ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0269; FRL-]

Approval and Promulgation of Implementation Plans;

State of California; Legal Authority

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

ACTION: Final rule.

SUMMARY: EPA is taking final action to clarify the contents of 

the applicable implementation plan for the State of California 

under the Clean Air Act. Specifically, EPA is taking final 

action to clarify that the statutory provisions submitted by 

California and approved by EPA in 1972 supporting the State‟s

legal authority chapter of the original implementation plan were 

superseded by a subsequent approval by EPA in 1980 of 

California‟s revision to the legal authority chapter of the 

plan. EPA is taking this action to clarify the status in the 

California plan of the statutory provisions submitted and 

approved in 1972.

EFFECTIVE DATE: This rule is effective on [Insert date 30 days 

from the date of publication in the Federal Register].

ADDRESSES: EPA has established docket number EPA-R09-OAR-2009-

0269 for this action. The index to the docket is available 

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

Region IX, 75 Hawthorne Street, San Francisco, California. While 
2

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

information may be publicly available only at the hard copy 

location (e.g., copyrighted material), and some may not be 

publicly available in 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.

FOR FURTHER INFORMATION CONTACT: Gerardo Rios, Chief, Permits 

Office (AIR-3), U.S. Environmental Protection Agency, Region IX,

(415) 972-3974: rios.gerardo@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us”

and “our” refer to EPA.

Table of Contents

I. Proposed Action

II. Public Comments and EPA Responses

III. Final Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On January 29, 2010 (75 FR 4742), under the Clean Air Act 

(CAA or “Act”), we proposed to clarify that the statutory 

provisions submitted by California in 1972 supporting the 

State‟s legal authority chapter of the original implementation 

plan were superseded by a subsequent approval by EPA in 1980 of 

a revision to California‟s legal authority chapter of the plan.
3

In support of our proposed action, we provided a detailed 

account of the regulatory context in which the original 

California state implementation plan (SIP) was submitted and 

approved by EPA. We also described in detail the contents of the 

original California SIP, which consisted of 13 parts, the first 

part (“State General Plan”) of which included a chapter 7 

(“Legal Considerations”), referred to herein as the “legal 

authority” chapter. The original SIP also included an appendix 

(entitled “Appendix II: State Statutes and other Legal Documents 

Pertinent to Air Pollution Control in California”) to the legal 

authority chapter. The legal authority chapter included many 

citations to individual sections within the California Health & 

Safety Code (CH&SC) and other California codes, as well as 

citations to (then) recently approved legislation, and attorney 

general opinions as support for the assurance that adequate 

legal authority exists in the state to meet CAA and EPA SIP 

requirements.

As described in the proposal, the appendix to the legal 

authority chapter in the plan (herein, “appendix II”) included 

the specific sections of California code and other legal 

documents cited in chapter 7, but also included many sections of 

California code that were not cited specifically in chapter 7.

Our proposed rule describes in detail the contents of appendix 

II and its 14 categories of statutory and other legal documents.
4

In May 1972, we approved in part and disapproved in part 

the original California SIP. See 37 FR 10842 (May 31, 1972) and 

40 CFR 52.220(b). EPA‟s approval included both chapter 7 and the 

statutory and other documents contained in appendix II as 

described above.

As explained in our proposed rule, in response to EPA‟s 

request and in response to the Clean Air Act Amendments of 1977, 

California undertook a comprehensive update to the California 

SIP. On March 16, 1979, the California Air Resources Board (ARB)

submitted a revision to the legal authority chapter of the SIP, 

entitled “Chapter 3 - Legal Authority, Revision to State of 

California Implementation Plan for the Attainment and 

Maintenance of Ambient Air Quality Standards (December 1978),”

(also referred to herein as “Chapter 3 – Legal Authority” or the 

“revised legal authority” chapter). Much like the original legal 

authority chapter, the revised legal authority chapter provides

an overview of air pollution control in California. While the 

general topics covered in the revised legal authority chapter 

were similar to those covered in the original legal authority 

chapter, the discussion is completely re-organized and updated 

to reflect, among other things, recodifications of statutory 

provisions. Also, like the legal authority chapter in the 

original SIP, the revised legal authority chapter includes

numerous citations to individual sections of the CH&SC (which 
5

had been re-numbered and re-codified since the time of the 

original SIP), certain citations to other California codes and 

other legal documents. However, unlike the legal authority 

chapter in the original SIP, the revised legal authority 

chapter, as submitted in 1979, did not include physical copies 

of the actual statutory provisions nor the other documents cited 

in the chapter. Instead, the 1979 SIP revision simply 

incorporates by reference the 1978 edition of California Air 

Pollution Control Laws as “appendix 3-A” to the chapter. Later 

in 1979, we proposed approval of the revised SIP “Chapter 3 –

Legal Authority” as an update and clarification of the 1972 SIP. 

