour Ozone 

SIP ―only attempts to comply with requirement number (5),‖ that 

the generalized discussion in the SIP provides little assurance 

of CARB‘s ability to develop these measures, and that approval 

of these measures is therefore arbitrary and capricious.

Response: First, we disagree with the commenters‘ contention 

that EPA‘s approval of the SIP is arbitrary because of the 

amount of emissions reductions attributed to the new technology 

provision or because they are undefined. As an initial matter, 

we note that the commenters‘ assertion about the 59 percent of 

the emissions reductions needed for attainment of the 1997 8-

hour ozone standard in the SJV that are attributed to the new 

technologies provision is not correct.32 The correct percentage 

of the needed NOx emissions reductions attributed to the new 

 

32 It appears that the commenters overestimated the percentage 

of emissions reductions attributed to the new technology 

provision in the SIP by calculating the amount of needed 

reductions without taking into account the reductions attributed 

to baseline measures. The 59 percent figure represents the 

percent contribution of the new technology provision to the new 

emissions reductions (that is, the non-baseline emissions 

reductions) in the SIP. See TSD, Table F-2. 
64

technology provision in the SJV 2007 8-hour Ozone SIP is 12

percent as explained further below.

The CAA does not provide a quantitative limit on the extent 

to which the attainment demonstration for an extreme ozone 

nonattainment area may rely on the new technology provisions 

under CAA section 182(e)(5). As we explained in our proposed 

rule, CAA section 182(e)(5) authorizes EPA to approve provisions 

in an extreme area plan which ―anticipate development of new 

control techniques or improvement of existing control 

technologies,‖ and to approve an attainment demonstration based 

on such provisions if the State demonstrates that: (1) such 

provisions are not necessary to achieve incremental reductions 

required during the first 10 years after the effective date of 

designation for the 1997 8-hour ozone standards, and (2) the 

State has submitted enforceable commitments to submit adopted 

contingency measures meeting certain criteria no later than 

three years before proposed implementation of the new technology 

measures. See 76 FR 57846, 57854. EPA guidance on section 

182(e)(5) states, among other things, that the SIP should show 

that the long-term measure(s) cannot be fully developed and 

adopted by the submittal date for the attainment demonstration 

and that the measures approved under section 182(e)(5) may 

include those that anticipate future technological developments 
65

as well as those that require complex analyses, decision making 

and coordination among a number of government agencies. See

General Preamble at 13524. 

The majority of the emissions reductions in the SJV 2007 8-

hour Ozone SIP are attributed to already adopted and near-term 

measures. See 76 FR 57846, 57850-61. Our summary of SJV‘s 8-hour 

ozone attainment demonstration in the proposed rule shows that 

the area needs to reduce emissions from 2002 levels by a total 

of 424 tpd of NOx and 116 tpd of VOC to attain the 1997 8-hour 

ozone standards by June 15, 2024. See 76 FR 57846, 57859 (Table 

10) (values rounded to the ones place). Of these needed 

reductions, approximately 88 percent of the NOx reductions and 

all of the VOC reductions are attributed to already adopted 

measures or commitments to adopt and implement existing 

technologies by 2014. See 76 FR 57846, 57859 (Table 10) and 

57851, 57853 (Tables 2 and 5) (identifying CARB and District 

measures recently adopted or scheduled for near-term 

consideration). These measures include all reasonably available 

control measures and generally represent the most stringent air 

pollution control requirements for stationary, area, and mobile 

sources nationwide. This leaves just 12 percent of the needed NOx

reductions and none of the needed VOC reductions to be met 
66

through new technologies under CAA section 182(e)(5). See 76 FR 

57846, 57859 (Table 10).

Given the demonstrated need for emissions reductions from 

new and improved control techniques needed to attain the 1997 8-

hour ozone standard in the SJV, we believe it is reasonable for 

the State to attribute this amount of emissions reductions to 

the new technology provision. However, as we stated in our 

proposed rule, we expect the amount and relative proportion of 

reductions from measures scheduled for long-term adoption under 

section 182(e)(5) should decrease in any future SIP update, and 

EPA will not approve any future SIP revisions with an increase 

in the 182(e)(5) reductions for 2023 without a convincing 

showing that the technologies relied upon in the near-term rules 

are infeasible or ineffective in achieving emissions reductions 

in the near-term. See 76 FR 57846, 57856. Moreover, to the 

extent new modeling performed in any subsequent SIP revision 

demonstrates that there is an increase in the year 2023 carrying 

capacity for VOC and NOx, this change may not be used to decrease 

the amount of emissions reductions scheduled to be achieved by 

any existing technology measures from the SJV 2007 8-hour Ozone 

SIP unless CARB or the District make the convincing showing 

described above.
67

Second, we disagree with AIR that CAA section 182(e)(5) 

allows only for plan provisions that rely on ―new technologies‖

and that the District must adopt additional ―existing 

strategies‖ that do not rely on new technologies. CAA section 

182(e)(5) allows for approval of extreme area plan provisions 

that ―anticipate development of new control techniques or 

improvement of existing control technologies,‖ which EPA 

interprets to include ―[those that may anticipate future 

technological developments as well as those that may require 

complex analyses and decision making and coordination among a 

number of government agencies.‖ See 57 FR 13498, 13524. Thus, in 

addition to plan provisions that rely on ―new technologies,‖ 

section 182(e)(5) contemplates provisions that are as of yet 

undefined because they require, for example, time for State and 

local agencies to evaluate complex technical information and to 

seek public participation in their regulatory processes. 

AIR correctly notes that EPA‘s TSD identified 

―prioritiz[ation of] federal transportation funding to support 

air quality goals‖ among a number of potential long-term 

strategies that CARB had identified for further consideration 

(see Proposal TSD, p. 81, citing 2007 State Strategy, pp. 55-

56), but it does not describe any specific control measure that 

such budgetary decisions could support and that is reasonably 
68

available for current implementation in the SJV. Likewise, 

although AIR asserts generally that ―increased transit‖ and 

other ―existing strategies‖ should be required as control 

measures because these do not require the development of new 

technologies, they have not identified any particular control 

measure that the State should be obligated to include in its 

plan for attaining the 1997 8-hour ozone standards in the SJV. 

