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No. 217/Wednesday, November 9, 2011/Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0516; FRL-9482-2]

Approval and Promulgation of

Implementation Plans; California; 2008

San Joaquin Valley PM2 .

5 Plan and

2007 State Strategy

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving in part and

disapproving in part state

implementation plan (SIP) revisions

submitted by California to provide for

attainment of the 1997 fine particulate

matter (PM2.

5) national ambient air

quality standards in the San Joaquin

Valley (SJV). These SIP revisions are the

SJV 2008 PM 2.

5 Plan (revised 2010 and

2011) and SJV-related provisions of the

2007 State Strategy (revised 2009 and

2011). EPA is approving the emissions

inventory, the reasonably available

control measures/reasonably available

control technology demonstration,

reasonable further progress

demonstration, attainment

demonstration and associated air quality

modeling, and the transportation

conformity motor vehicle emissions

budgets. EPA is also granting

California's request to extend the

attainment deadline for the SJV to April

5, 2015 and approving commitments to

measures and reductions by the SJV

Unified Air Pollution Control District

and the California Air Resources Board.

Finally, it is disapproving the SIP's

contingency provisions and issuing a

protective finding for transportation

conformity determinations under 40

CFR 93.120(a)(3) for this disapproval.

DATES: The rule is effective January 9,

2012.

ADDRESSES: EPA has established docket

number EPA-R09-OAR-2010-0516 for

this action. The index to the docket is

available electronically at http://

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:

e California Air Resources Board,

1001 I Street, Sacramento, California

95812

e 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 QualityPlans!

PM Plans.htm and http://

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

FOR FURTHER INFORMATION CONTACT:

Frances Wicher, Air Planning Office

(AIR-2), U.S. Environmental Protection

Agency, Region 9, (415) 972-3957,

wicher.frances@epa.gov

SUPPLEMENTARY INFORMATION:

Throughout this document, "we", "us"

and "our" refer to EPA.

Table of Contents

I. Summary of EPA's Proposed and Final

Actions on the 2008 State

Implementation Plan for Attainment of

the 1997 PM2.5 Standards in the San

Joaquin Valley

II. Response to Public Comments Received on the Proposals

III. Approval Status of the Control Strategy

Measures and Final Actions on the

Attainment Demonstration and

Enforceable Commitments

IV. Approval of the Motor Vehicle Emissions

Budgets and Trading Mechanism for

Transportation Conformity

V. Final Actions and Resulting Clean Air Act

Consequences

VI. Statutory and Executive Order Reviews

I. Summary of EPA's Proposed and

Final Actions on the 2008 State

Implementation Plan for Attainment of

the 1997 PM2.5 Standards in the San

Joaquin Valley

On July 13, 2011, EPA proposed to

approve in part and disapprove in part

California's state implementation plan

(SIP) for attaining the 1997 fine

particulate (PM2.

5) national ambient air

quality standards (NAAQS) in the San

Joaquin Valley (SJV). See 76 FR 41338.

California developed this SIP to provide

for expeditious attainment of the PM 2.5

standards in the SJV and to meet other

applicable PM2.5 planning requirements

in Clean Air Act (CAA) section 172(c)

and EPA's PM 2.

5 implementation rule.'

In all, California has made six

submittals to address the PM 2.5 SIP

planning requirements for the SJV. The

two principal ones are the SJV Unified

Air Pollution Control District's

(SJVUAPCD or District) 2008 PM 2.

5 Plan

1 "The Clean Air Fine Particle Implementation

Rule for the 1997 PM 2.5 NAAQS," 72 FR 20586

(April 25, 2007) and codified at 40 CFR part 51,

subpart Z (PM2.5 implementation rule).

(amended 2010 and 2011) and the

California Air Resources Board's (CARB)

State Strategy for California's 2007 State

Implementation Plan (amended 2009

and 2011).2 Together, the 2008 PM 2.5

Plan and the 2007 State Strategy present

a comprehensive and innovative

strategy for attaining the 1997 PM 2.5

standards in the SJV.

In our July 2011 notice, EPA proposed

multiple approval actions on the SJV

2008 PM 2.5 SIP. First, we proposed to

approve the SIP's reasonably available

control measure/reasonably available

control technology (RACM/RACT)

demonstration, reasonable further

progress (RFP) demonstration,

attainment demonstration and

associated air quality modeling, base

year emissions inventory; air quality

modeling; and motor vehicle emissions

budgets. 3 Second, we proposed to

approve enforceable commitments by

both the District and CARB to certain

measures and specific amounts of

emissions reductions. Third, we

proposed to concur with the State's

determination that volatile organic

compounds (VOC) and ammonia are not

attainment plan precursors for

attainment of the 1997 PM 2.5 NAAQS in

2

These SIP submittals are:

1. SJVUAPCD, 2008 PM2. Plan, adopted on April

30, 2008 by the SJVUAPCD and on May 22, 2008

by CARB, submitted on June 30, 2008.

2. CARB, Proposed State Strategy for California's

2007 State Implementation Plan, as amended and

adopted on September 27, 2007 by CARB,

submitted on November 16, 2007.

3. CARB, Status Report on the State Strategy for

California's 2007 State Implementation Plan (SIP)

and Proposed Revisions to the SIP Reflecting

Implementation of the 2007 State Strategy (pages

11-27 only), adopted on April 24, 2009 by CARB,

submitted on August 12, 2009.

4. SJVUAPCD, 2008 PM2.

5 Plan Amendment to

Extend the Rule 4905 Amendment Schedule,

adopted on June 17, 2010 by the SJVUAPCD,

submitted on September 15, 2010

5. CARB, Progress Report on Implementation of

PM2.1 State Implementation Plans (SIP) for the

South Coast and San Joaquin Valley Air Basins and

Proposed SIP Revisions (Appendices B, C and D

only), adopted on April 28, 2011 by CARB,

submitted on May 18, 2011. "2011 Progress

Report."

6. CARB, 8-Hour Ozone State Implementation

Plan Revisions and Technical Revisions to the PM2.,

State Implementation Plan Transportation

Conformity Budgets for the South Coast and San

Joaquin Valley Air Basins, adopted on July 21, 2011

by CARB and submitted on July 29, 2011. ("2011

Ozone SIP Revisions") Only the PM 2.5 motor

vehicle emissions budgets in this submittal are

addressed in today's action.

3 The 2011 Progress Report contained budgets

that were not approvable because they included

emissions reductions from a rule that was ineligible

for SIP credit. These budgets also included data

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

instead to approve alternative budgets that CARB

had developed and posted for public comment as

part of its 2011 Ozone SIP Revisions and stated that

the approval was contingent on our receipt of the

SIP revision containing the revised budgets. Id.

CARB submitted that SIP revision on July 29, 2011.

69896 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69897

the SJV. Lastly, we proposed to grant

California's request to extend the

attainment date for the San Joaquin

Valley PM 2.

5 nonattainment area to

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

EPA also proposed to disapprove the

contingency measures provisions of the

SJV 2008 PM 2.

5 SIP for failing to provide

sufficient emissions reductions. 4 !d.

A more detailed discussion of each of

California's SIP submittals for the SJV

area, the CAA and EPA requirements

applicable to them, and our evaluation

and proposed actions can be found in

our July 2011 proposal (76 FR 41338)

and the technical support document

(TSD) for this final action. 5

Our July 2011 proposal was the

second time that EPA proposed action

on California's SJV 2008 PM 2.

5 SIP. On

November 30, 2010 (75 FR 74518), EPA

proposed to disapprove the majority of

the provisions in this SIP. During the

comment period for the November 2010

proposal, we received several comment

letters from the public as well as

comment letters from CARB and the

District. Subsequent to the close of the

comment period, CARB adopted and

submitted revisions to the SJV PM2.5

Plan and 2007 State Strategy. After

considering information contained in

the comment letters and the

supplemental SIP submittals, we issued

the July 2011 proposed rule which

substantially amended our November

2010 proposal.

EPA is today approving most

elements of the SJV 2008 PM 2.5 SIP

based on our conclusion that they

comply with applicable CAA

requirements and provides for

expeditious attainment of the 1997

PM2.5 standards in the San Joaquin

Valley. We are also today disapproving

the SIP's contingency measure

provisions because they do not provide

sufficient emissions reductions. We are

continuing to working with the State

and District to identify additional

control measures and incentive

programs that meet the CAA's

requirements for contingency measures

4 We also proposed to disapprove a commitment

by the District to adopt revisions to its Rule 4702

"Reciprocating Internal Combustion Engines" by

December 2010 because that date had passed and

the District had not adopted revisions to the rule.

We stated in the proposal that we would not

finalize this proposed disapproval if the District

adopted revisions to the rule by the time of our final

action on the SIP. See 76 FR 41338, 41361. On

August 18, 2011, the District adopted the revisions

to Rule 4702; therefore, we are not finalizing our

proposed disapproval of this commitment.

5 "Technical Support Document and Response to

Comments Final Rule on the San Joaquin Valley

2008 PM 2.5 State Implementation Plan," Air

Division, U.S. EPA Region 9, September 30, 2011.

The TSD can be found in the docket for this

rulemaking.

consistent with EPA regulations and

policy.

II. Response to Public Comments

Received on the Proposals

As part of this final action, EPA has

considered and provided responses to

the comments submitted in response to

both the November 2010 and the July

2011 proposals. Comments on our

proposals were received from:

The Center on Race, Poverty & the

Environment on behalf of the

Association of Irritated Residents (AIR)

and other San Joaquin Valley-based

environmental and community

organizations. AIR submitted comments

on both proposals.

Earthjustice, on behalf of Medical

Advocates for Healthy Air and other San

Joaquin Valley-based environmental and

community organizations. Earthjustice

submitted comments on both proposals.

SJVUAPCD provided comments on

the November 2010 proposal.

CARB provided two comment letters

on our November 2010 proposal. The

first transmitted air quality modeling

documentation and the second provided

comments on the proposal.6

Tom Frantz, President, AIR,

submitted comments on our November

2010 proposal.

Arthur D. Unger submitted comments

on our November 2010 proposal.

A copy of these comment letters and

their attachments can be found in the

docket for this final rule.

In the following sections, we

summarize our responses to the most

significant comments received on the

proposals. Our full responses to all

comments received can be found in the

"Response to Comments" section

(section III) of the TSD for this final

rule.

A. Comments on the Proposed Action

on the Emissions Inventory

Comment: Earthjustice comments on

the importance of emissions inventories,

noting that CAA section 172(c)(3)

requires that nonattainment plans

"include a comprehensive, accurate,

current inventory of actual emissions

from all sources of the relevant

pollutant or pollutants in such area."

Earthjustice objects to EPA's proposal to

approve the inventories in the 2008

PM 2.

5 SIP because they were current and

accurate "at the time the Plan was

developed and submitted," arguing that

such language is not in the CAA and is

not a reasonable extension of Congress's

6 The majority of CARB's and the District's

comments addressed the November 2010 proposed

disapprovals and EPA's grounds for them. These

comments were, for the most part, addressed by our

July 2011 amended proposal.

intent, which is to ensure the adoption

and approval of SIPs that will achieve

clean air meeting the NAAQS.

Earthjustice argues that an inventory

that is "known to be wrong"

undermines the modeling

demonstration of the emissions

reductions needed to attain, and that

EPA's interpretation suggests that

revisions to an inventory are needed

only when it is found that the inventory

is not current or accurate as of the date

it is submitted. Earthjustice argues that

such an interpretation undermines any

assurance that "the requirements of

[Part D of the CAA] are met." Finally,

Earthjustice asserts that "EPA cannot

approve these inventories as complying

with the requirements of section

172(c)(3) knowing that the data are not

valid for purposes of building an

attainment plan."

Response: EPA does not dispute the

importance of emissions inventories.

We evaluated the emissions inventories

in the 2008 PM 2.

5 Plan to determine

whether they satisfy the requirements of

CAA section 172(c)(3) and adequately

support the Plan's RACM, RFP and

attainment demonstrations. Based on

this evaluation, we have concluded that

the Plan's 2005 base year emissions

inventory was based on the most current

and accurate information available to

the State and District at the time the

Plan was developed and submitted and

comprehensively addresses all source

categories in the SJV area, consistent

with applicable CAA requirements and

EPA guidance. See 76 FR 41338 at

41342-41343 and 2011 Proposal TSD 7

at section IIA; see also "General

Preamble for Implementation of Title I

of the Clean Air Act Amendments of

1990," 57 FR 13498 at 13502 (April 16,

1992) ("General Preamble").

We do not agree with Earthjustice's

suggestion that EPA interprets the CAA

to require revisions to an emissions

inventory only when it is found that

such inventory is not current or accurate

as of the date it is submitted. Significant

changes to a base year inventory that

undermine the assumptions in an

attainment demonstration may, on a

case by case basis, call for a reevaluation

of the modeling or other planning

analyses supporting that demonstration.

In this case, however, as discussed in

the proposed rule (76 FR 41562, 41567)

and in section II.A. below, we have

concluded that the State's changes to its

methodologies for estimating future

7 "Technical Support Document for the Revised

Proposed Rulemaking Action on the San Joaquin

Valley 2008 PM 2.5 Plan and the San Joaquin Valley

Portions of the Revised 2007 State Strategy," Air

Division, U.S. EPA, Region 9, June 29, 2011, "2011

Proposal TSD."
No. 217/Wednesday, November 9, 2011/Rules and Regulations

emissions do not significantly affect the

2002 base year inventories and,

consequently, do not undermine the

modeling or other analyses that rely on

those inventories and that support the

attainment demonstration in the Plan.

Based on this technical assessment, we

have concluded that it is not necessary

in this case for the State to submit a

revised base year inventory. We note

that states are required to report

comprehensive emissions inventories to

EPA every three years under the Air

Emissions Reporting Requirements in 40

CFR part 51, subpart A. See 40 CFR

51.30(b).

CAA section 172(b) provides that "the

State containing [a nonattainment] area

shall submit a plan or plan revision

(including the plan items) meeting the

applicable requirements of [section

172(c) and section 110]" on the

schedule established by EPA, and

section 172(c) contains, inter alia, the

requirement that nonattainment plans "shall include a comprehensive,

accurate, current inventory of actual

emissions from all sources of the

relevant pollutant or pollutants in such

area." We believe it is reasonable to read

these provisions together as requiring

that the State submit an inventory that

is "comprehensive, accurate, [and]

current" at the time the State submitted

it to EPA, rather than requiring that the

State continually revise its plan as new

emissions data becomes available. See

Brief of Respondents, EPA, in Sierra

Club, et a]. v. U.S. EPA, et a]., Case Nos.

10-71457 and 10-71458 (consolidated),

May 5, 2011. States could never

effectively plan for air quality

improvements if they had to constantly

revise their inventories as new data

became available. Air quality planning

is an iterative process and states and

EPA must rely on the best available data

at the time the plans are created.

Comment: Throughout its comments,

AIR uses the term "recession

reductions" which it defines as "the

emissions reductions the [C]ARB claims

have occurred as a result of the

recession."

Response: In its comments, AIR

calculates what it considers "the total

reductions from baseline reductions

without recession reductions" as 11 tpd

of PM 2.5, 195 tons per day (tpd) of

nitrogen oxides (NON), and 0.9 tpd of

sulfur oxides (SOx). These figures are

the same as the calculated reductions

from the baseline measures prior to the

updates to the 2014 baseline inventory. 8

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

proposed action on the SJV PM2.5 SIP at 75 FR

74518. On this table, the baseline NOx reductions

are listed as 199.2 tpd but include 4.2 tpd of

Based on these calculations, AIR seems

to consider the "recession reductions"

to be the difference between the 2014

baseline inventory submitted with the

2008 PM 2.

5 Plan in 2008 and the revised

2014 baseline inventory submitted with

the 2011 Progress Report in 2011. By

labeling this difference as "recession

reductions," AIR attributes the

differences entirely to revisions to the

economic forecasts. This is not entirely

correct.

Changes to the 2014 baseline

inventory include revisions not only to

the economic forecasts but also to a

variety of other factors (out-of-state

vehicle miles traveled (VMT) estimates,

cumulative mileage, equipment

populations, load factors, and hours of

use, etc.) used to calculate emissions

from trucks, buses, and certain off-road

equipment categories. See 2011 Progress

Report, Appendix E. CARB estimates

that revisions to the truck inventory

excluding recession impacts reduced

truck emissions statewide by 10 percent

from the 2014 baseline levels estimated

when the Truck rule was adopted in

2008 while recession impacts reduced

the baseline level by a further 7 percent.

See 2010 Truck Rule ISOR, p. 19. 9 For

off-road equipment, CARB estimates

that inventory changes independent of

the recession were responsible for half

the overall reduction in projected

statewide emissions. See 2010 Off Road

Rule ISOR, p. 17.10 We note that these

figures are average statewide figures and

not specific to the SJV.

Comment: AIR contends that in the

2011 Progress Report, CARB first claims

that the reduced economic activity

caused by the recession has reduced

2014 emissions levels in the SJV by 2.7

tpd of PM 2.

5, 63.1 tpd of NON and 0.1

tpd of SO.x AIR further contends that

CARB claims that the recession has

caused current inventories of the goods

movement and construction sectors to

uncreditable reductions that are not included in

AIR's numbers. By "baseline inventories" or "projected baseline inventories," we mean

projected emissions inventories for future years that

account for, among other things, the ongoing effects

of economic growth and adopted emissions control

requirements. A 2014 baseline inventory is

important because this year is the "attainment

year," the year by which all reductions needed for

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

CFR 51.1007(b).

9 CARB, "Staff Report: Initial State of Reasons for

Proposed Rulemaking, Proposed Amendments to

the Truck and Bus Regulations, The Drayage Truck

Regulation and the Tractor-Trailer Greenhouse Gas

Regulation," October 2010 ("2010 Truck Rule

ISOR").

10 CARB Staff Report: Initial Statement of Reasons

for Proposed Amendments to the Regulation for InUse Off-Road Diesel-Fueled Fleets and the Off-Road

Large Spark-Ignition Fleet Requirements, October

2010, including Appendix D1 ("2010 Off-Road Rule

ISOR").

be lower than projected in the 2008

PM2 .5 Plan. Finally, citing EPA's

statement in the 2011 Proposal TSD

about the effect of the 2007-2009

economic recession on activity levels in

the State's construction and goods

movement sectors, AIR asserts that

accounting for the recession through

inventory adjustments is improper.

Response: CARB does not claim that

the recession alone has reduced the

projected 2014 baseline emissions in the

SJV nor did it provide the numbers cited

by AIR. As discussed in the response to

the preceding comment, revisions to the

baseline inventory took into account not

only changes to the State's economic

forecasts but also updated information

on out-of-state VMT estimates,

cumulative mileage, equipment

populations, and other data used to

calculate emissions from trucks, buses,

and certain off-road equipment. The

emissions reduction figures that AIR

ascribes to CARB are figures EPA

calculated using data provided by

CARB.

EPA uses the phrase "adjustments to

the baseline" to refer to the difference

between the 2014 baseline initially

submitted in the 2008 SJV PM2.

5 Plan

and the recently revised 2014 baseline

as submitted in the 2011 Progress

Report. This "adjustments to baseline"

figure is nothing more than EPA's

summary of the overall impact of both

recession and non-recession related

changes between the two projected

inventories. EPA calculated this

adjustment from summary data CARB

provided in Appendix E of the 2011

Progress Report. The adjustment

represents the net results of CARB's

changes to its inventories rather than

the changes themselves.

CARB revised its inventories for

trucks and diesel off-road equipment to

incorporate new and better data

including new research on truck travel

within California. See 2010 Truck Rule

ISOR, Appendix G. These revisions

were not mere adjustments to previous

inventories but thorough reviews of

much of the data that goes into

estimating emissions from these

sources. See 2010 Truck Rule ISOR,

Appendix G and 2010 Off-Road Rule

ISOR, Appendix D."I These inventory

revisions also included review of

current and future activity data (such as

fuel consumption, diesel fuel sales,

11 For an overview of these changes and their

results, see the presentation to the CARB Board by

CARB's Planning and Technical Support Division

on November 18, 2010, entitled, "Diesel Inventory

Improvements for Regulatory Development,"

available at http://www.arb.ca.govlboardlbooksl

2010/111810/10-10 -9pres.pdf and in the docket for

this rule.

69898 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69899

trucking industry tonnage reports, truck

sales trends, and truck registration data)

for these categories as well as economic

forecasts from a number of reputable

sources. 12 Throughout its development

of these revisions, CARB held

workshops seeking public review and

input into its work. See 2010 Truck Rule

ISOR, p. 13.

Emissions projections are a function

of change in activity (growth or decline)

combined with changes in the emissions

rate or controls applicable to emissions

sources. Projected inventories are,

therefore, necessarily affected by

forecasts of industrial growth,

population growth, and transportation

growth, among other factors. 13 EPA

guidance emphasizes the importance of

developing reliable methods for

estimating future source activity levels

as part of the SIP planning process. 14

We disagree with AIR's assertion that

"EPA claims that the ARB has opted to

take credit for the decrease in the

inventory in the attainment

demonstration as 'a line-item

adjustment to the baseline

inventories.'" EPA stated in the 2011

Proposal TSD (pg. 18) that "California is

reflecting these recession impacts as a

line-item adjustment to the baseline

inventories." This statement was

incorrect and should have read that EPA

(not CARB) is reflecting the recession

impacts as a line-item adjustment to the

baseline inventories. EPA believes this

adjustment is appropriate in light of the

impact of these emissions changes on

the baseline. We should have also been

clearer that the 2014 adjustments

included the technical revisions to the

inventory that are discussed on page 19

of the 2011 Proposal TSD.

Finally, we note that although AIR

objects categorically to the revisions to

the projected emissions inventories

based on CARB's revised economic

forecasts, it provides no information to

refute CARB's extensive documentation

of the impact of the economic recession

12 See CARB, "ARB Staff Assessment of the

Impact of the Economy on California Trucking

Activity and Emissions 2006-2014," draft

December 2009, available in the docket for this rule.

Sources of economic data included California

Department of Finance, California Legislative

Analyst's Office, California Energy Commission,

UCLA Anderson School, Beacon Economics,

University of the Pacific, Congressional Budget

Office, and US Energy Information Agency. Id. pp.

11-12.

13 See "Emission Projections," STAPPA/

ALAPCO/EPA Emissions Inventory Improvement

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

(available at http://www.epa.govlttnchielleiipl

techreport/volumel O/x01.pdfl.

14 See "Procedures for Preparing Emissions

Projections," EPA Office of Air Quality Planning

and Standards, EPA-450/4-91-019 (July 1991) at p.

6 and section III.

on air pollution generating activity. It

also provides no information to refute

CARB's non-recession related revisions

to the projected inventories.

B. Comments on the Proposed Action on

the Air Quality Modeling

Comment: Earthjustice and AIR

comment that CARB's emissions

inventory update necessitates new

attainment demonstration modeling.

AIR alleges that EPA's 2011 Proposal

TSD stated that updates should trigger

new modeling. AIR notes EPA's

statement in that TSD that the model

underpredicts. In addition, AIR

questions EPA's reliance on unreviewed

model sensitivity results from CARB as

the basis for not requiring new

modeling. Earthjustice comments that

the difficulty of performing new

modeling is not a valid reason for

approving an erroneous attainment

demonstration. It adds that EPA's

method for assessing the effect of the

inventory update has the "obvious

flaw" that it relies on design value

changes to within hundredths of a

percent, starting from design values that

are, according to Earthjustice,

acknowledged to be erroneous.

Response: While some large emissions

inventory changes might indeed

necessitate new modeling, EPA does not

agree that the inventory changes were

large enough to substantially affect the

SJV modeling conclusions, or to

invalidate the SJV attainment

demonstration. As EPA stated in the

2011 Proposal TSD (p. 47), ideally new

modeling would be performed when an

area's emissions inventory is changed.

However, since the cost in time and

resources of remodeling and consequent

reworking of a plan is not trivial,

administrative necessity requires a

judgment call about when changes are

large enough to merit new modeling;

there is no automatic trigger. An

important criterion in making this

judgment is whether the changes would

affect the conclusion that the plan's

emissions reductions are adequate for

attaining the NAAQS. Another

consideration is the uncertainty

inherent in modeling; although model

results may be reported to several

decimal places, model performance

goals for fractional bias are typically in

the range of 30 percent. Plan's Regional

Model Performance Analysis, 15 p.12,

and EPA Guidance 16 Appendix B.

15 The "Regional Model Performance Analysis" is

an appendix to the 2008 PM 2.5 Plan.

16 EPA "Guidance on the Use of Models and

Other Analyses for Demonstrating Attainment of

Air Quality Goals for the 8-Hour Ozone and PM2 .5

NAAQS and Regional Haze," April 2007. ("EPA

Guidance").