See 44 FR 38912 (July 3, 1979). The following year, we took 

final action, effective September 10, 1980, to approve the 

revised legal authority chapter. See 45 FR 53136 (August 11, 

1980) and 40 CFR 52.220(c)(48). Since that time, EPA has not 

approved any other revision to the chapter that addresses legal 

authority in the California SIP.

Based upon our review of the relevant provisions of the 

original California SIP and the related 1979 SIP revision, and 

the corresponding EPA approval actions, we proposed to clarify 

the contents of the SIP to reflect our determination that the

statutory provisions and other legal documents submitted in 

support of the legal authority chapter in the original SIP were 

superseded by our 1980 approval of the revised legal authority 
6

chapter of the California SIP (codified at 40 CFR 52.220(c)(48))

and are no longer part of the California SIP. Our determination

that the 1979 submittal of the revised legal authority chapter 

represented a wholesale replacement of the original chapter was 

based on the nature and scope of the revised chapter and the 

mismatch between the statutory citations in the revised chapter 

and those contained in the original chapter.

1 We also noted that

the actual statutory provisions and other legal documents relied 

upon to support a state‟s assurance of adequate legal authority 

need not be approved into the SIP under CAA section 110 or EPA‟s 

SIP regulations in 40 CFR part 51 (although such provisions are 

required to be submitted with the plan). Thus, EPA could 

approve, consistent with CAA and EPA requirements, and did so in 

this instance, a wholesale revision to the original legal 

authority chapter without also approving the actual statutory 

 

1 ARB described the nature and purpose of that agency‟s comprehensive 

update of the California SIP during the late 1970‟s as follows: “The [EPA] 

has formally requested that the [ARB] update the State of California 

Implementation Plan for Achieving and Maintaining the National Ambient Air 

Quality Standards, usually referred to simply as the „SIP.‟ The original SIP 

document, submitted to EPA in 1972, has become obsolete largely because of 

the many modifications to federal, state, and local air pollution rules and 

regulations and substantial advancements in technical aspects of air 

pollution prediction and control. A new SIP 1978 Working Document has been 

prepared as an initial response to the EPA request and contains an updated 

summary and description of the California SIP. ... The SIP 1978 Working 

Document is a step towards replacing the obsolete 1972 SIP.” See page 1 of 

Chapter 1 (“Introduction”) (April 1978) of the SIP – 78 Working Document. 

Therefore, the revised legal authority chapter was intended by ARB, and 

approved by EPA, as a wholesale replacement of the original legal authority 

chapter, including the related statutory provisions and other materials 

submitted in support of the original chapter.
7

provisions and other legal documents cited therein.

2

To memorialize our interpretation of the effect of our 1980 

approval of the revised legal authority chapter of the 

California SIP, we proposed under CAA section 301(a)(1)3 to 

revise 40 CFR 52.220(b)(12)(i) to clarify that none of the 

statutory provisions (and other legal documents) submitted in 

connection with chapter 7 (“Legal Considerations”) of the 

original California SIP remain in the SIP, not just the few 

provisions currently listed as being deleted.

4

Additional background information for today‟s action can be 

found in our January 29, 2010 proposed rule (75 FR 4742).

II. Public Comments and EPA Responses

Our January 29, 2010 proposed rule (75 FR 4742) provided 

for a 30-day comment period. During that period, we received 

comments from four groups: Earthjustice, on behalf of the 

 

2 We view the revised legal authority chapter‟s incorporation (as 

appendix 3-A) of the 1978 edition of California Air Pollution Control Laws as 

simply providing a general reference to where the statutory citations in the 

chapter could be located rather than as having the effect of a literal 

reading of the provisions into the chapter.

3 CAA section 301(a)(1) states: “The Administrator is authorized to 

prescribe such regulations as are necessary to carry out his functions under 

this chapter. ... .” We believe that our rule proposed herein today is 

necessary to clarify the contents of the California SIP and thereby carry out 

the functions of EPA in connection with the state‟s plan.

