ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0622; FRL-]

Approval of Air Quality Implementation Plans; California; South 

Coast; Attainment Plan for 1997 8-hour Ozone Standards

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

ACTION: Final rule.

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SUMMARY: EPA is approving state implementation plan (SIP) 

revisions submitted by California to provide for attainment of 

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

the Los Angeles-South Coast area (South Coast). These SIP 

revisions are the South Coast 2007 Air Quality Management Plan 

(South Coast 2007 AQMP) (revised 2011) and South Coast-related 

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

is approving the base year emissions inventory; reasonably 

available control measures demonstration; provisions for 

transportation control strategies and transportation control 

measures; the reasonable further progress (RFP) and attainment 

demonstrations; the transportation conformity motor vehicle 

emissions budgets for all RFP milestone years and the attainment 

year; contingency measures for failure to make reasonable 

further progress and to attain; and Clean Air Act section 

182(e)(5) new technologies provisions and associated commitment 

to adopt contingency measures. EPA is also approving commitments 
2

to measures and reductions by the South Coast Air Quality 

Management District and the California Air Resources Board.

DATES: This rule is effective on [FEDERAL REGISTER OFFICE: 

INSERT DATE 60 DAYS FROM DATE OF PUBLICATION].

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-

0622 for this action. The index to the docket is available 

electronically at http://www.regulations.gov and in hard copy at 

EPA Region IX, 75 Hawthorne Street, San Francisco, California. 

While 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.

Copies of the SIP materials are also available for 

inspection in the following locations:

California Air Resources Board, 1001 I Street, Sacramento, 

CA 95812

South Coast Air Quality Management District, 21865 E. 

Copley Drive, Diamond Bar, CA 91765. 

The SIP materials are also electronically available at 

http://www.aqmd.gov/aqmp/07aqmp/index.html and 

http://www.arb.ca.gov/planning/sip/2007sip/2007sip.htm.
3

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office 

(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 

947-4192, tax.wienke@epa.gov.

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

and “our” refer to EPA.

Table of Contents

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

Implementation Plan for Attainment of the 1997 8-hour Ozone

Standards in the South Coast Nonattainment Area

II. Response to Public Comments Received on the Proposal

III. Approval Status of the Control Strategy Measures and Final 

Actions on the Attainment Demonstration and Enforceable 

Commitments

IV. Approval of Motor Vehicle Emissions Budgets for 

Transportation Conformity

V. Final Actions 

VI. Statutory and Executive Order Reviews

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

Implementation Plan for Attainment of the 1997 8-hour Ozone

Standards in the South Coast Nonattainment Area

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

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

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

Angeles-South Coast Air Basin Area (South Coast).1 See 76 FR 

57872. California developed this SIP to provide for expeditious 

attainment of the 8-hour ozone standards in the South Coast and 

to meet other applicable 8-hour ozone planning requirements in

Clean Air Act (CAA) sections 172(c) and 182 and EPA‟s 8-hour 

ozone implementation rule.2

California has made five submittals to address the CAA 

planning requirements for attaining the 1997 8-hour ozone

standards in the South Coast. We refer to these submittals 

collectively as the “South Coast 2007 8-hour ozone plan” or the 

“8-hour ozone plan.” The two principal ones are the South Coast 

Air Quality Management District (SCAQMD or District) Final 2007 

South Coast Air Quality Management Plan (AQMP) (amended 2011) 

and the California Air Resources Board (CARB) Final 2007 State 

and Federal Strategy (2007 State Strategy) (amended 2009 and

2011).3 Together, the South Coast 2007 AQMP and the 2007 State 

 

1 The area referred to as “Los Angles-South Coast Air Basin” (South Coast Air 

Basin or “South Coast”) includes Orange County, the southwestern two-thirds 

of Los Angeles County, southwestern San Bernardino County, and western 

Riverside County. For a precise description of the boundaries of the Los 

Angeles-South Coast Air Basin, see 40 CFR 81.305.

2

Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality 

Standards –Phase I; Final rule. 69 FR 23951 (April 30, 2004) and and codified 

at 40 CFR part 51, subpart Z (8-hour ozone implementation rule).

3 These SIP submittals are: 

1. SCAQMD, Final 2007 Air Quality Management Plan (AQMP), adopted on 

June 1, 2007 by the SCAQMD and September 27, 2007 by CARB, submitted on 

November 28, 2007. 
5

Strategy present a comprehensive and innovative strategy for 

attaining the 1997 8-hour ozone standards in the South Coast. 

In our September 2011 notice, EPA proposed to approve the 

SIP‟s base year emissions inventory, reasonably available 

control measures (RACM) demonstration, the reasonable further 

progress (RFP) and attainment demonstrations, provisions for 

advanced technology/clean fuels for boilers, provisions for 

transportation control strategies and transportation control 

measures (TCMs), transportation conformity motor vehicle 

emissions budgets (budgets) for all milestone years and the 

attainment year, contingency measures for failure to make RFP or 

 

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.Progress Report on Implementation of PM2.5 State Implementation Plans 

(SIP) for the South Coast and San Joaquin Valley Air Basins and Proposed SIP 

Revisions, adopted on April 28, 2011 by CARB, submitted with the adopting 

resolution and other supporting documentation by CARB on May 18, 2011.3 See 

CARB Board Resolution 11-24, April 28, 2011 and letter, James N. Goldstene, 

Executive Officer, CARB, to Jared Blumenfeld, Regional Administrator, EPA 

Region 9, May 18, 2011 with enclosures. Appendix F of this SIP revision 

contained the SCAQMD‟s Revisions to the 2007 PM2.5 and Ozone State 

Implementation Plans for the South Coast Air Basin and Coachella Valley (SIP 

Revisions), adopted on March 4, 2011 by the SCAQMD Governing Board and 

approved by the CARB Board on April 28, 2011. This SIP revision includes an 

update on District rule implementation and commitments provided by SCAQMD for 

the 2007 AQMP for ozone and PM2.5. This SIP revision was included as Appendix F 

in CARB‟s 2011 Progress Report and will be referred to as such.

5. CARB, Proposed 8-Hour Ozone State Implementation Plan Revisions and 

Technical Revisions to the PM2.5 State Implementation Plan Transportation 

Conformity Budgets for the South Coast and San Joaquin Valley Air Basins, 

adopted on July 21, 2011 by CARB and submitted on July 29, 2011. (2011 Ozone 

SIP Revision).
6

attain, and CAA section 182(e)(5) new technologies provisions 

and the associated commitment to adopt contingency measures4 as 

meeting the applicable requirements of the CAA. We also proposed 

to approve enforceable commitments by both the District and CARB 

to certain measures and emissions reductions.5 See 76 FR 57872.

A more detailed discussion of each of California‟s SIP 

submittals for the South Coast area, the CAA and EPA 

requirements applicable to them, and our evaluation and proposed 

actions, can be found in the September 16, 2011 Federal Register

 

4 See letter, James Goldstene, Executive Officer, CARB, to Jared Blumenfeld, 

Regional Administrator, EPA Region 9, dated November 18, 2011.

5

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

certain provisions in CAA section 182(d)(1)(A)for transportation control 

strategies and measures sufficient to offset any growth in emissions from 

growth in vehicle miles traveled or the number of vehicle trips. In 

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

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

first element, section 182(d)(1)(A) of the CAA requires States to adopt 

transportation control measures and strategies whenever vehicle emissions are 

projected to be higher than they would have been had vehicle miles traveled

not increased, even when aggregate vehicle emissions are actually decreasing. 

EPA has filed a petition for rehearing on this issue. Docket Nos. 09-71383 

and 09-71404 (consolidated), Docket Entry 41-1, Petition for Panel Rehearing.

At the time of our September proposal, the Ninth Circuit had not yet 

issued its mandate in the AIR case, and EPA had not adopted the court‟s 

interpretation for the reasons set forth in the Agency‟s petition for 

rehearing, pending a final decision by the court. We stated in our proposal 

that if the court denied the Agency‟s petition for rehearing and issued its 

mandate before EPA issued a final rule on the South Coast 2007 8-Hour Ozone 

SIP, then we anticipated that we would not be able to finalize approval of 

the South Coast 2007 8-Hour Ozone SIP with respect to the first element 

(i.e., offsetting emissions growth) of section 182(d)(1)(A). See 76 FR 57872, 

57890. Therefore, we proposed in the alternative to disapprove the South 

Coast 2007 8-Hour Ozone SIP with respect to the first element of section 

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

control strategies and TCM to offset the emissions from growth in VMT. Id.

The court has still not issued its mandate; therefore, we are approving the 

South Coast 2007 8-Hour Ozone SIP as meeting the requirements of CAA section 

182(d)(1)(A).
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notice (76 FR 57872) and the technical support document (TSD) 

for this final action.6

EPA is today approving all elements of the South Coast 2007 

8-hour Ozone Plan based on our conclusion that they comply with 

applicable CAA requirements and provide for expeditious 

attainment of the 1997 8-hour ozone standards in the South Coast 

nonattainment area. 

II. Summary of Public Comments Received on the Proposal and EPA 

Responses

 EPA provided the public an opportunity to comment on our

proposed approval of the South Coast 2007 8-hour ozone plan for 

30 days following the proposal‟s September 16, 2011 publication 

in the Federal Register. We received three comment letters in 

response to our September 16, 2011 proposal. In the following 

section, we summarize our responses to the most significant 

comments that we received on the proposals. Our complete

responses to comments can be found in the “Response to Comments” 

section of the TSD section III accompanying today‟s rulemaking.