Small changes in the emissions

inventory could be in the range of the

"noise" of the model. This is not to

discount the importance of an accurate

emissions inventory, but rather to make

the point that relatively small changes

in inventory estimates do not

necessarily invalidate a model

application. EPA finds that the 5-6

percent base year emissions decreases

due to the inventory updates in this case

are relatively small.

EPA did assess the effect of the

emissions inventory improvements on

the attainment demonstration, using a

procedure described in the 2011

Proposal TSD and other supporting

documents. EPA did note in the 2011

Proposal TSD (p. 48) that the emissions

update revealed some model bias. The

model appears to be underpredicting

(biased low): Its emissions inputs are

now known to be too high, so its

predicted concentrations should have

been higher, too. Model bias is an

important issue that modelers address

in developing the model application for

a specific area and pollution episode,

through testing and refinement of a

model's many inputs. The bias problem

is somewhat ameliorated by the use of

models in a relative sense via "relative

reduction factors" (RRFs), as

recommended in EPA Guidance (p. 20).

The various influences that lead to

model underestimation in the base year

would also be expected to cause

underestimation in the attainment year,

and these tend to cancel out in the RRF

ratio calculation used to project the

future effect of controls. In other words,

the effect of model bias is minimized

when it is accounted for at both end

points, the base and attainment years. In

a similar vein, EPA assessed the effect

of the emissions update on the

attainment demonstration, essentially

by removing the bias revealed by the

update from both the base year and the

attainment year.' 7 The bias was

estimated by combining the emissions

changes with an estimate of model PM2.5

sensitivity per unit of emissions change.

The effect of removing the bias by this

procedure was to increase predicted

attainment year annual PM 2.

5 design

values by 1-2 percent. EPA finds that

this is small enough to be considered

17 This procedure is in some ways parallel to but

not the same as the RRF calculation and could be

applied even if the model were not used in a

relative sense. The inventory estimates the

emissions reduction between the base and future

years. An RRF scales the monitored design value

using the relative model response to a given

emissions reduction estimate, in order to account

for that reduction. The procedure here scales the

model's future predictions using model sensitivity,

in order to account for changes in the emissions

reduction estimate.
No. 217/Wednesday, November 9, 2011/Rules and Regulations

within the "noise" of the model and

does not change the overall modeling

conclusions. But even with this increase

added in, the predicted concentrations

meet the NAAQS. This is a quantitative

showing that the emissions updates are

small enough that they do not invalidate

the attainment demonstration.

As described in the 2011 Proposal

TSD (section I.B), EPA reviewed the

development of the model application,

the procedures used to develop the

model inputs, model testing methods

and performance statistics, and the

methods used to compute RRFs and

attainment year PM 2.

5 design values.

EPA finds that CARB applied these

methods appropriately, including to the

sensitivity results and believes that

these modeling inputs and RRF

calculations were carried out as

described by CARB. As a result, we find

that the sensitivity results provide a

reasonable basis for assessing the effect

of the inventory update on the

attainment demonstration.

EPA does not agree with Earthjustice

that starting from the Plan's modeled

design values and ending with small

design value changes constitute flaws in

the procedure for estimating the effect of

the baseline inventory revisions. All

modeling has uncertainty and bias

including any new modeling that would

be done using the updated emissions

inventory estimates. Every modeling

result is an approximation and is likely

to contain errors. Administrative

necessity, therefore, requires a judgment

call about whether such problems are

substantial enough to impact regulatory

decisions. Modeling experts from

regulatory agencies, academia, and

consulting firms were involved in

developing the SJV modeling. It

underwent successful diagnostic testing

and performs well. EPA finds that it

continues to constitute an adequate

basis for the attainment demonstration.

Further, EPA believes that the original

modeling is basically sound in how it

portrays SJV atmospheric chemistry and

transport and that results derived from

model sensitivity tests are a reasonable

approximation to what would result

from new modeling with the updated

inventory. EPA's procedure for

estimating the effect of the inventory

changes using model sensitivity results

does make a number of assumptions:

Emissions changes are small enough

that the model response is linear, model

sensitivity is similar in the starting and

ending years, and the spatial and

temporal distribution of emissions is

little changed with the inventory

update. EPA believes that these

assumptions are reasonable and that the

procedure it used provides strong

evidence for the attainment

demonstration's validity.

As for the smallness of the design

value changes resulting from the

procedure, EPA does not believe this is

a substantive issue. Any procedure

(even new modeling) that starts with

small emissions changes will

necessarily result in small design value

changes. Within a small range, over

which the chemistry does not shift

fundamentally, ambient concentrations

are approximately proportional to

emissions, by the law of conservation of

matter. This is not a case of an overly

precise tiny number being added to a

large erroneous random number, but

rather of an adjustment ratio applied to

a number derived from extensive data

and analysis. Some intermediate steps

in the calculation procedure that EPA

used to evaluate the emissions

inventory change did involve tenths of

a percent (not hundredths as stated by

the commenter), but this is largely an

artifact of showing the procedure in

multiple steps for comprehensibility.

EPA could have done the calculation in

a single step to avoid this artifact. When

modeling a 10 percent change in NOx

emissions results in a design value

change of 1.4 percent, a calculation

using this model sensitivity result will

necessarily involve fractions of 1

percent or less. In this case, the

emissions inventory update involved a

change in NOx emissions of less than 10

percent, and thus, would also be

expected to yield relatively small design

value changes.

Comment: Earthjustice comments that

a simple screening analysis cannot

substitute for an unmonitored area

analysis, as it is inadequate to address

the sharp ambient concentration

gradients that occur in near-highway

areas.

Response: EPA agrees that the simple

screening analysis in the Plan as

originally submitted in June 2008 is not

an adequate substitute for an

unmonitored area analysis (UAA) and

noted this deficiency in our November

2010 proposal. See 75 FR 74518, 74530.

As noted in the 2011 proposal (76 FR

41388, 41348), CARB subsequently

submitted a modeling supplement that

included a UAA that follows EPA

Guidance. See CARB modeling

supplement, p. 139.18 The UAA led to

the conclusion that there would not be

any NAAQS violations at locations

1' Letter and enclosure, John DaMassa, Chief,

Modeling and Meteorology Branch; California Air

Resources Board, January 28, 2011 ("CARB

modeling supplement").

away from monitors, and EPA has

evaluated and accepted that conclusion.

As for whether the UAA itself

adequately addresses the commenter's

underlying concern about sharp

concentration gradients, the EPA

Guidance states:

"The unmonitored area analysis is

intended to be the primary means for

identifying high PM2 .

5 concentrations outside

of traditionally monitored locations. * * * Based on the monitoring guidance, we

believe that an unmonitored area analysis

conducted at 12 km or finer resolution is

sufficient to address unmonitored PM2 .

5 for

the annual NAAQS. Conducting the

unmonitored analysis at 4 km or finer

resolution will provide an even more

detailed analysis of the spatial gradients of

primary PM2.5, especially when evaluating

violations of the 24-hr. NAAQS."

This modeling guidance

recommendations are consistent with

the requirements of the EPA's PM 2.5

monitoring rules. The modeling

guidance UAA spatial scale

recommendations are intended to

capture neighborhood scale and larger

areas, since the monitoring rules do not

require micro or middle scale monitors

for either the annual or 24-hr PM2 .5

standards. CARB's UAA was conducted

at a resolution of 4 km, so it is more

detailed than EPA's recommended

approach for UAA. In addition, it is

intended for areas with a large primary

PM 2.5 contribution (that is, directly

emitted rather than formed chemically

over time), and relying on local primary

PM controls to reach attainment. EPA

Guidance, p.100. By contrast, the

attainment demonstration in the 2008

p.m.2.5 Plan mainly relies on area-wide

control of NOx, a PM 2.5 precursor, rather

than on control of local primary PM2 .

5 .

Comment: Earthjustice comments that

air quality worsened after 2005 despite

the economic downturn, so that new air

quality modeling should be performed

to account for this upward trend.

Response: EPA did review the

evaluation of air quality progress

presented in the Plan and also

independently examined air quality

data. See 2011 Proposal TSD, p.6 and

p.45. Air quality monitoring data is

useful for a general understanding of the

SJV's air quality problem, as well as for

use in supplemental analyses that

accompany the modeled attainment

demonstration. Downward trending

emissions and ambient concentrations

would tend to support the conclusion

that the area is on track toward

attainment of the NAAQS, although

evaluation of such trends should

account for the particular location, time

period, and air quality metric examined.

In addition, overall trends may be hard

69900 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69901

to discern given the year-to-year

variability of meteorology and other

factors.

The Plan used the data that was

available at the time it was developed,

focusing on 2001-2006, for which the

Plan's Weight of Evidence analysis

makes a strong case for air quality

progress according to several metrics,

including design value concentrations,

frequency of high concentrations,

concentration of PM 2.

5 component

species, and emissions. We conclude

that these analyses adequately support

the attainment demonstration. EPA also

looked at a longer period, 2000-2010,

and found that the slight PM2.5

concentration increase shown in the

Plan for 2006 continued through 2008

and flattened in 2009. Although PM2.5

concentrations continued to improve in

2010, the Bakersfield area's annual and

24-hour PM 2.

5 design values calculated

from 2008-2010 data were the highest

in the U.S. See 76 FR 41338, 41339. We

note, however, that data over the longer

time frame shows there has been

substantial air quality progress over the

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

The concentration increases during

2006-2009 are not well understood but

may have been partly a result of

unfavorable meteorology during that

time. District and CARB efforts to

evaluate the effect of meteorology on air

quality trends are under way. The

higher values during that period do

weaken the case made in the Plan's

Weight of Evidence analysis, which is a

supplemental analysis to the attainment

demonstration itself, but are not

themselves grounds for disapproving

the attainment demonstration or the

Plan.

Comment: Citing 40 CFR 51.1000 and

72 FR at 20600, Earthjustice asserts that

attainment of the PM 2.

5 NAAQS by

April 5, 2015 will require review of

ambient data from 2012, 2013, and

2014. Earthjustice also asserts that the

majority of emissions reductions in the

Plan are delayed until 2014 and argues

that modeling ambient concentration in

2014 does not provide an accurate

picture of what emissions will be in

2012 and 2013. It further states that the

modeling year must be adjusted to give

a more reasonable prediction of what a

3-year average concentration from 2012-

2014 will be since it is this

concentration that will determine if the

Valley has attained the PM 2.

5 standards

by the attainment date. Finally,

Earthjustice asserts that the fact that the

majority of reductions are in 2014

violates the reasonable further progress

requirement.

Response: We disagree with

Earthjustice's assertion that the Plan

delays the majority of emissions

reductions until 2014 and therefore fails

to satisfy RFP requirements. As

explained in our amended proposal (76

FR 41338 at 41355-41357) and further

in section II.H. of the TSD, the majority

of the reductions needed for attainment

occur well before 2014. The Plan's RFP

demonstration shows that more than 87

percent of the NOx, 80 percent of the

PM 2.

5 and all the SOx reductions needed

for attainment will occur by 2012. See

2011 Progress Report, Appendix C, p. 1.

We explain further in section II.H. of the

TSD our reasons for concluding that the

2008 PM 2.

5 SIP provides for RFP

consistent with the CAA and the PM2.

5

implementation rule.19 We also explain

in section lI.D. our reasons for

concluding that the Plan demonstrates

that all control measures needed for

attainment of the 1997 PM 2.5 standards

will be in place as expeditiously as

practicable and no later than the

beginning of 2014, consistent with the

CAA and 40 CFR 51.1007(b) (requiring

"implementation of all control measures

needed for attainment as expeditiously

as practicable, but no later than the

beginning of the year prior to the

attainment date"). See section II.G. and

lI.D. of the TSD.

We also concluded that the

attainment demonstration in the Plan

was developed consistent with

procedures in EPA's modeling guidance.

In addition, to a degree the modeling

procedures already reflect the expected

continuing emissions decreases during

the years before the attainment year.

The monitored base year design value

reflects an emissions decrease over the

three years of 2004-2006, not just the

single 2005 emissions year. The

projected design value reflects a

modeled change to that monitored

design value, so it too is consistent with

some decreases occurring over multiple

years, not just the single year of 2014.

Finally, we note that Earthjustice

conflates the requirements governing

EPA's action on an attainment

demonstration under CAA section

172(c)(1) with those governing an

attainment determination under CAA

section 179(c). Earthjustice appears to

assume that a demonstration of

attainment by April 5, 2015, requires a

demonstration that the area will have air

quality measurements at or below the

levels of the standards three years prior

to that date. This is incorrect. An

attainment determination under CAA

179(c) is a fact-based determination

19 Clean Air Fine Particulate Implementation

Rule, 72 FR 20586 (April 25, 2007), codified at 40

CFR part 51, subpart Z "PM 2.

5 implementation

rule."

made after the attainment date based on

air quality monitoring data. 20 An

attainment demonstration, on the other

hand, is a predictive tool for assessing

what air quality will be at a future time.

An attainment demonstration is based

on air quality modeling showing that

the projected design value of the

relevant pollutant in attainment year

will be at or below the level of the

relevant ambient air quality standard.

See 72 FR from 20605 to 20609.

Additionally, for a PM 2.

5

nonattainment area subject only to the

requirements of subpart 1 of title I, part

D of the CAA, a State may demonstrate

that in the attainment year, the area will

have air quality such that the area could

be eligible for the first of two one-year

extensions allowed under CAA section

172(a)(2)(C). Under CAA section

172(a)(2)(C), an area that does not have

three years of monitored data

demonstrating attainment of the PM 2.

5

NAAQS but has complied with all

requirements and commitments

pertaining to the area in the applicable

SIP, and that has no more than minimal

number of exceedances of the NAAQS

in the attainment year, may receive a

one-year extension of its attainment

date. If the same conditions are met in

the following year, the area may receive

an additional one-year extension.

Should the SJV area qualify for both of

these extensions, the relevant 3-year

period for determining whether the area

has attained the PM 2.

5 NAAQS would be

2014-2016.21

Comment: Earthjustice comments that

given the problems it has described with

the air quality modeling, the 9:1 NON to

PM 2.5 relative effectiveness ratio cannot

be used for transportation conformity or

other purposes, unless it is supported

with new modeling.

Response: EPA does not agree with

Earthjustice that the modeling problems

are substantial enough to invalidate the

9:1 ratio for NON to direct PM 2.

5

emissions trading in the transportation

20 A determination of attainment of the 1997

annual PM 2.5 standard is based on monitoring data

that shows a 3-year average of annual mean PM2 .5

concentrations of less than 15 microgram per cubic

meter (p/m3), and a determination of the attainment

of the 1997 24-hour PM 2.5 standard is based on

monitoring data that shows the 3-year average of

98th percentile 24-hour concentrations is less than

65 /M 3. See 40 CFR 50.7.

21 EPA has long interpreted analogous provisions

for ozone nonattainment areas in CAA sections

181(a)(5) and 182(c)(2) in this same manner. See

Brief of Respondents, EPA, in Sierra Club, et a]. v.

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

(consolidated), May 5, 2011; see also Environmental

Defense v. U.S .EPA, 369 F.3d 193 (2nd Cir. 2004)

(denying petition for review of EPA's approval of

New York's 1-hour ozone attainment plan based on,

inter alia, EPA's reasonable interpretation of the

extension provision in CAA section 181(a)(5)).
No. 217/Wednesday, November 9, 2011/Rules and Regulations

conformity context. As discussed above,

EPA believes that the modeling is

basically sound, including the model's

(relative) sensitivity to emissions

changes. There is no established method

for determining trading ratios in

conformity, but as discussed in the 2011

Proposal TSD (p.148), EPA finds that

the model sensitivity-based method

used by CARB for determining an

equivalency or relative effectiveness

ratio is adequate for assessing the effect

of area-wide emissions changes, such as

are used in conformity budgets. The

method modeled "across the board"

emissions changes over the entire

modeling domain; emissions considered

in transportation conformity are also

domain-wide. Trading in other contexts

could involve additional consideration

of spatial and temporal variation of the

emissions, and would require an

additional technical demonstration by

the State and evaluation by EPA. EPA is

not approving the trading ratio for any

other purpose than in conformity

budgets.

C. Comments on the Identification of

PM2.

5 Attainment Plan Precursors

Comment: Earthjustice comments that

EPA should rely on the November 2010

proposal's technical demonstration that

VOC should be considered a PM 2.5 plan

precursor and should disapprove the

Plan for its failure to address control of

VOC emissions. The commenter states

that EPA reversed its earlier VOC

finding without receiving any new

credible evidence on the issue.

Response: The PM 2.5 implementation

rule establishes a presumption that VOC

is not a PM 2.5 plan precursor requiring

controls. See 40 CFR 51.1002(c)(3). This

presumption may be overturned if either

EPA or the State provides an

appropriate technical demonstration

showing that VOC emissions from

sources in the State significantly

contribute to PM 2.5 concentrations in the

nonattainment area. See 40 CFR

51.1002(c)(3)(i) and (ii). The preamble to

the implementation rule suggests

various analyses that could be part of

such a demonstration, such as emissions

inventory, speciation data, modeling

information, or other special studies.

But the preamble is not prescriptive on

required technical demonstrations, and

neither the preamble nor the rule

defines "significantly." Under the rule,

excluding VOC as an attainment plan

precursor does not require a showing

that VOC controls are ineffective or

counterproductive. Rather, since VOC is

already excluded by presumption, the

lack of a clear showing that VOC

controls are effective is sufficient for it

to remain excluded.

For the November 2011 proposal, EPA

reviewed various monitoring and

modeling studies on the role of VOC as

a PM 2.

5 precursor in the SJV. EPA

proposed to find that these studies

constitute a technical demonstration

that VOC is a PM 2.

5 attainment plan

precursor, and used that as a basis to

propose disapproval of the Plan, which

lacks VOC controls.

Earthjustice correctly notes that CARB

did not submit any new study results

per se in response to our 2010 proposal

but rather reinterpretation of the same

modeling studies that EPA had already

examined. For the 2011 proposal, EPA

reviewed and accepted several of

CARB's arguments made in its VOC

supplement."2 CARB noted the

importance of considering simultaneous

VOC and NON reductions, a more

realistic scenario than VOC-only or

NOx-only reductions, given the various

controls that are already in place for the

ozone plan. The only study to consider

simultaneous reductions found a

disbenefit from VOC control, while NON

control continued to be beneficial.

CARB discounted one study that had

found VOC control to be beneficial by

noting that it had used artificially

doubled VOC emissions in order to

perform reasonably well at predicting

PM 2.

5 . For another study, CARB pointed

out some features of the multi-day

model response to VOC reductions that

are inconsistent with the photochemical

VOC pathway to PM 2.5 formation and

that the benefits from VOC reduction

were seen only at high PM2.5

concentrations that are seldom seen

today.

EPA found these arguments

persuasive enough to raise questions

about the efficacy of VOC controls for

reducing PM 2.5 levels in the SJV. Even

setting aside the concern that VOC

control could worsen PM 2.5

concentrations in some circumstances,

EPA finds that the evidence of the

effectiveness of VOC controls is at this

time not clear enough to overcome the

presumption in the PM 2.

5

implementation rule that VOC should

not be an attainment plan precursor.

However, EPA also believes it is

important that reductions of VOC,

ammonia, and other PM 2.

5 precursors be

more thoroughly explored with realistic

model sensitivity and other analyses as

2 2 Letter, James N. Goldstene, Executive Officer,

CARB, to Frances Wicher, Office of Air Planning,

EPA Region 9, January 28, 2011, Attachment 4, "Air

Resources Board comments on U.S. EPA's

November 30, 2010 proposal that VOC be

considered a significant PM 2.5 Precursor for the San

Joaquin Valley 2008 PM 2.5 State Implementation

Plan (SIP)." ("CARB VOC supplement").

part of future modeling efforts in the

SJV.

In its comment letter, Earthjustice also

included additional information in favor

of VOC as a precursor. We have

reviewed this information (which

mainly duplicates information EPA has

already reviewed) and concluded that it

does not provide sufficient grounds to

reverse the presumption that VOC is not

a PM 2.

5 attainment plan precursor in the

SJV. Our complete analysis of

Earthjustice's information can be found

in the response to comments section

(section III.D.) of the TSD.

D. Comments on the Proposed Action on

the Reasonably Available Control

Measures/Reasonably Available Control

Technology Demonstration

Comment: Earthjustice asserts that

EPA must disapprove the Plan's RACM/

RACT demonstration because many of

the rules that the District and CARB rely

on have not been approved as satisfying

RACT requirements. Earthjustice also

states that the demonstration fails to

address VOC controls or to provide

adequate air quality modeling

documentation. Finally, Earthjustice

asserts that several of the rules intended

to provide the majority of NON and PM

reductions from stationary sources in

the Valley were adopted with

substantially weakened controls from

what was anticipated during plan

development and will now provide only

a fraction of what is needed to bring the

area into attainment by 2014.

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

CAA requires that each attainment plan "provide for the implementation of all

reasonably available control measures as

expeditiously as practicable (including

such reductions in emissions from

existing sources in the area as may be

obtained through the adoption, at a

minimum, of reasonably available

control technology), and shall provide

for attainment of the national primary

ambient air quality standards." For over

30 years, EPA has consistently

interpreted this provision to require that

States adopt only those "reasonably

available" measures necessary for

expeditious attainment and to meet RFP

requirements. 40 CFR 51.1010; see also

44 FR 20372 (April 4, 1979) (Part D of

title I of the CAA "does not require that

all sources apply RACM if less than all

RACM will suffice for [RFP] and

attainment"); 57 FR 13498 at 13560

(April 16, 1992) ("where measures that

might in fact be available for

implementation in the nonattainment

area could not be implemented on a

schedule that would advance the date

for attainment in the area, EPA would

not consider it reasonable to require

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implementation of such measures");

"Guidance on the Reasonably Available

Control Measures (RACM) Requirement

and Attainment Demonstration

Submissions for Ozone Nonattainment

Areas," November 30, 1999 (1999 Seitz

Memo) (a State may justify rejection of

a measure as not "reasonably available"

for that area based on technological or

economic grounds); and 70 FR 71612

(November 29, 2005) at 71661 (noting

that States "need adopt measures only

if they are both economically and

technologically feasible and will

advance the attainment date or are

necessary for RFP"). EPA's

interpretation of section 172(c)(1) has

been upheld by several courts. See, e.g.,

Sierra Club v. EPA, et aL., 294 F. 3d 155

(DC Cir. 2002); Sierra Club v. EPA, 314

F.3d 735 (5th Cir. 2002).

Under the PM 2.

5 implementation rule

at 40 CFR 51.1010, a RACM

demonstration must include "the list of

the potential measures considered by

the State, and information and analysis

sufficient to support the State's

judgment that it has adopted all RACM,

including RACT." 40 CFR 51.1010(a). In

addition, "[p]otential measures that are

reasonably available considering

technical and economic feasibility must

be adopted as RACM if, considered

collectively, they would advance the

attainment date by one year or more."

As explained in the preamble to the

PM 2.5 implementation rule, Congress

provided EPA and States broad

discretion to determine what measures

to include in an attainment plan, and

the language in section 172(c)(1)

requiring only "reasonably available"

measures and implementation of these

measures "as expeditiously as

practicable" indicates that Congress

intended for the RACT/RACM

requirement to be driven by an overall

requirement that the measure be

"reasonable." 72 FR 20586 at 20610

(April 25, 2007). Thus, the rule of

"reason" drives the decisions on what

controls to apply, what should be

controlled, by when emissions must be

reduced, and finally, the rigor required

in a State's RACT/RACM analysis. See

id. States may, as part of a RACM

analysis, consider the costs of potential

control measures and whether the

measures can be readily and effectively

implemented without undue

administrative burden. See id. (citing 55

FR 38327 and 66 FR 26969).

As a threshold matter, we note that

VOC controls are not a required element

of the RACM demonstration in the 2008

PM 2.5 Plan because EPA agrees with the

State's determination that VOCs are not

attainment plan precursors for purposes

of the 1997 PM2.5 NAAQS in the SJV

area. See 76 FR at 41343 (citing 40 CFR

51.1002(c) and 51.1010) and our

responses to comments on attainment

plan precursors, in section II.C. above.

Second, as to air quality modeling

documentation, we explain in section

lI.B. above in our responses to

comments on the air quality modeling

our reasons for concluding that the

modeling in the 2008 PM 2.5 Plan

adequately supports the Plan's RACM

and attainment demonstration.

Third, as to Earthjustice's assertions

about RACT, we note that although CAA

section 182(b)(2) requires States to

implement RACT for specific types of

sources in ozone nonattainment areas

classified as moderate or above, there is

no specific RACT control mandate for

PM 2.

5 purposes that applies to specific

sources in PM 2.5 nonattainment areas.