4 As noted in the proposed rule, the status of the statutory provisions 

from the original SIP has recently come into question in the context of third 

party litigation, an EPA rulemaking action on a revision to new source review 

rules in the San Joaquin Valley, and a lawsuit filed against EPA challenging 

certain EPA actions on the premise that such actions were arbitrary and 

capricious if a certain statutory provision submitted and approved by EPA in 

connection with the original SIP remains in effect as part of the current 

applicable California SIP. Thus, we believe that clarification of the status 

of the statutory provisions (and other legal documents) submitted in 

connection with the original SIP is necessary and appropriate at this time.
8

Sierra Club, by letter dated March 1, 2010; Center on Race, 

Poverty & the Environment (referred to herein as “AIR”), on 

behalf of the Association of Irritated Residents and many other 

community and environmental groups, by letter dated March 1, 

2010; San Joaquin Valley Air Pollution Control District

(“District”), by letter dated February 24, 2010; and GreenbergGlusker law firm (referred to herein as “Dairy Cares”), on 

behalf of Dairy Cares, a coalition of California‟s dairy 

producer and processor associations, by letter dated March 1, 

2010.

Earthjustice expresses support for EPA‟s proposed rule. The 

three other commenters object to our proposed action. Dairy 

Cares joins in the District‟s comments and adds comments of its 

own. In the following paragraphs, we provide a summary of all

significant adverse comments and we provide our corresponding 

responses. For the purposes of this section of the document, 

“District” refers herein to both the District and Dairy Cares, 

whereas “Dairy Cares” is used in reference to the additional 

comments submitted by this commenter. 

Comment #1: AIR contends that there has never been an exemption 

for agricultural sources in the SIP as it relates to San Joaquin 

Valley. Under the Safe Air case, AIR contends that there can be 

no exemptions in the SIP by virtue of the original 1972 SIP and 

1978 SIP Revision because the SIP‟s plain language as adopted 
9

and submitted contains no exemption and the vague references to 

California statutory authority are not in the SIP as 

incorporated by reference in the Code of Federal Regulations 

(CFR). AIR also asserts that EPA could not have lawfully 

approved the original 1972 SIP and 1978 SIP Revision with 

exemptions for agricultural sources without violating the Clean 

Air Act. 

Response #1: We recognize that our approval of the original 

California SIP in 40 CFR 52.220(a) (“Title of plan: „The State 

of California Implementation Plan for Achieving and Maintaining 

the National Ambient Air Quality Standards‟”) and (b) (“The plan 

was officially submitted on February 21, 1972”) on May 31, 1972 

(37 FR 10842, at 10851) says nothing about the contents of the 

original SIP. To uncover its contents, we reviewed a copy of the 

original SIP maintained in the collection of materials at the 

National Archives and Record Center in San Bruno, California. 

From that copy, we determined that the original SIP contained an 

appendix to the legal authority chapter that contained various 

statutory provisions, and other legal documents. 

Among the statutes in the appendix was CH&SC section 24265, 

which excludes certain categories of emission sources, including 

equipment used in agricultural operations in the growing of 

crops or raising of fowls or animals, from the general grant of 

authority to local air districts to require permits for new and 
10

existing emissions sources (herein, “agricultural permitting 

exemption”). We found no evidence in the original SIP itself 

that the materials in the appendix to the legal authority 

chapter were not intended by the state to be included in the 

plan itself. Nor did we find any evidence in our approval action 

that we did not intend to approve the entire contents of the 

appendix to the legal authority chapter of the original 

California SIP. In our May 31, 1972 final approval of the 

original California SIP, we added 40 CFR 52.233, which states: 

“With the exceptions set forth in this subpart, the 

Administrator approves California‟s plan for the attainment and 

maintenance of the national standards.” See 37 FR 10842, at 

10852. In the case of our May 1972 action on the original SIP, 

none of the “exceptions set forth in this subpart,” such as our 

findings in 40 CFR 52.225 (“Legal Authority”) that the 

California SIP failed to provide sufficient legal authority to 

meet the requirements related to air pollution emergencies and 

to make emissions data publicly available, provide evidence that 

we disapproved any of contents of the appendix to the legal 

authority chapter of the original SIP. Therefore, we concluded 

that the statutory provisions and other legal documents 

contained in the appendix to the legal authority chapter of the 

original California SIP were approved along with the rest of the 

plan in May 1972, and the agricultural permitting exemption 
11

found in CH&SC section 24265 was swept into the SIP by virtue of 

being included among the appendix materials so approved.

AIR points to the Safe Air case in support for its 

contention that no exemptions are in the SIP by virtue of the 

original 1972 SIP (submitted and approved in 1972) and the “1978 

SIP Revision” (i.e., the revision to the legal authority 

chapter, which was adopted in December 1978, submitted in March 

1979, and approved in September 1980). In so doing, AIR states 

that the SIP‟s plain language contains no exemption and asserts 

that the vague references to California statutory authority are 

not in the SIP as incorporated by reference in the CFR. In the 

Safe Air case, the court held that “SIPs are interpreted based 

on their plain meaning when such a meaning is apparent, not 

absurd, and not contradicted by the manifest intent of EPA, as 

expressed in the promulgating documents available to the 

public.” See Safe Air for Everyone v. EPA, 488 F.3d 1088, 1100 

(9th Cir. 2007). Under the circumstances of the Safe Air case, 

the court found that the plain language of the Idaho SIP did not 

include the state‟s statutory restrictions on regulation of 

field burning, nor were the statutory restrictions on regulation 

of field burning made manifest in EPA‟s approval of the state‟s 

open burning rule, and thus, were not relevant in interpreting 

the existing SIP. 