CARB and the District have adopted all of the control measures 

for NOx and VOC that are ―reasonably available‖ within the 

meaning of CAA section 172(c)(1) for current implementation in 

the SJV and have submitted enforceable commitments to adopt 

additional measures achieving specific amounts of emissions 

reductions by specific years. See 76 FR 57846, 57850-57854. 

These measures are not sufficient, however, to achieve the 

significant amounts of NOx and VOC reductions necessary to attain 

the 1997 8-hour ozone NAAQS in the SJV by June 15, 2024. Absent 

new information about additional control measures that are costeffective and technically feasible for current implementation in 

the area, we believe it is reasonable to allow the State and 

District time to develop additional control measures based on 

new or improved control technologies under CAA section 

182(e)(5).
69

Third, we disagree with AIR that the SIP‘s section 

182(e)(5) provisions are vague and insufficient. As discussed in 

our proposed rule, CARB has submitted enforceable commitments to 

achieve specific amounts of NOx and VOC reductions by 2023 

through the development of new or improved control technologies

under CAA section 182(e)(5). The total tonnage commitment in the 

SJV is for 81 tpd NOx. See 76 FR 57846, 57854-57855 and 2009 

State Strategy Status Report, p. 21. With respect to the 

requirement for contingency measures in CAA section 

182(e)(5)(B), we explained in our proposed rule that CARB‘s 2011 

Ozone SIP Revisions contain the State‘s enforceable commitment 

―to develop, adopt, and submit contingency measures by 2020 if 

advanced technology measures do not achieve planned reductions‖

(76 FR 57846, 57855, referencing CARB Resolution 11-22, July 21, 

2011), and in a letter dated November 18, 2011 to EPA Region 9, 

CARB confirmed that EPA‘s understanding of this enforceable 

commitment is correct. See letter James N. Goldstene, Executive 

Officer, California Air Resources Board, to Jared Blumenfeld, 

Regional Administrator, U.S. EPA Region 9, November 18, 2011. 

In addition, as explained in our proposed rule (76 FR 

57846, 57855), the SJV 2007 8-hour Ozone SIP identifies numerous 

potential measures currently under consideration as part of the 

long-term strategy, and CARB has committed to submit a SIP 
70

revision by 2020 that will identify the additional strategies 

and implementing agencies needed to achieve the needed 

reductions by the beginning of the 2023 ozone season. See 2011 

Ozone SIP Revisions, p. A-8; see also the August 29, 2011 

Goldstene letter which describes California‘s climate change 

programs, clean car technologies, programs to accelerate hybrids 

and plug-in technologies, greenhouse gas emissions reduction

targets for passenger vehicles, and the District‘s efforts to 

shift goods movement to lower-emission alternatives and to 

reduce emissions caused by electricity and natural gas 

consumption in residential, industrial, and institutional 

settings). We note also that CARB has stated its intent to 

convene annual strategy meetings with the South Coast and SJV 

Districts and EPA to discuss progress in the development of its 

new technology measures, and to secure resources for continuing 

research and development of new technologies. See August 29, 

2011 Goldstene letter; see also 2009 State Strategy Status 

Report, pp. 25-27. 

Finally, AIR references CAA section 182(e)(5) and EPA‘s 

final rule approving an ozone SIP previously submitted by 

California (62 FR 1150, 1179)33 in support of its assertion that 

 

33 We note that although this final action included EPA‘s 

approval of new technology provisions under CAA section 

182(e)(5) as part of California‘s SIP for the 1-hour ozone NAAQS 
71

the long-term strategy must satisfy five ―requirements,‖ of 

which, commenters contend, the SJV 2007 8-hour Ozone SIP 

addresses only one. We disagree with this characterization of 

both the requirements of CAA section 182(e)(5) and the 

provisions in the SIP. 

As explained above and in our proposed rule, EPA interprets 

the Act to allow EPA to approve the State‘s conceptual new 

technology provisions and credit them toward the attainment 

demonstration if the state makes the required commitment to 

submit contingency measures, which then must be submitted to EPA 

no later than 3 years before proposed implementation and EPA 

concludes that the measures are not needed to achieve the first 

10 years of required rate of progress reductions. See 76 FR 

57846, 57854. The five ―requirements‖ for approval of new 

technology provisions that commenters reference are not 

statutory or regulatory requirements but recommended criteria. 

See General Preamble at 13524.34

 

in the South Coast area, this prior rulemaking action is not 

germane to today‘s action on the SJV 2007 Ozone SIP. We assume 

that the commenters intended to refer, instead, to the source of 

the five criteria that EPA has recommended for consideration in 

evaluating new technology provisions under CAA 182(e)(5), which 

is the General Preamble (57 FR 13498, 13524 (April 16, 1992)).

34 EPA‘s General Preamble states that in order to rely on ―new 

technology provisions‖ under CAA section 182(e)(5), a SIP must 

satisfy the following criteria: (1) identify all measures, 

including the long-term measure(s) for which additional time 

would be needed for development and adoption; (2) show that the 
72

As also explained in the proposed rule, CARB and the 

District have demonstrated a clear need for additional time to 

fully develop and adopt the long-term measures under 

consideration and have met the statutory requirements for 

approval of such conceptual measures under CAA section 

182(e)(5). See 76 57846 57854-57855. The General Preamble at 

13524 recommends that a SIP relying on new technology provisions 

under CAA section 182(e)(5) identify all of the specific longterm measures the State intends to adopt, contain a schedule 

outlining the specific steps leading to final development and 

adoption, and contain commitments from the agencies that would 

be involved in developing and implementing these measures, in 

addition to satisfying the statutory criteria. However, as 

discussed in our proposed rule and above, both the 2007 State 

Strategy and the 2007 Ozone Plan provide lists of the types of 

technologies and measures that they are pursuing to achieve the 

 