The first letter came from CARB requesting that we limit

the approval of the SIP‟s transportation conformity motor 

 

6 “Final Technical Support Document and Response to Comments for the Final 

Rulemaking Action on the South Coast 2007 8-hour Ozone Plan and the South 

Coast Portions of the Revised 2007 State Strategy,” Air Division, U.S. EPA 

Region 9, December 2011. The TSD can be found in the docket for this 

rulemaking.
8

vehicle emissions budgets until such time the State submits and 

EPA finds adequate new budgets. See letter, Douglas Ito, Chief, 

Air Quality and Transportation Planning Branch; California Air 

Resources Board, October 17, 2011. We address CARB‟s request in 

Section V below. We received a comment letter from the Natural 

Resources Defense Council (NRDC) representing various 

organizations. See letter, Adrian Martinez, Attorney, Natural 

Resources Defense Council, October 17, 2011. We respond to 

NRDC‟s comments below. We also received comments from Ian Scott, 

a private citizen, on our September proposal. A copy of the 

comment letters can be found in the docket for today‟s rule.

A. Control Strategy and Enforceable Commitments

1. Enforceable Commitments

Comment: California Communities Against Toxics, Communities for 

a Better Environment, Natural Resources Defense Council, and 

Physicians for Social Responsibility – Los Angeles (commenters) 

assert that the CARB and District commitments to achieve total 

tonnage reductions in the South Coast 8-hour ozone plan are not 

enforceable. Commenters assert that the commitments to achieve 

total tonnages (which they refer to as “global commitments”) 

could be interpreted as “goals,” rather than “strategies,” and 

are not enforceable because they are discretionary and openended. Commenters cite Bayview Hunters Point Community 
9

Advocates v. Metropolitan Transportation Commission, 366 F.3d 

692 (9th Cir. 2004) and El Comite Para El Bienstar de Earlimart 

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

assert that enforcement of the “global commitments” by citizens 

is not possible because neither citizens nor EPA can determine 

whether CARB has met the “global commitments,” and because CARB 

and the District determine compliance with the “global 

commitment” target, thus leaving them in a situation faced by 

plaintiffs in Warmerdam. Commenters assert that the “global 

commitments” are also not enforceable because there are no 

measures submitted for inclusion into the SIP to satisfy the

tonnage commitment and there are no reporting requirements for 

ARB and the District, and they cite to EPA‟s General Preamble at 

57 FR 13568 which states, “[a] regulatory limit is not 

enforceable if, for example, it is impractical to determine 

compliance with the published limit.” Finally, commenters assert 

that in order to enforce the “global commitments,” which depend 

on how CARB and the District calculate emissions reductions, the 

methodology that determines how emissions reductions are 

calculated must also be enforceable. Commenters state that in 

Warmerdam the court found neither the baseline nor methodology 

enforceable and thus, the plaintiffs were not able to enforce. 
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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 304.7 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 

 

7

 EPA can also enforce SIP commitments pursuant to CAA section 113.
11

specific provisions of an applicable implementation plan," 

the Second Circuit held that suits can be brought to 

enforce specific measures, strategies, or commitments 

designed to ensure compliance with the NAAQS, but not to 

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

613-14. Courts have repeatedly applied this test as the 

linchpin of citizen suit jurisdiction. See, e.g., Coalition 

Against Columbus Ctr. v. City of New York, 967 F.2d 764, 

769-71 (2d Cir. 1992); Cate v. Transcontinental Gas Pipe 

Line Corp., 904 F. Supp. 526, 530-32 (W.D. Va. 1995); 

Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 

1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 

(1990).

Thus courts have found that the citizen suit provision cannot be 

used to enforce the aspirational goal of attaining the NAAQS, 

but can be used to enforce specific strategies to achieve that 

goal including enforceable commitments to develop future 

emissions controls.

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

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

in detail in our proposal (76 FR 57872).8 The 2007 State 

 

8 The 2011 Ozone SIP Revision revised the State's emissions estimates for 

certain source categories and projection years and provided additional 

information on the State and District's progress to date in achieving their 
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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 1997 8-hour ozone NAAQS in 

the South Coast by June 15, 2024. See CARB Resolution 07-28, 

Attachment B at p. 4 and 2009 State Strategy Status Report, p. 

20. For the South Coast, the State‟s emissions reductions 

commitments, as submitted in 2007 and revised by the 2009 State 

Strategy Update, are to achieve 152 tpd of NOx and 46 tpd of VOC 

in the South Coast area by 2014, and 141 tpd NOx and 54 tpd VOC 

in the South Coast area by 2023. See 76 FR 57872, at 57881; 

2009 State Strategy Status Report, p. 20.

The SCAQMD‟s commitments as submitted in 2007 (and revised 

in 2011) were to achieve 9.2 tpd NOx and 19.3 tpd VOC by 2023. 

See 76 FR 57872, Table 2, at 57878; see also 2011 Progress 

Report, Appendix F, Tables 2 and 3, and SCAQMD Board Resolution 

11-9, March 4, 2011. As discussed above, the State‟s total 

emissions reduction commitment is for 152 tpd of NOx and 46 tpd 

of VOC by 2014, and 141 tpd of NOx and 54 tpd of VOC by 2023, 

 

total emission reduction commitments. In this action, we are approving 

CARB's and the SCAQMD's emission reduction commitments as submitted in the 

2007 State Strategy, as revised by the 2009 State Strategy Update, and South 

Coast 2007 AQMP because we do not have sufficient information to determine 

how the 2011 SIP Revision alters the State's near-term and long-term emission 

reduction commitments. We note that the amount and relative proportion of 

reductions from measures scheduled for long-term adoption under section 

182(e)(5), as compared to measures already adopted or scheduled for near-term 

adoption, should decrease in any future SIP update.
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which the State remains obligated to achieve through the 

adoption of enforceable measures by 2023. See TSD, Table D-5; 

see also CARB Resolution 07-28, Attachment B at p. 4. The 

language used in the Board‟s resolution adopting the South Coast

2007 AQMP to describe its commitment is mandatory and 

unequivocal in nature: 

Be it further resolved, that the District will develop, 

adopt, submit and implement the short- and mid-term control 

measures as identified in Tables 4-2A and 4-2B of the 2007 

AQMP (Main Document) as expeditiously as possible in order 

to meet or exceed the commitments identified in Table 4-10 

of the 2007 AQMP (Main Document), and to substitute any 

other measures as necessary to make up any emission 

reduction shortfall. [emphasis added]

SCAQMD Board Resolution No. 07-9, p.10.

Thus, CARB‟s commitments here are to adopt and implement 

measures that will achieve specific amounts of NOx and VOC 

reductions by specific years. These are not mere aspirational 

goals to ultimately achieve the standards. Rather, the State and 

District have committed to adopt enforceable measures that will 

achieve these specific amounts of emission reductions by the RFP

year of 2014 and the attainment year (2023). See 40 CFR 

51.908(d) (requiring implementation of all control measures 
14

needed for expeditious attainment no later than the beginning of 

the year prior to the attainment date) and 70 FR 71633, 71612 

(November 29, 2005). 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 

emission 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 emission reductions by the specified 

year. We conclude that these enforceable commitments to adopt 

and implement additional control measures to achieve aggregate 

emission 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.

Commenters 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.
15

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% ridership estimate was adopted by the 

Metropolitan Transportation Commission (MTC), the implementing 

agency, as the actual target. Plaintiffs subsequently attempted 

to enforce the 15% ridership increase. The court found that the 

15% 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 
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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 South Coast 2007 AQMP 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 emission reductions that 

they will achieve, how they could be achieved and the time by 

which these reductions will be achieved, i.e., by the 2023 

attainment year. See Tables 3 and 4.

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

the terms of the contingency measures in Citizens for a Better 

Environment v. Deukmejian, 731 F.Supp.1448 (N.D. Cal. 1990), 

[known as CBE I], 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 
17

bring the region back within the RFP line." The court found that 

“[o]n its face, this language is both specific and mandatory.” 

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

constitute an enforceable strategy because the provision fails 

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

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

consistent with the Clean Air Act, for disregarding this 

unequivocal commitment simply because the particulars of the 

contingency measures are not provided. Thus we hold that the 

basic commitment to adopt and implement additional measures, 

should the identified conditions occur, constitutes a specific 

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

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

1457. In concluding that the transportation and stationary 

source contingency provisions were enforceable, the court 

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

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

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

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

also Citizens for a Better Environment v. Metropolitan Tranp. 

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

(rejecting defendants‟ argument that RFP and the NAAQS are 

coincident and stating that the court‟s enforcement of the 
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contingency plan, an express strategy for attaining NAAQS, is 

distinct from simply ordering that NAAQS be achieved).

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

propose or adopt measures, which are not specifically 

identified, to achieve specific tonnages of emission reductions 

by specified years. Thus, the commitment to specific tonnage 

reductions is comparable to a commitment to achieve RFP. 

Similarly, a commitment to achieve a specific amount of emission 

reductions through adoption and implementation of unidentified 

measures is comparable to the commitments to adopt unspecified 

TCMs and stationary source measures. The key is that the 

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

specified amount of emissions reductions or the achievement of a 

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

District‟s commitments are thus a specific enforceable strategy 

rather than an unenforceable aspirational goal.

Commenters‟ reliance on El Comite (referred to as

Warmerdam) to argue that CARB‟s commitments are not enforceable 

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

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

ozone SIP known as the Pesticide Element. The Pesticide Element 

relied on an inventory of pesticide VOC emissions to provide the 

basis to determine whether additional regulatory measures would 
19

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

were designed to reduce emissions.” Id.
20

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 commenters cite the Ninth Circuit‟s El Comite

opinion, its utility in analyzing the CARB and District 

commitments here is limited to that court‟s agreement with the 

district court‟s conclusion that neither the baseline nor the 

methodology qualifies as an independently enforceable aspect of 

the SIP. Rather, it is the district court‟s opinion, in 

distinguishing the commitments in CBE and Bayview, that provides 

insight into the situation at issue in our action. As the court 

recognized, a baseline inventory or the methodology used to 

calculate it, is not a measure to reduce emissions. It instead 

“identifies emission sources and then quantifies the amount of 

emissions attributed to those sources.” In contrast, as stated 

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

and South Coast 2007 AQMP, CARB and the District commit to 
21

adopt and implement measures sufficient to achieve specified 

amounts of emission reductions by a date certain. As described 

above, a number of courts have found commitments substantially 

similar to CARB‟s here to be enforceable under CAA section 

304(a).