With respect to the agricultural permitting exemption and 
12

the California SIP, the existence of the exemption as part of 

the original California SIP as approved by EPA is apparent from 

a review of the submitted plan itself. We also do not believe 

our approval of the exemption in 1972 to be absurd or

contradicted by the manifest intent of the State of California 

or EPA. As such, our interpretation is consistent with the 

holding of the Safe Air case. As clarified in today‟s action, 

our approval of California‟s 1979 update to the legal authority 

chapter of the California SIP superseded the original legal 

authority chapter and the related supporting appendix materials 

in the California SIP, including the agricultural permitting 

exemption.

Lastly, AIR asserts that EPA should interpret the Agency‟s 

California SIP approvals under the presumption that, absent a 

demonstration to the contrary, we acted consistent with the CAA 

and related Agency policies, and because in AIR‟s view, we could 

not have lawfully approved the original 1972 SIP and the “1978 

SIP Revision” with exemptions for agricultural sources without 

violating the Clean Air Act, then the presumption should be that 

the exemptions were not approved into the SIP. First, we did not 

approve the agricultural permitting exemption when we took 

action in 1980 to approve California‟s 1979 update to the legal 

authority chapter of the SIP. As discussed in our January 29, 

2010 proposed rule, we have concluded, however, that we did 
13

approve the agricultural permitting exemption in 1972 when we 

approved the original California SIP.

We disagree that our 1972 approval did not comport with the 

requirements for SIPs under the Clean Air Act and EPA‟s

regulations in effect at that time. Given the state of air 

pollution knowledge at the time, a SIP exemption from permitting 

for agricultural sources is not surprising. In 1972, stationary 

sources had yet to be divided under the Clean Air Act into 

“major” and “minor” categories (the requirement for permitting 

of “major” sources came later), and given the state of knowledge 

concerning air pollution sources and control methods at the 

time, it is certainly plausible that neither the State of 

California nor EPA foresaw that regulation of new and modified 

agricultural sources, as opposed to new and modified factories

and smelters, and the regulation of motor vehicles, would be

necessary to attain and maintain the national ambient air 

quality standards (NAAQS).

As noted above, we have concluded that the agricultural 

permitting exemption, along with the other statutes and legal 

documents, submitted in the appendix to the legal authority 

chapter in the original 1972 SIP were approved by EPA and made 

part of the applicable SIP. To the extent, however, that 

uncertainty remains on this point, it does not matter from the 

standpoint of the California SIP over the past 30 years, 
14

because, as we are clarifying in this final rule, our 1980 

approval of the legal authority chapter superseded the 1972 

approval of the corresponding chapter (and its related appendix) 

such that the agricultural exemption was no longer in the SIP 

beginning with the effective date of our final rule approving 

the revised chapter (i.e., September 10, 1980).

Comment #2: The District contends that California‟s 

agricultural permitting exemption was approved into the SIP in 

1972. 

Response #2: We agree. As explained in detail in the January 

29, 2010 proposed rule (75 FR at 4743), we have concluded that 

the statutory provisions contained in appendix II to chapter 7

of the original California SIP, including the agricultural 

permitting exemption in CH&SC section 24265, were indeed 

approved into the California SIP. Our interpretation of SIP 

requirements is that, while the SIP must provide “necessary 

assurances” of “adequate authority” and must identify the 

provisions of law that provide for “adequate authority,” the 

statutes themselves need not be approved as part of the SIP. 

That does not mean that the statutes supporting the legal 

authority portion of a SIP cannot be approved into the SIP, only 

that they need not be. In 1972, California submitted the 

statutes supporting the legal authority chapter of the original 

California SIP to EPA, and EPA approved the original SIP, with 
15

exceptions not relevant here. Thus, while the statutory 

provisions need not have been approved into the California SIP, 

we agree that they in fact were so approved in 1972.

Comment #3: The District disagrees with EPA‟s finding that the 

statutes supporting California‟s revised legal authority 

chapter, as submitted in 1979, were not physically submitted as 

part of the SIP revision containing the revised chapter. In 

support of its position, the District cites “appendix 3-A” to 

“chapter 3 – Legal Authority,” which was submitted in 1979 and 

approved by EPA in 1980, and which, in the District‟s view, 

contains the 1978 edition of the California Air Pollution 

Control Laws, including the agricultural permitting exemption 

[by then re-codified to CH&SC section 42310(e)]. 