Rather, under the PM 2.5 implementation

rule, RACT and RACM are those

measures that a state finds are both

reasonably available and contribute to

attainment as expeditiously as

practicable in the specific

nonattainment area. See 76 FR at 41343

(citing 40 CFR 51.1010 and 72 FR 20586

at 20612). EPA has, therefore, evaluated

the collection of reasonably available

control measures that CARB and the

District have adopted and submitted

with the attainment demonstration in

the 2008 PM 2.

5 Plan to meet the RACM/

RACT requirement in CAA section

172(c)(1) and 40 CFR 51.1010. See 76 FR

41338 at 41343-41346 and 2011

Proposal TSD at section lI.D.

Finally, as to the specific NOx and

PM control options that Earthjustice

asserts should also be required as

RACM, we have considered whether

these additional control options are

reasonably available for implementation

in SJV considering technical and

economic feasibility, and as to those

measures that are potentially

reasonable, whether they would

considered collectively would advance

the attainment date in the SJV by one

year or more. For the reasons discussed

below, we conclude that the control

options identified by Earthjustice are

not required RACM for purposes of the

1997 PM 2 .

5 NAAQS in the SJV area.

Comment: Earthjustice states that EPA

should not approve Rule 4692

(Commercial Charbroiling) as RACT

because there is no justification for the

District's decision to exclude control

requirements for under-fired

charbroilers (UFC) from the rule. In

support of this assertion, Earthjustice

states, among other things, that: (1)

SJVUAPCD had initially found certain

control options for UFC units to be costeffective and that its later revisions to

these cost estimates in response to

comments were based on inappropriate

criteria, such as its "10 percent of the

industry's profits" test; (2) that

BAAQMD's adoption of UFC control

requirements in 2007 indicates that

such controls are considered feasible;

and (3) that SJVUAPCD's failure to

control UFCs means that PM emissions

reductions from this rule are reduced

from more than 2 tons per day (tpd) to

just 0.02 tpd.

Response: EPA recently determined

that Rule 4692 satisfied applicable CAA

requirements and fully approved the

rule into the SJV portion of the

California SIP.23 See 76 FR 38340 (June

30, 2011) (proposed rule) and

"Revisions to the California State

Implementation Plan, San Joaquin

Valley Unified Air Pollution Control

District" final rule, pre-publication

notice signed September 30, 2011 (Rule

4692). As part of that action, EPA

reviewed the District's evaluation of

potential UFC controls and concurred

with the District's conclusion that those

controls are not reasonably available for

implementation in the SJV area at this

time, considering technological and

economic feasibility (see EPA's June 9,

2011 Proposal TSD at pp. 4-5). Given

EPA's long-standing position that States

may justify rejection of certain control

measures as not "reasonably available"

based on economic grounds (among

others), we believe that it is appropriate

for the District to consider the cost of

controls at sources actually located

within the specific area to determine if

they are economically feasible with

respect to those sources. Although we

do not endorse the District's use of a "10

percent of the industry's profit" test for

economic feasibility, we agree with the

District's conclusion that UFC controls

are not economically feasible based on

the facts and circumstances related to

actual cost of those controls in the SJV

area. For the reasons stated in our

separate proposed and final rules on

Rule 4692, we conclude in this final

action on the 2008 PM 2.

5 Plan that Rule

4692 requires all RACM for charbroilers

in SJV, and that the additional controls

for UFC identified by Earthjustice are

not required RACM for purposes of the

2008 PM 2.5 Plan because they are not

23 As explained in our June 30, 2011 proposal to

approve Rule 4692 (76 FR 38340), the specific

ozone RACT requirement in CAA section 182(b)(2)

does not apply to this rule because there are no

Control Techniques Guideline (CTG) documents for

this source category and no major sources of NOx

or VOC subject to this rule in the SJV area. See 76

FR at 38341. We therefore interpret the

commenters' reference to RACT as referring to the

general requirement for reasonably available control

measures (including RACT for stationary sources)

in CAA section 172(c)(1). See 40 CFR 51.1010.
No. 217/Wednesday, November 9, 2011/Rules and Regulations

reasonably available considering

technological and economic feasibility.

Comment: Earthjustice asserts that

Rule 4103 (Open Burning) achieves far

less than what was anticipated in the

Plan, and that the District had

inappropriately relied on the 10 percent

of profits test to exempt from control the

three largest source categories of NOx,

PM, and VOC covered by the Rule.

Earthjustice asserts that this resulted in

foregone emissions reductions of 1,030

tpy NOx, 1,262 tpy PM 2.

5 and 1,138 tpy

VOC.

Response: EPA recently determined

that Rule 4103 satisfied applicable CAA

requirements and fully approved the

rule into the SJV portion of the

California SIP. See 76 FR 40660 (July 11,

2011) (proposed rule) and "Revisions to

the California State Implementation

Plan, San Joaquin Valley Unified Air

Pollution Control District;" final rule,

pre-publication notice signed September

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

action, EPA reviewed the District's

evaluation of the postponements of

certain burning prohibitions for certain

agricultural crop categories and

concurred with the District's conclusion

that alternatives to open burning for

these crop categories are not reasonably

available for implementation in the SJV

area at this time, considering

technological and economic feasibility

(see, e.g., EPA's June 2011 TSD at pp.

5-7). For the reasons stated in those

separate proposed and final rules on

Rule 4103, we conclude in this final

action on the 2008 PM 2.

5 Plan that Rule

4103 requires all RACM for open

burning in SJV, and that the additional

controls identified by Earthjustice are

not required RACM for purposes of the

2008 PM 2.5 Plan because they are not

reasonably available considering

technological and economic feasibility.

Comment: Earthjustice stated that

SJVUAPCD added a contingency

provision to Rule 4901 (Wood Burning

Fireplaces and Wood Burning Heaters)

stating that, should the Valley fail to

attain the 1997 PM 2.

5 standards by the

attainment date, the PM 2.

5 concentration

triggering a mandatory wood burning

curtailment would be lowered from 30

to 20 gg/m 3. Earthjustice contends that,

given the underperformance of other

SJVUAPCD rules, this "contingency"

should be adopted now to achieve

additional reductions before the

attainment date.

Response: EPA determined that Rule

4901 satisfied applicable CAA

requirements and fully approved the

rule into the SJV portion of the

California SIP. See 74 FR 57907

(November 10, 2009). As part of that

action, EPA reviewed the District's

evaluation of available controls and

concluded that Rule 4901 requires

implementation of Best Available

Control Measures under CAA section

189(b) for particulate matter of 10

microns or less (PM-10) in the SJV area.

This conclusion was based in part on

our finding that SJV's 30 gg/m 3

threshold for mandatory wood burning

curtailment is more stringent than the

35 gg/m 3 threshold adopted in other

areas such as Sacramento, South Coast

and Bay Area. See SJVUAPCD, "Final

Draft Staff Report, Proposed

Amendments to Rule 4901 "Wood

Burning Fireplaces and Wood Burning

Heaters," October 16, 2008, at pp. 5-6.

Earthjustice has provided no

information to support an argument that

reducing the threshold for mandatory

wood burning curtailment in the SJV

from 30 to 20 gg/m 3 is a "reasonably

available" control measure, nor any

information to support an argument that

such a measure would, individually or

in combination with other reasonable

measures, advance attainment of the

1997 PM 2.

5 standards in the SJV by at

least a year. We have, nonetheless,

evaluated in the section entitled

"Evaluation of potential to advance

attainment" below the additional PM

emissions reductions that could be

achieved by implementing a mandatory

wood burning curtailment at a 20 gg/m 3

threshold (1.6 tons per winter average

day, see 76 FR at 41358) to determine

whether this measure could, in

combination with other potentially

reasonable measures, advance

attainment in the SJV area.

Comment: Earthjustice asserts that the

exemption in Rule 4354 (Glass Melting

Furnaces) for furnaces that actually emit

less than 8 tons per year of NOx or VOC

(but are located at major sources) is

"illegal" because the CAA requires that

RACT be implemented for all major

sources. Earthjustice states that this

exemption cost the Valley 1.6 tons per

day of SOx reductions and 2.9 tons per

day of PM reductions. Earthjustice also

states that the District had adopted a

previous version of Rule 4354 that had

earlier compliance deadlines than the

version EPA ultimately approved into

the SIP. Earthjustice asserts that the

District should have removed the

exemption for small furnaces at large

facilities and should not have delayed

compliance requirements, and that "it is

unacceptable for the District to forego

any emissions reductions in the years

leading up to attainment."

Response: EPA recently determined

that Rule 4354 satisfied applicable CAA

requirements and fully approved the

rule into the SJV portion of the

California SIP. 24 See 76 FR 53640

(August 29, 2011). As part of that action,

we determined that the VOC and NOx

emission limits in Rule 4354 meet the

CAA section 182(b)(2) and (f) RACT

requirements for major sources of VOC

and NOx. The compliance schedule for

NOx and VOC limits in the SIPapproved rule requires implementation

of all technologically and economically

feasible controls by January 2014. See

SJVUAPCD, Final Draft Staff Report,

"Proposed Amendments to Rule 4354

(Glass Melting Furnaces)," August 19,

2010, at pp. 10-12. We conclude,

therefore, that this rule implements all

VOC and NOx controls that are

reasonably available for this source

category in the SJV. We did not fully

evaluate in that action the stringency of

the rule's requirements for SOx and

PM10 emissions, as there is no specific

RACT control mandate for SOx or PM10

purposes that necessarily applies to

sources covered by this rule.25 We

disagree with Earthjustice's assertion

that the exemption from the SOx and

PM1 0 limits for certain furnaces that

actually emit less than 8 tpy of VOC or

NOx (see Rule 4354, section 4.3) is

"illegal," as the CAA does not establish

a specific RACT control mandate for

major sources of SOx or PMo. Under

CAA section 172(c)(1), however, the

State/District are required to adopt all

RACM necessary to demonstrate

attainment as expeditiously as

practicable and to meet RFP

requirements. 40 CFR 51.1010. Given

the need for substantial NOx and PM 2.

5

emissions reductions in the SJV to meet

both the 1997 PM 2.

5 standards and the

more stringent 2006 PM 2.

5 standard by

the applicable attainment dates, we

encourage the SJVUAPCD to reevaluate

the PM10 control requirements in Rule

4354 and to adopt, as expeditiously as

practicable, any additional PMo and

PM 2.5 control requirements that are

reasonably available for implementation

in the Valley. For purposes of the 2008

PM 2.5 Plan, additional PM control

requirements for glass melting facilities

24 As explained in our June 30, 2011 proposal to

approve Rule 4692 (76 FR 38340), the specific

ozone RACT requirement in CAA section 182(b)(2)

does not apply to this rule because there are no

Control Techniques Guideline (CTG) documents for

this source category and no major sources of NOx

or VOC subject to this rule in the SJV area. See 76

FR at 38341. We therefore interpret the

commenters' reference to RACT as referring to the

general requirement for reasonably available control

measures (including RACT for stationary sources)

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

25 The CAA requires implementation of RACT at

any major source of NOx or VOC in ozone

nonattainment areas classified as moderate or above

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

contain such a major source RACT control mandate

for SOx or PM purposes.

69904 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69905

may, upon SIP approval, be credited

toward the District's remaining

enforceable commitments. See 76 FR at

41354, Table 8.

Earthjustice asserts that the

exemption in Rule 4354 for furnaces

emitting less than 8 tpy of NON or VOC

cost the Valley 1.6 tons per day of SOx

reductions and 2.9 tons per day of PM

reductions. For purposes of the 2008

PM 2.5 Plan, the foregone SOx emissions

reductions do not affect the RACM and

attainment demonstration because SJV

has exceeded its target level of SOx

reductions needed for attainment. See

76 FR at 41354, Table 8. As to PM, we

have evaluated the additional emissions

reductions that Earthjustice claims

could have been achieved from glass

melting facilities 26 in our evaluation

below of the potential for such

additional controls, in combination with

other potential control options, to

advance attainment of the 1997 PM 2.

5

standards in the SJV. See section

"Evaluation of potential to advance

attainment" below.

Comment: Earthjustice states that EPA

recently rejected all of the NON

emission limits in Rule 4352 (Solid

Fuel-Fired Boilers, Steam Generators

and Process Heaters) for failing to satisfy

RACT and asserts that substantial NON

reductions could be achieved if the

District amended this rule to meet the

stringent limits in place in other areas

of the Country.

Response: Earthjustice correctly notes

that EPA recently disapproved all of the

NON emission limits in Rule 4352 based

on our conclusion that the District had

failed to adequately demonstrate that

these limits satisfy CAA section 182

RACT requirements. See 75 FR 60623

(October 1, 2010). Earthjustice did not

provide any specific information about

additional control measures that are

reasonably available, nor has it provided

information about the amount of

emissions reductions that might be

achieved by such controls. We have,

however, developed a conservative

(high) estimate of the additional NOx

reductions that could be achieved under

this rule if the emission limits are

strengthened. We developed this

estimate based on the NON emission

limits in the SIP-approved version of

Rule 4352, the emissions attributed in

the 2008 PM 2.

5 plan to solid fuel-fired

boilers, steam generators, and process

heaters in the SJV, emissions data from

existing solid fuel-fired boilers in the

SJV, and technical information about

26 For this assessment, we use Earthjustice's

estimate of the foregone PM reductions and assume

conservatively that all such PM reductions are

PM2.5 reductions.

available control options from EPA's

1994 Alternative Control Techniques

Document for NON Emissions from

Industrial/Commercial/Institutional

Boilers, U.S. EPA 453/R-94-022 (1994

Boiler ACT). Based on this information,

we have conservatively estimated that

more stringent control requirements for

solid fuel-fired boilers, steam

generators, and process heaters in SJV

could achieve an additional 3.16 tpd of

NON reductions.27

Comment: Earthjustice states that

EPA's proposal fails to address the fact

that the RACM/RACT analysis "does

not include reasonable controls for

condensable [PM 2.5] emissions" and

contains no discussion of such controls.

Earthjustice references 40 CFR

51.1002(c) to support its assertion that

"[t]he transition period allowing

agencies to ignore controls on

condensable emissions ended on

January 1, 2011," and also quotes EPA's

statement in the preamble to the PM 2.

5

implementation rule (72 FR at 20652)

that "[w]e expect States to address the

control of direct PM 2.

5 emissions,

including condensables with any new

actions taken after January 1, 2011."

Earthjustice asserts that EPA must

disapprove the RACM demonstration for

failure to assess reasonably available

controls on condensable emissions.

Response: EPA's PM 2.

5

implementation rule states that "[a]fter

January 1, 2011, for purposes of

establishing emission limits under

51.1009 and 51.1010, States must

establish such limits taking into

consideration the condensable fraction

of direct PM 2.

5 emissions." 40 CFR

51.1002(c). Prior to this date, the rule

required that nonattainment area SIPs

identify and evaluate sources of PM 2.

5

direct emissions and PM 2.

5 attainment

plan precursors as part of the RFP and

RACM/RACT demonstrations but did

not specifically require states to address

condensable PM 2.

5 . See id.28 Because

the attainment, RFP and RACM

demonstrations in the 2008 PM 2.5 Plan

were adopted on May 22, 2008 (see 76

FR at 41340), California was not

required to address condensable PM in

establishing the emission limits

contained in these demonstrations as

originally submitted, or in adopting any

other PM emission limits under 40 CFR

sections 51.1009 and 51.1010 prior to

January 1, 2011. Consistent with these

27 Documentation of this estimate can be found in

the TSD, section III.E.

28 See also Letter dated April 25, 2011, from Lisa

P. Jackson, EPA, to Paul Cort, Earthjustice, denying

Petition for Reconsideration with respect to the

deferral of the requirement to establish emission

limits for condensable particulate matter (CPM)

until January 1, 2011.

requirements, EPA has evaluated the

RFP and RACM demonstrations in the

2008 PM 2.5 Plan and concluded that

these elements of the Plan appropriately

address all sources of direct PM 2.

5

emissions and PM 2.5 attainment plan

precursors (S0 2 and NOx) in the SJV.

See 76 FR 41338 at 41343.29

The 2008 PM 2.

5 Plan relies on several

rules regulating direct PM 2.5 emissions

as part of the PM 2.

5 control strategy (e.g.,

Rule 4692 (Commercial Charbroiling,

adopted 9/17/09), Rule 4103 (Open

Burning, adopted 4/15/10), Rule 4354

(Glass Melting Furnaces, adopted 9/16/

10) and Rule 4901 (Wood Burning

Fireplaces and Wood Burning Heaters,

adopted 10/16/08)) as well as rules

controlling NON and SOx emissions. See

2011 Proposal TSD at Tables F-2, F-3,

and F-4. Of the rules that control direct

PM 2.5 emissions, only two establish

emission limits for particulate matter

(Rule 4692 (Commercial Charbroiling)

and Rule 4354 (Glass Melting

Furnaces)). EPA has not yet acted on

any District rule adopted or revised after

January 1, 2011 that regulates direct

PM 2.5 emissions. As part of our action

on any such rule, we will evaluate the

emission limits in the rule to ensure that

they appropriately address CPM as

required by 40 CFR 51.1002(c). We note

that the revised version of Rule 4692

(Commercial Charbroiling) that EPA has

recently proposed to approve (see 76 FR

38340 (June 30, 2011)) requires testing

in accordance with the SCAQMD

Protocol, which requires measurement

of both condensable and filterable PM in

accordance with South Coast Air

Quality Management District

(SCAQMD) Test Method 5.1.30 We also

note that the SIP-approved version of

Rule 4354 (Glass Melting Furnaces)

requires testing for condensable PM

emissions using EPA Method 202. See

76 FR 53640 (August 29, 2011).

29 In our proposed rule, we noted that the

SJVUAPCD has deferred limits for CPM in its rules

but that this limited deferral does not affect the

Plan's RACM/RACT and expeditious attainment

demonstrations. 76 FR 41338 at 41342, n. 12. We

also noted that we would evaluate any PM2.5 rule

adopted or revised by the District after January 1,

2011 to assure that it appropriately addresses CPM.

See id.

30 See SCAQMD Protocol, Determination of

Particulate and Volatile Organic Compound

Emissions From Restaurant Operations, November

14, 1997 (available at http://yosemite.epa.gov/R91

R9Testmethod.nsf 03D4DEB4D21AB4AAF8825

70ADOOaDFF69/$file/SC%2oRest%20emiss.pdf)

and SCAQMD Test Method 5.1, Determination of

Particulate Matter Emissions From Stationary

Sources Using a Wet Impingement Train, March

1989 (available at http://aqmd.govltaolmethodsl

stmlstm-005-1.pdf).
No. 217/Wednesday, November 9, 2011/Rules and Regulations

Evaluation of Potential to Advance

Attainment

Table E-2 of our 2011 Proposal TSD

indicates that to advance attainment of

the 1997 PM 2.

5 standards in the SJV by

one year, i.e., from 2014 to 2013, the

area would need an additional 15.6 tpd

of NOx reductions and an additional 3.9

tpd of direct PM 2.5 reductions. These

figures represent the difference between

the 2013 "controlled inventory" and the

2014 "NOx emissions level needed for

PM 2.5 attainment." See 2011 Proposal

TSD at Table E-2 (pg. 80).3' The 2013 "controlled inventory" figures were

based on the District's expected

emissions reductions from individual

measures as identified in the 2008 PM 2.

5

Plan. See Plan at pp. 6-11 and 6-12

(Table 6-3).32 Following adoption of

these measures, however, the District

updated its estimates of the emissions

reductions associated with several of

these measures. See 2011 Proposal TSD

at Table F-4 (pg. 91). Based on these

updated estimates of the reductions

associated with specific control

measures, which alter the 2013

"controlled inventory" estimates, we

have re-calculated the amount of PM 2.

5

reductions needed to advance

attainment by one year as 6.4 tpd.33

As discussed above, with respect to

Rule 4692 (Charbroiling) and Rule 4103

(Open Burning), we have concluded that

the additional PM emissions control

options that Earthjustice identified are

not reasonably available considering

economic and technical feasibility.

Therefore, these potential control

measures are not required RACM for

purposes of the 1997 PM 2.5 standards in

the Valley. With respect to Rule 4901

(Wood Burning), Rule 4354 (Glass

Melting Furnaces), and Rule 4352 (Solid

Fuel-Fired Boilers), we assume for

purposes of this analysis that additional

control options are reasonably available

for implementation in the SJV. We

therefore evaluate whether the

31 For NOx, 15.6 tpd represents the difference

between the 2013 "controlled inventory" (306.8

tpd) and the 2014 "NOx emissions level needed for

PM2 .5 attainment" (291.2 tpd). For PM 2.5, 3.9 tpd

represents the difference between the 2013

"controlled inventory" (67.2 tpd) and the 2014

"Direct PM2 .5 emissions level needed for PM2 .5

attainment" (63.3 tpd).

32 For example, the 2013 "controlled inventory"

for PM 2.5 (67.2 tpd) is the sum of the expected

emissions reductions from four PM 2.5 control

measures identified in Table F-2. See 2011

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

33 The updates to the PM 2.5 emissions reduction

estimates reduced the creditable reductions from

6.7 tpd to 4.2 tpd, which in turn increased the 2013

"controlled inventory" from 67.2 tpd to 69.7 tpd.

6.4 tpd is the difference between the updated 2013

"controlled inventory" (69.7 tpd) and the 2014

"Direct PM2.5 emissions level needed for PM2.5

attainment" (63.3 tpd).

emissions reductions from these

additional control options would,

collectively, advance attainment of the

1997 PM 2.

5 standards in the SJV by at

least one year.

Our estimate of the total reductions of

direct PM 2.5 that could be achieved by

the potential control options for wood

burning (1.6 tpd) and glass melting

furnaces (2.9 tpd) identified by

Earthjustice is 4.5 tpd. As to NOx

reductions, although Earthjustice did

not provide any estimate of the

reductions that could be achieved by

more stringent requirements for solid

fuel-fired boilers, steam generators, and

process heaters, we have conservatively

estimated that such controls could

result in an additional 3.12 tpd of NOx

reductions from existing emissions units

in the SJV. These combined emissions

reductions (4.5 tpd of direct PM 2.

5 and

3.12 tpd of NOx) are significantly lower

than the total reductions necessary to

advance attainment by one year in the

SJV (6.4 tpd of direct PM 2.

5 and 15.6 tpd

of NOx). Therefore, even assuming that

additional control options for these

three source categories are reasonably

available for implementation in the SJV,

they are not required RACM for

purposes of the 1997 PM2.

5 standards

because they would not advance the

attainment date in SJV by at least one

year. See 40 CFR 51.1010(b).

Conclusion on RACM Demonstration

For all of these reasons and as

discussed in our proposed rule (76 FR

41338) and 2011 Proposal TSD, we

conclude that the 2008 PM 2.

5 Plan

includes all RACM (including RACT for

stationary sources) necessary for RFP

and expeditious attainment of the 1997

PM 2.

5 standards in the SJV and,

therefore, satisfies the requirements of

CAA section 172(c)(1) and 40 CFR

51.1010.

E. Comments on the Proposed Actions

on the Control Strategy and Enforceable

Commitments

1. Baseline Measures

Comment: Earthjustice and AIR assert

that the baseline inventories are flawed

because they include emissions

reduction credit from both "waiver

measures" and "non-waiver measures"

adopted before December 2006 (together

referred to as "baseline measures") that

have not been approved into the SIP,

and that the inclusion of credit for these

baseline measures undermines the

attainment and progress demonstrations

attached to these inventories. For

example, both commenters object to the

inclusion of credit for CARB's antiidling requirements in the baseline

inventories because these requirements

have never been submitted for SIP

approval, and Earthjustice suggests that

EPA should have adjusted the credit for

these anti-idling requirements based on

CARB's failure to enforce them. Both

commenters assert that EPA has not

specifically evaluated these baseline

measures to determine how they should

be credited in the baseline inventories,

and Earthjustice asserts that the

measures upon which the attainment

and progress demonstrations rely must

be enforceable, creditable controls

approved into the SIP subject to the

CAA's anti-backsliding provisions.

In addition, based on information

provided in Table 7 of the 2011

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

2011 Proposal TSD, AIR provides its

own calculations of the total amount of

emissions reduction credits attributed to

baseline measures and requests that

EPA confirm the accuracy of AIR's

calculations.

Finally, AIR asserts that these

additional "non-waiver" baseline

measures should also be SIP-approved:

* Heavy Duty Diesel Chip Reflash

(adopted March 27, 2004);

* Diesel Particulate Matter Control

Measure for On-Road Heavy-Duty

Diesel-Fueled Vehicles Owned or

Operated by Public Agencies and

Utilities (adopted December 8, 2005);

* Solid Waste Collection Vehicle Rule

(adopted September 24, 2003);

* Fork Lifts and Other Industrial

Equipment (adopted May 26, 2006);

* Pesticides-Field Fumigant Limits

(submitted to EPA October 12, 2009).