2. Baseline Measures, Baseline Inventories, and Attainment 

Demonstration

Comment: NRDC asserts that EPA‟s approval of the inventory in 

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

because the baseline inventory includes emissions reduction 

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

adopted before 2007 (together referred to as “baseline 

measures”) that have not been approved into the SIP. NRDC argues 

that EPA has not evaluated each of these baseline measures to 

determine if they are creditable or quantified the emissions 

reductions attributed to each of these measures. Additionally, 

NRDC asserts that EPA should disapprove the attainment 

demonstration because EPA has not approved mobile source 

baseline measures as part of the SIP. NRDC asserts that “[t]he 

total tonnage attributed to these unsubmitted and non-SIP 

approved measures in the attainment demonstration is not clear, 

because EPA does not differentiate between reductions from SIPapproved measures, waiver measures, and those that have not 
22

received EPA approval.” Thus, NRDC argues, “a significant amount 

of emission reductions claimed in the attainment demonstration 

are not SIP creditable, a finding that EPA must make before 

approving the attainment demonstration.” NRDC references CAA 

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

assertions and argues that “EPA has failed to find that the 

reductions from the unsubmitted rules have occurred, are 

enforceable, or are otherwise consistent with the Act, EPA‟s 

implementing regulations, and the General Preamble.”

NRDC identifies the following rules as examples of “nonwaiver” baseline measures that have not been SIP-approved: 

Requirements to Reduce Idling Emissions from New and 

In-Use Trucks (adopted October 20, 2005). 

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); 
23

Fork Lifts and Other Industrial Equipment (adopted May 

26, 2006); 

Response: We disagree with these assertions. We explained in 

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

both that the 2002 base year inventory in the SIP is 

comprehensive, accurate, and current as required by CAA section 

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

adequate bases and support for the RFP and attainment 

demonstrations in the South Coast 2007 8-hour Ozone plan.9

Specifically, with respect to mobile source emissions, we 

believe that credit for emissions reductions from implementation 

of California mobile source rules that are subject to CAA 

section 209 waivers (“waiver measures”) is appropriate in the 

attainment and RFP demonstrations and for other SIP purposes 

notwithstanding the fact that such rules are not approved as 

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

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

section II.D.3.c.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 

 

9For ozone nonattainment areas, a State that satisfies the specific inventory 

requirements of CAA section 182(a)(1) also satisfies the general inventory 

requirements of CAA section 172(c)(3). See 57 FR 13498, 13503 (April 16, 

1992).
24

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

to California in order “to afford California the broadest 

possible discretion in selecting the best means to protect the 

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

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

California to take credit for the waiver measures 

notwithstanding the fact that the underlying rules are not part 

of the California SIP, EPA treated the waiver measures similarly 

to the Federal motor vehicle control requirements, which EPA has 

always allowed States to credit in their SIPs without submitting 

the program as a SIP revision. 

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

motor-vehicle-related waiver measures in attainment and RFP 

demonstrations and for other SIP purposes by allowing California 

to include motor vehicle emissions estimates made by using 

California‟s EMFAC (and its predecessors) motor vehicle 

emissions factor model in SIP inventories. EPA verifies the 

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 
25

an analogous model known as MOVES.10) The South Coast 2007 8-hour 

ozone plan was developed using a version of the EMFAC model 

referred to as EMFAC2007, which EPA has approved for use in SIP 

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

Thus, the emissions reductions that are from the California onroad “waiver measures” and that are estimated through use of 

EMFAC are as verifiable as the emissions reductions relied upon 

by states other than California in developing their SIPs based 

on estimates of motor vehicle emissions made through the use of 

the MOVES model. All other states use the MOVES model (and prior 

to release of MOVES, the MOBILE model) in their baseline 

inventories without submitting the federal motor vehicle 

regulations for incorporation into their SIPs.

Similarly, emissions reductions that are from California‟s 

waiver measures for non-road engines and vehicles (e.g., 

agricultural, construction, lawn and garden and off-road 

recreation equipment) are estimated through use of CARB‟s 

OFFROAD emissions factor model.11 (Emissions reductions from 

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

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

California non-road standards for which EPA has issued waivers 

 

10 MOVES replaced the MOBILE model as EPA‟s on-road mobile source emission 

estimation model for use in SIPs and conformity in 2010. 

11 Information about CARB‟s emissions inventories for on-road and non-road 

mobile sources, and the EMFAC and OFFROAD models used to project changes in 

future inventories, is available at http://www.arb.ca.gov/msei/msei.htm.
26

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

allowing credit for standards subject to the waiver process 

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

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

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

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

section II.D.3.c.i. 

CARB‟s EMFAC and OFFROAD models employ complex routines 

that predict vehicle fleet turnover by vehicle model years and 

include control algorithms that account for all adopted 

regulatory actions which, when combined with the fleet turnover 

algorithms, provide future baseline projections. See 2007 State 

Strategy, Appendix F at 7-8. For stationary sources, the 

California Emission Forecasting System (CEFS) projects future 

emissions from stationary and area sources (in addition to 

aircraft and ships) using a forecasting algorithm that applies 

growth factors and control profiles to the base year inventory.12

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 

 

12 Information on base year emissions from stationary point sources is 

obtained primarily from the districts, while CARB and the districts share 

responsibility for developing and updating information on emissions from 

various area source categories. See 2007 State Strategy, Appendix F at 21.
27

extracted for use in establishing future baseline planning 

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

emissions projections for several source categories to account 

for, among other things, more recent economic forecasts and 

improved methodologies for estimating emissions from the heavy 

duty truck and construction source categories. See 2011 Ozone 

SIP Revisions, Appendix B. These methodologies for projecting 

future emissions based on growth factors and existing Federal, 

State, and local controls were consistent with EPA guidance on 

developing projected baseline inventories. See TSD at section 

II.A; see also “Procedures for Preparing Emissions Projections,” 

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

019, July 1991; “Emission Projections,” STAPPA/ALAPCO/EPA 

Emission Inventory Improvement Project, Volume X, December 1999 

(available at 

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

In sum, the 2002 base year and future projected baseline 

inventories in the South Coast 2007 8-hour Ozone 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 EPA-approved California motor vehicle 

emissions factor model (EMFAC2007) and the most recent motor 
28

vehicle activity data from each of the MPOs in the South Coast 

area; (2) improved methodologies for estimating emissions from 

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

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

(referencing, inter alia, 2007 State Strategy at Appendix F) and 

2011 Ozone SIP Revision. 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); 76 FR 41338 (July 13, 

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

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

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

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

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

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

information to support a claim that these methodologies for 

developing base year inventories and projecting future emissions 

in the South Coast are inadequate to support the RFP and 
29

attainment demonstrations in the South Coast 2007 8-hour Ozone 

plan.

For all of these reasons and as discussed in our proposal 

(76 FR 57872, 57876), we conclude that the 2002 base year 

inventory in the 2007 8-hour Ozone plan is a “comprehensive, 

accurate, current inventory of actual emissions from all sources 

of the relevant pollutant or pollutants” in the South Coast 

area, consistent with the requirements for emissions inventories 

in CAA section 182(a)(1), 40 CFR § 51.915, and 40 CFR part 51, 

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

year baseline inventories were prepared consistent with EPA‟s 

guidance on development of emissions inventories and attainment 

demonstrations and, therefore, provide an adequate basis for the 

RFP and attainment demonstrations in the Plan under CAA sections 

172(c)(2), 181(a)(1), and 182(c)(2). See TSD at section II.A.4. 

Finally, we disagree with NRDC‟s assertion that EPA has not 

identified the total amount of emission reductions attributed to 

baseline measures in the projected inventories. The total 

amounts of emission reductions attributed to baseline measures 

in the South Coast 2007 8-Hour Ozone SIP, as revised in 2011, 

are 352 tpd of VOC and 531 tpd of NOx. See 76 FR 57872, 57885, 

Table 8 at line E; see also TSD, Table D-6 at line B.
30

As to the five specific baseline measures that NRDC asserts 

should be SIP-approved before crediting in the RFP and 

attainment demonstrations: 

Requirements to Reduce Idling Emissions from New and In-Use 

Trucks (effective November 15, 2006)13 and Fork Lifts and Other 

Industrial Equipment Rule (adopted May 26, 2006). Both of 

these mobile source measures are pending EPA waiver 

determinations under CAA section 209(b) or section 209(e).14 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 South Coast 2007 8-

hour Ozone plan based in part on its reliance on the emissions 

reductions associated with these rules is, therefore, 

 

13EPA is currently reviewing a request from CARB for a determination as to 

whether certain requirements of these anti-idling rules are preempted by 

sections 209(a) of the CAA; certain provisions are conditions precedent 

pursuant to section 209(a) of the Act; certain provisions are within-thescope 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 1.3 tpd of NOx in the South Coast. See Memorandum, Doris 

Lo, Air Division, Planning Office (AIR-2), to San Joaquin Valley PM2.5 Docket 

No. EPA-R09-OAR-2010-0516 “South Coast and San Joaquin Valley Emissions 

Reductions from ARB‟s Operational Idling Requirements, “September 28, 2011, 

in the docket for today‟s action.

14 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 OffRoad 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)
31

reasonable and appropriate. If, however, EPA either denies or 

does not issue the State‟s requested waiver for any of these 

measures prior to the effective date of today‟s action, we 

will take appropriate remedial action to ensure that our 

action on the plan is fully supportable or to reconsider that 

action.