Response #3: The legal authority chapter and appendix, as 

revised in 1979 by California and submitted to EPA, includes 

several references to the 1978 edition of California Air 

Pollution Control Laws. On page 1, the revised legal authority 

chapter states:

“All section references hereafter in this chapter are to 

the Health and Safety Code unless otherwise indicated. The 

1978 edition of California Air Pollution Control Laws

include all applicable sections of the Health and Safety 

Code, the Business and Professional Code, and the Vehicle 

Code. This edition is incorporated as appendix 3-A to this 
16

chapter available separately from the ARB Public 

Information Office, P.O. Box 2815, Sacramento, CA 95812.” 

As noted in footnote 3 of our January 29, 2010 proposed 

rule (at 75 at 4744), we view the phrase “this edition is 

incorporated as appendix 3-A” as simply providing a general 

reference to where the statutory citations in the chapter could 

be located, rather than as having the effect of a literal 

reading of the provisions into the chapter. Our view is 

supported by the fact that the revised legal authority chapter 

does not “incorporate by reference” the 1978 edition of 

California Air Pollution Control Laws nor does the chapter 

identify any state law or rule that provides for a literal 

reading of large volumes of text into another state document, 

similar in purpose to the Office of the Federal Register‟s rules 

concerning “incorporation by reference” in connection with 

Federal rules (See 1 CFR part 51). In contrast, the statutory 

provisions and other legal documents supporting the legal 

authority chapter were physically submitted in “appendix II” to 

the original California SIP, as discussed above. “Appendix 3-A”

itself is only found in the table of contents to the 1979 

revised legal authority chapter. Next to the listing of 

“Appendix 3-A” in the table of contents is the following 

statement: “California Air Pollution Control Laws, 1978 

Edition, California Air Resources Board, Sacramento, CA 95812 
17

(available from ARB‟s Public Information Office).” 

Given the facts discussed above, we believe that the 

District is incorrect in claiming that appendix 3-A to the 1979 

revised legal authority chapter “contains” the 1978 edition of 

California Air Pollution Control Laws. At most, it refers to the 

1978 edition of California Air Pollution Control Laws. Not only 

did the revised legal authority chapter not contain the 

statutes, we believe that ARB‟s approach to keeping the statutes 

themselves physically separate from the revised legal authority 

chapter evinces an intent on the part of ARB not to include the 

statutes themselves in the SIP.

Comment #4: Regardless of whether the statutes were 

resubmitted, the District claims that EPA provides no support 

for its finding that the statutory provisions and other legal 

documents contained in the 1972 SIP were superseded by its 

approval of California‟s 1979 revised legal authority chapter.

Response #4: In our proposed rule (75 FR at 4744), we provide 

the following support for our conclusion that our approval of 

the 1979 legal authority chapter superseded our earlier approval 

of the legal authority chapter as well as the statutes and other 

legal documents submitted in support of the legal authority 

chapter from the original California SIP:

Contemporaneous statements by ARB as to the wholesale 

nature of the SIP update undertaken in 1978 and 1979;
18

The mismatch between the statutory citations in the revised 

legal authority chapter and the statutes submitted in 

support of the legal authority chapter of the original SIP;

and

Our conclusion that statutes providing support for a 

state‟s “necessary assurances” of adequate legal authority 

for the purposes of CAA section 110(a)(2)(E) need not be 

approved in the SIP.

As to the third bulleted item, above, the District objects 

to EPA‟s conclusion that the statutes providing support for a 

state‟s “necessary assurances” of adequate legal authority need 

not be approved in the SIP to meet CAA and EPA SIP requirements.

The District contends that EPA‟s reading of the SIP requirements 

in this regard is illogical and unsupported because there is no 

reason to conclude that statutes that must be submitted with the 

plan need not be approved into the plan. However, as explained 

below, the language of both the statute itself and our SIP 

regulations support our finding that the statutes supporting a 

state‟s “necessary assurances” of adequate legal authority need 

not be approved into the SIP. In other words, the statutes may 

be approved into the SIP, but are not required to be approved

into the SIP.

First, under CAA section 110(a)(2), each SIP shall “(E) 

provide (i) necessary assurances that the State ... will have 
19

adequate ... authority under State ... law to carry out such 

implementation plan ... .” The statute thus requires that SIPs 

provide “necessary assurances,” of adequate legal authority, not 

that SIPs must include statutes that establish legal authority. 