long-term measure(s) cannot be fully developed and adopted by 

the submittal date for the attainment demonstration and contain 

a schedule outlining the steps leading to final development and 

adoption of the measure(s); (3) contain commitments from those 

agencies that would be involved in developing and implementing 

the schedule for the measure; (4) contain a commitment to 

develop and submit contingency measures (in addition to those 

otherwise required for the area) that could be implemented if 

the measure is not developed or if it fails to achieve the 

anticipated reductions; and (5) not rely on the new technology 

measures to meet any emissions reductions requirements within 

the first 10 years after enactment. See 57 FR 13498, 13524 

(April 16, 1992). We note that this language is non-binding 

guidance although it is phrased in mandatory terms.
73

emissions reductions needed for attainment of the 8-hour ozone 

standard in the SJV. See 76 FR 57846, 57854-57855 and TSD, 

section II.E.2.; see also, 2007 Ozone Plan, Chapters 7, 8, and 

11; 2007 State Strategy, pp. 54-57; 2009 State Strategy Update, 

p. 25; and 2011 Ozone Plan Update, Appendix A. The State has 

also committed to share the results of its efforts with the 

public through Board meetings, workshops and other means. See 

2009 State Strategy Update, p. 25; see also, letter, James 

Goldstene, Executive Officer, CARB, to Jared Blumenfeld, 

Regional Administrator, EPA Region 9, August 29, 2011. Finally, 

the State has committed to work to secure resources for 

continuing research and development and to develop schedules for 

moving from research to implementation. Id. We find that the 

State and District have adequately addressed the policy criteria 

in the General Preamble given the significant emissions 

reductions needed to attain the 1997 8-hour ozone NAAQS in the 

SJV and the type of sources (i.e., mobile sources) for which 

technology must be developed, tested, and deployed in order to 

achieve these reductions. EPA commits to do its share to support 

the needed research and development activities of CARB and the 

District.

Comment: AIR asserts that the SJV already violates the 1-hour 

ozone standard and failed to attain that standard by November 
74

15, 2010 (citing 76 FF 56694 (September 14, 2011)) is

―particularly‖ relevant to the approval of the new technology 

provisions in the 8-hour ozone plan because, according to AIR, 

the District and CARB ―relied heavily‖ on new technology 

measures in its previous plans for the 1-hour ozone standard and 

these commitments have not been met. AIR further asserts that 

EPA cannot reasonably rely on the continued use of the new 

technologies provision because, according to AIR, the District‘s 

and CARB‘s track record for using this approach has not resulted 

in the pollution reductions committed to in the SJV 2004 1-hour 

attainment plan. 

Response: EPA is acting today on the SJV 2007 8-hour Ozone SIP, 

which the State submitted to meet the requirements of part D, 

title I of the CAA for the 1997 8-hour ozone standard. Neither 

the CAA‘s planning requirements related to attainment of the 1-

hour ozone standard nor the State‘s submittals to meet the Act‘s 

requirements for that prior standard are germane to our action 

on the SJV 2007 8-hour Ozone SIP under CAA section 110(k). 

Additionally, nothing in section 182(e)(5) of the CAA or our 

implementing regulations requires EPA to take into account the 

success or failure of a prior plan for a different ambient air 

quality standard in approving extreme area plan provisions that 

meet the requirements of CAA section 182(e)(5) for the 1997 8-
75

hour ozone standard. EPA‘s proposed rule to determine that the 

SJV failed to attain the 1-hour ozone standard by its applicable 

attainment date (76 FR 56694, September 14, 2011), which 

commenters reference, likewise has no bearing on our action on 

the SJV 2007 8-hour Ozone SIP under CAA section 110(k). 

We disagree with AIR‘s assertions that the District and 

CARB relied heavily on new technology measures in its previous 

plans for the 1-hour ozone standards and that these commitments 

have not been met. The District relied on emissions reductions 

from new technology measures only in its 2004 Ozone SIP. 35

 

35 The 2004 Ozone SIP is the ―Extreme Ozone Attainment Plan,‖ 

adopted by the SJVUAPCD on October 8, 2004 and submitted to EPA 

by CARB on November 15, 2004 and the relevant portions of the 

CARB‘s ―2003 State and Federal Strategy for the California State 

Implementation Plan‖ adopted on October 23, 2003 and submitted 

to EPA on January 9, 2004. 

As initially submitted, the attainment demonstration in the 

2004 Ozone SIP included 5 tpd of NOx and 5 tpd of VOC emissions 

reductions from new technology measures (referred to as ―longterm measures‖ in 2004 Ozone SIP). See CARB, ―Staff Report, 

Proposed 2004 State Implementation Plan for Ozone in the San 

Joaquin Valley,‖ September 28, 2004, Table E-2, p. 5. These 

reductions were part of the District‘s emissions reductions 

commitments. Id. However, prior to EPA‘s action on the 2004 

Ozone SIP, the District adopted and submitted rules that 

provided sufficient emissions reductions to meet its all its 

commitments including its commitments for reductions from new 

technology measures. See 74 FR 33933, 33937 (July 14, 2009). As 

a result, EPA did not approve any element of the 2004 SIP under 

the CAA section 182(e)(5) new technology provision. See 75 FR 

10420, 10436-37 (March 8, 2010). The 2004 Ozone SIP also 

included commitments by CARB to achieve 15 tpd of VOC and 20 tpd 

of NOx emissions reductions in the SJV by 2010; likewise, these 

commitments were approved as meeting the requirements of CAA 

section 110(a)(2)(A) and 172(c)(6) and not CAA section 
76

Reductions from new technology measures in the 2004 Ozone SIP 

accounted for less than 4 percent of the overall reductions in 

that SIP‘s attainment demonstration; and the District 

subsequently showed that it had adopted sufficient measures to 

achieved these reductions. See 74 FR 33933, 33937 (July 14, 

2009).

Finally, we disagree with commenters‘ argument that EPA 

must direct CARB to ―extract from the black box needed 

reductions they know will not come from future technologies, 

reduce the overall size of the black box to a reasonable level 

and better define where the remaining black box reductions are 

expected to come from.‖ It is not possible at this point in time 

to know that certain emissions reductions will not come from 

future technologies, and we do not believe it is reasonable to 

require the State to reduce the amount of emissions reductions 

attributed to the long-term strategy by either implementing 

measures or incremental reductions beyond those otherwise 

mandated by the Act or developing measures based on control 

techniques not yet identified or commercially available for 

implementation in the area. As explained above, the State has 

met the statutory criteria for approval of its long-term 

strategy under CAA section 182(e)(5). 