Diesel Particulate Matter Control Measure for On-Road HeavyDuty 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 

emissions reductions from this measures are 0.18 tpd NOx and 

0.11 tpd VOC statewide in 2015 and 0.09 tpd NOx and 0.05 tpd 

VOC statewide in 2020. 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 pp. 56-57. South Coast has 

approximately 35 percent of the statewide fleet (id.); 

therefore, the de minimis amounts of emission reductions 

attributed to this measure in the South Coast 2007 8-hour 

Ozone plan do not affect our evaluation of its attainment and 

RFP demonstrations. 

Solid Waste Collection Vehicle Rule (adopted September 24, 

2003). CARB‟s staff report on this measure indicates that the 
32

projected emissions reductions from this measure are 2.3 tpd 

NOx and 0.72 tpd VOC statewide in 2015 and 0.6 tpd NOx and 0.34 

tpd VOC statewide in 2020. 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. 20. South Coast has 

approximately 35 percent of the statewide fleet (id.); 

therefore, the de minimis amounts of emission reductions 

attributed to this measure in the South Coast 2007 8-hour 

Ozone plan do not affect our evaluation of its attainment and 

RFP demonstrations. 

Heavy Duty Diesel Engine-Chip Reflash rule (adopted March 27, 

2004) (“Chip Reflash” rule). This rule was intended to ensure 

expeditious compliance with CARB‟s NOx emission 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 emission 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,15 removal of 

 

15 The 2007 State Strategy, Appendix A, “Emission 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 
33

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 NOx emissions reductions attributed to 

“reflashed” engines are enforceable under the CAA and/or 

California state laws.

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

source baseline measures as part of the SIP or reviewed those 

measures to consider whether they achieve the reductions claimed 

by CARB, and that EPA cannot approve the Plan when such a “huge 

component of the control strategy” has not been SIP-approved. 

NRDC also asserts that CARB has not submitted copies of its 

mobile source baseline measures to EPA as part of this plan. 

NRDC also asserts that waiver measures may not be used in 

attainment demonstrations because EPA makes no finding during 

the waiver process that the rules achieve the reductions claimed 

or that the measures are SIP creditable. NRDC also notes that 

 

upgrade regulation plus related actions provided approximately 38 tons per 

day of NOx emissions reductions statewide in year 2007. CARB also indicates 

that it took into account the fact that the software upgrade regulation had 

been invalidated by including no additional emissions reductions from chip 

reflash other than those that had already occurred due to compliance with the 

regulation (prior to invalidation by the court), voluntary upgrade programs, 

ongoing engine rebuilds, engines upgrades by manufacturers exempt from the 

regulation, and interstate trucks. CARB staff confirmed that the baseline 

adjustment for chip reflash in the 2007 State Strategy reflects emission 

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”);” September 28, 2011 in the docket 

for today‟s action.
34

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 September 16, 

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

that proposal, we explained why we believe such credit is 

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

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

waiver measures because of special Congressional recognition, in 

establishing the waiver process in the first place, of the 

pioneering California motor vehicle control program and because 

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

to California in order "to afford California the broadest 

possible discretion in selecting the best means to protect the 

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

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

California to take credit for the waiver measures 

notwithstanding the fact that the underlying rules are not part 

of the California SIP, EPA treated the waiver measures similarly 

to the Federal motor vehicle control requirements, which EPA has 
35

always allowed States to credit in their SIPs without submitting 

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

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

establish on-road and nonroad standards, notwithstanding their 

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

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

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

other control measures, means, or techniques (including economic 

incentives such as fees, marketable permits, and auctions of 

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

meet the applicable requirements of this chapter.” (emphasis 

added). Federal measures are permanent, independently 

enforceable (by EPA and citizens), and quantifiable without 

regard to whether they are approved into a SIP, and thus EPA has 

never found such measures to be “necessary or appropriate” for 

inclusion in SIPs to meet the applicable requirements of the 

Act. Section 209 of the CAA establishes a process under which 

EPA allows California‟s waiver measures to substitute for 

Federal measures, and like the Federal measures for which they 

substitute, EPA has historically found, and continues to find, 

based on considerations of permanence, enforceability, and 

quantifiability, that such measures are not “necessary or 

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

applicable requirements of the Act. 
36

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

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

only to a level of aggregate equivalence to the Federal Motor 

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

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

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

apply in California). Likewise, Federal nonroad vehicle and 

engine standards act as a partial backstop for corresponding 

California nonroad waiver measures. The constraints of the 

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

relax the waiver measures for which there are corresponding EPA 

standards, and thereby serve an anti-backsliding function 

similar in substance to those established for SIP revisions in 

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

between California and EPA mobile source standards diminishes 

the difference in the emissions reductions reasonably attributed 

to the two programs and strengthens the role of the Federal 

program in serving as an effective backstop to the State 

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

source standards with the corresponding State standards, the 

Federal program is becoming essentially a full backstop to most 

parts of the California program.

Second, as to enforceability, we note that the waiver 

process itself bestows enforceability onto California to enforce 
37

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

waiver. CARB has as long a history of enforcement of 

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

enforcement program is equally as rigorous as the corresponding 

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

lends assurance to California SIP revisions that rely on the 

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

EPA‟s mobile source enforcement program lends assurance to other 

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

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

to enforce California waiver measures under the Clean Air Act 

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

authorized to enforce EPA standards in the event that vehicles 

operate in California without either California or EPA 

certification.

As to quantifiability, EPA‟s historical practice has been 

to give SIP credit for motor-vehicle-related waiver measures by 

allowing California to include motor vehicle emissions estimates 

made by using California‟s EMFAC (and its predecessors) motor 

vehicle emissions factor model in SIP inventories. EPA verifies 

the emissions reductions from motor-vehicle-related waiver 

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. 
38

(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.16 The South Coast 

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

 

16 EPA‟s historical practice in allowing California credit for waiver 

measures notwithstanding the absence of the underlying rules in the SIP is 

further documented by reference to EPA‟s review and approval of a May 1979 

revision to the California SIP entitled, “Chapter 4, California Air Quality 

Control Strategies.” In our proposed approval of the 1979 revision 

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

California‟s overall control strategy, which the State had divided into 

vehicular sources and non-vehicular (stationary source) controls. As to the 

former, the SIP revision discusses vehicular control measures as including 

technical control measures and transportation control measures. The former 

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

well as fuel content limitations, and a vehicle inspection and maintenance 

program. The 1979 SIP revision included several appendices, including 

appendix 4–E, which refers to “ARB vehicle emission controls included in 

title 13, California Administrative Code, chapter 3 * * *,” including the 

types of vehicle emission standards we refer to herein as waiver measures; 

however, California did not submit the related portions of the California 

Administrative Code (CAC) to EPA as part of the 1979 SIP revision submittal. 

With respect to the CAC, the 1979 SIP revision states: “The following 

appendices are portions of the California Administrative Code. Persons 

interested in these appendices should refer directly to the code.” Thus, the 

State was clearly signaling its intention to rely on the California motor 

vehicle control program but not to submit the underlying rules to EPA as part 

of the SIP. In 1980, we finalized our approval as proposed. See 45 FR 63843 

(September 28, 1980).
39

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
40

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.

NRDC correctly notes that EPA‟s treatment of California 

waiver measures in SIP actions is the subject of current 

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

71457 and 10-71458 (9th Circuit).

Comment: NRDC argues that our reliance on the general savings 

clause in CAA section 193 for the proposal to grant emissions 

reduction credit to California‟s waiver measures without first 

having California submit and EPA approve them into the SIP is 

inappropriate for two reasons. First, NRDC argues that CAA 

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

documents” promulgated before the effective date of the 1990 

amendment that are not inconsistent with the CAA. It asserts 

that the plain language of the CAA requires that California 

submit the control measures, rules and regulations used to meet 

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

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

Second, NRDC argues that there is no automatic presumption that 

Congress is aware of an agency‟s interpretations and we have not 
41

provided any evidence that Congress was aware of our 

interpretation regarding the SIP treatment of California‟s 

mobile source control measures. NRDC also argues that our 

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

ratification of EPA‟s interpretation are incorrect.

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

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

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

rules because Congress did not insert any language into the 

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

standards inconsistent with the Act. Rather, Congress extended 

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 
42

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.17

B. Pre-Baseline Emission Reduction Credits

Comment: NRDC comments that the 8-hour Ozone Plan allows for 

the use of emissions reduction credits (ERC) from sources that 

have shutdown prior to the Plan‟s baseline date of 2002. NRDC 

 

17 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.
43

asserts that these pre-baseline ERCs represent an allowance for 

unmitigated growth in emissions. It argues that allowing this 

growth is inconsistent with the Plan‟s claim that existing 

opportunities for controlling emissions do not exist and 

therefore it is necessary to rely on future technologies to 

attain the 8-hour standards and undermines EPA‟s ability to 

demonstrate compliance with the CAA. It further argues that EPA 

cannot claim that the Plan provides for expeditious attainment 

if it allows this unmitigated emissions growth, and that EPA‟s 

RACM analysis is undermined because these avoided emissions 

coupled with reasonably available controls could be adequate to 

advance attainment by more than a year. Finally, NRDC argues 

that in order to comply with the RACM requirement of section 

172(c)(1), EPA must evaluate what additional reductions would be 

needed if the combined impact of these VOC and NOx emissions were 

avoided.

Response: The District accounted for the existing pre-base year 

ERCs in its RFP and attainment inventories in a manner 

consistent with the CAA requirements set forth in Part D and 40 

CFR part 51.18 This means that all emission reductions for which 

ERCs were granted were modeled as being in the air.19 The CAA 

requires this demonstration in anticipation of new sources that 

 

18 See the South Coast 2007 AQMP, Appendix III, Tables 2-8 and Appendix III, 

Attachment B, Table B-8. 