A state‟s demonstration of “necessary assurances” must be 

contained in the SIP, but the form in which the demonstration is 

made can take various forms, including but not limited to a 

narrative discussion (e.g., legal authority chapter), an 

Attorney General‟s letter, the statutes themselves, or some 

combination of the above. In contrast, for other SIP elements, 

the CAA requires the underlying regulations to be included in 

the SIP, not just “necessary assurances” of such regulations. 

For instance, under section 110(a)(2)(A), each SIP must “include 

enforceable emission limitations and other control measures ... 

.” A state‟s “necessary assurances” of such enforceable emission 

limitations is not enough to satisfy this CAA requirement. The 

state must submit the enforceable emission limitations 

themselves, which generally take the form of air pollution 

control rules and regulations, to comply with the relevant CAA 

requirement. 

Second, the relevant EPA SIP regulations require that “Each

plan must show that the State has legal authority to carry out 

the plan, ... ” (emphasis added) (see 40 CFR 51.230), but, as to 

the statutes themselves, EPA‟s regulations state: “The 
20

provisions of law or regulation which the State determines 

provide the authorities required ... must be specifically 

identified, and copies of such laws or regulations be submitted 

with the plan.” (emphasis added). See 40 CFR 51.231(a). The 

phrase, “each plan must show,” refers to elements that must be 

included as part of the plan, whereas the latter phrase, 

“submitted with the plan,” is, at most, ambiguous as to whether 

the items that must be submitted must also be included in the 

plan itself. But, when considered with the statutory language in 

CAA section 110(a)(2)(E) that requires the SIP to include 

“necessary assurances” of adequate legal authority, not the 

statutes themselves, it is reasonable to interpret 40 CFR 

51.231(a) as requiring the submittal of the statutory provisions 

(providing support for the necessary showing of adequate legal 

authority) for the purpose of allowing EPA to conduct an 

informed review of a state‟s demonstration of “necessary 

assurances” of adequate legal authority, and as not requiring 

approval of the statutory provisions themselves as part of the 

SIP. 

Lastly, the District points to EPA‟s own description of the 

Agency‟s approval of the revised legal authority chapter as 

“nonsignificant” and “administrative in nature” as inconsistent 

with EPA‟s contention that the approval of the revised legal 

authority chapter superseded the earlier chapter and related 
21

statutory provisions given the significance that the District 

attaches to the supersession of those provisions. However, EPA‟s 

description of its action approving the revised legal authority 

chapter as “administrative” mirrors ARB‟s foreword to the 

revised legal authority chapter: “Chapter 3 is an Air Resources 

Board (ARB) revision to the State of California Implementation 

Plan for the Attainment and Maintenance of Ambient Air Quality 

Standards (SIP). It is an administrative chapter which outlines

the state‟s legal authority to implement the measures contained 

in the State Implementation Plan required by the Clean Air Act 

... .” Our approval action was thus consistent with ARB‟s 

description of the revised legal authority action.

Retention of the statutory provisions that had been 

submitted as part of the original SIP would imply that they have 

significance outside of their purpose in providing support for 

the state‟s “necessary assurances” of adequate legal authority, 

which ARB submitted in the form of a narrative chapter. But, 

ARB‟s description of the chapter itself as “administrative” 

shows that the underlying statutory provisions have no place in 

the applicable SIP other than with the demonstration of 

“necessary assurances.” Our conclusion that the statutes 

submitted in support of the original chapter were superseded 

upon our approval of the revised chapter is consistent with this 

understanding of the inherent connection between the “necessary 
22

assurances” demonstration in the SIP and the supporting

statutory provisions.

As described above, the statutes submitted by a state in 

support of the “necessary assurances” demonstration of adequate 

legal authority may be approved as part of the SIP (e.g., 

original California SIP) but are not required to be part of the 

SIP. Where EPA has approved the supporting statutes into the 

SIP, EPA views the statutes as “nonregulatory” provisions of the 

SIP. See, e.g., 62 FR 27968, at 27971 (May 22, 1997) (“Examples 

of nonregulatory SIP provisions include, but are not limited to, 

the following subject matter: SIP narratives ... State Statutes 

... .”); and again in 72 FR 64158, at 64160 (November 15, 

2007)(“EPA-approved non-regulatory control measures include ... 

state statutes ... which have been submitted for inclusion in

the SIP by the state. ... Examples of EPA-approved documents and 

materials associated with the SIP include, ... State Statutes 

submitted for the purposes of demonstrating legal authority; ... 

.”). ARB‟s and EPA‟s description of the revised legal authority

chapter of the California SIP as “administrative” is consistent 

with the idea that even if the supporting statutes had been 

approved into the SIP in 1980 (which they were not), EPA would 

have categorized the statutes as “nonregulatory.”