 

182(e)(5). Id.
77

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

Comment: AIR asserts that EPA has also failed to assess the 

adequacy of the SIP‘s compliance with the requirement in CAA 

section 182(d)(1)(A) that the SIP provide adequate enforceable 

control measures ―to allow total area emissions to comply with 

RFP and attainment requirements.‖ AIR argues that, because the 

area has not adopted sufficient enforceable control measures to

provide for attainment (citing to its comments that the 

attainment demonstration is not approvable because, inter alia, 

measures relied on in that demonstration were not in the SIP), 

this provision must be met and EPA must direct the 

State/District to adopt the additional measures needed for 

attainment, either as TCMs to reduce motor vehicle emissions, or 

as controls on other source categories so that total emissions 

reductions provide for attainment. 

Response: CAA section 182(d)(1)(A) requires the State to 

―submit a revision that identifies and adopts specific 

enforceable transportation control strategies and transportation 

control measures ...to attain reductions in motor vehicle 

emissions as necessary, in combination with other emissions 

reduction requirements of [title 1, part D, subpart 2], to 

comply with the requirements of [sections 182] (b)(2)(B) and 

(c)(2)(B)‖ and ―to consider measures specified in section 
78

108(f)... and to choose from among and implement such measures as 

necessary to demonstrate attainment.‖

We have determined that the SJV 2007 8-hour Ozone SIP meets 

the RPF requirements in sections 182(b)(2)(B) and (c)(2)(B) and 

demonstrates attainment consistent with the subpart 2 

requirements and thus also meets the requirements of section 

182(d)(1)(A) to adopt transportation control strategies and TCMs 

as necessary to demonstrate RFP and attainment. See 76 FR 57846, 

57863 and TSD, section II.H.3.; see also, TSD, section III.A.2. 

(responding to comments on the approvability of the baseline 

emissions inventory and the attainment demonstration). The SIP 

also includes documentation that the state considered the 

transportation control measures listed in CAA section 108(f), 

evaluated their effectiveness in contributing to expeditious 

attainment, and concluded that they would not. See 2007 Ozone 

SIP, appendix D; 76 FR 57846, 57852 and 57863 and TSD, sections 

II.B.3.b. and II.H.2.

We disagree with AIR‘s summary of the CAA section 

182(d)(1)(A) requirements related to RFP and attainment. This 

specific section does not require that the SIP provide ―adequate 

enforceable control measures  ̳to allow total area emissions to 

comply with RFP and attainment requirements‘‖ but rather it 

requires that the state adopt enforceable transportation 
79

strategies and TCM as necessary in combination with other 

emissions reduction requirement of subpart 2 to demonstrate RFP 

and to implement TCMs as necessary to demonstration attainment. 

Thus, if other SIP provisions provide for RFP and attainment 

consistent with applicable CAA requirements (including, in this 

case, the provisions of CAA section 182(e)(5)), then the state 

has no obligation under section 182(d)(1)(A) to adopt 

transportation control strategies and TCMs for RFP and 

attainment purposes.

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 1997 8-

hour ozone standards in the SJV, the District made specific 

commitments to adopt nineteen measures on the schedule 

identified in the Plan. See 2007 Ozone Plan, Table 6-1 (revised 

December 18, 2009). The District has now completed its actions 

on all measures except for one which it found to be infeasible. 

See Table 1 below. As Table 1 shows, EPA has approved all of the 

adopted rules except for one, which EPA is not currently 

crediting with emissions reductions in the RFP or attainment 

demonstration.
80

Table 1

San Joaquin Valley Air Pollution Control District

2007 Ozone Plan Specific Rule Commitments

Measure 

Number & 

Description

District 

Rule 

Number

Adoption Date

Anticipat SIP Status

ed Actual 

S-GOV-1 

Composting 

Biosolids

4565 1

st Q –

2007

March 

2007

Approved: 

December 13, 

2011 (signature 

date)

S-AGR-1 Open 

Burning 

(Phase IV)

4103 2

nd Q –

2010

April 

2010

Approved: 

September 29,

2011 (signature 

date)

S-SOL-11 Solvents

Organic 

Solvents 4661

3

rd Q –

2007

September 

2007

Approved: 75 FR 

24406 (May 5, 

2010)

Organic 

Solvent 

Degreasing

4662 September 

2007

Approved: 74 FR 

37948 (July 30, 

2009) 

Organic 

Solvent 

Cleaning

4663 September 

2007

Approved: 74 FR 

37948 (July 30, 

2009) 

S-COM-5 

Stationary 

Gas Turbines

4703 3

rd Q –

2007

September 

2007

Approved: 74 FR 

53888 (October 

21, 2009)

S-IND-24 

Soil 

Decontaminati

on

4651 3

rd Q –

2007

September 

2007

Approved: 74 FR 

52894 (October 

15, 2009)

S-IND-6 

Polystyrene 

Foam

4682 3

rd Q –

2007

September 

2007

Approved: 76 FR 

41745 (July 15, 

2011)

S-PET-1&2 

Gasoline 

Storage & 

Transfer

4623

4624

4

th Q –

2007

December 

2007

Approved: 74 FR 

56120 (October 

30, 2009)

S-PET-3 

Aviation Fuel 

—

3

rd Q –

2007

found not 

feasible Found infeasible
81

Measure 

Number & 

Description

District 

Rule 

Number

Adoption Date

Anticipat SIP Status

ed Actual 

Storage

S-COM-1 Large 

Boilers

4306

4320

3

rd Q –

2008

October 

2008

Approved: 75 FR

1715 (January 

13, 2010) and 76 

FR 16696 (March 

25, 2011)

S-COM-2 

Boilers, 

Steam 

Generators 

and Process 

Heaters (2 to 

5 MMBtu/hr)

4307 3

rd Q –

2008

October 

2008

Approved: 75 FR 

1715 (January 

13, 2010)

S-COM-7 Glass 

Melting 

Furnaces1

4354 3

rd Q –

2008

October 

2008

Approved: 76 FR 

53640 (August 

29, 2011)

S-SOL-20 

Graphic Arts 4607 4

th Q –

2008

December 

2008

Approved: 74 FR 

52894 (October 

15, 2009)

S-COM-9 

Residential 

Water Heaters

4902 1

st Q –

2009

March 

2009

Approved: 75 FR 

24408 (May 5, 

2010)

S-GOV-5 

Composting 

Green Waste

4566 4

th Q 0 

2010

August 

2011

Rule adopted 

August 2011, 

Submitted 

November 18, 

2011

S-IND-21 

Flares 4311 2

nd Q –

2009 June 2009

Approved: 76 FR 

68106 (November 

3, 2011)

S-IND-14 

Brandy and 

Wine Aging

4695 3

rd Q –

2009

September 

2009

Approved: 76 FR 

47076 (August 4, 

2011)

S-SOL-1 

Architectural 

Coatings

4601 4

th Q –

2009

December 

2009

Approved: 76 

FR69135 

(November 8, 

2011)
82

Measure 

Number & 

Description

District 

Rule 

Number

Adoption Date

Anticipat SIP Status

ed Actual 

S-AGR-2 

Confined 

Animal 

Facilities

4570 2

nd Q –

2010

October 

2010

Approved: 

December 13, 

2011 (signature 

date)

S-SOL-6 

Adhesives 4653 3

rd Q –

2010

September 

2010

Approved: 

November 18, 

2011 (signature 

date)

Source: List of measures and anticipated adoption dates: 2007

Ozone Plan, Table 6-1, revised December 18, 2009. 