19See the South Coast 2007 AQMP, Appendix III, pg 2-28.
44

will utilize these ERCs as offsets in order to obtain NSR 

permits. 

Under the NSR program, all new major sources (i.e., those 

with a potential to emit more than 10 tpy of VOC or NOx) and any 

increase of permitted emissions of these pollutants, must 

install control technologies in order to meet the most stringent 

emissions limitations that have been achieved in practice by 

comparable sources (that is, they must meet the lowest 

achievable emissions rate (LAER) as defined in CAA section 

171(3)). [South Coast Rule 1303 – Requirements (paragraph (a))]

Thus, these future emissions already reflect the use of the most 

stringent technologies currently available to limit emissions. 

To further reduce these future emissions would require the 

development of new or improved technologies, as is the case with 

existing emission sources already subject to RACT. Accordingly, 

we do not agree with the NRDC‟s assertion that allowing this 

emissions growth is inconsistent with the Plan‟s determination 

that additional opportunities for controlling emissions do not 

currently exist and therefore the area must rely on development 

of new technologies to attain. 

Finally, we disagree with NRDC‟s claims that the 8-hour 

Ozone Plan cannot provide for expeditious attainment if it 

allows this growth in emissions and that the RACM analysis is 
45

undermined because these “avoided emissions coupled with 

reasonably available controls could be adequate to advance 

attainment by more than a year.” As stated above, the growth in 

ozone precursor emissions coming from sources emitting more than 

10 tpy, will occur only after the source installs controls that 

achieve the lowest achievable emission rate, which is a higher 

control level than RACM. In addition, such sources with 

emission increases are required to provide emission offsets at a 

1 to 1.2 ratio, meaning that for each new ton of emissions a 

source wishes to emit, it must provide a 1.2 ton reduction from 

the South Coast 8-hour Ozone Plan emission inventory. [South 

Coast Rule 1303 – Requirements (paragraph (b)(2))] Thus overall, 

NSR provides a backstop mechanism to ensure attainment is 

provided as expeditiously as possible. 

C. Rule Effectiveness in District Rules

Comment: NRDC asserts that the SCAQMD should not assume a 100 

percent rule effectiveness rate for its control measures. Citing 

EPA‟s definition of “rule effectiveness” in 40 CFR 51.50 and EPA 

guidance on accounting for rule effectiveness in preparing 

emissions estimates, NRDC argues that “EPA recommends an 

effectiveness factor of 80% for all stationary source and nontailpipe mobile source control measures for future controlled 

scenarios” and that the District‟s use of a 100 percent rule 
46

effectiveness factor is unsupported and inconsistent with EPA 

guidance. NRDC claims that “EPA‟s approval of this plan in light 

of these unrealistic and unlawful rule effectiveness assumptions 

would be arbitrary and capricious.”

Specifically, NRDC asserts that the District‟s use of a

100% rule effectiveness factor amounts to an assertion that it 

can “ensure complete and continual compliance at all sources 

covered by the regulation” and that the Plan does not meet this 

standard. NRDC quotes from the 2007 AQMP, in which the District 

describes enforcement, source monitoring, and compliance 

verification programs, to argue that the 2007 AQMP “relies on 

anecdotal information to support this 100% assumption.” NRDC 

asserts that the SCAQMD‟s approach ignores the need for rule 

effectiveness improvements when in fact a CARB audit showed 

lower reported compliance rates. NRDC also states that for the 

gasoline transfer and dispensing operations category (Rule 461), 

the SCAQMD had correctly identified an emission-related noncompliance rate of 37% and “adjusted the base and future year 

emissions estimates by 75% in this category to reflect a 25% 

compliance rate.” In support of these assertions, NRDC 

references the following EPA guidance documents: “Rule 

Effectiveness Guidance: Integration of Inventory, Compliance, 

and Assessment Applications” (EPA 452/R-94-001, January 1994) 

(“1994 RE Guidance”); “Guidelines for Estimating and Applying 
47

Rule Effectiveness for Ozone/CO State Implementation Plan Base 

Year Inventories,” EPA-452-R-92-010, November 1992 (“1992 RE 

Guidelines”); and Memorandum from Sally Shaver, Director, Air 

Quality Strategies & Standards Division, EPA, to EPA Air 

Division Directors, Regions I-X, “Ozone Nonattainment Planning: 

Decentralization of Rule Effectiveness Policy, April 27, 1995 

(“1995 Shaver Memo”).

Response: We note as a threshold matter that it is not clear 

which specific element of the South Coast 2007 Ozone SIP the 

commenter‟s concerns apply to. Assuming that NRDC intended to 

argue that the SCAQMD‟s assumption of 100 percent ruleeffectiveness in its estimates of base year and/or projected 

year emissions led to defects in the emissions inventories and 

in the RACM, RFP or attainment demonstrations that rely on those 

inventories, we disagree for the reasons provided below. 

CAA section 182(a)(1) requires each State having an ozone 

nonattainment area to submit a “comprehensive, accurate, current 

inventory of actual emissions from all sources” as described in 

CAA section 172(c)(3) and “in accordance with guidance provided 

by the Administrator.” See also 40 CFR 51.915 and part 51, 

subpart A. This “base year” emissions inventory reflects the 

State‟s best estimates of actual emissions20 from all sources of 

 

20 Base year emissions inventories should include both anthropogenic and 

biogenic sources of ozone precursor emissions from stationary, area, and 

mobile sources capable of affecting air quality within the nonattainment 
48

the relevant pollutant(s) in the area in a recent calendar year21

and provides the starting point for measuring the area‟s 

progress toward attainment. See, e.g., CAA sections 182(c)(2)(B) 

and 182(b)(1)(B); see also 70 FR 71612, 71677 (November 29, 

2005) (noting that several CAA ozone planning requirements, 

including milestones that measure progress toward attainment, 

are “keyed to” the emissions inventory). After developing a 

base year emissions inventory, States use modeling and other 

analyses to calculate projection year (or future “baseline”) 

inventories and target emission levels, which then inform the 

State‟s development of progress milestones and control 

strategies for attaining the NAAQS. See General Preamble, 57 FR 

13498 at 13507-13510. 

Rule effectiveness (“RE”) is a term that describes a method 

to account for the reality that not all facilities covered by a 

rule are in compliance with the rule 100% of the time. See 

“Emissions Inventory Guidance for Implementation of Ozone and 

Particulate Matter National Ambient Air Quality Standards 

(NAAQS) and Regional Haze Regulations,” EPA-454/R-05-001, August 

 

area. See “General Preamble for Implementation of Title I of the Clean Air 

Act Amendments of 1990,” 57 FR 13498, 13502 (April 16, 1992) (“General 

Preamble”). Because most emission sources do not monitor and report emissions 

continuously, emissions inventories are by nature “estimates of actual 

releases to the atmosphere.” 70 FR 71612, 71666 (November 29, 2005). 

21 For areas designated nonattainment for the 1997 8-hour ozone standard in 

2004, EPA recommended that States use 2002 as the base year for SIP planning 

purposes. See Memorandum dated November 18, 2002, from Lydia Wegman, Air 

Quality Strategies and Standards Division, EPA, to Regional Air Division 

Directors, “2002 Base Year Emission Inventory SIP Planning: 8-hr Ozone, PM2.5 

and Regional Haze Programs.”
49

2005, Appendix B (“2005 RE Guidance”) at B-3; see also 40 CFR 

51.50 (defining “rule effectiveness” for purposes of air 

emissions reporting requirements). Additionally, RE accounts for 

the fact that control equipment does not always operate at its 

assumed control efficiency. See id. EPA recommends that States 

consider RE as part of the calculation of emission estimates for 

stationary point and non-point (or “area”) sources when 

developing base year and projection year emissions inventories. 

See 2005 RE Guidance at B-1. Rule effectiveness adjustments are 

generally not applied to mobile sources because the effects of 

mobile source noncompliance have been integrated into the inputs 

of EPA‟s mobile source emissions factor models. See “Rule 

Effectiveness Guidance: Integration of Inventory, Compliance, 

and Assessment Applications” (EPA 452/R-94-001, January 1994) 

(“1994 RE Guidance”) at 1-4 and 3-9.

EPA policy on RE applies only to emissions estimates 

involving the use of a control device or control technique and 

states that in some cases, even where control devices or 

techniques are used, RE adjustments may not be necessary. For 

example, when emissions can be calculated by means of a direct 

determination, an RE adjustment is not necessary because the 

emissions estimate is not contingent on the effectiveness of 

controls. See “Rule Effectiveness Guidance: Integration of 

Inventory, Compliance, and Assessment Applications” (EPA 452/R-
50

94-001, January 1994) (“1994 RE Guidance”) See 1994 RE guidance

at 3-5; see also 2005 RE Guidance at B-3. A direct determination 

is one in which emissions are calculated directly (e.g., based 

on explicit records for each type of coating and/or solvent 

used) rather than from estimates of uncontrolled emissions and 

level of control. See “Guidelines for Estimating and Applying 

Rule Effectiveness for Ozone/CO State Implementation Plan Base 

Year Inventories,” EPA-452/R-92-010, November 1992 (“1992 RE 

Guidelines”), at 12. In addition, uncontrolled sources are not 

subject to an RE adjustment, and sources with directly 

determined emission estimates in the base year inventory should 

not have RE applied in a projected inventory. See 1994 RE 

Guidance at 3-19.