The statutes are considered “nonregulatory” because 

statutes that provide state or local administrative agencies 
23

with the authority to establish regulatory requirements do not 

in themselves establish the requirements. Rather, the rules 

promulgated under the relevant authorities establish the

requirements. In this instance, such rules have included

permitting rules that were adopted by the individual countybased air districts in San Joaquin Valley (and later by the San 

Joaquin Valley Unified Air Pollution Control District) exempting 

agricultural sources, that were approved by EPA as part of the 

San Joaquin Valley portion of the California SIP, and that 

continued in effect in the SIP until 2004, notwithstanding the 

supersession of the underlying statutory provision back in 1980. 

Hence, EPA‟s description of the Agency‟s approval of the revised 

legal authority chapter as being “nonsignificant,” because no 

new requirements would be imposed nor would any requirements be 

withdrawn, is correct. Such requirements are not established in 

the statutes providing the legal authorities, but are found in 

the approved state and local district rules.5

Comment #5: The District states that the agricultural 

permitting exemption was removed from state law in 2003 as it 

relates to major sources, but states that the change in state 

 

5 The District refers to 40 CFR 52.220(b)(12)(i) as an instance where 

California removed certain sections of the CH&SC approved in 1972 from the 

California SIP. California did not remove these CH&SC sections; EPA did so 

under the error correction authority of CAA section 110(k)(6). See 69 FR 

67062 (November 16, 2004). We now recognize that we did not need to do so, 

since all of the statutory provisions submitted in support of the original 

legal authority chapter of the SIP had been superseded by our approval of the 

revised legal authority chapter in 1980. See response to comment #7.
24

law was never submitted to EPA as a SIP revision and thus the 

agricultural permitting exemption remains in the SIP.

Response #5: We agree that the state law replacing the full 

agricultural permitting exemption with a limited permitting 

exemption for certain minor agricultural sources (Senate Bill

700) has never been submitted to EPA as a SIP revision. However, 

as we clarify through this final rule, California did not need 

to submit SB 700 to EPA as a SIP revision to remove the 

agricultural permitting exemption from the SIP because it was 

removed from the California SIP upon the effective date of our 

1980 final rule approving the State‟s revision to the legal 

authority chapter of the California SIP.

Comment #6: The District contends that Clean Air Act section 

301(a)(1) does not authorize EPA to unilaterally amend the 

agricultural exemption out of the California SIP. 

Response #6: We agree that CAA section 301(a)(1) does not 

authorize EPA to unilaterally amend the SIP. To amend the SIP, 

EPA is authorized to take action under CAA section 110. For 

instance, our action in 1980 to approve California‟s revised 

legal authority chapter of the California SIP was an action 

taken by EPA under section 110. We do not view our action today 

as amending the California SIP. Our view as expressed in the 

proposed rule and in responses to comments above is that we are 

simply clarifying the effect of a previous rulemaking. We are 
25

taking this action to avoid further confusion as to the current 

status of the statutory provisions (such as the agricultural 

permitting exemption) submitted as part of the original 1972 

California SIP.

CAA section 301(a) authorizes EPA to prescribe such 

regulations as are necessary to carry out the Agency‟s functions 

under the CAA. One of the basic functions of the Agency under 

the CAA is to take actions on SIPs and SIP revisions (see 

section 110(k)), and in doing so, we are responsible for 

ensuring that the regulatory effect of our action is clearly set 

forth through rules published in the Federal Register and that 

our codification of SIP approvals in 40 CFR part 52 reasonably 

identifies the approved provisions. 

In this instance, we have discovered that our 1979 proposed 

rule and 1980 final rule approving a revision to the California 

SIP did not clearly identify the materials being superseded, and 

we appropriately rely upon our rulemaking authority under CAA 

section 301(a) to clarify the superseding effect of our 1980 

action. In so doing, we are not amending the California SIP, but 

merely clarifying what the current SIP includes, or to be more 

specific, what the current SIP does not include.

Comment #7: Dairy Cares notes that, in 2004, EPA undertook a 

rulemaking to remove from the SIP several specific statutes that 

were included in the 1972 original California SIP, and claims 
26

that such action would have been unnecessary if the statutory 

provision submitted with the original California SIP had been 

superseded by EPA‟s approval action on the revised legal 

authority chapter of the California SIP in 1980. Dairy Cares 

asserts that EPA‟s action in 2004 reveals the Agency‟s 

understanding then that the statutory provisions from the 

original California SIP remain in the SIP, and concludes that 

there is simply no way to reconcile EPA‟s actions in 2004 with 

the action it now proposes as they are entirely inconsistent.