As part of its control strategy for attaining the 1997 8-

hour ozone standards in the SJV, CARB committed to propose 

certain measures on the schedule identified in the 2007 State 

Strategy. These commitments were updated in the 2011 Progress 

Report and 2011 Ozone SIP Revisions. We list these measures and 

their current approval status 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,‖ ―Cleaner In-Use Off-Road 

Engines,‖ and ―Consumer Products Program‖ measures are currently 

credited with reductions in the attainment demonstration. See 76 

FR 57846, 57853 (Table 7).

Generally, EPA will approve a State plan that takes 

emissions reduction credit for a control measure only where EPA 

has approved the measure as part of the SIP, or in the case of 
83

certain on-road and nonroad measures, where EPA has issued the 

related waiver of preemption or authorization under CAA section 

209(b) or section 209(e). In our September 2011 proposed rule, 

in calculating and proposing to approve the State‘s aggregate 

emissions reductions commitment in connection with our proposed 

approval of the attainment demonstration, we assumed that full 

final approval, waiver, or authorization of a number of CARB 

rules would occur prior to our final action on the San Joaquin 

Valley 8-hour ozone SIP. See 76 FR 57846, 57853 (Table 7). Two 

specific adopted 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 could 

not take final action on the rules until these rules were 

approved by the California Office of Administrative Law (OAL). 

OAL approved the Drayage Truck Rule on November 9, 2011 and the 

Truck Rule on December 14, 2011. CARB submitted the rules to EPA 

for final approval on December 9 and 15, 2011, respectively. We 

expect to complete action on these rules prior to the effective 

date of this rule.

Based on anticipated approval of these two CARB rules, we 

are allowing the plan‘s attainment demonstration, and our final
84

approval of it, to rely on the emissions reductions from these 

rules for the following reasons: 

Both rules have been adopted by CARB, approved by the 

California OAL, and submitted to EPA as a revision to the 

California SIP,36 and the adopted versions are essentially 

the same as those for which EPA proposed approval; and

The comments that we have received on our proposed approval 

of the two CARB rules (Truck Rule and Drayage Truck Rule) 

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)].

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 2007 8-hour Ozone SIP, and our final 

approval of it, on the emissions reductions associated with the 

rules is reasonable and appropriate. If, however, we are unable 

to complete a final action on these rules prior to the effective 

date of today‘s action, we will take appropriate remedial action 

 

36 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.
85

to ensure that our action on the plan is fully supportable or to 

reconsider that action.

Table 2

2007 State Strategy Defined Measures Applicable to the SJV, 

Schedule for Consideration and Current Status

State Measures

Expected 

Action 

Year

Current Status

Smog Check 

Improvements 2007-2009 Elements approved 75 FR 38023 (July 1, 2010)37

Expanded Vehicle 

Retirement (AB 

118)

2007

Adopted by CARB, June 2009; by 

Bureau of Automotive Repair, 

September 2010.

Modification to 

Reformulated 

Gasoline Program

2007 Approved, 75 FR 26653 (May 12, 

2010)

Cleaner In-Use 

Heavy Duty Trucks

(includes Drayage 

rule)

2007, 

2008, 2010

Proposed for approval: 76 FR 

40652 (July 11, 2011) See 

discussion above.

Accelerated 

Introduction of 

Cleaner 

Locomotives

2008

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 Waiver decision pending. 

Cleaner In-Use 

Agricultural 

Equipment

2013

Incentive program in progress. 

Additional action expected 

2013.

New Emissions 

Standards for 2013 Action expected 2013.

 

37 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 Ozone SIP Revisions do not include 

reductions from AB 2289 improvements. 2011 Ozone SIP Revisions, 

Appendix C.
86

State Measures

Expected 

Action 

Year

Current Status

Recreational Boats

Expanded Off-Road 

Recreational 

Vehicle Emissions 

Standards

2013 Action expected 2013

Enhanced Vapor 

Recovery for Above 

Ground Storage 

Tanks

2008

Adopted June 2007. Requirements 

implemented through District 

Rule 4621

Additional 

Evaporative 

Emissions 

Standards

2013 Action expected 2013.

Consumer Products 

Program (I & II)

2008, 

2009, 2011

Approved 74 FR 57074 (November 

4, 2009), 76 FR 27613 (May 12, 

2011) and December 7, 2011 

(signature date)

Pesticide 

Regulation (DPR) 2008, 2009 Submitted October 2009, revisions submitted August 2011

Source: 2009 State Strategy Status Report, p.4, 2011 

Progress Report, Table 1, and 2011 Ozone SIP Revisions, Appendix 

A-3. Additional information from www.ca.arb.gov. 

B. Enforceable Emissions Reductions Commitments

For the 2007 Ozone Plan, the District committed to achieve 

certain aggregate emissions reductions of NOx and VOC. See 2007 

Ozone Plan, Table 6-1 (revised December 18, 2008). See Table 3. 

EPA is approving these aggregate emissions reductions 

commitments.