Response: We disagree that there is

any inadequacy in the emissions

projections that undermines the RACM,

RFP or attainment demonstrations in the

2008 PM 2.5 Plan. We explained in our

2011 proposal (76 FR 41338 at 41342,

41343) our reasons for concluding both

that the 2005 base year inventory in the

2008 PM 2.5 Plan is comprehensive,

accurate, and current as required by

CAA section 172(c)(3) and that the

projected baseline inventories for 2009,

2012 and 2014 provide adequate bases

for the RACM, RFP and attainment

demonstrations in the Plan.

With respect to mobile source

emissions, we believe that credit for

emissions reductions from

implementation of California mobile

source rules that are subject to CAA

section 209 waivers ("waiver

measures") is appropriate

notwithstanding the fact that such rules

are not approved as part of the

California SIP. In the TSD supporting

our 2011 proposal, we explained why

we believe such credit is appropriate.

See 2011 Proposal TSD at section

69906 Federal Register/Vol. 76,
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II.F.4.a.i. Historically, EPA has granted

credit for the waiver measures because

of special Congressional recognition, in

establishing the waiver process in the

first place, of the pioneering California

motor vehicle control program and

because amendments to the CAA (in

1977) expanded the flexibility granted

to California in order "to afford

California the broadest possible

discretion in selecting the best means to

protect the health of its citizens and the

public welfare" (H.R. Rep. No. 294, 95th

Congr., 1st Sess. 301-2 (1977)). In

allowing California to take credit for the

waiver measures notwithstanding the

fact that the underlying rules are not

part of the California SIP, EPA treated

the waiver measures similarly to the

Federal motor vehicle control

requirements, which EPA has always

allowed States to credit in their SIPs

without submitting the program as a SIP

revision.

EPA's historical practice has been to

give SIP credit for motor-vehicle-related

waiver measures by allowing California

to include motor vehicle emissions

estimates made by using California's

EMFAC (and its predecessors) motor

vehicle emissions factor model in SIP

inventories. EPA verifies the emissions

reductions from motor-vehicle-related

waiver measures through review and

approval of EMFAC, which is updated

from time to time by California to reflect

updated methods and data, as well as

newly-established emissions standards.

(Emissions reductions from EPA's motor

vehicle standards are reflected in an

analogous model known as MOVES. 3 4 )

The 2008 PM 2.5 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. 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.,

34 MOVES replaced the MOBILE model as EPA's

on-road mobile source emissions estimation model

for use in SIPs and conformity in 2010.

agricultural, construction, lawn and

garden and off-road recreation

equipment) are estimated through use of

CARB's OFFROAD emissions factor

model. 35 (Emissions reductions from

EPA's non-road engine and vehicle

standards are reflected in an analogous

model known as NONROAD). Since

1990, EPA has treated California nonroad standards for which EPA has

issued waivers in the same manner as

California motor vehicle standards, i.e.,

allowing credit for standards subject to

the waiver process without requiring

submittal of the standards as part of the

SIP. In so doing, EPA has treated the

California non-road standards similarly

to the Federal non-road standards,

which are relied upon, but not included

in, various SIPs. See generally 2011

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

CARB's EMFAC and OFFROAD

models employ complex routines that

predict vehicle fleet turnover by vehicle

model years and include control

algorithms that account for all adopted

regulatory actions which, when

combined with the fleet turnover

algorithms, provide future baseline

projections. See 2007 State Strategy,

Appendix F at 7-8. For stationary

sources, the California Emissions

Forecasting System (CEFS) projects

future emissions from stationary and

area sources (in addition to aircraft and

ships) using a forecasting algorithm that

applies growth factors and control

profiles to the base year inventory.36 See

id. at 7. The CEFS model integrates the

projected inventories for both stationary

and mobile sources into a single

database to provide a comprehensive

statewide forecast inventory, from

which nonattainment area inventories

are extracted for use in establishing

future baseline planning inventories.

See id. In 2011, CARB updated the

baseline emissions projections for

several source categories to account for,

among other things, more recent

economic forecasts and improved

methodologies for estimating emissions

from the heavy duty truck and

construction source categories. See 2011

Progress Report at Appendix E. These

methodologies for projecting future

emissions based on growth factors and

existing Federal, State, and local

35 Information about CARB's emissions

inventories for on-road and non-road mobile

sources, and the EMFAC and OFFROAD models

used to project changes in future inventories, is

available at http://www.arb.ca.govlmseilmsei.htm.

36 Information on base year emissions from

stationary point sources is obtained primarily from

the districts, while CARB and the districts share

responsibility for developing and updating

information on emissions from various area source

categories. See 2007 State Strategy, Appendix F at

21.

controls were consistent with EPA

guidance on developing projected

baseline inventories. See 2011 Proposal

TSD at section ILA; see also

"Procedures for Preparing Emissions

Projections," EPA Office of Air Quality

Planning and Standards, EPA-450/4-

91-019, July 1991; "Emissions

Projections," STAPPA/ALAPCO/EPA

Emissions Inventory Improvement

Project, Volume X, December 1999

(available at http://www.epa.govl

ttnchiel/eiip/techreport/volumel O/

xol .pdf).

In sum, the 2005 base year and future

projected baseline inventories in the

2008 PM 2.5 Plan were prepared using a

complex set of CARB methodologies to

estimate and project emissions from

stationary sources, in addition to the

most recent emissions factors and

models and updated activity levels for

emissions associated with mobile

sources, including: (1) The latest EPAapproved California motor vehicle

emissions factor model (EMFAC2007)

and the most recent motor vehicle

activity data from each of the

metropolitan planning organizations

(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

Progress Report. EPA has approved

numerous California SIPs that rely on

base year and projected baseline

inventories including emissions

estimates derived from the EMFAC,

OFFROAD, and CEFS models. See, e.g.,

65 FR 6091 (February 8, 2000)

(proposed rule to approve 1-hour ozone

plan for South Coast) and 65 FR 18903

(April 10, 2000) (final rule); 70 FR

43663 (July 28, 2005) (proposed rule to

approve PM-10 plan for South Coast

and Coachella Valley) and 70 FR 69081

(November 14, 2005) (final rule); 74 FR

66916 (December 17, 2009) (direct final

rule to approve ozone plan for Monterey

Bay). The commenter has provided no

information to support a claim that

these methodologies for developing base

year inventories and projecting future

emissions in the SJV are inadequate to

support the RACM, RFP, and attainment

demonstrations in the 2008 PM2.5 Plan.

For all of these reasons and as

discussed in our 2011 proposal (76 FR

41338 at 41342, 41343), we have

concluded that the 2005 base year

inventory in the 2008 PM2.5 Plan is a "comprehensive, accurate, current

inventory of actual emissions from all

sources of the relevant pollutant or

pollutants" in the SJV area, consistent
No. 217/Wednesday, November 9, 2011/Rules and Regulations

with the requirements for emissions

inventories in CAA section 172(c)(3), 40

CFR 51.1008, and 40 CFR part 51,

subpart A. In addition, we conclude that

the projected baseline inventories for

2009, 2012 and 2014 were prepared

consistent with EPA's guidance on

development of emissions inventories

and attainment demonstrations and,

therefore, provide an adequate basis for

the RACM, RFP and attainment

demonstrations in the Plan. See 2011

Proposal TSD at section II.A.

As to the six specific baseline

measures that CRPE asserts should be

SIP-approved, we note first that the SJV

2008 PM 2.5 SIP does not rely on credit

for emissions reductions from the

Pesticides regulations (Field Fumigant

Limits) as those regulations address

only VOC and therefore do not apply to

any pollutant that is a PM 2.

5 attainment

plan precursor in the SJV (PM 2.

5, NOx,

or S0 2).

Second, both the Requirements to

Reduce Idling Emissions from New and

In-Use Trucks (effective November 15,

2006) 37 and the Fork Lifts and Other

Industrial Equipment measure (adopted

May 26, 2006) are pending EPA waiver

determinations under CAA section

209(b) or section 209(e).3 8 We expect

that EPA will act on these requests for

waivers of preemption or authorization

under CAA section 209 in the near term,

and that our final approval of the 2008

PM 2.

5 Plan based in part on its reliance

on the emissions reductions associated

with these rules is, therefore, reasonable

and appropriate. If, however, EPA either

37 EPA is currently reviewing a request from

CARB for a determination as to whether certain

requirements of these anti-idling rules are

preempted by section 209(a) of the CAA; certain

provisions are conditions precedent pursuant to

section 209(a) of the Act; certain provisions are

within-the-scope of previous waivers and

authorizations issued pursuant to sections 209(b)

and 209(e) of the Act, respectively; and at least one

provision requires and merits a full authorization

pursuant to section 209(e) of the Act. See 75 FR

43975 (July 27, 2010). CARB estimates that the

operational requirement of the anti-idling rule,

which is not subject to a CAA section 209 waiver,

achieves 0.2 tpd of NOx in the SJV. See

Memorandum, Doris Lo, Air Division, Planning

Office (AIR-2); to the San Joaquin Valley PM2.5

Docket No. EPA-R09-OAR-2010-0516, "SIP Credit

for Heavy-Duty Diesel Engine Low-NOx Software

("Chip Reflash")"; from, September 28, 2011.

38 See letter, James Goldstene, Executive Officer,

CARB to Stephen L. Johnson, Administrator, EPA

RE: Request for Authorization Determination

Pursuant to Clean Air Act Section 209(e) for

Amendments to California's Off-Road Emissions

Standards Regulation for large Spark-Ignition (LSI)

Engines and Fleet Requirement for In-Use LSI

Forklifts and Other Industrial Equipment and

California State Motor Vehicle and Nonroad Engine

Pollution Control Standards; Truck Idling

Requirements; Opportunity for Public Hearing and

Request for Public Comment; Notice Of

Opportunity For Public Hearing And Comment. 75

FR 43975 (July 27, 2010).

denies or does not issue the State's

requested waiver for any of these

measures prior to the effective date of

today's action, we will take appropriate

remedial action to ensure that our action

on the plan is fully supportable or to

reconsider that action.

Third, as to the Diesel Particulate

Matter Control Measure for On-Road

Heavy-Duty Diesel-Fueled Vehicles

Owned or Operated by Public Agencies

and Utilities (adopted December 8,

2005), CARB's staff report on this

measure indicates that the projected

baseline inventories have attributed

emissions reductions of 0.1 tpd PM 2.

5

and 0.18 tpd NON statewide to this

measure. See Staff Report: Proposed

Diesel Particulate Matter Control

Measure for On-Road Heavy-Duty

Diesel-Fueled Vehicles Owned or

Operated by Public Agencies and

Utilities, October 2005, at pg. 55.

Assuming less than 25 percent of these

reductions are attributed to the SJV area,

the de minimis amounts of emissions

reductions attributed to this measure in

the 2008 PM 2.

5 SIP do not affect our

evaluation of the attainment and RFP

demonstrations in the 2008 PM 2.

5 SIP.

Similarly, as to the Solid Waste

Collection Vehicle Rule (adopted

September 24, 2003), CARB's staff

report on this measure indicates that the

projected baseline inventories have

attributed emissions reductions of 0.17

tpd PM2.5 and 2.3 tpd NON statewide to

this measure. See Supplemental Staff

Report: Proposed Diesel Particulate

Matter Control Measure for On-Road

Heavy-Duty Residential and

Commercial Solid Waste Collection

Vehicles, August 8, 2003, at pg. 18.

Assuming less than 25 percent of these

reductions are attributed to the SJV area,

the de minimis amounts of emissions

reductions attributed to this measure in

the 2008 PM 2.

5 SIP also do not affect our

evaluation of the attainment and RFP

demonstrations in the 2008 PM 2.

5 SIP.

Finally, the Heavy Duty Diesel

Engine-Chip Reflash rule (adopted

March 27, 2004) ("Chip Reflash" rule)

was intended to ensure expeditious

compliance with CARB's NON

emissions standard for heavy-duty

diesel (HDD) engines by requiring

installation of "Low-NOx Software."

The Chip Reflash rule was invalidated

in part by a California State Court, and

CARB repealed the related regulations

in June 2007. The emissions reduction

credit attributed to Chip Reflash in

CARB's baseline inventories is limited

to vehicles that have been "reflashed,"

i.e., physically installed the Low-NOx

Software, 39 removal of which would

constitute a violation of the CAA

and/or California state law. See the

statutory anti-tampering laws in CAA

section 203(a)(3) and California Vehicle

Code section 27156. Thus, the NON

emissions reductions attributed to "reflashed" engines are enforceable

under the CAA and/or California state

law.

As to AIR's calculation of the

reductions from baseline measures, AIR

calculates what it considers "the total

reductions from baseline reductions

without recession reductions" to be 11

tpd of PM 2.

5 , 195 tpd of NON, and 0.9

tpd of SOx. These figures are not correct

because they do not take into account

CARB's recent updates to the projected

2014 inventory.

For the 2008 PM 2.

5 SIP, "baseline

reductions" are calculated by

subtracting the 2005 base year inventory

form the projected 2014 pre-controlstrategy inventory. As we have

discussed above, CARB revised its

projected 2014 inventories to

incorporate not only the continuing

effects of the recent economic recession

but also many non-recession related

changes. These revisions have resulted

in a more accurate projected 2014

inventory.

As we have discussed previously,

projected emissions inventories are a

function in part of changes in activity.

Projected inventories are, therefore,

necessarily affected by forecasts of

industrial growth, population growth,

and transportation growth, among other

factors. EPA guidance emphasizes the

importance of developing reliable

methods for estimating future source

activity levels as part of the SIP

planning process. We believe that CARB

has done this.

39 The 2007 State Strategy, Appendix A,

"Emissions Inventory Output Tables" documents

the adjustment in the baseline that CARB made to

account for Chip Reflash (or Heavy-Duty Diesel

Engine Software Upgrade). As described in

appendix A, CARB staff estimates that the overall

benefits of the software upgrade regulation plus

related actions provided approximately 38 tons per

day of NOx emissions reductions statewide in year

2007. CARB also indicates that it took into account

the fact that the software upgrade regulation had

been invalidated by including no additional

emissions reductions from chip reflash other than

those that had already occurred due to compliance

with the regulation (prior to invalidation by the

court), voluntary upgrade programs, ongoing engine

rebuilds, engine upgrades by manufacturers exempt

from the regulation, and interstate trucks. CARB

staff recently confirmed that the baseline

adjustment for chip reflash in the 2007 State

Strategy reflects emissions reduction credit only for

engines that have been "reflashed". See

Memorandum, Doris Lo, Air Division, Planning

Office (AIR-2); to the San Joaquin Valley PM2.5

Docket No. EPA-R09-OAR-2010-0516, "SIP Credit

for Heavy-Duty Diesel Engine Low-NOx Software

("Chip Reflash")"; from September 28, 2011.

69908 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69909

2. Waiver Measures

Comment: Earthjustice and CRPE

object to our proposal to grant emissions

reduction credit to California's mobile

source control measures that have

received a waiver of preemption under

CAA section 209 without first approving

them into the SIP. Both commenters

argue that our reliance for this proposal

on the general savings clause in CAA

section 193 is inappropriate for several

reasons.

First, the commenters assert that CAA

section 193 only saves those "formal

rules, notices, or guidance documents"

that are not inconsistent with the CAA.

They argue that both the CAA and

EPA's long-standing policies and

regulations require SIPs to contain the

state and local emission limitations and

control measures that are necessary for

attainment and RFP and to meet other

CAA requirements. They assert that our

position on the treatment of California's

waived measures is inconsistent with

this requirement. CRPE asserts that EPA

has, in contrast, approved other (nonmobile source) state measures into the

SIP, e.g., the consumer products rules

and fuel standards. Earthjustice also

argues that only SIP approval provides

for the CAA's enforcement oversight

(CAA sections 179 and 304) and antibacksliding (CAA section 110(1) and

193) safeguards.

Second, the commenters argue that

we cannot claim that our position was

ratified by Congress because section 193

saves only regulations, standards, rules,

notices, orders and guidance "promulgated or issued" by the

Administrator and we have not

identified documents promulgated or

issued by EPA that establish our

position here. Earthjustice further

asserts that our interpretation has not

been expressed through any affirmative

statements and the only statements of

relevant statutory interpretations are

contrary to our position on California's

waived measures.

Third, Earthjustice argues that there is

no automatic presumption that Congress

is aware of an agency's interpretations

and we have not provided any evidence

that Congress was aware of our

interpretation regarding the SIP

treatment of California's mobile source

control measures. Similarly, CRPE

argues that our positions that Congress

must expressly disapprove of EPA's

long-standing interpretation and

Congressional silence equates to a

ratification of EPA's interpretation are

incorrect.

Finally, CRPE argues that waiver

measures may not be used in attainment

demonstrations because EPA makes no

finding during the waiver process that

the rules achieve the reductions claimed

or that the measures are SIP creditable.

CRPE also notes that these issues are the

subject of litigation in the 9th Circuit

U.S. Court of Appeals in Sierra Club v.

EPA, Consolidated Case Nos. 10-71457

and 10-71458.

Response: We continue to believe that

credit for emissions reductions from

implementation of California mobile

source rules that are subject to CAA

section 209 waivers ("waiver

measures") is appropriate

notwithstanding the fact that such rules

are not approved as part of the

California SIP. In our 2011 proposal and

the 2011 Proposal TSD, we explained

why we believe such credit is

appropriate. See 76 FR 41338 at 41345

and 2011 Proposal TSD at section

II.F.4.a.i. Historically, EPA has granted

credit for the waiver measures because

of special Congressional recognition, in

establishing the waiver process in the

first place, of the pioneering California

motor vehicle control program and

because amendments to the CAA (in

1977) expanded the flexibility granted

to California in order "to afford

California the broadest possible

discretion in selecting the best means to

protect the health of its citizens and the

public welfare," (H.R. Rep. No. 294,

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

allowing California to take credit for the

waiver measures notwithstanding the

fact that the underlying rules are not

part of the California SIP, EPA treated

the waiver measures similarly to the

Federal motor vehicle control

requirements, which EPA has always

allowed States to credit in their SIPs

without submitting the program as a SIP

revision. As we explained in the 2011

Proposal TSD (pp. 100-102), credit for

Federal measures, including those that

establish on-road and nonroad

standards, notwithstanding their

absence in the SIP, is justified by

reference to CAA section 110(a)(2)(A),

which establishes the following content

requirements for SIPs: "* * *

enforceable emission limitations and

other control measures, means, or

techniques (including economic

incentives such as fees, marketable

permits, and auctions of emissions

rights), * * *, as may be necessary or

appropriate to meet the applicable

requirements of this chapter."

(emphasis added). Federal measures are

permanent, independently enforceable

(by EPA and citizens), and quantifiable

without regard to whether they are

approved into a SIP, and thus EPA has

never found such measures to be

"necessary or appropriate" for inclusion

in SIPs to meet the applicable

requirements of the Act. Section 209 of

the CAA establishes a process under

which EPA allows California's waiver

measures to substitute for Federal

measures, and like the Federal measures

for which they substitute, EPA has

historically found, and continues to

find, based on considerations of

permanence, enforceability, and

quantifiability, that such measures are

not "necessary or appropriate" for

California to include in its SIP to meet

the applicable requirements of the Act.

First, with respect to permanence, we

note that, to maintain a waiver, CARB's

on-road waiver measures can be relaxed

only to a level of aggregate equivalence

to the Federal Motor Vehicle Control

Program (FMVCP). See section

209(b)(1). In this respect, the FMVCP

acts as a partial backstop to California's

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

waiver, the FMVCP would apply in

California). Likewise, Federal nonroad

vehicle and engine standards act as a

partial backstop for corresponding

California nonroad waiver measures.

The constraints of the waiver process

thus serve to limit the extent to which

CARB can relax the waiver measures for

which there are corresponding EPA

standards, and thereby serve an antibacksliding function similar in

substance to those established for SIP

revisions in CAA sections 110(1) and

193.40 Meanwhile, the growing

convergence between California and

EPA mobile source standards

diminishes the difference in the

emissions reductions reasonably

attributed to the two programs and

strengthens the role of the Federal

program in serving as an effective

backstop to the State program. In other

words, with the harmonization of EPA

mobile source standards with the

corresponding State standards, the

Federal program is becoming essentially

a full backstop to most parts of the

California program.

Second, as to enforceability, we note

that the waiver process itself bestows

enforceability onto California to enforce

the on-road or nonroad standards for

which EPA has issued the waiver. CARB

has as long a history of enforcement of

40 In addition, the commenters' concerns over the

potential for relaxation by the State of the waiver

measures because the underlying regulations are

not subject to EPA review and approval as a SIP

revision are not a practical concern for this

particular plan given that the plan's horizon is very

short term (next couple of years), and the on-road

and nonroad vehicles that in part will determine

whether the area attains the standard are already in

operation or in dealer showrooms. There is no

practical means for the State to relax the standards

of vehicles already manufactured, even if the State

wanted to relax the standards.
No. 217/Wednesday, November 9, 2011/Rules and Regulations

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 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. The

San Joaquin Valley plan was developed

using a version of the EMFAC model

referred to as EMFAC2007, which EPA

has approved for use in SIP

development in California. See 73 FR

3464 (January 18, 2008). Thus, the

emissions reductions that are from the

California on-road "waiver measures"

and that are estimated through use of

EMFAC are as verifiable as are the

emissions reductions relied upon by

states other than California in

developing their SIPs based on

estimates of motor vehicle emissions

made through the use of the MOVES

model.

Moreover, EPA's waiver review and

approval process is analogous to the SIP

approval process. First, CARB adopts its

emissions standards following notice

and comment procedures at the state

level, and then submits the rules to EPA

as part of its waiver request. When EPA

receives new waiver requests from

CARB, EPA publishes a notice of

opportunity for public hearing and

comment and then publishes a decision

in the Federal Register following the

public comment period. Once again, in

substance, the process is similar to that

for SIP approval and supports the

argument that one hurdle (the waiver

process) is all Congress intended for

California standards, not two (waiver

process plus SIP approval process).

Second, just as SIP revisions are not

effective until approved by EPA,

changes to CARB's rules (for which a

waiver has been granted) are not

effective until EPA grants a new waiver,

unless the changes are "within the

scope" of a prior waiver and no new

waiver is needed. Third, both types of

final actions by EPA-i.e., final actions

on California requests for waivers and

final actions on state submittals of SIPs

and SIP revisions may be challenged

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

the appropriate United States Court of

Appeals.

In the 2011 Proposal TSD (pp. 102-

103), we indicated that we believe that

section 193 of the CAA, the general

savings clause added by Congress in

1990, effectively ratified our longstanding practice of granting credit for

the California waiver rules because

Congress did not insert any language

into the statute rendering EPA's

treatment of California's motor vehicle

standards inconsistent with the Act.

Rather, Congress extended the

California waiver provisions to most

types of nonroad vehicles and engines,

once again reflecting Congressional

intent to provide California with the

broadest possible discretion in selecting

the best means to protect the health of

its citizens and the public welfare.

Requiring the waiver measures to

undergo SIP review in addition to the

statutory waiver process is not

consistent with providing California

with the broadest possible discretion as

to on-road and nonroad vehicle and

engine standards, but rather, would add

to the regulatory burden California faces

in establishing and modifying such

standards, and thus would not be

consistent with Congressional intent. In

short, we believe that Congress intended

California's mobile source rules to

undergo only one EPA review process

(i.e., the waiver process), not two.

In summary, we disagree that our

interpretation of CAA section 193 is

fundamentally flawed. EPA has

historically given SIP credit for waiver

measures in our approval of attainment

demonstrations and other planning

requirements such as reasonable further

progress and contingency measures

submitted by California. We continue to

believe that section 193 ratifies our

long-standing practice of allowing credit

for California's waiver measures

notwithstanding the fact they are not

approved into the SIP, and correctly

reflects Congressional intent to provide

California with the broadest possible

discretion in the development and

promulgation of on-road and nonroad

vehicle and engine standards.41

CRPE correctly notes that EPA's

treatment of California waiver measures

in SIP actions is the subject of current

litigation in Sierra Club v. EPA,

Consolidated Case Nos. 10-71457 and

10-71458 (9th Circuit).

3. Enforceable Commitments

Comment: AIR argues that EPA

cannot make a finding that the "recession reductions" are an "enforceable" measure within the

meaning of CAA section 110(a)(2)(A)

and 172(c)(6) because "recession

reductions" are only voluntary behavior

to reduce activity for economic reasons

and nothing prevents such an increase

in activity as the economy improves.

Based on this argument, AIR asserts that

EPA's approval of the attainment

demonstration is arbitrary and

capricious and not in accordance with

the law. AIR asserts that CARB concedes

that the reductions coming from

reduced activity may change in the

future.