Response #7: In our January 29, 2010 proposed rule, we 

recognize that our 2004 rulemaking (69 FR 67062, November 16, 

2004) removed certain variance-related statutory provisions from 

the California SIP. See 75 FR at 4742, at 4744. We agree that 

our conclusion in the current rulemaking that all of the 

statutory provisions submitted in connection with the legal 

authority chapter of the original California SIP were superseded 

in 1980 is not consistent with our 2004 rulemaking. We also 

agree that, if all of the statutory provisions in question had 

been superseded in 1980, then removal of the specific variancerelated provisions in 2004 would not have been necessary. 

Upon review of the 2004 rulemaking, however, we find no 

evidence of the type of detailed research into the contents of 

the California SIP that was conducted for this rulemaking. 

Furthermore, we believe that the Agency‟s own mistaken 
27

understanding in 2004 of the status of the variance-related 

statutory provisions simply highlights the need for the Agency 

to take some action, such as the one taken today, to clarify the 

status of the statutory provisions and other legal documents 

submitted in support of the legal authority chapter of the 

original California SIP. As described above, we have the 

authority under CAA section 301(a) to identify the superseding 

effect of a prior rulemaking (in this case, a rulemaking in 

1980) and to thereby clarify the contents of the current 

California SIP.

III. Final Action

None of the comments have caused us to modify our proposed 

rule, and thus, under CAA section 301(a)(1) and for the reasons 

discussed in the proposed rule and in this final rule, EPA is 

taking final action to clarify that the statutory provisions and 

other legal documents approved in connection with the legal 

authority chapter of the original 1972 California SIP were 

superseded in the California SIP by EPA‟s approval of a revised 

legal authority chapter in 1980 (and codified at 40 CFR 

52.220(c)(48)). We are memorializing our interpretation of the 

effect of the 1980 final rule by revising the relevant provision 

in 40 CFR 52.220 accordingly.

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to 
28

approve a SIP submission that complies with the provisions of 

the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA‟s role 

is to approve state choices, provided that they meet the 

criteria of the Clean Air Act. Accordingly, this action merely 

clarifies the effect of a previous approval by EPA of a state 

submittal as meeting Federal requirements and does not impose 

additional requirements beyond those imposed by state law. For 

that reason, this action:

• is not a "significant regulatory action" subject to review 

by the Office of Management and Budget under Executive 

Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 

et seq.);

• is certified as not having a significant economic impact on 

a substantial number of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the 

Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based 
29

on health or safety risks subject to Executive Order 13045 

(62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive 

Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the Clean Air Act; 

and

• 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 (59 FR 

7629, February 16, 1994).

In addition, this rule does not have tribal implications as 

specified by Executive Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved to apply in Indian 

country located in the state, and EPA notes that it will not 

impose substantial direct costs on tribal governments or preempt 

tribal law.

The Congressional Review Act, 5 U.S.C. section 801 et seq., 

as added by the Small Business Regulatory Enforcement Fairness 

Act of 1996, generally provides that before a rule may take 

effect, the agency promulgating the rule must submit a rule 
30

report, which includes a copy of the rule, to each House of the 

Congress and to the Comptroller General of the United States. 

EPA will submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for 

judicial review of this action must be filed in the United 

States Court of Appeals for the appropriate circuit by [FEDERAL 

REGISTER OFFICE: insert date 60 days from date of publication of 

this document in the Federal Register]. Filing a petition for 

reconsideration by the Administrator of this final rule does not 

affect the finality of this rule for the purposes of judicial 

review nor does it extend the time within which a petition for 

judicial review may be filed, and shall not postpone the 

effectiveness of such rule or action. This action may not be 

challenged later in proceedings to enforce its requirements. 

(See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, 

Incorporation by reference, Intergovernmental relations, Oxides 

32

Part 52, Chapter I, Title 40 of the Code of Federal

Regulations is amended as follows:

PART 52 [AMENDED]

1. The authority citation for part 52 continues to read as 

follows:

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

Subpart F - California

2. Section 52.220 is amended by revising paragraph (b)(12)(i) to 

read as follows: 

§52.220 Identification of plan.

* * * * *

(b) * * *

(12) * * *

(i) Previously approved on May 31, 1972 in paragraph (b) and 

deleted without replacement, effective September 10, 1980, 

chapter 7 (“Legal Considerations”) of part I (“State General 

Plan”) of the plan submitted on February 21, 1972, and all of 

the statutory provisions and other legal documents contained in 

appendix II (“State Statutes and other Legal Documents Pertinent 

to Air Pollution Control in California”) to chapter 7.

* * * * *