Table 3

San Joaquin Valley Air Pollution Control District 

2007 Ozone Plan Aggregate Emissions Reductions Commitments

(tons per summer day)
87

2011 2012 2014 2017 2020 2023

NOx 4.4 6.0 6.3 7.8 8.0 8.2

VOC 15.3 26.5 40.5 42.2 44.5 46.3

Source: 2007 Ozone Plan, Table 6-1, revised December 18, 2008

In the 2007 State Strategy, CARB committed to achieve 

certain aggregate emissions reductions of 46 tpd NOx and 25 tpd 

VOC in the SJV by the attainment year of 2023 that are 

sufficient, in combination with existing SIP-creditable 

measures, the District‘s commitments, and commitments for 

reductions under the CAA section 182(e)(5) new technologies 

provision, to attain the 1997 8-hour ozone standard in the San 

Joaquin Valley by the applicable attainment date of June 15, 

2024. CARB also made enforceable commitments to achieve 

aggregate emissions reductions in the SJV in the RFP milestone 

years of 2014, 2017, and 2020. See 2007 State Strategy, p. 63;

CARB Resolution 07-28, Attachment B, p. 6; and 2009 State 

Strategy Status Report, p. 21. See Table 4 below.

The 2011 Ozone SIP Revisions revised the State's emissions 

estimates for certain source categories and projection years and 

provided additional information on the State and District's 

progress to date in achieving their total emissions reduction

commitments. In this action, we are approving CARB's and the 

District's emissions reduction commitments as submitted in the 

2007 State Strategy, 2009 State Strategy Update and the 2007 

Ozone Plan without change, because we do not have sufficient 
88

information to determine how the 2011 SIP Revision alters the 

State's near-term and CAA section 182(e)(5) emissions reduction 

commitments. We note that the amount and relative proportion of 

reductions from measures scheduled for adoption under CAA 

section 182(e)(5), as compared to measures already adopted or 

scheduled for near-term adoption, should decrease in any future 

SIP update.

Table 4

CARB Commitments to Specific Aggregate Emissions Reductions

(tons per summer day)

2014 2017 2020 2023

2023

CAA 

182(e)(5)

VOC 23 —

1 24 25 —1

NOx 17.12 88-93 56 46 81

Source: 2009 State Strategy Status Report, p. 21.

1 No commitment to VOC reductions in 2017 or to VOC reductions 

pursuant to CAA 182(e)(5) advanced technologies provision.

2 As modified in the final approval of the SJV 2008 PM2.5 SIP, 

see 76 FR 69896, 69924.

IV. Approval of the Motor Vehicle Emissions Budgets for

Transportation Conformity

CARB submitted updated MVEB for the San Joaquin Valley and 

their documentation in Appendices A and C, respectively, of the 

2011 Ozone SIP Revisions. As part of our review of the budgets‘ 

approvability, EPA evaluated the revised budgets using our 

adequacy criteria in 40 CFR 93.318(e)(4). We posted the revised 
89

budgets on EPA‘s adequacy review web page on September 19, 2011 

and requested public comment by October 19, 2011. We did not 

receive any comments. As documented in Table K-3 in the TSD, we 

found that the budgets meet each adequacy criterion. We have 

completed our detailed review of the 2007 SJV 8-hour Ozone SIP 

and supplemental submittals including the 2011 Ozone SIP 

Revisions and are approving the SIP‘s attainment and RFP 

demonstrations. We have also reviewed the MVEB submitted with 

the 2011 Ozone SIP Revisions and have found that they are 

consistent with the attainment and RFP demonstrations and are

based on control measures that have already been adopted and 

implemented. Therefore, we are approving the 2011, 2014, 2017, 

2020, and 2023 MVEB as shown in Table 5.

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 

can include these reductions in future conformity determinations 

in accordance with 40 CFR 93.122. In addition, for these 
90

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).

During the comment period on the proposed approval of the 

SJV 2007 8-hour Ozone SIP, CARB requested that EPA limit the 

duration of its approval of the budgets submitted on July 29, 

2011 as part of the 2011 Ozone SIP Revisions to last only until 

the effective date of EPA‘s adequacy finding for any 

subsequently submitted budgets. See letter, Douglas Ito, Chief, 

Air Quality and Transportation Planning Branch; California Air 

Resources Board, October 17, 2011.

The transportation conformity rule allows EPA to limit the 

approval of budgets. See 40 CFR 93.118(e)(1). However, we can 

only consider a state‘s request to limit an approval of its MVEB 

if the request includes the following elements:

an acknowledgement and explanation as to why the budgets under 

consideration have become outdated or deficient; 

a commitment to update the budgets as part of a comprehensive 

SIP update; and
91

a request that EPA limit the duration of its approval to the 

time when new budgets have been found to be adequate for 

transportation conformity purposes. 

See 67 FR 69141 (November 15, 2002) (limiting our prior approval 

of MVEB in certain California SIPs).

Because CARB‘s request does not include all of these 

elements, we cannot address it at this time. Once CARB has 

adequately addressed them, we intend to propose to limit the 

duration of our approval of the MVEB in the SJV 2007 8-hour 

Ozone SIP and provide the public an opportunity to comment.

38 The 

duration of the approval of the budgets, however, is not limited 

until we complete such a rulemaking.

 

38 CARB‘s letter also requested that we limit the duration of 

our approval of the MVEB approved with the 2008 PM2.5 Plan. These 

budgets were also submitted on July 29, 2011 as an appendix to 

the 2001 Ozone SIP Revisions.
92

Table 5

Motor Vehicle Emissions Budget in the SJV 2007 Ozone SIP 

as Revised on July 21, 2011

(tons per summer day)

Year 2011 2014 2017 2020 2023

County ROG NOx ROG NOx ROG NOx ROG NOx ROG NOx

Fresno 14.3 36.2 10.7 30.0 9.3 22.6 8.3 17.7 8.0 13.5

Kern (SJV) 12.7 50.3 9.7 42.7 8.7 31.7 8.2 25.1 7.9 18.6

Kings 2.8 10.7 2.1 8.9 1.8 6.7 1.7 5.3 1.6 4.0

Madera 3.4 9.3 2.5 7.7 2.2 5.8 2.0 4.7 1.9 3.6

Merced 5.1 19.9 3.7 16.7 3.2 12.4 2.9 9.9 2.8 7.4

San 

Joaquin 11.1 24.6 8.4 20.5 7.2 15.6 6.4 12.4 6.3 10.0

Stanislaus 8.5 16.9 6.4 13.9 5.6 10.6 5.0 8.4 4.7 6.4

Tulare 8.8 16.0 6.7 13.2 5.8 10.1 5.3 8.1 4.9 6.2
93

V. Final Actions 

For the reasons discussed in our September 16, 2011 

proposed rule (76 FR 57846) and further explained above, EPA is 

approving California‘s SIP for attaining the 1997 8-hour ozone

NAAQS in the San Joaquin Valley. The California 8-hour ozone

attainment SIP for the San Joaquin Valley is composed of the 

SJVUAPCD‘s 2007 Ozone Plan as revised in 2009 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 8-hour ozone NAAQS in the SJV.