Response: EPA is not making a

finding that emissions "reductions"

related to the economic recession are "enforceable" measures under CAA

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

explained in our amended proposal (76

FR 41338 at 41354-41356), we are

concluding that CARB's 2011 SIP

revisions, which updated the State's

projected ("baseline") emissions

inventories based on improved

41 In this regard, we disagree that we are treating

the waiver measures inconsistently with other

California control measures, such as consumer products and fuels rules, for the simple reason that,

unlike the waiver measures, there is no history of

past practice or legislative history supporting

treatment of other California measures, such as consumer products rules and fuels rules, in any manner differently than is required as a general 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.

69910 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69911

methodologies for estimating emissions

and more recent growth factors, reduced

the total amount of emissions

reductions needed for attainment and

that the control strategy in the 2008

PM2 .5 Plan, as revised in 2011,

demonstrates expeditious attainment of

the 1997 PM 2.

5 NAAQS in the SJV from

the revised baseline.

Section 110(a)(2)(A) of the CAA

requires that each implementation plan

submitted by a State include "enforceable emission limitations and

other control measures, means, or

techniques * * * as well as schedules

and timetables for compliance, as may

be necessary or appropriate to meet the

applicable requirements of [the CAA]."

Section 172(c)(6) contains substantively

identical requirements for all

nonattainment area plans. Baseline

emissions inventories, however, are not

"enforceable emission limitations and

other control measures, means, or

techniques" or "schedules and

timetables for compliance" that are

necessary or appropriate to meet CAA

requirements. See El Comite Para El

Bienestar de Earlimart v. Warmerdam,

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

(concluding that a baseline inventory is

not an enforceable "standard or

limitation" as defined by the CAA and

is not, therefore, an independently

enforceable aspect[] of the SIP"). Rather,

baseline emissions inventories provide

the basis for, among other things, the

demonstrations of attainment and

progress toward attainment required by

CAA sections 172(c)(1) and 172(c)(2).

Specifically, CAA section 172(c)(3)

requires that each plan for a

nonattainment area include "a

comprehensive, accurate, current

inventory of actual emissions from all

sources of the relevant pollutant or

pollutants in such area * * *"). After

developing this "base year" emissions

inventory, States use modeling and

other analyses to calculate future

emissions projections and "target"

emissions levels, which then inform the

State's development of progress

milestones and control strategies for

attaining the NAAQS. See General

Preamble at 13507-13510. In short,

emissions inventories provide estimates

of current and future emissions that, in

turn, provide the starting point for the

State's attainment demonstration and

enforceable control strategy.

Nothing in the CAA precludes a State

from revising a submitted plan to take

into account revised emissions

estimates and projections. All

projections of future emissionsgenerating activity (including the

original projections in the 2008 PM 2.

5

Plan that AIR would have CARB and

EPA continue to use) are based on

projections of population and

employment and other growth factors

that reflect voluntary behavior, all of

which can increase or decrease as

economic conditions change. However,

reliance on projections from reputable

sources of economic behavior based on

established methods of predicting such

behavior is the historic practice for

development of emissions inventories.

CARB's revised projections of future

emissions-generating activity are based

on reputable sources, represent the most

current understanding of expected

economic conditions through at least

2014, and were subject to extensive

public review and comment before

CARB adopted its 2011 SIP revisions

containing these updated projections.

Given the magnitude of the economic

recession's impact on emissionsgenerating activity in SJV and other

parts of California, and the resulting

impact on the State's assessment of the

control strategy necessary to

demonstrate attainment of the 1997

PM 2.

5 standards, we conclude that it is

appropriate to take these updated

emissions projections into account as

part of our action on the 2008 PM 2.

5

Plan. Other than asserting generally that

CARB and EPA should not rely on the

revised economic data to determine the

reductions needed for attainment and

that future conditions may change, AIR

provides no information that

undermines the State's revised

economic data or the related changes to

the projected inventories.

We disagree with AIR's unsupported

assertion that "CARB concedes that the

reductions coming from reduced

activity may change in the future."

CARB has stated that it will continue to

track emissions trends to ensure that the

2014 emissions targets are met and

maintains its commitment to adopt and

implement additional control

requirements, incentive programs, or

other measures as appropriate to reduce

emissions to the levels necessary to

attain. See 2011 Progress Report, p. 4.

Moreover, as discussed above, the

revisions to the 2014 baseline inventory

that AIR characterizes as "recession

reductions" took into account not only

the State's revised economic forecasts

but numerous other factors, including

updated activity data and growth

projections. See section II.A

("Comments on the Proposed Actions

on the Emissions Inventory") above.

Comment: AIR asserts that the Plan

relies on emissions reductions caused

by the recent economic recession to

demonstrate attainment, rather than

requiring reductions from diesel trucks

and other diesel equipment in 2014.

Noting CARB's recent revisions to five

of its in-use rules,42 AIR argues that

these rule revisions "reduc[ed] the

amount of reductions that those five inuse rules would have achieved by

2014," and that CARB has equated

recession-related emissions reductions

with the reductions necessary to meet

the 2014 tonnage targets. AIR asserts

that the difference between the prerecession and recession inventories in

the Valley is 40 tons per day of NOx.

Response: As discussed above,

CARB's revisions to the 2014 baseline

inventories took into account not only

the State's revised economic forecasts

but numerous other factors, including

updated activity data and growth

projections. See section II.A above.

These improvements to the emissions

estimates reduced the projected 2014

emissions levels for trucks, buses and

certain off-road equipment compared to

the levels expected when CARB initially

adopted its rules for these sources in

2007 and 2008. These revised

projections, in turn, reduced the State's

assessment of the amount of emissions

reductions needed from these emissions

sources to provide for attainment of the

1997 PM 2.

5 NAAQS in the SJV and

allowed CARB to provide some

economic relief to the affected

industries. 43 We note that because EPA

has not previously approved California's

in-use truck rules into the SIP, EPA's

approval of these rules strengthens the

SIP and meets the requirements of CAA

section 110(1). See CAA 110(1)

(prohibiting EPA from approving a

revision of a plan "if the revision would

interfere with any applicable

requirement concerning attainment and

reasonable further progress * * * or any

other applicable requirement of [the

Act]").

Both the revised Truck rule and the

revised Off-Road rule continue to

require reductions from diesel trucks

42 These five in-use rules are CARB's Truck rule,

Heavy-Duty Vehicle Greenhouse Gas Emission

Reduction Regulation, In-Use On-Road DieselFueled Heavy-Duty Drayage Trucks Regulation, OffRoad rule), and the LSI regulation (collective "inuse rules").

43 To determine the extent to which it could

revise its in-use rules to provide economic relief

and still meet the attainment target, CARB

evaluated whether the lower emissions from the

revised inventories for both trucks, buses and offroad equipment, when combined with the effects of

the recession, provided greater emissions

reductions from the in-use rules than were initially

expected. CARB referred to these greater-than -

expected emissions reductions as the "emission

margin." Because the in-use diesel rules reduced

both direct PM 2.

5 and NOx and both pollutants

contribute to ambient levels of PM 2.5, CARB

calculated the margin on a "NOx equivalent" basis

and found that the margin for the SJV was 40 tpd

of NOx equivalents. See 2010 Truck Rule ISOR,

p. 23.
No. 217/Wednesday, November 9, 2011/Rules and Regulations

and other diesel equipment in 2014 and

future years. See 2010 Truck Rule ISOR,

p. 45 and 2010 Off-Road Equipment

ISOR, p. 38; see also, 76 FR 41338,

41346 (Table 6).

Comment: AIR claims that the 2011

Progress Report shows CARB considers

"recession reductions" as a part of its

"global" emissions reduction

commitment. In support of this claim,

AIR quotes the 2011 Progress Report at

page 4:

As a result of the recession, actual

emissions decreases moved California closer

to the emissions levels needed for attainment

in 2014. The recession has reduced economic

activity and emissions, most notably in the

goods movement sector. This has allowed

ARB to maintain the State's SIP

commitments in the South Coast and San

Joaquin Valley while also providing some

near-term economic relief to affected

industries.

As the economy recovers, ARB will

continue to track emissions trends to ensure the 2014 emissions targets are met. If future

emissions were to exceed the SIP target, the

State's commitment could be made up with

additional controls, incentive programs, or other programs to bring emissions down to

the necessary levels. A discussion of how

ARB accounted for the recession is found

later in this report.

Response: EPA is not treating any "recession reductions" as part of the

State's enforceable commitments. As

explained above, we are approving the

attainment demonstration and control

strategy in the 2008 PM 2.5 Plan based on

our conclusion that the Plan, as revised

by CARB's 2011 revisions to the

projected baseline inventories,

demonstrates expeditious attainment of

the PM 2.5 standards in the SJV. EPA

interprets the quoted language as a

statement of CARB's future plans to

revise the SIP as necessary should

economic activity change significantly

in the future.

Comment: AIR claims that in

proposing to disapprove the CARB's

global commitment in November 2010,

EPA recognized that the Truck rule

could reduce that percentage of

reductions remaining as commitments

below 10 percent. It then asserts that

EPA cannot now approve the

commitment and the attainment

demonstration because CARB's

relaxation of the Truck rule and the OffRoad rule to delay reductions beyond

2014 mean that the percentages of PM 2.

5

and NOx reductions needed for

attainment that remain as commitments

are still well above the 10 percent

threshold. AIR states that based on its

calculations, the percentage of total

reductions remaining as commitments,

if adjustments to the baseline are not

included, would be 25.1 percent for

PM 2 .

5 and 26.7 percent for NOx.

Response: EPA did not propose to

disapprove CARB's aggregate

commitments in its 2010 proposal. We

proposed then and again in our 2011

proposal to approve CARB's aggregate

emissions reductions commitments as

described in CARB Resolution 07-28,

Attachment B. See 75 FR 74518 at 74541

and 76 FR 41338 at 41361. EPA did

initially propose to disapprove the

attainment demonstration based in part

on our finding that the percentage of the

emissions reductions needed for

attainment that remained as

commitments was too high. See 75 FR

at 74541. As explained in our 2011

proposal, however, additional

submittals from CARB have reduced the

percentages of emissions reductions

remaining as commitments to 13.2

percent for direct PM 2 .

5 and 4.5 percent

for NOx. These percentages are

reasonably close to the 10 percent range

that EPA has historically accepted as

appropriate for enforceable

commitments in approving attainment

demonstrations. See 76 FR at 41355,

41356. Because the State's revisions to

the projected baseline inventories in the

SJV 2008 PM 2 .5 SIP have reduced the

total tonnage of emissions reductions

necessary to attain the 1997 PM 2 .

5

standards (see section II.A above), we

disagree with AIR's calculation of the

percentage of total reductions remaining

as commitments.

Comment: Earthjustice comments that

EPA has outlined a three-factor test to

assess whether the commitments in the

SJV 2008 PM 2 .5 SIP are reasonable but

has not documented, under the first

factor, how we determine the level of

remaining reductions and what is meant

by "reasonably close."

Response: In our 2011 proposal we

provide a detailed discussion of the

emissions reductions needed for

attainment and how they have been or

will be achieved. See generally 76 FR

41339, 41344-41347 and 41354-41357

and 2011 Proposal TSD, sections II.F.

and G. These reductions include those

from measures adopted prior to 2007

(baseline measures), measures adopted

since 2007 and measures that are yet to

be adopted (i.e., enforceable

commitments). The expected reductions

from each of these sets of measures are

provided in the 2011 proposal, as are

EPA's calculations of the percentages of

needed reductions remaining as

commitments. See 76 FR 41338 at

41354, Table 8; see also 2011 Proposal

TSD at pp. 105-106 and 113-114. As

provided in the tables in our 2011

proposal and 2011 Proposal TSD, the

reductions remaining as commitments

are 12.9 tpd of NOx and 3.0 tpd of

PM 2.5. Id. These reductions represent 4.5

percent and 13.2 percent of the total

NOx and PM 2.5 emissions reductions

(respectively) needed for attainment. Id.

In support of our statement that these

percentages (4.5 percent of NOx and

13.2 percent of PM 2.

5) are "reasonably

close to the 10 percent range that EPA

has historically accepted in approving

attainment demonstrations," we

referenced several prior EPA approvals

of SIPs relying on similar enforceable

commitments. See 76 FR 41339 at 41355

and n. 30. We also explained our legal

rationale for approving such enforceable

commitments and referenced several

court decisions that support our

interpretation of the CAA. See id. at n.

27 and 28. Based on our evaluations, we

proposed to allow the State to rely on

these limited enforceable commitments

as part of the attainment demonstration

in the 2008 PM 2.

5 Plan and 2007 State

Strategy. Id. at 41356. Earthjustice does

not explain why these explanations

were not adequate or why reliance on

enforceable commitments consistent

with these court cases is inappropriate.

Comment: Earthjustice comments that

it is not reasonable to approve a "plan

to make a plan," which is what they

believe the District and CARB have

provided. Earthjustice states that the

District and CARB are asking EPA to

trust them that they will find emissions

reductions needed to meet the standards

by 2015. Earthjustice states that this is

not what the CAA contemplates, citing

section 110(a)(2)(A) of the CAA

(requiring plans to include "enforceable

emission limitations and other control

measures * * * necessary or

appropriate to meet the applicable

requirements of this Act"). Earthjustice

states that there is no point in having a

plan which does not specifically

identify how it plans to accomplish the

needed reductions.

Response: We disagree with

Earthjustice's assertion that the 2008

PM 2.5 SIP does not identify how CARB

and the SJVUAPCD plan to accomplish

the reductions needed for attainment of

the 1997 PM 2.

5 standards in the SJV by

2015. As discussed in our amended

proposal, the 2008 PM 2.

5 Plan relies

principally on adopted measures

approved into the SIP or given waivers

under CAA section 209 rules to achieve

the emissions reductions needed to

attain the 1997 PM 2.

5 standards in the

SJV by April 5, 2015, including baseline

(pre-2007) measures that continue to

achieve emissions reductions through

2014. See 76 FR at 41356. The balance

of the needed reductions is currently in

the form of enforceable commitments

that account for 13.2 percent of the

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direct PM 2.

5 and 4.5 percent of the NOx

emissions reductions needed from 2005

levels to attain. See id. These SIPapproved or CAA-waived control

measures and enforceable commitments

satisfy the requirement in CAA section

110(a)(2)(A) to include "enforceable

emission limitations and other control

measures, means or techniques * * * as

well as schedules and timetables for

compliance, as may be necessary or

appropriate to meet the applicable

requirements" of the CAA. See id. at

41355, n. 27. Although CARB's and the

District's enforceable commitments to

achieve additional emissions reductions

are expressed in aggregate tonnages and

not tied to specific measures, both

CARB and the District have provided a

list of potential measures that may

achieve the additional reductions

needed to attain the standards, together

with expeditious rule development,

adoption, and implementation

schedules consistent with EPA's policy

on acceptable enforceable commitments.

See id. at 41355, 41356. Both CARB and

the District have also made significant

progress to date in meeting their

enforceable commitments. Id.

Comment: AIR notes that one of EPA's

criteria for evaluating an attainment

demonstration that relies on

commitments is whether the state is

capable of fulfilling the commitment.

AIR argues that CARB is not capable of

fulfilling its commitment given CARB's

alleged use of "recession reductions"

instead of actual measures to meet its

commitment when diesel emissions can

change based on economic forces that

the State cannot control. It also claims

that CARB's decision to revise its five

in-use rules is evidence that CARB can

and likely will amend rules in the future

that may undermine its commitment.

Response: We disagree with AIR's

assertion that CARB's revisions to the

in-use rules or to its projected emissions

levels based on updated economic

forecasts undermine its commitments or

demonstrate that the State is not capable

of fulfilling its commitment. We

discussed above in section II.A our

reasons for concluding that the revisions

to the 2014 baseline emissions

inventories are legitimate.

Contrary to AIR's assertions, CARB's

rulemaking record for the revisions to

its in-use rules indicate that the State

intends to ensure that any future

revisions to the rules will not

undermine its SIP commitment. See,

e.g., 2010 Truck Rule ISOR, p. 2 and

2010 Off-Road Rule ISOR, p. 2 (stating

that rule revisions should "continue

progress toward cleaner air" and "meet

state implementation plan (SIP)

commitments"). Before revising its inuse rules, CARB calculated the

maximum level of relief it could provide

without violating it SIP commitment.

This "SIP margin" was calculated as 40

tpd in NOx equivalent (a weighted

combination of NOx and PM 2.5

emissions) in the SJV. See 2010 Truck

Rule ISOR, p. 23 and 2010 Off-Road

Rule ISOR, p. 20. The revisions to the

in-use rules did not decrease their

combined benefits by more this amount.

See 2010 Truck Rule ISOR, p. 51 and

2010 Off-Road Rule ISOR, p. 43. Thus,

CARB's actions did not reflect any lack

of intention to fully meet its enforceable

commitments to provide emissions

reductions sufficient for timely

attainment.

Comment: Earthjustice also contends

that the second factor for determining

whether to approve an attainment

demonstration that relies on

commitments, whether the state is

capable of meeting its commitment, is

not met because CARB has repeatedly

fallen short of achieving its estimated

emissions reduction from its rules and

has not begun to develop its

Agricultural Equipment Rule which was

to achieve 5 to 10 tons per day of NOx

in the SJV and be adopted by 2009. To

support its argument, it points to the

methodology changes associated with

the Truck Rule and Off-Road Rule and

the "massive recession reductions" that

have resulted in fewer reductions being

needed from these rules. Earthjustice

concludes that it does not believe that

CARB is capable of meeting the

"massive, last-minute commitments"

relied upon in the Plan given CARB's

history of avoiding satisfying its

commitments. It also argues that CARB

cannot rely on changes to the inventory

to lessen the reductions from its rules

without reassessing the relationship

between emissions and ambient

concentrations of fine particulates and

that the "massive recession reductions"

are neither permanent nor enforceable.

Response: We disagree with

Earthjustice's assertion that CARB has a

history of not satisfying its

commitments or that the State's recent

revisions to its future emissions

projections indicate it is not capable of

meeting its commitments. We discussed

above in section II.A. our reasons for

concluding that the revisions to the

2014 baseline emissions inventories are

valid. We also note that Earthjustice has

provided no information or data to

undermine CARB's revisions to its

future emissions projections based on

its revised economic forecasts and

updated methodologies for estimating

emissions.

In addition, Earthjustice's assertion

that CARB's actions with respect to

regulation of in-use agricultural

equipment indicate it will not meet its

enforceable commitment is

unsupported. CARB recently adopted

changes to its rulemaking schedule to

establish an adoption date of 2013 for

regulation of in-use agricultural

equipment. See 2011 Ozone SIP

Revisions, p. 3. The 2007 State Strategy

indicates that this measure is expected

to achieve 5 to 10 tpd NOx reductions

in 2017, well after the period covered by

the 2008 PM 2.

5 SIP. See 2009 State

Strategy Status Report, p. 18. CARB did

not quantify emissions reductions for

this measure for 2014. See id. at 16. The

fact that the State revised its adoption

schedule for a measure that is not relied

on for attainment or RFP in the SJV

2008 PM 2.

5 SIP does not establish that

the State is generally incapable of

meeting its enforceable commitments in

that SIP. As discussed in the 2011

proposal and its TSD and in our

response to comments on the air quality

modeling above in section II.B., EPA has

concluded as a technical matter that the

revisions to the base year inventory are

not significant enough to change the

basic conclusions drawn from the air

quality modeling or to warrant a new air

quality modeling assessment at this

time. See 76 FR 41338, 41349 and 2011

Proposal TSD, section II.B.

Comment: Earthjustice states that

CAA sections 110(a)(2)(A) and 172(c)(6)

require SIPs to contain "enforceable

limitations * * * as may be necessary

or appropriate" to achieve attainment.

Earthjustice further states that, while

section 110(k)(4) allows EPA to grant "conditional approval" of a SIP lacking

certain statutory elements "based on a

commitment of the state to adopt

specific enforceable measures" by a date

certain, the statute provides that the

conditional approval automatically

becomes a disapproval if the state fails

to comply with the commitment within

one year. Earthjustice then claims that

EPA appears to be trying to avoid this

limitation by treating open-ended

promises of the State to reduce

emissions as enforceable commitments

even though the State has never

specified exactly what it commits to do.

Earthjustice states that courts have

rejected similar attempts to circumvent

the statute's limitations on conditional

approval and cites Sierra Club v. EPA,

356 F.3d 296, 298 (DC Cir. 2004) as

overturning EPA's conditional approval

of SIPs based in part on the fact that the

commitments identified no specific

measures the state would implement.

Response: As pertinent to the

comment, Sierra Club involved EPA's

conditional approval under section

110(k)(4) of SIPs lacking in their entirety
No. 217/Wednesday, November 9, 2011/Rules and Regulations

RACM and rate-of-progress (ROP)

demonstrations and contingency

measures based on letters submitted by

states that committed to cure these

deficiencies. The court rejected EPA's

construction of section 110(k)(4) as

contrary to the unambiguous statutory

language requiring the state to commit

to adopt specific enforceable measures.

Sierra Club at 302. The court found that

EPA's construction turned the section

110(k)(4) conditional approval into a

means of circumventing SIP deadlines.

Id. at 303.

EPA does not dispute the holding of

Sierra Club. However that case is not

germane to EPA's approval of CARB's

and the District's commitments here

because the Agency is not approving

those commitments under section

110(k)(4). The relevant precedent is

instead BCCA Appeal Group v. EPA,

355 F.3d 817 (5th Cir. 2003). The facts

in BCCA were very similar to those

presented here. In BCCA, EPA approved

an enforceable commitment in the

Houston ozone SIP to adopt and

implement unspecified NON controls on

a fixed schedule to achieve aggregate

emissions reductions. Petitioners

claimed that EPA lacked authority

under the CAA to approve a SIP

containing an enforceable commitment

to adopt unspecified control measures

in the future. The court disagreed and

found that section 110(k)(4) conditional

approvals do not supplant EPA's

practice of fully approving enforceable

commitments:

Nothing in the CAA speaks directly to

enforceable commitments. The CAA does,

however, provide EPA with great flexibility

in approving SIPs. A SIP may contain

"enforceable emission limitations and other

control measures, means, or techniques

* * * as well as schedules and timetables for

compliance, as may be necessary or

appropriate" to meet the CAA's requirements * * *. Thus, according to the plain language

of the statute, SIPs may contain "means,"

"techniques" and/or "schedules and

timetables for compliance" that the EPA

considers "appropriate" for attainment so

long as they are "enforceable." See id.

§ 7410(a)(2)(A). "Schedules and timetables"

is broadly defined as "a schedule of required measures including an enforceable sequence

of actions or operations leading to

compliance with an emission limitation,

prohibition or standard." 42 U.S.C. 7602(p).

The remaining terms are not defined by the

Act. Because the statute is silent on the issue

of whether enforceable commitments are

appropriate means, techniques, or schedules

for attainment, EPA's interpretation allowing

limited use of an enforceable commitment in

the Houston SIP must be upheld if

reasonable.

BCCA at 839-840. The court upheld

EPA's approval of the commitment,

finding that "EPA reasonably concluded

that an enforceable commitment to

adopt additional control measures on a

fixed schedule was an 'appropriate'

means, technique, or schedule or

timetable for compliance" under

sections 110(a)(2)(A) and 172(c)(6). Id.

at 841. Thus the court recognized that

sections 110(a)(2)(A) and 172(c)(6)

provide a basis for EPA to approve

enforceable commitments as distinct

from the commitments contemplated by

section 110(k)(4), which are not in fact

enforceable but instead lead to SIP

disapproval if not honored. See also

Environmental Defense v. EPA, 369 F.3d

193, 209-210 (2nd Cir. 2004) (similarly

upholding enforceable SIP

commitments). As a result, contrary to

Earthjustice's contention, section

110(k)(4) is not a bar to EPA's approval

of CARB's and the District's enforceable

commitments and that approval under

section 110(k)(3) is permissible as an

appropriate means, technique or

schedule or timetable for compliance

under sections 110(a)(2)(A) and

1 72(c)(6).

Comment: Earthjustice states that the

commitments are "absurd" because

CARB may claim credit toward its

aggregate commitments from everything

from new regulations to unenforceable

incentive programs to "actual decreases

occurring in any air basin for which

emissions reduction commitments have

been made." Earthjustice states this is

arbitrary and that EPA needs to explain

how the commitments offered in the

plan would be enforced, what relief EPA

or the public could demand, and when

a suit could be brought. Earthjustice

states that it does not see how these

open-ended commitments are

practically enforceable in a court of law

and asserts that EPA must lay out a

roadmap that can be followed by courts

in the future to ensure that meaningful

emissions reductions are achieved.