Earlier EPA guidance recommended that where a RE should 

apply, States should generally use a default value of 80 percent 

RE. See, e.g., “Guidelines for Estimating and Applying Rule 

Effectiveness for Ozone/CO State Implementation Plan Base Year 

Inventories,” EPA-452/R-92-010, November 1992 (“1992 RE 

Guidelines”) at 2. In 2005, EPA revised its policy in 

recognition that RE can vary widely between different types of 

industry and in different states or areas. See generally 2005 

RE Guidance; see also Memorandum from Sally Shaver, Director, 

Air Quality Strategies & Standards Division, EPA, to EPA Air 

Division Directors, Regions I-X, “Ozone Nonattainment Planning: 
51

Decentralization of Rule Effectiveness Policy, April 27, 1995 

(“1995 Shaver Memo”) (providing alternatives to EPA‟s 

recommended 80 percent default value for RE). The 2005 RE 

Guidance provides that instead of assuming an across the board 

80% default value for RE, States should consider a list of the 

factors that are most likely to affect RE in developing base 

year and projection year inventories. 

The base year inventory in the South Coast 2007 Ozone SIP 

is an inventory of actual emissions estimates for year 2002. 

According to the Plan, information on base year emissions from 

stationary point sources in California is obtained primarily 

from the districts, while CARB and the districts share 

responsibility for developing and updating information on 

emissions from various non-point (i.e., area) source categories. 

See 2007 State Strategy, Appendix F at 21; South Coast 2007 

AQMP, Appendix III at pp. 1-9 through 1-15 (describing the 

SCAQMD‟s and CARB‟s methodologies for developing 2002 base year 

emissions estimates for stationary point and area sources). The 

2002 point source emission inventory was developed using 

emissions data reported by stationary point sources subject to 

the 2002/2003 Annual Emissions Reporting (AER) Program, which 

applies to facilities emitting at least 4 tons per year (tpy) of 

VOC or NOx, among other sources. See South Coast 2007 AQMP, 

Appendix III at pp. 1-9. Because these emissions were based on 
52

direct emissions data, no RE adjustments were necessary for 

these emission estimates. The 2002 area source emission 

inventory was developed using source-specific methodologies 

based on activity data, emission factors, and other information. 

Id. at 1-10 through 1-15. The SCAQMD included emissions from 

smaller industrial point sources (emitting < 4 tpy) not subject 

to the AER Program in this area source emissions inventory. Id.

at 1-9.

The projected year inventories in the South Coast 2007 

Ozone SIP were developed based on emissions projections 

calculated using a CARB model called the California Emission 

Forecasting System (CEFS). The CEFS model projects future 

emissions from stationary point 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. 

See 2007 State Strategy, Appendix F at 7. Mobile source emission 

projections are estimated using CARB‟s EMFAC and OFFROAD 

emission factor models.22 See 2007 State Strategy, Appendix F at 

7-8. The CEFS model then integrates the projected inventories 

for both stationary and mobile sources into a single database to 

 

22 CARB‟s EMFAC and OFFROAD models for estimating emissions from on-road and 

non-road mobile sources 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. Information about the EMFAC and OFFROAD models 

is available at http://www.arb.ca.gov/msei/msei.htm. The most recent EMFAC 

model that EPA has approved for use in SIP development in California is 

EMFAC2007. See 73 FR 3464 (January 18, 2008).
53

provide a comprehensive statewide forecast inventory, from which 

nonattainment area inventories are extracted by the districts 

for use in establishing future baseline planning inventories. 

See id. at 7, 8. 

The South Coast 2007 AQMP describes how the District 

developed the future baseline inventories23 in the Plan, based in 

part on the emissions data and baseline projections provided by 

CARB and other California agencies. See generally South Coast 

2007 AQMP, Appendix III. The District‟s projections took into 

account the controls implemented under SCAQMD rules adopted as 

of June 2006, most CARB regulations adopted by June 2005, and a 

specific set of growth rates from the Southern California

Association of Governments (SCAG) for population, industry, and 

motor vehicle activity, among other factors. See id. at 2-3. 

In 2011, CARB updated the baseline emissions projections for 

several source categories to account for, among other things, 

more recent economic forecasts and improved methodologies for 

estimating emissions from the heavy duty truck and construction 

source categories. See 2011 Ozone SIP Revision at Appendix B. 

These methodologies for projecting future emissions based on 

growth factors and existing Federal, State, and local controls 

were consistent with EPA guidance on developing projected 

 

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

mean projected emissions inventories for future years that account for, among 

other things, the effects of economic growth and adopted emissions control 

requirements.
54

baseline inventories. See TSD at section II.A; see also 

“Procedures for Preparing Emissions Projections,” EPA Office of 

Air Quality Planning and Standards, EPA-450/4-91-019, July 1991; 

“Emission Projections,” STAPPA/ALAPCO/EPA Emission Inventory 

Improvement Project, Volume X, December 1999 (available at 

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

NRDC correctly notes that the stationary point and the area 

source emissions projections that the SCAQMD developed as inputs 

to these projected future baseline inventories generally 

included an assumption of 100% RE. See South Coast 2007 AQMP, 

Appendix IV at A-7; see also Memorandum to File dated December 

5, 2011, Wienke Tax, EPA Region 9, RE: “SCAQMD Emissions 

Estimation Methodology.” In response to the comment, we have 

further evaluated the projected baseline inventories in the Plan 

to determine whether an assumption of 100% RE was appropriate 

and to what extent it may have affected the control strategy. As 

explained below, we believe the SCAQMD‟s methodologies for 

projecting emissions were reasonable and that, even assuming 

that the District should not have used 100% RE for certain 

source categories, the impact on the overall emissions 

projections would have been insignificant.

With respect to both NOx and VOC emissions from stationary 

point sources, which account for roughly 80% of the total NOx 

projections for stationary sources and roughly 13% of the total 
55

VOC projections for stationary sources, no RE adjustments were 

necessary because the base year emissions estimates were 

developed from reported emissions data (i.e., direct 

determinations). Moreover, the SCAQMD‟s compliance and 

enforcement programs generally meet the recommended criteria in 

EPA‟s 2005 RE Guidance for use of the highest range of RE 

factors for stationary sources.24 For example, all stationary 

point sources in the South Coast that emit or have the potential 

to emit at least 10 tons per year of VOC or NOx are subject to 

the District‟s EPA-approved title V operating permits program in 

SCAQMD Regulation XXX25 (see SCAQMD Rule 3001), which requires 

subject facilities to regularly report compliance information to 

the SCAQMD. See, e.g., SCAQMD Rule 3004(a)(4)(f) (requiring 

semi-annual reports) and (a)(10) (requiring annual compliance 

certifications). In addition, the SCAQMD‟s Regional Clean Air 

Incentives Market (RECLAIM) program, which generally applies to 

stationary point sources that emit 4 tons or more per year of 

NOx or SOx in the year 1990 or subsequent years (see SCAQMD Rule 

 

24

 For stationary point sources, the 2005 RE Guidance provides that the 

following factors, among others, may support the use of the highest RE range 

(94 to 100%) in developing emissions estimates: the regulatory agency 

requires source-specific monitoring for compliance purposes and frequent 

submittal of monitoring records; the agency conducts inspections involving 

compliance test methods with a high degree of accuracy, such as stack testing 

or other types of precise emissions measurements; and/or the agency has 

authority to impose punitive measures, including monetary fines, towards 

violators such as in delegated title V operating permit programs. See 2005 RE 

Guidance at B-6.

25 See 68 FR 65637 (November 21, 2003) (final rule approving revisions to 

SCAQMD‟s title V operating permits program effective January 1, 2004).
56

2001(b)), also contains stringent compliance monitoring and 

reporting requirements. See, e.g., SCAQMD Rule 2012(c)(2) 

(requiring NOx sources to install, maintain and operate a 

Continuous Emissions Monitoring System or other equivalent 

monitoring device) and SCAQMD Rule 2012(c)(3) (requiring NOx 

sources to install, maintain and operate a reporting device to 

electronically report daily NOx emissions to the District and to 

submit monthly emissions reports). Thus, even in the absence of 

direct determination, these compliance requirements and programs 

would adequately support the SCAQMD‟s use of the highest range 

of RE factors (94 to 100%) in projecting emissions from

stationary point sources of VOC and NOx emissions in the South 

Coast area.

The SCAQMD‟s regulations for VOC area sources that were 

accounted for in the projected baseline inventories (i.e., rules 

adopted as of June 2006) also contain stringent recordkeeping 

and reporting requirements which generally meet EPA‟s 

recommended criteria for use of the highest range of RE factors 

for area sources.26 See, e.g., SCAQMD Rule 109 (as amended May 2, 

2003) (requiring numerous types of VOC area sources to keep 

 

26 For stationary area sources, the 2005 RE Guidance provides that the 

following factors, among others, may support the use of the highest RE range 

(86 to 100%) in developing emissions estimates: over 90% of facilities 

inspected in the source category are in compliance; the regulatory agency 

requires sources to submit some type of compliance certification; and/or a 

compliance assistance program exists and is adequately staffed. See 2005 RE 

Guidance at B-9.
57

daily records of types of coatings and/or solvents used); see 

also Memorandum to File dated December 9, 2011, Wienke Tax, EPA 

Region 9, RE: “SCAQMD Compliance and Enforcement Programs.” The 

SCAQMD also administers numerous compliance assistance programs, 

including classroom instruction, web-based tutorials, and 

mailings. See, e.g., http://www.aqmd.gov/comply/index.html, 

http://www.aqmd.gov/aqmd/aqmd_training.htm, and 

http://www.aqmd.gov/pubinfo/Publications/Advisor/2011/Nov2011Adv

isor.pdf, page 8). These compliance requirements and programs 

generally support the SCAQMD‟s use of the highest range of RE 

factors (86 to 100%) in projecting emissions from area sources 

of VOC emissions in the South Coast area. 

We expect that at least some of these VOC area sources are 

uncontrolled and therefore do not require any RE adjustment. 