Specifically, EPA is approving under CAA section 110(k)(3) 

the following elements of the SJV 2007 8-hour ozone attainment 

SIP:

1. the revised 2002 base year emissions inventory as 

meeting the requirements of CAA sections 182(a)(1) and 40 CFR 

51.915;

2. the reasonably available control measures demonstration 

as meeting the requirements of CAA section 172(c)(1) and 40 CFR 

51.912(d);

3. the reasonable further progress demonstration as meeting 

the requirements of CAA section 172(c)(2) and 182(c)(2)(B) and 

40 CFR 51.910;
94

4. the attainment demonstration as meeting the requirements 

of CAA sections 182(c)(2)(A) and 40 CFR 51.908;

5. the provisions for the development of new technologies 

pursuant to CAA section 182(e)(5) and CARB‘s commitment to adopt 

and submit by 2020 contingency measures to be implemented if the 

new technologies do not achieve the planned emissions reductions

and additional attainment contingency measures meeting the 

requirements of CAA 172(c)(9) as given in CARB Resolution 11-22 

(July 21, 2011), and CARB‘s commitment to develop and submit by 

2020 revisions to the SIP that will: (1) reflect modifications 

to the 2023 emissions reduction target based on updated science 

and (2) identify additional strategies and implementing agencies 

needed to achieve the needed reductions by 2023 as given in the 

2011 Ozone SIP Revisions on page A-8;

6. the contingency measure provisions for failure to make 

RFP and to attain as meeting the requirements of CAA sections 

172(c)(9) and 182(c)(9);

7. the demonstration that the SIP provides for 

transportation control strategies and measures sufficient to 

offset any growth in emissions from growth in VMT or the number 

of vehicle trips and to provide for RFP and attainment as 

meeting the requirements CAA section 182(d)(1)(A);
95

8. the revised motor vehicle emissions budgets for the RFP 

years of 2011, 2014, 2017, and 2020 and the attainment year of 

2023 submitted on July 29, 2011 because they are derived from 

approvable RFP and attainment demonstrations and meet the 

requirements of CAA section 176(c) and 40 CFR part 93, subpart 

A;

9. SJVUAPCD's commitments to achieve specific aggregate 

emissions reductions of direct VOC and NOx, as listed in Table 6-

1 of the 2007 Ozone Plan (as revised December 18, 2008) and as 

given in Table 3 above; and 

10. 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 and in Appendix A-3 of the 2011 Ozone SIP 

Revisions, to achieve aggregate emissions reductions of 23 tpd 

of VOC by 2014; 88-93 tpd of NOx by 2017; 24 tpd of VOC and 46 

tpd of NOx by 2023 from existing technologies and 81 tpd of NOx 

by 2023 from new technologies as provided in CARB Resolution 07-

28, Attachment B and the 2009 State Strategy Status Report; p. 

20 and as given in Table 4 above; to update the SJV 2007 Ozone 

Plan modeling to reflect the emissions inventory improvements 

and any other new information by December 31, 2014 or by the 

date the SIPs are due for the revised 8-hour ozone standard,

whichever comes first, as provided in CARB Resolution 11-22 
96

(July 21, 2011), p. 3, and to achieve the emissions reductions 

needed to attain the 8-hour ozone standard in the SJV as 

provided in CARB Resolution 07-28 (September 27, 2007), Appendix 

B, p. 3, 2009 State Strategy Status Report, p. 13.

Finally, we find that SJVUAPCD has satisfied the clean 

fuel/advanced technology requirement for boilers in CAA section 

182(e)(3) for the SJV.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review 

The Office of Management and Budget (OMB) has exempted this 

regulatory action from Executive Order 12866, entitled 

―Regulatory Planning and Review.‖

B. Paperwork Reduction Act 

This action does not impose an information collection 

burden under the provisions of the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an 

agency to conduct a regulatory flexibility analysis of any rule 

subject to notice and comment rulemaking requirements unless the 

agency certifies that the rule will not have a significant 

economic impact on a substantial number of small entities. Small 
97

entities include small businesses, small not-for-profit 

enterprises, and small governmental jurisdictions. 

This rule will not have a significant impact on a 

substantial number of small entities because SIP approvals under 

section 110 and subchapter I, part D of the Clean Air Act do not 

create any new requirements but simply approve requirements that 

the State is already imposing. Therefore, because this approval 

action does not create any new requirements, I certify that this 

action will not have a significant economic impact on a 

substantial number of small entities.

Moreover, due to the nature of the Federal-State 

relationship under the Clean Air Act, preparation of flexibility 

analysis would constitute Federal inquiry into the economic 

reasonableness of State action. The Clean Air Act forbids EPA to 

base its actions concerning SIPs on such grounds. Union Electric 

Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 

7410(a)(2).

D. Unfunded Mandates Reform Act

Under sections 202 of the Unfunded Mandates Reform Act of 

1995 (―Unfunded Mandates Act‖), signed into law on March 22, 

1995, EPA must prepare a budgetary impact statement to accompany 

any proposed or final rule that includes a Federal mandate that 

may result in estimated costs to State, local, or tribal 
98

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 this approval action as 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 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 
99

defined in the Executive Order to include regulations that have 

―substantial direct effects on the States, on the relationship 

between the national government and the States, or on the 

distribution of power and responsibilities among the various 

levels of government.‖ Under Executive Order 13132, EPA may not 

issue a regulation that has federalism implications, that 

imposes substantial direct compliance costs, and that is not 

required by statute, unless the Federal government provides the 

funds necessary to pay the direct compliance costs incurred by 

State and local governments, or EPA consults with State and 

local officials early in the process of developing the proposed

regulation. EPA also may not issue a regulation that has 

federalism implications and that preempts State law unless the 

Agency consults with State and local officials early in the 

process of developing the proposed regulation.