Response: As discussed in our

amended proposal (76 FR at 41355), the

CAA allows approval of enforceable

commitments that are limited in scope

where circumstances warrant the use of

such commitments in place of adopted

control measures. Commitments

approved by EPA under section

110(k)(3) of the CAA are enforceable by

EPA and citizens under, respectively,

sections 113 and 304 of the CAA. In the

past, EPA has approved enforceable

commitments and courts have enforced

these actions against states that failed to

comply with those commitments: See,

e.g., American Lung Ass'n of N.J. v.

Kean, 670 F. Supp. 1285 (D.N.J. 1987),

aff'd, 871 F.2d 319 (3rd Cir. 1989);

NRDC, Inc. v. N.Y. State Dept. of Env.

Cons., 668 F. Supp. 848 (S.D.N.Y. 1987);

Citizens for a Better Env't v.

Deukmejian, 731 F. Supp. 1448, recon.

granted in par, 746 F. Supp. 976 (N.D.

Cal. 1990); Coalition for Clean Air v.

South Coast Air Quality Mgt. Dist., No.

CV 97-6916-HLH, (C.D. Cal. Aug. 27,

1999). See 76 FR at 41355, n. 27.

In response to Earthjustice's

comment, we are clarifying in this final

action that we are not providing SIP

credit for "actual decreases" in air

pollution emissions or "recessionrelated reductions" in approving the

2008 PM 2.5 Plan. Rather, we are

approving the 2008 PM 2.5 Plan taking

into account CARB's revisions to the

control strategy based on the revisions

to its projected baseline inventories.

Specifically, as explained in our 2011

proposal, CARB's aggregate emissions

reduction commitment in the 2008

PM 2.5 Plan as submitted in 2008 is to

achieve 76 tpd of NON reductions and

5 tpd of PM 2.5 reductions by 2014. See

76 FR at 41346; CARB Resolution 07-

28, Attachment B at pp. 3-6 and 2009

State Strategy Status Report, p. 21. 4 4

The District's aggregate emissions

reduction commitment in the Plan as

submitted in 2008 is to achieve 8.97 tpd

of NON reductions, 6.7 tpd of PM 2.

5

reductions, and 0.92 tpd of SO 2

reductions by 2014. See 76 FR at 41345,

Table 3. More broadly, however, CARB's

emissions reduction commitment is to

achieve the "total emissions reductions

necessary to attain Federal standards"

through "the implementation of control

measures; the expenditure of local,

State, or federal incentive funds; or

through other enforceable measures."

See CARB Resolution 07-28,

Attachment B at pp. 3-6. The updates

and improvements to the inventories as

presented in CARB's 2011 Progress

Report altered the calculation of the

reductions needed for attainment of the

1997 PM 2.

5 standards in SJV by reducing

the total reductions needed from control

strategy measures to 9 tpd (for PM 2.

5),

26.1 tpd (for NOx), and 0.8 tpd (for

SO 2). See 76 FR at 41354, Table 7. We

therefore interpret CARB's emissions

reduction commitment, together with

the adjustments to the 2014 baseline

inventories provided in CARB's 2011

SIP revision and the District's

commitments, as adjusting CARB's total

emission reduction commitment such

that the CARB is now obligated to

achieve 2.3 tpd of PM 2.

5 reductions and

44 In our proposed rule (76 FR 41338, 41346) we

reference the 2007 State Strategy, p. 63 and CARB

Resolution 07-28, Attachment B. p. 6. Note that

page 63 of the 2007 State Strategy was replaced

with information in the 2009 State Strategy Status

Report, pp. 20-21.

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17.1 tpd of NON reductions 45 by 2014

through enforceable control measures to

provide for attainment of the 1997 PM 2.

5

NAAQS in SJV. The District's aggregate

emissions reduction commitment in the

Plan as submitted in 2008 (8.97 tpd of

NON reductions, 6.7 tpd of PM 2.5

reductions, and 0.92 tpd of S02

reductions by 2014) remains unchanged.

See Table 3 below.

We also note that we do not agree

with CARB's position that "actual

decreases occurring in any air basin for

which emissions reduction

commitments have been made" or

incentive programs may be counted as

SIP credit toward CARB's enforceable

commitment, unless the State provides

a demonstration that such emissions

decreases are actually enforceable or

otherwise meet EPA's requirements for

SIP creditability.

CARB's commitment is to adopt and

implement measures that will achieve

specific reductions of NON and PM 2.

5

emissions and are, as such, specific

strategies designed to achieve the SIP's

overall objectives. Further, if CARB fails

to meet its commitments, EPA could

make a finding of failure to implement

the SIP under CAA Section 179(a),

which starts an 18-month period for the

State to correct the non-implementation

before mandatory sanctions are

imposed, or alternatively either EPA or

citizens could enforce the commitments

directly against CARB under CAA

section 113 or 304, respectively.

Comment: Earthjustice states that

courts "may only enforce SIP strategies"

and that "[m]ere approval of an

aspirational goal or non-specific

promise into the SIP does not convert

that goal or promise into an enforceable

commitment." In support of these

assertions, Earthjustice cites Bayview

Hunters Point Community Advocates v.

Metropolitan Transp. Comm'n, 366 F.3d

692, 701 (9th Cir. 2004) and Citizens for

a Better Environment v. Metropolitan

Tranp. Comm'n, 746 F. Supp. 976, 980

(N.D.Cal. 1990) [known as CBE II]. In

addition, Earthjustice singles out El

Comite Para El Bienstar de Earlimart v.

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

Cir. 2008), stating that in El Comite the

court explained that because an

inventory in a SIP is not a "standard or

limitation" as defined by the CAA, it

was not an independently enforceable

aspect of the SIP. Thus, Earthjustice

reasons, in order to be enforceable, not

only must a state's commitment to adopt

additional measures to attain emission

standards be specific and announced in

45 Note that the District has already achieved all

of the SOx reductions necessary to attain. See 76

FR 41338, 41354, Table 8.

plain language, but any data or rubric

that will be used to determine when and

how the state will adopt those measures

must be enforceable.

Similarly, citing Bayview and El

Comite, AIR characterizes CARB's and

the District's commitments to achieve

aggregate emissions reductions by the

attainment year as "global

commitments" that could be interpreted

as "goals" unenforceable by citizens

under Ninth Circuit precedent, rather

than enforceable "strategies" to achieve

those goals. AIR argues that the plans'

global commitments are not enforceable

for two reasons. First, enforcement is

not practical because it is virtually

impossible for citizens or EPA to

determine whether the CARB and the

District have, in fact, met the global

commitments. Second, the manner in

which CARB and the District determine

compliance with the tonnage target is

left to their discretion, and citizens and

EPA would be placed in the situation

held by the plaintiffs in Warmerdam.

AIR adds that even if the

commitments are viewed as "strategies"

enforcement is not practical because

when no measures are submitted to EPA

for inclusion into the SIP, citizens have

no idea which measures CARB has used

to satisfy the total tonnage

commitments. AIR also states that there

are no provisions for CARB and the

District to report to EPA and the public

what actions they have taken to comply

with the tonnage commitments. EPA

and citizens are left to determine, based

on information collected by CARB and

the District, whether the commitments

have in fact been met.

Response: Under CAA section

110(a)(2)(A), SIPs must include

enforceable emission limitations and

other control measures, means or

techniques necessary to meet the

requirements of the Act, as well as

timetables for compliance. Similarly,

section 172(c)(6) provides that

nonattainment area SIPs must include

enforceable emission limitations and

such other control measures, means or

techniques "as may be necessary or

appropriate to provide for attainment"

of the NAAQS by the applicable

attainment date.

Control measures, including

commitments in SIPs, are enforced

directly by EPA under CAA section 113

and also through CAA section 304(a)

which provides for citizen suits to be

brought against any person who is

alleged "to be in violation of * * * an

emission standard or limitation* * *"

"Emission standard or limitation" is

defined in subsection (f) of section 304.

As observed in Conservation Law

Foundation, Inc. v. James Busey et al.,

79 F.3d 1250, 1258 (1st Cir. 1996):

Courts interpreting citizen suit jurisdiction

have largely focused on whether the

particular standard or requirement plaintiffs

sought to enforce was sufficiently specific.

Thus, interpreting citizen suit jurisdiction as limited to claims "for violations of specific

provisions of the act or specific provisions of an applicable implementation plan," the

Second Circuit held that suits can be brought

to enforce specific measures, strategies, or

commitments designed to ensure compliance

with the NAAQS, but not to enforce the

NAAQS directly. See, e.g., Wilder, 854 F.2d

at 613-14. Courts have repeatedly applied

this test as the linchpin of citizen suit

jurisdiction. See, e.g., Coalition Against

Columbus Ctr. v. City of New York, 967 F.2d

764, 769-71 (2d Cir. 1992); Cate v.

Transcontinental Gas Pipe Line Corp., 904 F.

Supp. 526, 530-32 (W.D. Va. 1995); Citizens

for a Better Env't v. Deukmefian, 731 F.

Supp. 1448, 1454-59 (N.D. Cal.), modified,

746 F. Supp. 976 (1990).

Thus courts have found that the

citizen suit provision cannot be used to

enforce the aspirational goal of attaining

the NAAQS, but can be used to enforce

specific strategies to achieve that goal,

including enforceable commitments to

develop future emissions controls.

We describe CARB's and the District's

commitments in the 2007 State Strategy

(revised in 2009 and 2011) and the 2008

PM 2.5 Plan in detail in our amended

proposal. See 76 FR at 41343-41347.

The 2007 State Strategy includes

commitments to propose defined new

measures and an enforceable

commitment for emissions reductions

sufficient, in combination with existing

measures and the District's

commitments, to attain the PM 2.

5

NAAQS in the SJV by April 5, 2015. See

CARB Resolution 07-28, Attachment B

at pp. 3-6 and 2009 State Strategy

Status Report, p. 21. For the SJV, the

CARB's emissions reductions

commitments as submitted in 2008 were

to achieve 76 tpd NON and 5 tpd of

direct PM 2.

5 by 2014. Id.

SJVUAPCD's commitments as

submitted in 2008 were to achieve 9 tpd

NON and 6.7 tpd direct PM2.

5 by 2014.

See 76 FR at 41345-41346, See also

2008 PM 2.5 Plan, p. 6-9, Table 6-2. The

language used in the Board's resolution

adopting the 2008 PM 2.

5 Plan at page 5

to describe its commitment is

mandatory and unequivocal in nature:

9. The District Governing Board commits to

adopt and implement the rules and measures

in the 2008 PM2.5 Plan by the dates specified

in Chapter 6 to achieve the emissions

reductions shown in Chapter 6, and to submit

these rules and measures to the ARB within one month of adoption for transmittal to EPA

as a revision to the State Implementation

Plan. If the total emissions reductions from

the adopted rules are less than those
No. 217/Wednesday, November 9, 2011/Rules and Regulations

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 direct PM2 .5 or PM2 .5 precursors

in the same adoption and implementation

timeframes or in the timeframes needed to

meet CAA milestones. (emphasis added).

SJVUAPCD Board Resolution No. 08-

04-10, p. 5.

As discussed above, the 2011 SIP

revisions reduced the reductions needed

from new measures in 2014 to attain to

9 tpd of PM 2.

5 reductions, 26.1 tpd of

NOx reductions, and 0.8 tpd of SOx. See

76 FR at 41354, Table 7. The District's

aggregate emissions reduction

commitment in the Plan as submitted in

2008 remains unchanged (8.97 tpd of

NOx reductions, 6.7 tpd of PM 2.

5

reductions, and 0.92 tpd of S02

reductions by 2014). Thus, CARB

remains obligated to achieve through

the adoption of enforceable measures by

2014, 2.3 tpd of PM 2 .

5 and 17.1 tpd of

NOx. The District's commitments

remain as submitted in 2008 at 9 tpd

NOx, 6.7 tpd direct PM 2 .

5 and 0.9 tpd

SOx by 2014. See Table 3 below.

Thus, CARB's and the District's

commitments here are to adopt and

implement measures that will achieve

specific amounts of NOx and direct

PM 2.

5 emissions reductions by 2014.

These are not mere aspirational goals to

ultimately achieve the standards or

emissions inventories as mentioned by

Earthjustice. Rather, the State and

District have committed to adopt

enforceable measures no later than 2014

that will achieve these specific amounts

of emissions reductions prior to the

attainment date of April 5, 2015. All of

these control measures are subject to

State and local rulemaking procedures

and public participation requirements,

through which EPA and the public may

track the State/District's progress in

achieving the requisite emissions

reductions. EPA and citizens may

enforce these commitments under CAA

sections 113 and 304(a), respectively,

should the State/District fail to adopt

measures that achieve the requisite

amounts of emissions reductions by the

beginning of 2014. See 40 CFR

51.1007(b) (requiring implementation of

all control measures needed for

expeditious attainment no later than the

beginning of the year prior to the

attainment date). We conclude that

these enforceable commitments to adopt

and implement additional control

measures to achieve aggregate emissions

reductions on a fixed schedule are

appropriate means, techniques, or

schedules for compliance under

sections 110(a)(2)(A) and 172(c)(6) of

the Act.

Both Earthjustice and AIR cite

Bayview as support for their contention

that the plan's commitments are

unenforceable aspirational goals.

Bayview does not, however, provide any

such support. That case involved a

provision of the 1982 Bay Area 1-hour

ozone SIP, known as TCM 2, which

states in pertinent part:

Support post-1983 improvements

identified in transit operator's 5-year plans,

after consultation with the operators adopt

ridership increase target for 1983-1987.

Emission Reduction Estimates: These

emission reduction estimates are predicated

on a 15% ridership increase. The actual

target would be determined after consultation

with the transit operators.

Following a table listing these estimates,

TCM 2 provided that "[r]idership increases

would come from productivity improvements

Ultimately the 15 percent ridership

estimate was adopted by the

Metropolitan Transportation

Commission (MTC), the implementing

agency, as the actual target. Plaintiffs

subsequently attempted to enforce the

15 percent ridership increase. The court

found that the 15 percent ridership

increase was an unenforceable estimate

or goal. In reaching that conclusion, the

court considered multiple factors,

including the plain language of TCM 2

(e.g., "[a]greeing to establish a ridership

'target' is simply not the same as

promising to attain that target," Bayview

at 698); the logic of TCM 2, i.e., the

drafters of TCM 2 were careful not to

characterize any given increase as an

obligation because the TCM was

contingent on a number of factors

beyond MTC's control, id. at 699; and

the fact that TCM 2 was an extension of

TCM 1 that had as an enforceable

strategy the improvement of transit

services, specifically through

productivity improvements in transit

operators' five-year plans, id. at 701. As

a result of all of these factors, the Ninth

Circuit found that TCM 2 clearly

designated the productivity

improvements as the only enforceable

strategy. Id. at 703.

The commitments in the 2007 State

Strategy (revised in 2009 and 2011) and

2008 PM 2.

5 Plan are in stark contrast to

the ridership target that was deemed

unenforceable in Bayview. The language

in CARB's and the District's

commitments, as stated multiple times

in multiple documents, is specific; the

intent of the commitments is clear; and

the strategy of adopting measures to

achieve the required reductions is

completely within CARB's and the

District's control. Furthermore, as stated

previously, CARB and the District

identify specific emissions reductions

that they will achieve, how they will be

achieved and the time by which these

reductions could be achieved, i.e., by

2014.

Earthjustice also cites CBE II at 980 for

the proposition that courts can only

enforce "express" or "specific"

strategies. However, as discussed below,

there is nothing in the CBE cases that

supports the commenter's view that the

CARB and District commitments are

neither express nor specific. In fact,

these cases support our interpretation of

CARB's and the District's commitments.

Citizens for a Better Environment v.

Deukmejian, 731 F.Supp.1448 (N.D. Cal.

1990), known as CBE L concerned in

part contingency measures for the

transportation sector in the 1982 Bay

Area 1-hour ozone SIP. The provision

states: "If a determination is made that

RFP is not being met for the

transportation sector, MTC will adopt

additional TCMs within 6 months of the

determination. These TCMs will be

designed to bring the region back within

the RFP line." The court found that

"[o]n its face, this language is both

specific and mandatory." Id. at 1458. In

CBE L CARB and MTC argued that TCM

2 could not constitute an enforceable

strategy because the provision fails to

specify exactly what TCMs must be

adopted. The court rejected this

argument, finding that "[w]e discern no

principled basis, consistent with the

Clean Air Act, for disregarding this

unequivocal commitment simply

because the particulars of the

contingency measures are not provided.

Thus we hold that the basic

commitment to adopt and implement

additional measures, should the

identified conditions occur, constitutes

a specific strategy, fully enforceable in

a citizens action, although the exact

contours of those measures are not

spelled out." Id. at 1457.46 In

concluding that the transportation and

stationary source contingency

provisions were enforceable, the court

stated: "Thus, while this Court is not

empowered to enforce the Plan's overall

objectives [footnote omitted; attainment

of the NAAQS]-or NAAQS-directly, it

can and indeed, must, enforce specific

strategies committed to in the Plan." Id.

at 1454.

Earthjustice's reliance on CBE I is

misplaced. It also involves in part the

46 In this passage, the court was referring

specifically to the stationary source contingency

measures in the Bay Area plan which contained a

commitment to adopt such measures if emissions

targets were not met. The Plan identified a number

of potential stationary sources but did not commit

to any particular one. In discussing the

transportation contingency measures, the court

applied this same reasoning. Id. at 1456-1457.

69916 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69917

contingency measures in the 1982 Bay

Area Plan. In CBE H1, defendants argued

that RFP and the NAAQS are coincident

because, had the plan's projections been

accurate, then achieving RFP would

have resulted in attainment of the

NAAQS. The court rejected this

argument, stating that:

the Court would be enforcing the

contingency plan, an express strategy for

attaining NAAQS. Although enforcement of

this strategy might possibly result in

attainment, it is distinct from simply

ordering that NAAQS be achieved without

anchoring that order on any specified

strategy. Plainly, the fact that a specified

strategy might be successful and lead to

attainment does not render that strategy

unenforceable.

(Emphasis in original). CBE II at 980.

CARB's and the District's

commitments here are analogous to the

terms of the contingency measures in

the CBE cases. CARB and the District

commit to adopt measures, which are

not specifically identified, to achieve a

specific tonnage of emissions

reductions. Thus, the commitment to a

specific tonnage reduction is

comparable to a commitment to achieve

RFP. Similarly, a commitment to

achieve a specific amount of emissions

reductions through adoption and

implementation of unidentified

measures is comparable to the

commitments to adopt unspecified

TCMs and stationary source measures.

The key is that commitment must be

clear in terms of what is required, e.g.,

a specified amount of emissions

reductions or the achievement of a

specified amount of progress (i.e., RFP).

ARB's and the District's commitments

are thus clearly a specific enforceable

strategy rather than an unenforceable

aspirational goal.

Earthjustice's reliance on El Comite is

also misplaced. The plaintiffs in the

district court attempted to enforce a

provision of the 1994 California 1-hour

ozone SIP known as the Pesticide

Element. The Pesticide Element relied

on an inventory of pesticide VOC

emissions to provide the basis to

determine whether additional regulatory

measures would be needed to meet the

SIP's pesticides emissions target. To this

end, the Pesticide Element provided

that "ARB will develop a baseline

inventory of estimated 1990 pesticidal

VOC emissions based on 1991 pesticide

use data * * *." El Comite Para El

Bienestar de Earlimart v. Helliker, 416

F. Supp. 2d 912, 925 (E.D. Cal. 2006).

CARB subsequently employed a

different methodology that it deemed

more accurate to calculate the baseline

inventory. The plaintiffs sought to

enforce the commitment to use the

original methodology, claiming that the

calculation of the baseline inventory

constitutes an "emission standard or

limitation." The district court disagreed:

By its own terms, the baseline identifies

emission sources and then quantifies the

amount of emissions attributed to those sources. As defendants argue, once the

sources of air pollution are identified, control

strategies can then be formulated to control

emissions entering the air from those sources.

From all the above, I must conclude that the

baseline is not an emission "standard" or "limitation" within the meaning of 42 U.S.C.

7604 (f)(1)-(4).

Id. at 928. In its opinion, the court

distinguished Bayview and CBE L

pointing out that in those cases "the

measures at issue were designed to

reduce emissions." Id.

On appeal, the plaintiffs shifted their

argument to claim that the baseline

inventory and the calculation

methodology were necessary elements

of the overall enforceable commitment

to reduce emissions in nonattainment

areas. The Ninth Circuit agreed with the

district court's conclusion that the

baseline inventory was not an emission

standard or limitation and rejected

plaintiffs' arguments attempting "to

transform the baseline inventory into an

enforceable emission standard or

limitation by bootstrapping it to the

commitment to decide to adopt

regulations, if necessary." Id. at 1073.

While Earthjustice cites the Ninth

Circuit's El Comite opinion, its utility in

analyzing the CARB and District

commitments here is limited to that

court's agreement with the district

court's conclusion that neither the

baseline nor the methodology qualifies

as an independently enforceable aspect

of the SIP. Rather, it is the district

court's opinion, in distinguishing the

commitments in CBE and Bayview, that

provides insight into the situation at

issue in our action. As the court

recognized, a baseline inventory or the

methodology used to calculate it, is not

a measure to reduce emissions. It

instead "identifies emissions sources

and then quantifies the amount of

emissions attributed to those sources."

In contrast, as stated previously, in the

2007 State Strategy (revised 2009 and

2011) and SJV 2007 PM 2.5 Plan, ARB

and the District commits to adopt and

implement measures sufficient to

achieve specified emissions reductions

by a date certain. As described above, a

number of courts have found

commitments substantially similar to

ARB's here to be enforceable under CAA

section 304(a).

Comment: Earthjustice comments that

before EPA can approve the

commitments in the PM2.5 plan it must

explain how the promise to reduce

emissions by some amount is a "standard or limitation" enforceable

under section 113 or 304 of the Act.

Moreover, citing CAA section

110(a)(2)(A), Earthjustice asserts that

EPA must explain how enforcement of

these commitments, which arguably

could not even be considered until after

the attainment deadline has come and

gone, is adequate to assure the

requirements of the Act (including

timely attainment) are met. Earthjustice

contends that the strategy of relying on

these open-ended commitments is a

recipe for failure and is not a reasonable

substitute for the detailed, enforceable

plan envisioned and required by the

Act.

Response: We disagree. As discussed

above, EPA believes that CARB's and

the District's commitments to adopt and

implement control measures to achieve

the specified aggregate tonnage by 2014

are enforceable as an emission standard

or limitation under CAA section 304.

The fact that the State may meet its SIP

obligation by adopting measures that are

not specifically identified in the SIP, or

through one of several available

techniques, does not render the

requirement to achieve the aggregate

emissions reductions unenforceable.

State and local control measures are

subject to rulemaking procedures and

public participation requirements,

through which EPA and the public may

track the State/District's progress in

achieving the requisite emissions

reductions in the years leading up to

2014 and before the attainment date of

April 5, 2015. Should the State/District

fail to adopt measures that achieve the

requisite amounts of emissions

reductions by the beginning of 2014 (see

40 CFR 51.1007(b)), EPA and citizens

may enforce these commitments under

CAA sections 113 and 304(a),

respectively.

F. Comments on the Proposed Action on

the Attainment Demonstration and

Attainment Date Extension

Comment: Earthjustice comments that

EPA cannot grant an extension of the

attainment date to April 5, 2015 because

the flaws Earthjustice alleges are in the

2008 PM 2.5 Plan's attainment modeling

and RACM/RACT analysis meant that

the demonstration required to grant a

5-year extension have not been met.

Earthjustice asserts that the alleged

flaws include the exemptions for

significant sources of emissions from

the charbroiling, glass melting and open

burning rules; the delay in the

implementation of certain control

requirements (glass melting and

agricultural equipment), and the
No. 217/Wednesday, November 9, 2011/Rules and Regulations

exclusion of controls for VOC and

condensable PM 2.5 emissions in the Plan

Response: We have evaluated

Earthjustice's comments on the RACM/

RACT analysis, VOC as an attainment

plan precursor, and condensable

particulate and have determined that

none change our conclusion that the SJV

2008 PM 2.5 Plan provides for RACM as

required by CAA section 172(c)(1).

Under the PM 2.

5 implementation rule,

states that request an extension of the

attainment date under CAA section

172(a)(2) must provide sufficient

information to show that attainment by

April 5, 2010 is impracticable due to the

severity of the nonattainment problem

in the area and the lack of available and

feasible control measures to provide for

faster attainment. 40 CFR 51.1004(b).

States must also demonstrate that all

RACM and RACT for the area are being

implemented to bring about attainment

of the standard by the most expeditious

alternative date practicable for the area.

72 FR 20586 at 20601. As discussed in

our 2011 proposal, we believe that

California has met the relevant tests for

granting an extension of the attainment

date under CAA section 172(a)(2). See

76 FR 41388, 41341.

Comment: Earthjustice comments that

EPA should not approve the attainment

demonstration, because of its "heavy"

reliance on State commitments to adopt

last-minute control measures and

because the emissions reductions and

the attainment targets are not valid

given the problems in the inventory and

the modeling analysis. Furthermore, the

defective modeling results in inaccurate

attainment target levels.