Additionally, of those VOC area sources that are subject to 

controls, we understand many are subject to compliance 

requirements that enable the District to make direct 

determinations of emissions estimates (e.g., through “mass 

balance” accounting of the types of coatings and/or solvents 

used), which also would not require any RE adjustment. See, 

e.g., SCAQMD Rule 109 (as amended May 2, 2003).

Assuming conservatively, however, that some RE adjustments 

may have been appropriate for area sources, we have evaluated 

the impact that such adjustments may have had on the overall NOx 
58

and VOC emissions projections for 2023. With respect to NOx 

emissions, area sources account for about 20% of projected NOx 

emissions from stationary sources and less than 3% of the total 

NOx inventory for the 2023 projection year. See South Coast 2007 

AQMP, Appendix III, Attachment B at Table B-9, and Memorandum to 

File, Wienke Tax, EPA Region 9 Air Planning Office, dated 

December 14, 2011. Thus, even assuming conservatively that a 

lower RE factor is appropriate for all area sources of NOx 

emissions, the impact of such an adjustment on the future 

baseline NOx emission inventory would affect less than 3% of the 

total projected NOx inventory (roughly 14 tpd). Assuming that 

application of an 86%

27 rather than 100% factor would directly 

increase these NOx emissions estimates by 14 percent, then the 

projected 2023 NOx emissions inventory would increase by less 

than 3 tpd. This amount is adequately covered by CARB‟s 

enforceable commitment to achieve 141 tpd of NOx by 2023. 76 FR 

57872, 57881 (Table 6). CARB‟s 2011 SIP Revision reduced the 

2023 projected NOx inventory by 12 tpd compared to the Plan as 

submitted in 2007, indicating a surplus in NOx reductions of 12 

tpd in the Plan as revised. See letter dated August 10, 2011, 

from Lynn Terry, CARB, to Deborah Jordan, EPA Region 9, with 

 

27 We believe an RE factor of 86%, which is the lowest factor under “Range 1” 

for non-point (area) sources in EPA‟s 2005 RE Guidance, is a reasonable 

assumption for these calculations given the rigorous compliance requirements 

in SCAQMD‟s area source regulations and the District‟s compliance assistance 

programs.
59

attachment (transmitting emission inventory improvement 

information). Because the State‟s and District‟s enforceable 

commitments have not been revised, CARB remains obligated to 

achieve the total amount of emission reductions identified in 

its original commitment (141 tpd). The NOx surplus of 12 tpd 

included in this enforceable commitment adequately covers the 

potential increase of 3 tpd due to RE adjustments.

With respect to VOC emissions, roughly half of the total 

projected VOC summer planning inventory for 2023 is attributed 

to stationary point and area sources. See South Coast 2007 AQMP, 

Appendix III, Attachment B at Table B-9. Of these stationary 

source VOC emissions, approximately 40% are attributed to 

consumer products (see id.), which prior to 2007 were not 

subject to any SCAQMD VOC regulations that the District would 

have accounted for in its emissions projections.28 Most of the 

remaining VOC emissions (roughly 130 tpd) are attributed to area 

sources that are either uncontrolled or subject to SCAQMD 

regulations, such as cleaning and surface coating operations, 

architectural coating operations, and farming operations (e.g., 

fertilizer applications). See South Coast 2007 AQMP, Appendix 

III, Attachment B at Table B-9. As NRDC correctly notes (and 

 

28 Consumer products in California are generally subject to CARB‟s Consumer 

Products Regulations (CPR) in title 17, sections 94500-94575 of the 

California Code of Regulations (CCR). In March 2009, the SCAQMD adopted VOC 

content requirements for certain consumer products not subject to CARB‟s CPR, 

but these District regulations are not accounted for in the South Coast 2007 

Ozone SIP‟s emissions inventories. See SCAQMD Rule 1143.
60

does not take issue with), the SCAQMD made significant RE 

adjustments to the gasoline transfer and dispensing source 

category subject to SCAQMD Rule 461 (petroleum marketing), which 

accounts for roughly 15% (20 tpd) of these remaining VOC area 

source emissions. This leaves approximately 110 tpd of VOC 

emissions attributed to area sources under the SCAQMD‟s 

jurisdiction for which RE adjustments may have been appropriate 

but for which California has not specifically provided data on 

whether they were made. All together, these area sources account 

for approximately 20% of the total projected VOC summer planning 

inventory for 2023. See South Coast 2007 AQMP, Appendix III, 

Attachment B at Table B-9.

Assuming conservatively that all of these VOC emissions are 

from regulated area sources for which direct determinations of 

emission cannot be made, and that a lower RE factor is 

appropriate for the emissions projections for all of these 

sources, the impact of such an adjustment on the future baseline 

VOC emission inventory for 2023 would affect only about 20% of 

the total projected VOC inventory (roughly 110 tpd). Further 

assuming that application of an 86% RE factor would directly 

increase these VOC emissions estimates by 14 percent, the 

projected 2023 VOC emissions inventory would increase by 

approximately 15.4 tpd. We note that CARB‟s 2011 SIP Revision 

reduced the 2023 projected VOC inventory by 5 tpd compared to 
61

the Plan as submitted in 2007, indicating a surplus in VOC 

reductions of 5 tpd in the Plan as revised. See letter dated 

August 10, 2011, from Lynn Terry, CARB, to Deborah Jordan, EPA 

Region 9, with attachment (transmitting emission inventory 

improvement information). Because the State‟s and District‟s 

enforceable commitments have not been revised, CARB remains 

obligated to achieve the total amount of VOC emission reductions 

identified in its original commitment (54 tpd). See 76 FR 57872, 

57881 (Table 6). Taking into account this 5 tpd surplus in 

CARB‟s VOC emission reduction commitments, we assume the 

potential difference in the State‟s projected VOC inventory for 

2023, had the State applied an 86% RE factor, would have been 

approximately 10.4 tpd or less than 2% of the total projected 

VOC inventory for 2023. Given the multiple conservative 

assumptions leading to this small difference in the emissions 

estimates for VOC area sources, we do not believe that an RE 

adjustment for VOC area sources would have altered our 

evaluation of the South Coast 2007 Ozone plan.

For all of these reasons and as discussed in our proposal 

(76 FR 57872), we have concluded that the 2002 base year 

inventory in the South Coast 2007 Ozone SIP is a “comprehensive, 

accurate, current inventory of actual emissions from all sources 

of the relevant pollutant or pollutants” in the South Coast 

area, consistent with the requirements for emissions inventories 
62

in CAA section 182(a)(1), 40 CFR 51.915, and 40 CFR part 51, 

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

inventories for 2011, 2014, 2017, 2020, and 2023 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 TSD at section II.A. Given the 

continuously-evolving nature of estimating emissions, however, 

we will continue to work with CARB and the SCAQMD to ensure that 

their base year and projection year SIP emissions inventories 

accurately account for rule effectiveness and reflect the best 

available estimates of current and future emissions.

D. CAA Section 182(e)(5) New Technology Provisions

Comment: Commenters (NRDC, CCAT, DCAP, PSR-LA and CBE) state 

that California‟s reliance on “black box” measures in the South 

Coast 2007 Ozone SIP fails to meet the requirements and intent 

of the Clean Air Act by allowing the State to defer its 

responsibility to attain federal standards. Commenters state 

that there are three problems with how the State and District 

are using 182(e)(5). 

First, commenters state that it is arbitrary for EPA to 

approve a “black box” with 281 tons per day or 55% of the 

reductions needed, given its lack of definition. Another
63

commenter (private citizen) also asserts that the SIP relies too 

heavily on unknown “black box” solutions, which the commenter 

claims make up 49.6% of needed NOx reductions and 43% of 

combined VOC and NOx reductions.

Second, commenters assert that section 182(e)(5) is 

intended to address new technologies that will develop over time 

but that in California, “new technologies alone will not 

sufficiently reduce pollution to attain federal air quality 

standards.” Citing a description in EPA‟s TSD (at pg. 79) of a 

potential measure described by CARB as “prioritizing federal 

transportation funding to support air quality goals,” commenters 

argue that “[t]his example clearly fails to meet all the 

criteria required for Black Box use,” and that while “tying air 

quality to transportation planning” is important for attainment, 

the black box cannot be used as a basis for not requiring 

implementation of “existing” strategies such as increased public 

transit that do not require the development of new technologies.

Finally, commenters state that the section 182(e)(5) 

commitments are vague and insufficient and that EPA cannot 

approve the attainment demonstration “unless the Section 

182(e)(5) measures comply with the CAA.” Citing both section 

182(e)(5) of the Act and EPA‟s January 8, 1997 final rule 

approving the 1-hour ozone plan for several California 

nonattainment areas (62 FR 1150, 1179), commenters assert that 
64

the new technology measures must: (1) contain sufficient 

definition; (2) contain schedules for development of the new 

technologies; (3) contain commitments for funding; (4) depend on 

development of new technologies; and (5) include an enforceable 

commitment to develop and adopt necessary contingency measures. 

Commenters assert that the South Coast 2007 Ozone SIP “only 

attempts to comply with requirement number (5),” that the 

generalized discussion in the Plan provides little assurance of 

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

these measures is therefore arbitrary and capricious.

Response: First, we disagree with the commenters‟ contention 

that EPA‟s proposed approval of the Plan is arbitrary because of 

the amount of emission reductions attributed to the “black box” 

(or “long-term strategy”),29 or because they are undefined. As an 

initial matter, we note that the commenters‟ assertions about 

the percentages of the needed emission reductions attributed to 

the long-term strategy are not correct.30 The correct percentages 

of the needed NOx and VOC emission reductions attributed to the 

long-term strategy in the South Coast 2007 Ozone SIP are 26 and 

9 percent, respectively, as explained further below.