This rule will not have substantial direct effects on the 

States, on the relationship between the national government and 

the States, or on the distribution of power and responsibilities 

among the various levels of government, as specified in 

Executive Order 13132, because it merely approves a State rule 

implementing a Federal standard, and does not alter the 

relationship or the distribution of power and responsibilities 
100

established in the Clean Air Act. Thus, the requirements of 

section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

Executive Order 13175, entitled ―Consultation and 

Coordination with Indian Tribal Governments‖ (65 FR 67249, 

November 9, 2000), requires EPA to develop an accountable 

process to ensure ―meaningful and timely input by tribal 

officials in the development of regulatory policies that have 

tribal implications.‖ This final rule does not have tribal 

implications, as specified in Executive Order 13175. It will not 

have substantial direct effects on tribal governments, on the 

relationship between the Federal government and Indian tribes, 

or on the distribution of power and responsibilities between the 

Federal government and Indian tribes. Thus, Executive Order 

13175 does not apply to this rule.

G. Executive Order 13045, Protection of Children from 

Environmental Health Risks and Safety Risks

EPA interprets Executive Order 13045 (62 FR 19885, April 

23, 1997) as applying only to those regulatory actions that

concern health or safety risks, such that the analysis required 

under section 5-501 of the Executive Order has the potential to 

influence the regulation. This rule is not subject to Executive 
101

Order 13045, because it approves a State rule implementing a 

Federal standard. 

H. Executive Order 13211, Actions that Significantly Affect 

Energy Supply, Distribution, or Use 

This rule is not subject to Executive Order 13211, ―Actions 

Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use‖ (66 FR 28355, May 22, 2001) because it is 

not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and 

Advancement Act (NTTAA) of 1995 requires Federal agencies to 

evaluate existing technical standards when developing a new 

regulation. To comply with NTTAA, EPA must consider and use 

―voluntary consensus standards‖ (VCS) if available and 

applicable when developing programs and policies unless doing so 

would be inconsistent with applicable law or otherwise 

impractical.

The EPA believes that VCS are inapplicable to this action. 

Today‘s action does not require the public to perform activities 

conducive to the use of VCS.

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Population
102

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) 

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in 

the United States.

EPA lacks the discretionary authority to address 

environmental justice in this rulemaking. In reviewing SIP 

submissions, EPA‘s role is to approve or disapprove state 

choices, based on the criteria of the Clean Air Act. 

Accordingly, this action merely approves certain State 

requirements for inclusion into the SIP under CAA section 110 

and subchapter I, part D and 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
103

The Congressional Review Act, 5 U.S.C. section 801 et seq., 

as added by the Small Business Regulatory Enforcement Fairness 

Act of 1996, generally provides that before a rule may take 

effect, the agency promulgating the rule must submit a rule 

report, which includes a copy of the rule, to each House of the 

Congress and to the Comptroller General of the United States. 

EPA will submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a ―major 

rule‖ as defined by 5 U.S.C. section 804(2). This rule will be 

effective on [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 
104

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, Ozone, Volatile 

organic compounds.

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

December 15, 2011 /s/

 .

Dated: Jared Blumenfeld,

Regional Administrator,

EPA Region 9
105

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)(4), (c)(396)(ii)(A)(1)(i) and (2)(i), 

(c)(397)(ii)(A)(4) and (B), and (c)(408).

§52.220 Identification of plan.

* * * * *

(c) * * *

(356) * * *

(i) * * *

(ii) * * *

(B) * * *

(4) CARB Resolution No. 07-28 with Attachments A and B, 

September 27, 2007. Commitments to achieve the total emissions 

reductions necessary to attain the Federal standards in the SJV 

air basin, which represent aggregate emissions reductions of 24 

tons per day (tpd) of volatile organic compounds (VOC) and 46 

tpd of nitrogen oxides (NOx) by 2023 from existing technologies 
106

and 81 tpd of NOx by 2023 from new technologies and to achieve 

23 tpd of VOC by 2014; 88-93 tpd of NOx by 2017; 24 tpd of VOC 

and 56 tpd of NOx by 2020 as provided in CARB Resolution 07-28, 

Attachment B, pp. 3-6 as modified by the 2009 State Strategy 

Status Report, pp. 20-21 as adopted by CARB Resolution No. 09-34 

(April 24, 2009).

* * * * *

(396) * * *

(i) * * *

(ii) * * *

(A) * * *

(1) * * *

(i) Commitment to develop and submit by 2020 revisions to the 

SIP that will: (1) reflect modifications to the 2023 emissions 

reduction target based on updated science and (2) identify 

additional strategies and implementing agencies needed to 

achieve the needed reductions by 2023 as given in the 2011 Ozone 

SIP Revisions on page A-8.

(2) * * *

(i) Commitment to develop, adopt and submit by 2020 contingency 

measures to be implemented if advanced technology measures do 

not achieve the planned reductions and attainment contingency 
107

measures meeting the requirements of CAA 172(c)(9), pursuant to 

CAA section 182(e)(5) as given on page 4.

(ii) Commitment to update the air quality modeling in the SJV 

2007 Ozone Plan to reflect the emissions inventory improvements 

and any other new information by December 31, 2014 or the date 

by which state implementation plans are due for the expected 

revision to the federal 8-hour ozone standard whichever comes 

first, as provided on page 3. 

* * * * *

(397) * * *

(i) [Reserved]

(ii) Additional Material.

(A) * * *

(4) CARB Resolution No. 07-20 with Attachment A, June 14, 2007.

(B) San Joaquin Valley Unified Air Pollution

Control District.

(1) 2007 Ozone Plan, adopted on April 30, 2007. 

(2) SJVUAPCD Governing Board, In the Matter of: Adopting the San 

Joaquin Valley Unified Air Pollution Control District 2007 Ozone

Plan, Resolution No. 07-04-11a, April 30, 2007. Commitments to 

achieve emissions reductions as described in Table 6-1 of the 

2007 Ozone Plan, as amended December 18, 2008.

(408) An amended plan was submitted on April 24, 2009 by the
108

Governor‘s designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Unified Air Pollution

Control District.

(1) Amendments to the 2007 Ozone Plan (amending the rulemaking 

schedule for Measure S-GOV-5 Organic Waste Operations) adopted 

on December 18, 2008. 

(2) SJVUAPCD Governing Board, In the Matter of: Proposed 

Amendment to the 2007 Ozone Plan to Extend the Rule Adoption 

Schedule for Organic Waste Operations, SJVUAPCD Governing Board 

Resolution No. 08-12-18. December 18, 2008.

* * * * *