Response: The SJV 2008 PM 2.5 SIP

does not rely heavily on State

commitment to "adopt last-minute

controls." As noted previously, the bulk

of the emissions reductions needed for

attainment are from measures adopted

prior to 2007. 76 FR 41338, 41354.

Moreover, one of EPA's criteria for

approving attainment demonstrations

that rely on commitments is that the

commitments represent a limited

portion of the reductions needed for

attainment. As we have shown, CARB's

and the District's remaining

commitments account for only 4.5

percent (12.9 tpd) of the NOx and 13.2

percent (3.0 tpd) of the PM 2.

5 reductions

needed for attainment. Id. In

comparison, already achieved

reductions are 271 tpd of NOx and 19.7

tpd of PM 2.

5. See 76 FR 41338, 41354

(Table 8) (numbers are the sum of lines

B and C). Finally, we have determined

that the SJV PM 2.5 Plan provides for a

generally linear reduction in emissions

demonstrating reasonable further

progress as required by CAA 172(c)(2).

G. Comments on the Proposed Actions

on the Reasonable Further Progress

Demonstration

Comment: Earthjustice comments that

EPA should disapprove the RFP

demonstration because it fails to address

VOC and to show generally linear

progress in reducing emissions. It also

argues that because of the alleged

defects in the inventory and the alleged

failure of the modeling analysis to

identify the target level of emissions

reductions, it is impossible to assess

progress. It further argues that the RFP

demonstration must also be updated to

reflect corrections to the inventory.

Response: For the reasons discussed

in the 2011 proposal and response to

comments on the precursor issue above,

EPA has found that insufficient data

exist to reverse the presumption in the

PM 2.

5 implementation rule that VOC is

not a PM 2.

5 attainment plan precursor

for attainment of the 1997 PM 2.5

standards in the SJV. See 76 FR 41350

and 2011 Proposal TSD, p. 50. Because

VOC is not considered an attainment

plan precursor, it need not be addressed

in the RFP demonstration. See 40 CFR

51. 1009(c).

For the reasons discussed in the 2011

proposal and response to comments on

the air quality modeling above in

section II.B., EPA has found that the air

quality modeling in the SJV 2007 PM 2.5

SIP is adequate to support the

attainment demonstration and thus to

establish the target level of emissions.

See 76 FR 41338, 41348 and 2011

Proposal TSD, section II.B. As discussed

in the 2011 proposal, EPA evaluated the

effect of the changes in the base year

inventory on the RFP demonstration

and determined that it did not revise

our conclusion that the Plan provided

for RFP. See 76 FR 41338, 41357 (ftn.

32) and 2011 Proposal TSD, p. 122.

H. Comments on the Proposed Actions

on the Contingency Measures

Comment: Earthjustice states that

EPA's analysis of the contingency

measures in the 2008 Plan is generally

sound. Earthjustice, however, contends

that our analysis relies on an RFP

analysis that in turn relies on invalid

NOx to PM 2.

5 interpollutant equivalency

ratios. It further argues that because

these ratios are invalid, the assessment

of the excess reductions in the RFP

demonstration is also invalid and the

shortfall targets must be recalculated

using valid methods and results.

Response: EPA's calculation of the

excess reductions in the RFP

demonstration is done on a per

pollutant basis and does not assume any

interpollutant trading. See 76 FR 41339,

41359 (Table 10) and 2011 Proposal

TSD, p. 130. In the 2011 Progress

Report, CARB states that these

reductions are equal to at least oneyear's worth of RFP when considered on

a PM 2.5 equivalency basis (see 2011

Progress Report, p. 2); however, to make

this statement, the State relies in part on

an interpollutant trading ratio of 1 ton

of SOx reductions to 1 ton of PM2.5

reductions. As discussed in section

II.B.4. of the 2011 Proposal TSD, EPA

found that there was insufficient

technical support for this ratio and EPA

did not allow its use in the RFP

demonstration or for any other purpose.

Id. at 42358 and p. 129.

Comment: In its comments on the

2010 proposal, Earthjustice notes that

the District proposes to rely on

emissions reductions achieved by the

ozone nonattainment fee and other

incentive programs. It argues that the

District does not have criteria for how

these monies will be spent and does not

provide a mechanism for ensuring that

any claimed emissions reductions are

enforceable and that any future reliance

on funding programs to reduce

emissions must demonstrate that the

emissions reductions meet statutory

creditability requirements including an

explanation of how these agreements

between the District and the subsidized

source can be enforced by EPA or the

public.

Response: We are not approving

reductions from the District's incentive

grant programs as part of the 2008 PM 2.

5

SIP's contingency measures provisions;

therefore, comments related to them are

not germane to this action. In both its

2010 and 2011 proposals EPA proposed

to disapprove the Plan's contingency

measures provisions and is

disapproving those provisions in today's

action. See 75 FR 74518, 74539 and 76

FR 41338, 41358. Those provisions

include the District's ozone

nonattainment fee program and other

incentive programs as potential

contingency measures.

In both proposals, we noted that

while neither the CAA nor EPA policy

bar the use of emissions reductions from

incentive programs to meet all or part of

an area's contingency measure

obligation, the incentive programs must

assure that the reductions are surplus,

quantifiable, enforceable, and

permanent in accordance with EPA's

guidance. See "Improving Air Quality

with Economic Incentive Programs,"

EPA-452/R-01-001 (January 2001). We

also noted that the 2008 PM 2.5 Plan does

not identify the incentive grant

programs expected to generate the

emissions reductions. The Plan also

does not identify the quantity of these

69918 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69919

emissions reductions that the District

intended to use to meet the contingency

measure requirement. Therefore, we are

unable to determine if they are SIP

creditable or sufficient to provide in

combination with other measures the

roughly one-year's worth of RFP

needed. For these reasons, we

determined that programs did not

currently meet the CAA requirements

for contingency measures. See 75 FR

74518, 74538 and 76 FR 41338, 41358.

Comment: While AIR agrees with

EPA's proposed disapproval of the

contingency measures, it argues against

the use of waiver measures and on-road

fleet turnover as contingency measures

because waiver measures are not in the

SIP and there are no control measures

that require fleet turnover. It further

argues that reductions from fleet

turnover are derived from assumptions

based on voluntary future activity that

fail to meet the Act's requirements for

enforceable measures. Finally, it asserts

that EPA has made no finding that such

fleet turnover reductions have actually

occurred.

Response: As discussed previously,

we believe that reductions from CAA

209 waiver measures can be used to

meet CAA requirements including the

contingency measure requirement even

though they are not in the SIP.

The measures relied on in part for

contingency measure emissions

reductions are the State and federal onand off-road new engines standards.

Fleet turnover is the mechanism by

which these new engine standards are

implemented, and it is how these

standards actually result in emissions

reductions in an area. CARB calculates

reductions from its mobile sources,

including base year and future projected

year, using its EMFAC2007 and

OFFROAD models. These models

included assumptions regarding fleet

turnover based on historical records. 47

Recent updates to the truck, bus, and

offroad equipment inventories included

review and adjustments of fleet turnover

rates which are also based on available

records. See 2010 Truck Rule ISOR,

section F.

Comment: SJVUACPD commented

that EPA's current requirement that

contingency measures provide for oneyear's worth of emissions reductions is

not practical for areas like the SJV and

that EPA should work towards realistic

and specific solutions for future

implementation rules. It also stated that

47 See CARB, "Public Meeting to Consider

Approval of Revisions to the State's On-Road Motor

Vehicle Emissions Inventory, Technical Support

Document," May 2000, section 7.3 "Retention

Rates" which can be found at http://

www.arb.ca.gov/msei/onroad/doctable test.htm.

it would continue to work with EPA to

incorporate reductions from the

District's incentive programs into the

SIP so that they may be used satisfy the

contingency measures requirement.

Response: EPA recognizes the

difficulty of identifying contingency

measures and appreciates the District's

concerns. We will continue to work

with the District to identify potential

contingency measures including

incentive programs that produce

reductions that are surplus, quantifiable,

enforceable, and permanent in

accordance with EPA guidance.

L Comments on the Proposed Actions

on the Motor Vehicle Emissions Budgets

and Trading Mechanism

Comment: Earthjustice comments that

EPA cannot approve the revised motor

vehicle emissions budgets because they

are derived from attainment and RFP

demonstrations that Earthjustice asserts

are not approvable because they are

based on invalid modeling. It also

claims the issues with the modeling also

affect the conformity analysis because it

depends on interpollutant equivalency

ratio between NOx and PM 2.

5 that is

derived from the modeling. Earthjustice

notes that CARB derived this ratio by

conducting a sensitivity analysis with

the model which according to

Earthjustice, EPA acknowledged was

not a legitimate basis for determining

interpollutant equivalency ratios, citing

the 2011 Proposal TSD at p. 47.

Earthjustice further claims that these

"defective ratios" were used to

demonstrate RFP and conformity.

Response: We agree that EPA would

not be able to approve budgets that are

derived from unapprovable or

disapproved attainment or RFP

demonstrations. However, we are

approving these demonstrations in the

SJV 2008 PM 2.5 Plan and, because they

are derived from those demonstrations

and otherwise meet all applicable

requirements for transportation

conformity budgets, EPA's is also

approving the budgets. For the reasons

discussed above in our response to

comments on the air quality modeling,

we do not agree with Earthjustice that

the modeling is invalid.

CARB included a trading mechanism

to be used in transportation conformity

analyses that use the proposed budgets

as allowed for under 40 CFR 93.124.

This trading mechanism allows future

decreases in NOx emissions from onroad mobile sources to offset any onroad increases in PM 2.5, using a NOx:

PM 2.

5 ratio of 9:1. As proposed by CARB

and proposed for approval by EPA, the

trading mechanism would only be used,

if needed, for conformity analyses for

years after 2014. Also, to ensure that the

trading mechanism does not impact the

ability of the SJV to meet the NOx

budget, the NOx emissions reductions

available to supplement the PM 2.

5

budget would only be those remaining

after the 2014 NOx budget has been met.

See 2011 Progress Report, Appendix D,

p. 2 and 76 FR 41338, 41361. We found

that the method CARB used to derive

the 9:1 NOx to PM 2.5 ratio, which was

based on the SIP's photochemical

modeling, is adequate for purposes of

assessing the effect of area-wide

emissions changes, such as are used in

RFP, contingency measures, and

conformity budgets. See 76 FR 41338,

41349 and 2011 Proposal TSD, p. 46.

EPA did find that the method used by

CARB and the District (a modified

rollback approach) to derive the 1:1 SOx

to PM 2.5 is inadequate for determining

interpollutant equivalency ratios and

stated that this issue would be better

explored with a photochemical model.

See 76 FR 41338, 41349 and 2011

Proposal TSD, p. 47. It is this latter

discussion that Earthjustice incorrectly

cites as its basis for claiming that EPA

rejected the interpollutant trading ratio

used in establishing the trading

mechanism for transportation

conformity analyses. The 2008 PM 2.

5 SIP

does not establish motor vehicle

emissions budgets for S0 2 and therefore

does not establish an S0 2: PM 2.

5 trading

mechanism for transportation

conformity purposes.

Comment: Earthjustice claims that a

transportation agency cannot rely on

budgets derived from what it considers

to be the unapprovable SJV 2008 PM 2.5

SIP without violating CAA section

176(c)(1) because they would not be

able to assure that their actions would

not interfere with timely attainment or

reasonable further progress.

Response: As documented in the TSD

and our 2011 proposed rule, EPA has

found that the SJV 2008 PM 2.

5 SIP

demonstrates reasonable further

progress and expeditious attainment of

the 1997 PM 2.

5 standards consistent

with the requirements of the CAA and

EPA's implementing regulations. We

have also concluded that the budgets in

this SIP are consistent with these

demonstrations and are both adequate

and approvable. Therefore, the SJV

MPOs must use these budgets in their

transportation conformity

determinations.

J. Comments on Other Topics Not

Covered Previously

Comment: AIR claims that EPA fails

to list the 2009 State Strategy Status

Report (pages 11-23) among the

documents which it proposes to include
No. 217/Wednesday, November 9, 2011/Rules and Regulations

as part of the SIP, citing 76 FR 41338,

41361, and that this is an error given

CARB's intent in the 2009 State Strategy

Status Report (citing p. 11). AIR requests

that EPA clarify its intent to approve a

CARB commitment for staff to propose

a rule to regulate in-use mobile

agricultural equipment. AIR notes that

this commitment was part of the 2007

State Strategy (citing CARB Resolution

07-28, Attachment B, p. 7), included in

the 2009 State Strategy Status Report,

and was a component of EPA's previous

proposed approval of the 2007 State

Strategy (citing 75 FR 74518, 74541

(November 30, 2011)), but is not

included in the updated rulemaking

schedule in 2011 Progress Report.

Response: EPA lists the 2009 State

Strategy Status Report as one of five

submittals that comprise the 2007 PM 2.5

SIP for the SJV. See 76 FR 41338, 41340.

We also state in section VI. (EPA's

proposed Actions and Potential

Consequences) that we were proposing

to approve the SJV portions of CARB's

2007 State Strategy as revised in 2009

and 2011 addressing CAA and EPA

regulations for attainment of the 1997

PM 2 .5 NAAQS in the SJV. We

specifically proposed to approve

CARB's commitments to propose certain

defined measures as listed in Table B1 on page 1 of Appendix B of the 2011

Progress Report submittal based on

CARB's own characterization of that

submittal as its updates to its

rulemaking schedule for the PM 2.5

measures in the 2007 State Strategy. See

2011 Progress Report, p. 8, Table 1.

On June 20, 2011 CARB provided

public notice of proposed revisions to

the ozone portions of the 2007 State

Strategy including revisions to the

rulemaking schedule for in-use

agricultural equipment. See CARB,

Notice of Public Hearing to Consider a

Status Report on the State Strategy for

California's 2007 State Implementation

Plan and Consider Approval of

Proposed Revisions for the 8-Hour

Ozone and Minor Technical Revisions

to the PM 2 .

5 SIP Transportation

Conformity Budgets," June 20, 2011. As

stated in the proposed revisions, CARB

does not consider the in-use agricultural

measures to be part of its PM 2 .5 control

strategy and therefore did not include

updates to the schedule for that measure

in its PM 2.5 SIP revision. 4 8 2011 Ozone

SIP Revisions, p. 3. These revisions

were adopted by the Board on July 21,

2011, submitted to EPA on July 29, 2011

and proposed for approval by EPA on

4 8 As discussed previously, CARB provided

emissions reductions estimates for the in-use

agricultural equipment measure only for 2017,

which is three years after the 2014 attainment year

for PM2.

September 16, 2011 at 76 FR 57846.

This proposed approval includes the

revised schedule for the in-use

agricultural equipment measure. See 76

FR at 57846, 57853. 49

Comment: AIR requests clarification

from EPA on whether the omission of

the proposed commitment in the 2011

Progress Report is an administrative

error, or whether CARB intentionally

removed that commitment from the

2007 State Strategy. AIR notes that

based on CARB's Web site, it appears

that the omission was in error, because

CARB continues to represent to the

public that it is working on the in-use

agricultural equipment rule. AIR asserts

that to the extent that CARB

intentionally removed the commitment,

such action violates 40 CFR 51.102

because CARB did not provide adequate

notice to the public of this fundamental

change to CARB's strategy and that the

public should not be expected to search

through "voluminous SIP-related

material, searching out stealth

amendments by omission."

Response: As required by 40 CFR

51.102, CARB posted the draft 2011

Progress Report including the proposed

revisions to the rulemaking schedule in

the 2007 State Strategy 30 days prior to

the public hearing and requested public

comments. See CARB, Notice of Public

Hearing to Consider the Approval of a

Progress Report and Proposed State

Implementation Plan Revisions for

PM 2 .

5 , March 29, 2011. Questions and

comments on the State's proposed

revisions to its rulemaking schedule,

including changes to the in-use

agricultural equipment measure, should

be directed to CARB during the State's

public comment periods or at the public

hearings.

Comment: AIR comments that the

2008 PM 2 .

5 Plan and the 2007 State

Strategy fail to demonstrate a

monitoring program for CARB mobile

source measures and the pesticide

regulation, stating EPA regulations

specifically require each plan to make

this demonstration, citing 40 CFR

51.111. It provides as an example,

CARB's anti-idling rules.

Response: EPA's regulation at 40 CFR

51.111 requires each plan include a

description of enforcement methods

including, but not limited to,

procedures for monitoring compliance

with each of the selected control

measures and procedures for handling

violations. These requirements apply to

the control measures that are in the SIP.

49 AIR notes that Table F-8 in EPA's 2011

Proposal TSD lists the agricultural equipment rule

as a defined measure in the 2011 Progress Report.

This was an error and has been corrected in the

final TSD.

For the reasons discussed previously,

we do not believe that California's

mobile source measures that receive

waivers under CAA section 209 need to

be submitted for inclusion into the SIP;

therefore, California need not include a

description of the enforcement and or

monitoring program for these measures

in its SIP. 5o As noted previously,

CARB's anti-idling regulations are

pending a section 209 waiver decision.

Should any of these provisions need to

be submitted for SIP approval, we will

evaluate their monitoring procedures at

the time we take action to incorporate

them into the SIP. As we have also

noted previously, the pesticide

regulation is not part of the 2008 PM 2.5

SIP's control strategy; therefore, the lack

of any monitoring procedures is not

material to our approval of this SIP.

As a practical matter, to be effective,

monitoring procedures (which includes

monitoring and recordkeeping

requirements and testing procedures)

must be tailored to the specific emission

limitation for which they are to be used.

For example, the procedures for

monitoring NOx emissions from utility

boilers are very different from the

procedures for monitoring the VOC

content of paints. Compare, for example,

Rule 4601 (Boilers > 5 million BTU per

hour), sections 5.4 "Monitoring

Requirements" and 6.0 "Administrative

Requirements" requiring continuous

emissions monitoring and annual source

testing using specific test procedures to

Rule 4601 (Architectural Coatings),

section 6.0 "Administrative

Requirements" specifying label

requirements, requiring maintenance of

annual sales records, and specifying test

methods for determining the VOC

content of coatings. Because of the need

to tailor monitoring procedures to the

emission limit, EPA evaluates a

prohibitory rule's monitoring,

recordkeeping, and testing procedures at

the time it reviews the rule for

incorporation into the SIP. We note that

we are not approving any rules or

regulations as part of this specific action

on the SJV 2008 PM 2.5 SIP.

III. Approval Status of the Control

Strategy Measures and Final Actions on

the Attainment Demonstration and

Enforceable Commitments

A. Approval Status of Control Strategy

Measures

As part of its control strategy for

attaining the PM 2.5 standards in the SJV,

the District made specific commitments

5o For a description of CARB's source monitoring

and enforcement programs including its procedures

for handling violations, See http://www.arb.ca.govl

enf/enf.htm.

69920 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69921

to adopt thirteen measures on the

schedule identified in the Plan. See

2008 PM 2.5 Plan, Table 6-2 (revised June

17, 2010). The District has now

completed its actions on all measures

except for revisions to Rule 4905

(Natural Gas-Fired, Fan Type

Residential Central Furnaces) which is

not scheduled for adoption until 2014.

See Table 1 below. As Table 1 shows,

EPA has approved all of the adopted

rules with the exception of three, none

of which is credited with emissions

reductions in the demonstrations.

TABLE 1-SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT 2008 PM 2.5 PLAN SPECIFIC RULE COMMITMENTS

District rule Adoption date Current SIP approval status

4103- O pen Burning ........................................................ April 2010 ........................... Final approval signed: Septem ber 30, 2011.

4320-Advanced Emissions Reductions for Boilers, October 2008 ..................... Approved.

Steam Generators and Process Heaters (> 5 MMBtu/ 75 FR 1715 (January 13, 2010).

h r).

4307-Boilers, Steam Generators and Process Heaters October 2008 ..................... Approved.

(2 to 5 MMBtu/hr). 76 FR 5276 (January 31, 2011).

4308-Boilers, Steam Generators and Process Heaters December 2009 .................. Approved.

(0.075 to < 2 MM Btu/hr). 76 FR 16696 (March 25, 2011).

4703- Stationary Gas Turbines ....................................... September 2007 ................. Approved.

74 FR 53888 (October 21, 2009).

4702- Reciprocating Internal Combustion Engines ......... August 2011 ....................... Submittal pending.

4354- Glass Melting Furnaces ........................................ October 2008 ..................... Approved.

76 FR 37044 (June 24, 2011).

4902- Residential W ater Heaters .................................... March 2009 ........................ Approved.

75 FR 24408 (May 5, 2010).

4905-Natural Gas-Fired, Fan Type Residential Central Adoption scheduled for Most current revision of rule approved: October 20,

Furnaces. 2014. 2005 at 72 FR 29886 (May 30, 2007).

4901-Wood Burning Fireplaces and Wood Burning October 2008 ..................... Approved.

Heaters. 74 FR 57907 (November 10, 2009).

4692- Commercial Charbroiling ....................................... September 2009 ................. Final approval signed: September 30, 2011.

4311 - Flares .................................................................... June 2009 .......................... Proposed for approval 76 FR 52623 August 23, 2011).

9410-Employer Based Trip Reduction Program ............ December 2009 .................. Action pending. Emissions reductions from this rule revision are not currently included in the attainment or

RFP demonstration.

As part of its control strategy for

attaining the PM 2.5 standards in the SJV,

CARB committed to propose certain

measures on the schedule identified in

the 2007 State Strategy. These

commitments, which were updated in

the 2011 Progress Report, and their

current approval status are shown in

Table 2. Of the measures listed in the

2007 State Strategy's updated

rulemaking schedule, we note that only

reductions from the "SmogCheck

Improvement," "Cleaner In-Use Heavy

Duty Trucks," and "Cleaner In-Use OffRoad Engines" measures are currently

credited with reductions in the

attainment demonstration. See 76 FR

41338, 41346 (Table 6).

Generally speaking, EPA will approve

a State plan that takes emissions

reduction credit for a control measure

only where EPA has approved the

measure as part of the SIP, or in the case

of certain on-road and nonroad

measures, where EPA has issued the

related waiver of preemption or

authorization under CAA section 209(b)

or section 209(e). In our July 2011

proposed rule, in calculating and

proposing to approve the State's

aggregate emissions reductions

commitment in connection with our

proposed approval of the attainment

demonstration, we assumed that full

final approval, waiver, or authorization

of a number of CARB rules would occur

prior to our final action on the San

Joaquin Valley PM 2.

5 Plan. See 76 FR

41338, 41346 (table 6). Two specific

CARB rules on which the attainment

demonstration relies include the Truck

Rule and the Drayage Truck Rule (that

collectively are included in a State

measure referred to as "Cleaner In-Use

Heavy Duty Trucks"). We proposed

approval of both rules at 76 FR 40652

(July 11, 2011), but will be unable to

take final action on the rules until after

taking final action on the SJV 2008

PM 2.

5 SIP because, while CARB has

adopted the rules, the rules cannot take

effect until approved by the California

Office of Administrative Law (OAL) and

such approval will not happen before

EPA's final action must be taken on the

plan.

We are nonetheless allowing the

plan's attainment demonstration, and

our final approval of it, to rely on the

emissions reductions from the two

CARB rules cited above for the

following reasons:

* Both rules have been adopted by

CARB and submitted to EPA as a

revision to the California SIP, 5 1 and the

adopted versions are essentially the

51 The Truck Rule and the Drayage Truck Rule

were included in a SIP submittal dated September

21, 2011. We have included the September 21, 2011

SIP submittal in the docket for this rulemaking.

same as those for which EPA proposed

approval;

* The comments that we have

received on our proposed approval of

the two CARB rules (Truck Rule and

Drayage Truck Rule) contend that the

rules are costly and may not be

economically or technologically

feasible, but such considerations cannot

form the basis for EPA disapproval of a

rule submitted by a state as part of the

SIP [see Union Electric Company v.

EPA, 427 U.S. 246, 265 (1976)];

* The remaining administrative

process, which involves review of the

final adopted rules by California's Office

of Administrative Law (OAL) is

essentially procedural in nature, and

should be completed over the near

term; 52

* CARB intends to submit the final,

effective rules to EPA as soon as OAL

completes its review and approves the

rules.

Therefore, we are confident that the

final action on the rules will be

52 See letter from James N. Goldstene, Executive

Officer, CARB, to Jared Blumenfeld, Regional

Administrator, EPA Region IX, dated September 21,

2011, submitting the Truck and Drayage Truck rules

SIP revision to EPA. CARB indicates that the

Drayage Truck Rule will be submitted to OAL no

later than September 23, 2011, and the Truck Rule

will be submitted to OAL no later than October 29,

2011. Under California law, OAL must taken action

within 30 working days.
69922 Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations

completed in the near-term and that, as

a result, continued reliance by the SJV

2008 PM2 .5 SIP, and our final approval

of it, on the emissions reductions

associated with the rules is reasonable

and appropriate. If, however, California

does not submit the adopted and fully

effective rules to EPA as a SIP revision

prior to the effective date of today's

action, we will take appropriate

remedial action to ensure that our action

on the plan is fully supportable or to

reconsider that action.

TABLE 2-2007 STATE STRATEGY DEFINED MEASURES SCHEDULE FOR CONSIDERATION AND CURRENT STATUS

State measures Expected Implementation Current status action year

Smog Check Improvements ......... 2007-2009 .......... 2008-2010, 2013 Elements approved 75 FR 38023 (July 1, 2010). 5 3

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

118).

Modification to Reformulated Gas- 2007 .................... 2010 .................... Approved, 75 FR 26653 (May 12, 2010).

oline Program.

Cleaner In-Use Heavy Duty 2007, 2008, 2010 2011-2015 .......... Proposed for approval 76 FR 40642 (July 11, 2011).

Trucks.

Accelerated Introduction of Clean- 2008 .................... 2012 .................... Prop 1B bond funds awarded to upgrade line-haul locomotive ener Locomotives. gines not already accounted for by enforceable agreements with

the railroads. Those cleaner line-hauls will begin operation by

2012.

Cleaner In-Use Off-Road Engines 2007, 2010 .......... 2009 .................... Waiver action pending.

New Emissions Standards for 2013 .................... To be determined Partial adoption, July 2008. Additional action expected 2013.

Recreational Boats.

Source: 2011 Progress Report, Table 1. Additional information from http://www.ca.arb.gov. Only defined measures with direct PM 2.

5 or NOx re- ductions in the SJV are shown here.

B. Enforceable Emissions Reductions

Commitments

CARB's emissions reductions

commitment is to achieve the "total

emissions reductions necessary to attain

Federal standards" through "the

implementation of control measures; the

expenditure of local, State, or federal

incentive funds; or through other

enforceable measures." See CARB

Resolution 07-28, Attachment B at pp.

3-6; 2009 State Strategy Status Report,

p. 20; and 2011 Progress Report, p. 6.

The updates and improvements to the

inventories as presented in CARB's 2011

Progress Report altered the calculation

of the reductions needed for attainment

of the 1997 PM2 .5 standards in SJV by

reducing the total reductions needed

from District and State control strategy

measures to 9 tpd for PM2 .5, 26.1 tpd for

NOx, and 0.8 tpd for SO2 . See Table 3

below and 76 FR at 41354, Table 7.

We are approving the 2008 PM2 .5 Plan

taking into account CARB's revisions to

the control strategy based on the

revisions to its projected baseline

inventories and its enforceable

emissions reductions commitment.

Specifically, we are interpreting CARB's

emissions reductions commitment,

together with the adjustments to the

2014 baseline inventories provided in

CARB's 2011 SIP revision and the

District's commitments, as adjusting

CARB's total emissions reductions

commitment such that CARB is now

obligated to achieve 2.3 tpd of PM2 .

5

reductions and 17.1 tpd of NOx

reductions by 2014 through enforceable

control measures to provide for

attainment of the 1997 PM2 .

5 NAAQS in

SJV. SJVUAPCD's commitments as

submitted in 2008 are to achieve 9 tpd

NOx, 6.7 tpd direct PM2 .

5, and 0.9 tpd

SOx by 2014. See Table 3 below. The

commitment numbers in this table do

not include reductions from measures

already adopted by CARB and the

District to meet their commitments.

TABLE 3-SJVUAPCD AND CARB 2014 EMISSIONS REDUCTIONS COMMITMENTS

[Tons per average annual day in 2014]

Direct PM 2.

5 NOx SO 2

A- Adjusted 2014 baseline em issions level 1 ............................ . ..... ..... .... ..... .... .... ..... ..... .... .... ... 72.3 317.3 25.4

B- 2014 attainm ent target level 2 ......................................... .... ....... . ..... .... ..... .... .... ..... ..... .... .... ... 63 .3 291.2 24 .6

C-Reductions needed from control strategy measures (A - B) .............................................. 9.0 26.1 0.8

D - D istrict co m m itm e nts 3 ........................................................................................................... 6 .7 9 .0 0 .9

E- C A R B com m itm e nts (C - D ) ................................................................................................ 2 .3 17 .1 ........................

1 From TSD, Table G-1.

22008 PM 2 .

5 Plan, p. 9-3.

32008 PM 2 .

5 Plan, pp. 6-11 to 6-12.

The level of emissions reductions

remaining as commitments after

adjusting the baseline to reflect updates

and improvements to the inventories

and crediting reductions from SIP53 California Assembly Bill 2289, passed in 2010,

requires the Bureau of Automotive Repair to direct

older vehicles to high performing auto technicians

approved or otherwise SIP-creditable

measures is shown in Table 4. These

levels remain unchanged from our 2011

proposal as does our conclusion that the

attainment demonstration in the SJV

and test stations for inspection and certification

effective 2013. Reductions shown for the

SmogCheck program in the 2011 Progress Report do

2008 PM 2.

5 SIP which relies in part on

these enforceable commitments is

approvable. See 76 FR 41338, 41354

(Table 8) and 41356.

not include reductions from AB 2289

improvements. CARB Progress Report supplement,

attachment 5.
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69923

TABLE 4-REDUCTIONS NEEDED FOR ATTAINMENT REMAINING AS COMMITMENTS BASED ON SIP-CREDITABLE MEASURES

[Tons per average annual day in 2014]

Direct PM2.5 NOx Sox

A-Total reductions needed from baseline and control strategy measures and other adjustm ents to the baseline to attain ..................................................................................

22 .7 284 .2 1.8

B-Reductions from baseline measures and adjustments to baseline ...................................... 13.7 258.1 1.0

C- Total reductions from approved m easures ..........................................................................6.0 13.2 3.6

D- Total reductions remaining as commitments (A - B - C) ................................................. 3.0 12.9 0.0

E- Percent of total reductions needed remaining as commitments ........................................... 13.2 4.5 0.0

IV. Approval of the Motor Vehicle approving today in Table 5 below. We included in the conformity analysis. See

Emissions Budgets and Trading posted the draft version of these budgets 2011 Ozone SIP Revision, Appendix A,

Mechanism for Transportation on our Web site for adequacy on July 14, p. A-6.

Conformity 2011 for a 30-day comment period Now that the approval of the budgets

We noted in our July 2011 proposal which ended on August 15, 2011 (see is finalized, the SJV MPOs and the U.S.

that CARB had posted draft technical http://www.epa.gov/otaq/ Department of Transportation are

revisions to the SJV 2008 PM 2.

5 SIP's stateresources/transconf/currsips.htm). required to use the revised budgets in

motor vehicle emissions budgets on We received no comments on our transportation conformity

June 20, 2011 (see 76 FR 41338, at adequacy posting and have completed determinations. Due to the formatting of

41360 and http://www.arb.ca.gov/ our adequacy review (see TSD, section the budgets (combining emissions

planning/sip/2007sip/2OO7sip.htm) to II.J.). changes, recession impacts and

correct data corrct entry T ataenh errors errrs in n the th budget buget mechanism EPA is also in approving the State's the submittal trading for reductions from control measures),

calculations and to remove the CARB will need to provide the MPOs

emissions reductions attributable to use in transportation conformity with emissions reductions associated

SJVUAPCD's Rule 9510 "Indirect analyses by the SJV MPOs as allowed with the control measures incorporated

Source Review." 54 In our July 2011 for under 40 CFR 93.124. The trading into the budgets for the appropriate

proposal, we proposed to approve these applies only to: analysis years so that they can include

draft budgets contingent on our e Analysis years after the 2014 these reductions in future conformity attainment year. determinations per 40 CFR 93.122. In receiving the SIP submittal from CARB e On-road mobile emission sources.

containing these budgets before our * Trades using vehicle NOx emission addition, for these conformity

final action on the SJV 2008 PM 2.

5 SIP. reductions in excess of those needed to determinations, the motor vehicle

The budgets were submitted by CARB as meet the NOx budget. emissions from implementation of the

a SIP revision on July 29, 2011 (see e Trades in one direction from NOx transportation plan should be projected

letter, James Goldstene, Executive to direct PM 2.

5. and compared to the budgets at the

Officer, CARB, to Jared Blumenfeld, e A trading ratio of 9 tpd NOx to 1 same level of accuracy as the budgets in

Regional Administrator, EPA Region 9, tpd PM 2.5. the plan, for example emissions should

dated July 29, 2011, with Attachments). Clear documentation of the be rounded to the nearest tenth (e.g. 0.1

We summarize the budgets we are calculations used in the trade would be tpd).

TABLE 5-PM2.5 MVEB FOR THE SAN JOAQUIN VALLEY

[Tons per average annual day]

2012 2014

County PM 2.5 NOx PM 2.5 NOx

Fresno ....................................................................................................

1.5 35 .7 1.1 31.4

Kern (SJV) .................................................................................................1.9 48.9 1.2 43.8

K in gs .....................................................................................................0 .4 1 0 .5 0 .3 9 .3

M adera ...................................................................................................0 .4 9 .2 0 .3 8 .1

M erced ...................................................................................................

0.8 19.7 0.6 17.4

San Joaquin ................................................................................................1.1 24.5 0.9 21.6

Stanislaus ............................................................................................... ........ 0.7 16.7 0.6 14.6

T u la re ....................................................................................................0 .7 1 5 .7 0 .5 1 3 .8

V. Final Actions and Resulting Clean

Air Act Consequences

A. EPA's Final Actions

For the reasons discussed in our July

13, 2011 proposal, EPA approves, with

the exception of the contingency

measures provisions, California's SIP for

attaining the 1997 PM 2.

5 NAAQS in the

San Joaquin Valley and grants the

State's request for an extension of the

attainment date to April 5, 2015. The

California PM 2.

5 attainment SIP for the

San Joaquin Valley is composed of the

SJVUAPCD's 2008 PM 2.5 Plan as revised

in 2010 and 2011 and the SJV-specific

54 EPA has approved Rule 9510 into the California from the rule for any SIP purpose including

SIP but disallowed the use of emissions reductions

portions of CARB's 2007 State Strategy

as revised in 2009 and 2011 that address

CAA and EPA regulations for attainment

of the 1997 PM 2.

5 NAAQS in the SJV.

Specifically, EPA approves under

CAA section 110(k)(3) the following

elements of the SJV PM 2.

5 attainment

SIP:

transportation conformity. See 75 FR 28509 (May

21, 2010) and 76 FR 26609 (May 9, 2011).
No. 217/Wednesday, November 9, 2011/Rules and Regulations

1. The 2005 base year emissions

inventories as meeting the requirements

of CAA section 172(c)(3) and 40 CFR

51.1008;

2. The reasonably available control

measures/reasonably available control

technology demonstration as meeting

the requirements of CAA section

172(c)(1) and 40 CFR 51.1010;

3. The reasonable further progress

demonstration as meeting the

requirements of CAA section 172(c)(2)

and 40 CFR 51.1009;

4. The attainment demonstration and

associated air quality modeling as

meeting the requirements of CAA

sections 172(c)(1) and (6) and 40 CFR

51.1007;

5. The 2012 RFP year and 2014

attainment year motor vehicle emissions

budgets (as submitted on July 29, 2011)

and CARB's trading mechanism to be

used in transportation conformity

analyses as allowed under 40 CFR

93.124;

6. SJVUAPCD's commitments to the

adoption and implementation schedule

for specific control measures listed in

Table 6-2 (amended June 15, 2010) of

the 2008 PM2 .

5 Plan to the extent that

these commitments have not yet been

fulfilled, and to achieve specific

aggregate emissions reductions of direct

PM 2 .5, NOx and SOx by year, as listed

in Table 6-3 of the PM2 .

5 Plan; and

7. CARB's commitments to propose

certain defined measures, as listed in

Table B-1 on page 1 of Appendix B of

the 2011 Progress Report to the extent

that these commitments have not yet

been fulfilled and to achieve aggregate

emissions reductions of 17.1 tpd NOx

and 2.3 tpd direct PM:.5 by 2014

sufficient to provide for attainment of

the 1997 PM2 .

5 NAAQS as described in

CARB Resolution 07-28, Attachment B

at pp. 3-6, the 2009 State Strategy

Status Report, p. 21. and given in Table

3 above.

In addition, EPA concurs with the

State's determination under 40 CFR

51.1002(c) that SOx and NOx are and

VOC and ammonia are not attainment

plan precursors for the attainment of the

1997 PM2.5 NAAQS in the SJV.

EPA also grants, pursuant to CAA

section 172(a)(2)(A) and 40 CFR

51.1004(a), California's request to

extend the attainment date for the San

Joaquin Valley PM 2.

5 nonattainment

area to April 5, 2015.

Finally, EPA disapproves under CAA

section 110(k)(3) the contingency

measures provisions of the SJV PM 2.

5

attainment SIP as failing to meet the

requirements of CAA section 172(c)(9)

and 40 CFR 51.1012.

B. CAA Consequences of the Final

Disapproval of the Contingency Measure

Provisions

EPA is committed to working with the

District and CARB to resolve the

remaining issues that make the current

PM 2.

5 attainment SIP for the SJV not

fully approvable under the CAA and the

PM 2.

5 implementation rule.

Under the CAA, a final disapproval of

a required CAA element, such as the

contingency measures provisions in

section 172(c)(9), triggers sanction

clocks under CAA section 179(b) that

run from the effective date of the final

action. The first sanction, the offset

sanction in CAA section 179(b)(2), will

apply in the SJV PM 2.

5 nonattainment

area 18 months from January 9, 2012

The second sanction, highway funding

sanctions in CAA section 179(b)(1), will

apply in the area six months after the

offset sanction is imposed. Neither

sanction will be imposed under the

CAA if California submits and we

approve prior to the implementation of

the sanctions, SIP revisions that correct

the deficiencies identified in our

proposed action. In addition to the

sanctions, CAA section 110(c)(1)

provides that EPA must promulgate a

federal implementation plan addressing

the deficient elements in the PM 2.5 SIP

for the SJV nonattainment area, two

years after January 9, 2012, the effective

date of this rule if we have not approved

a SIP revision correcting the

deficiencies within the two years.

Because we are approving the RFP

and attainment demonstrations and the

motor vehicle emissions budgets, we are

issuing a protective finding under 40

CFR 93.120(a)(3) to the disapproval of

the contingency measures. Without a

protective finding, the final disapproval

would result in a conformity freeze,

under which only projects in the first

four years of the most recent conforming

Regional Transportation Plan and

Transportation Improvement Programs

can proceed. During a freeze, no new

RTPs, TIPs or RTP/TIP amendments can

be found to conform. See 40 CFR

93.120(a)(2). Under this protective

finding, however, the final disapproval

of the contingency measures does not

result in a transportation conformity

freeze in the San Joaquin PM 2.5

nonattainment area.

VI. Statutory and Executive Order

Reviews

A. Executive Order 12866, Regulatory

Planning and Review

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled "Regulatory Planning and

Review."

B. Paperwork Reduction Act

This action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. Burden is

defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This rule will not have a significant

impact on a substantial number of small

entities because SIP approvals and

partial approvals/partial disapprovals

under section 110 and subchapter I, part

D of the Clean Air Act do not create any

new requirements but simply approve

requirements that the State is already

imposing. Therefore, because this

partial approval/partial disapproval

action does not create any new

requirements, I certify that this action

will not have a significant economic

impact on a substantial number of small

entities.

Moreover, due to the nature of the

Federal-State relationship under the

Clean Air Act, preparation of flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of State action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co., v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42

U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

Under sections 202 of the Unfunded

Mandates Reform Act of 1995

("Unfunded Mandates Act"), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

69924 Federal Register/Vol. 76,
Federal Register/Vol. 76, No. 217/Wednesday, November 9, 2011/Rules and Regulations 69925

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the partial

approval/partial disapproval action

promulgated does not include a Federal

mandate that may result in estimated

costs of $100 million or more to either

State, local, or tribal governments in the

aggregate, or to the private sector. This

Federal action approves pre-existing

requirements under State or local law,

and imposes no new requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

E. Executive Order 13132, Federalism

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

Partnership). Executive Order 13132

requires EPA to develop an accountable

process to ensure "meaningful and

timely input by State and local officials

in the development of regulatory

policies that have federalism

implications." "Policies that have

federalism implications" is defined in

the Executive Order to include

regulations that have "substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government." Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it

merely approves a State rule

implementing a Federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. Thus, the requirements of

section 6 of the Executive Order do not perform activities conducive to the use

apply to this rule. of VCS.

F. Executive Order 13175, Coordination

With Indian Tribal Governments

Executive Order 13175, entitled

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 9, 2000), requires EPA

to develop an accountable process to

ensure "meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications." This final rule does not

have tribal implications, as specified in

Executive Order 13175. It will not have

substantial direct effects on tribal

governments, on the relationship

between the Federal government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal government and Indian tribes.

Thus, Executive Order 13175 does not

apply to this rule.

G. Executive Order 13045, Protection of

Children From Environmental Health

Risks and Safety Risks

EPA interprets Executive Order 13045

(62 FR 19885, April 23, 1997) as

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the Executive

Order has the potential to influence the

regulation. This rule is not subject to

Executive Order 13045, because it

approves a State rule implementing a

Federal standard.

H. Executive Order 13211, Actions That

Significantly Affect Energy Supply,

Distribution, or Use

This rule is not subject to Executive

Order 13211, "Actions Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use" (66

FR 28355, May 22, 2001) because it is

not a significant regulatory action under

Executive Order 12866.

L 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

J. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Population

Executive Order (EO) 12898 (59 FR

7629 (Feb. 16, 1994)) establishes federal

executive policy on environmental

justice. Its main provision directs

federal agencies, to the greatest extent

practicable and permitted by law, to

make environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies, and activities on minority

populations and low-income

populations in the United States.

EPA lacks the discretionary authority

to address environmental justice in this

rulemaking. In reviewing SIP

submissions, EPA's role is to approve or

disapprove state choices, based on the

criteria of the Clean Air Act.

Accordingly, this action merely

approves certain State requirements for

inclusion into the SIP under CAA

section 110 and subchapter I, part D and

disapproves others, and will not in-andof itself create any new requirements.

Accordingly, it does not provide EPA

with the discretionary authority to

address, as appropriate,

disproportionate human health or

environmental effects, using practicable

and legally permissible methods, under

Executive Order 12898.

K. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 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. 804(2). This rule

will be effective on January 9, 2012.

L. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the
No. 217/Wednesday, November 9, 2011/Rules and Regulations

appropriate circuit by January 9, 2012.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

List of Subjects in 40 CFR Part 52

Air pollution control, Incorporation

by reference, Intergovernmental

relations, Nitrogen dioxide, Particulate

matter, Sulfur oxides.

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

Dated: September 30, 2011.

Jared Blumenfeld,

Regional Administrator, EPA Region 9.

Part 52, Chapter I, Title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

m 1. The authority citation for Part 52

continues to read as follows:

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

Subpart F-California

* 2. Section 52.220, is amended by

adding paragraph (c)(356)(ii)(B), adding

and reserving paragraph (c)(391), and

adding paragraphs(c)(392), (c)(393),

(c)(394), (c)(395), and (c)(396).

§52.220 Identification of plan.

(c) * * *

(356) * * * (i) * * *

(ii) * * *

(B) State of California Air Resources

Board.

(1) Proposed State Strategy for

California's 2007 State Implementation

Plan, adopted on September 27, 2007.

(2) CARB Resolution No. 07-28 with

Attachments A and B, September 27,

2007. Commitment to achieve the total

emissions reductions necessary to attain

the Federal standards in the SJV air

basin, which represent 2.3 tons per day

(tpd) of direct PM 2.5 and 17.1 tpd of

nitrogen oxides by 2014 for purposes of

the 1997 PM 2.

5 NAAQS, as described in

Resolution No. 07-28 at Attachment B,

pp. 3-6, and modified by CARB

Resolution No. 09-34 (April 24, 2009)

adopting "Status Report on the State

Strategy for California's 2007 State

Implementation Plan (SIP) and

Proposed Revisions to the SIP Reflecting

Implementation of the 2007 State

Strategy" and by CARB Resolution No.

11-24 (April 28, 2011) adopting the

"Progress Report on Implementation of

PM 2.

5 State Implementation Plans (SIP)

for the South Coast and San Joaquin

Valley Air Basins and Proposed SIP

Revisions."

(3) Executive Order S-07-002,

Relating to Approval of the State

Strategy for California's State

Implementation Plan (SIP) for the

Federal 8-Hour Ozone and PM 2.

5

Standards, November 16, 2007.

(391) [Reserved]

(392) A plan was submitted on June

30, 2008 by the Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Unified Air

Pollution Control District.

(1) 2008 PM 2.

5 Plan, adopted on April

30, 2008.

(2) SJVUAPCD Governing Board, In

the Matter of: Adopting the San Joaquin

Valley Unified Air Pollution Control

District 2008 PM 2.5 Plan, Resolution No.

08-04-10, April 30, 2008. Commitments

to achieve emissions reductions

(including emissions reductions of 8.97

tpd of NOx, 6.7 tpd of direct PM2.5, and

0.92 tpd of SOx by 2014) as described

in Table 6-3a (p. 6-11), Table 6-3b (p.

6-12), and Table 6-3c (p. 6-12)

respectively of the 2008 PM 2.

5 Plan and

commitments to adopt and submit

control measures as described in Table

6-2 (p. 6-9) of the 2008 PM 2.

5 Plan, as

amended June 17, 2010.

(B) State of California Air Resources

Board.

(1) CARB Resolution No. 08-28 with

Attachment A, May 22, 2008.

(393) An amended plan was

submitted on August 12, 2009 by the

Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) State of California Air Resources

Board.

(1) Status Report on the State Strategy

for California's 2007 State

Implementation Plan (SIP) and

Proposed Revisions to the SIP Reflecting

Implementation of the 2007 State

Strategy, pages 11-17, April 24, 2009.

(2) CARB Resolution No. 09-34, April

24, 2009.

(394) An amended plan was

submitted on September 15, 2010 by the

Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Unified Air

Pollution Control District.

(1) 2008 PM 2.

5 Plan Amendment to

Extend the Rule 4905 Amendment

Schedule, June 17, 2010.

(2) SJVUAPCD Governing Board, In

the Matter of: Proposed Amendments to

the 2008 PM 2.

5 Plan to Extend the Rule

Amendment Schedule for Rule 4905

(Natural Gas-Fired, Fan-Type

Residential Central Furnaces),

Resolution 10-06-18, June 17, 2010.

(B) State of California Air Resources

Board.

(1) Executive Order S-10-003,

Relating to Approval of Amendments to

the 2008 PM 2.

5 Plan to Extend the Rule

Amendment Schedule for Rule 4905

(Natural Gas-Fired, Fan-Type

Residential Central Furnaces),

September 15, 2010.

(395) An amended plan was

submitted on May 18, 2011 by the

Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) State of California Air Resources

Board.

(1) Progress Report on

Implementation of PM 2.

5 State

Implementation Plans (SIP) for the

South Coast and San Joaquin Valley Air

Basins and Proposed SIP Revisions,

Release Date: March 29, 2011.

(2) CARB Resolution No. 11-24, April

28, 2011. Commitment to propose

measures as described in Appendix B of

the Progress Report on the

Implementation of PM 2.

5 State

Implementation Plans (SIP) for the

South Coast and San Joaquin Valley Air

Basins and Proposed SIP Revisions.

(3) Executive Order S-11-010,

"Approval of Revisions to the Fine

Particulate Matter State Implementation

Plans for the South Coast Air Quality

Management Plans for the South Coast

Air Quality Management District and

the San Joaquin Valley Air Pollution

Control District," May 18, 2011.

(396) An amended plan was

submitted on July 29, 2011 by the

Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) State of California Air Resources

Board.

(1) 8-Hour Ozone State

Implementation Plan Revisions and

Technical Revisions to the PM 2.

5 State

Implementation Plan Transportation

Conformity Budgets for the South Coast

and San Joaquin Valley Air Basins,

Appendix A, page A-6, (dated June 20,

2011), adopted July 21, 2011.

(2) CARB Resolution No. 11-22, July

21, 2011.

(3) Executive Order S-11-016,

"Approval of Revisions to the 8-Hour

Ozone State Implementation Plans for

the South Coast Air Quality

Management District and the San

Joaquin Valley Air Pollution Control

District," July 29, 2011.

[FR Doe. 2011-27232 Filed 11-8-11; 8:45 am]

BILLING CODE 6560-50-P

69926 Federal Register/Vol. 76,