 

29 Throughout this notice we use the terms “long-term strategy” or “new 

technology provisions” interchangeably to refer to the plan provisions that 

anticipate development of new or improved control techniques under CAA 

section 182(e)(5), which the commenters refer to as the “black box.” 

30 It appears that the commenters overestimated the percentage of “black box” 

emission reductions in the Plan by calculating the amount of needed NOx and 

VOC reductions without taking into account the reductions attributed to 

baseline measures and emissions inventory improvements. 
65

The CAA does not provide a quantitative limit on the extent 

to which the attainment demonstration for an extreme ozone 

nonattainment area may rely on new technology provisions under 

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

section 182(e)(5) of the Act authorizes EPA to approve 

provisions in an extreme area plan which “anticipate development 

of new control techniques or improvement of existing control 

technologies,” and to approve an attainment demonstration based 

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

provisions are not necessary to achieve incremental reductions 

required during the first 10 years after the effective date of 

designation for the 1997 ozone NAAQS, and (2) the State has 

submitted enforceable commitments to submit adopted contingency 

measures meeting certain criteria no later than 3 years before 

proposed implementation of the new technology measures. See 76

FR 57872, 57881-57883. EPA interprets this provision to mean 

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

those that anticipate future technological developments as well 

as those that require complex analyses, decision making and 

coordination among a number of government agencies. See General 

Preamble at 13524. 

The majority of the emissions reductions in the South Coast 

2007 Ozone SIP are attributed to already adopted and near-term 

measures. See 76 FR 57872, 57876-89. Our summary of South 
66

Coast‟s 8-hour ozone attainment demonstration in the proposed 

rule shows that the South Coast area needs to reduce emissions 

from 2002 levels by a total of 910 tpd of NOx and 461 tpd of VOC 

to attain the 8-hour ozone standards by June 15, 2024. See 76 FR 

57872, 57885 at Table 8. Approximately 74% of these needed NOx 

reductions and 91% of the needed VOC reductions are attributed 

to already adopted or near-term measures (i.e., measures that 

will be adopted and implemented by 2014). See 76 FR 57872, 57886 

(Table 9) and 57879-57880 (Tables 3 and 4) (identifying CARB and 

SCAQMD measures recently adopted or scheduled for near-term 

consideration). These measures include all reasonably available 

control measures and generally represent the most stringent air 

pollution control requirements for stationary, area, and mobile 

sources nationwide. See 76 FR 57872, 57877-57881. This leaves 

about 26% of the needed NOx reductions and 9% of the needed VOC 

reductions to be met through the long-term strategy under CAA 

section 182(e)(5).31 See 76 FR 57872, 57885 at Table 9. 

Given the demonstrated need for emissions reductions from 

new and improved control techniques to reduce air pollution in 

the South Coast area (see TSD at 79), we believe it is 

reasonable for the State to attribute these amounts of emission 

 

31 For NOx, the long-term emission reductions are 241 tpd in 2023 or 

approximately 26 percent of 910 tons, the total reductions needed. For VOC, 

the long-term emission reductions are 40 tpd in 2023 or approximately 9 

percent of the 461 tons of VOC reductions needed. 
67

reductions to the long-term strategy.32 As we stated in our 

proposed rule, however, we expect the amount and relative 

proportion of reductions from measures scheduled for long-term 

adoption under section 182(e)(5) should decrease in any future 

SIP update, and EPA will not approve any future SIP revisions 

with an increase in the 182(e)(5) reductions for 2023 without a 

convincing showing that the technologies relied upon in the 

near-term rules are infeasible or ineffective in achieving 

emissions reductions in the near-term. See 76 FR 57872, 57883. 

Moreover, to the extent new modeling performed in any subsequent 

SIP revision demonstrates that there is an increase in the year 

2023 carrying capacity for VOC and NOx, this change may not be 

used to decrease the amount of emissions reductions scheduled to 

be achieved by any near-term measure from the South Coast 2007 

Ozone SIP unless CARB or the SCAQMD make the convincing showing 

described above.

Second, we disagree with the commenters‟ suggestion that 

CAA section 182(e)(5) allows only for plan provisions that rely 

 

32 During development of the 2007 State Strategy, CARB staff analyzed whether 

current NOx technologies for mobile sources are clean enough to provide all 

the emission reductions needed for ozone attainment in the South Coast and 

San Joaquin Valley. ARB included in this analysis the phasing in of the 

cleanest new technology standards from 2007-2017 that ARB and U.S. EPA have 

already adopted for diesel engines: 0.2 g/bhp-hr on-road truck standards in 

2010, full offroad Tier 4 standards in 2014, and the recent U.S. EPA-proposed 

low-NOx standards for locomotive engines starting in 2017. The totals of 

remaining emissions after full clean-up of the legacy diesel fleets in the 

South Coast air basin still exceed the NOx carrying capacity by 133 tpd. See 

2007 State Strategy, p. 54.
68

on “new technologies” and that this necessarily means the 

District must adopt additional “existing strategies” that do not 

rely on new technologies. Section 182(e)(5) of the Act allows 

for approval of extreme area plan provisions that “anticipate 

development of new control techniques or improvement of existing 

control technologies,” which EPA interprets to include “those 

that may anticipate future technological developments as well as 

those that may require complex analyses and decision making and 

coordination among a number of government agencies.” See 57 FR 

13498, 13524. Thus, in addition to plan provisions that rely on 

“new technologies,” section 182(e)(5) contemplates provisions 

that are as of yet undefined because they require, for example, 

time for State and local agencies to evaluate complex technical 

information and to seek public participation in their regulatory 

processes. 

The commenters correctly note that EPA‟s TSD identified 

“prioritiz[ation of] federal transportation funding to support 

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

strategies that CARB had identified for further consideration 

(see TSD at 79, citing 2007 State Strategy, pp. 55-56), but they 

do not describe any specific control measure that such budgetary 

decisions could support and that is reasonably available for 

current implementation in the South Coast area. Likewise, 

although the commenters assert generally that “increased 
69

transit” and other “existing strategies” should be required as 

control measures because these do not require the development of 

new technologies, they have not identified any particular 

control measure that the State should be obligated to include in 

its plan for attaining the 1997 8-hour ozone NAAQS.

CARB and the SCAQMD have adopted all of the control 

measures for NOx and VOC that are reasonably available for 

current implementation in the South Coast area and have 

submitted enforceable commitments to adopt additional measures 

achieving specific amounts of emission reductions by specific 

years. See 76 FR 57872, 57877-57881 and 57886. These measures 

are not sufficient, however, to achieve the significant amounts 

of NOx and VOC reductions necessary to attain the 1997 8-hour 

ozone NAAQS in the South Coast by June 15, 2024. Absent new 

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

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

District time to develop additional control measures based on 

new or improved control techniques under CAA section 182(e)(5). 

Third, we disagree with commenters that the section 

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

in our proposed rule, CARB has submitted enforceable commitments 

to achieve specific amounts of NOx and VOC reductions by 2023 

through the development of new or improved control techniques 
70

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

South Coast is for 241 tpd NOx and 40 tpd VOC. See 76 FR 57872, 

57881-57882 and 2009 State Strategy Status Report, p. 20. With 

respect to the requirement for contingency measures in CAA 

section 182(e)(5)(B), we explained in our proposed rule that 

CARB‟s 2011 Ozone SIP Revision contains the State‟s enforceable 

commitment “to develop, adopt, and submit contingency measures 

by 2020 if advanced technology measures do not achieve planned 

reductions” (76 FR 57872, 57882, referencing CARB Resolution 11-

22, July 21, 2011), and in a letter dated November 18, 2011 to 

EPA Region 9, CARB confirmed that EPA‟s understanding of this 

enforceable commitment is correct. See letter dated November 18, 

2011, from James N. Goldstene, Executive Officer, California Air 

Resources Board, to Jared Blumenfeld, Regional Administrator, 

U.S. EPA Region 9. 

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

57882), the South Coast 2007 Plan identifies numerous potential 

measures currently under consideration as part of the long-term 

strategy, and CARB has committed to submit a SIP revision by 

2020 that will identify the additional strategies and 

implementing agencies needed to achieve the needed reductions by 

the beginning of the 2023 ozone season. See 2011 Ozone SIP 

Revision, p. A-8; see also letter dated August 29, 2011 from 

James N. Goldstene, Executive Officer, California Air Resources 
71

Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA, 

Region 9 (describing California‟s climate change programs, clean 

car technologies, programs to accelerate hybrids and plug-in 

technologies, greenhouse gas emission reduction targets for 

passenger vehicles, and SCAQMD‟s efforts to transition to broad 

use of zero- and near-zero emission technologies for freight 

transportation and passenger vehicles and to increase energy 

efficiency in buildings). We note also that CARB has stated its 

intent to convene annual strategy meetings with the Districts 

and EPA to discuss progress in the development of its new 

technology measures, and to secure resources for continuing 

research and development of new technologies. See letter dated 

August 29, 2011, from James N. Goldstene, Executive Officer, 

California Air Resources Board, to Jared Blumenfeld, Regional 

Administrator, U.S. EPA Region 9; see also 2009 State Strategy 

Status Report, pp. 25-27. 

Finally, commenters reference CAA section 182(e)(5) and 

EPA‟s final rule approving an ozone SIP previously submitted by 

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

the long-term strategy must satisfy five “requirements,” of 

 

33 We note that although this final action included EPA‟s approval of new 

technology provisions under CAA section 182(e)(5) as part of California‟s SIP

for the 1-hour ozone NAAQS in the South Coast area, this prior rulemaking 

action is not germane to today‟s action on the South Coast 2007 Ozone SIP. We 

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

five criteria that EPA has recommended for consideration in evaluating new 

technology provisions under CAA 182(e)(5), which is the General Preamble (57 

FR 13498, 13524 (April 16, 1992)).
72

which, commenters contend, the South Coast 2007 Ozone SIP 

addresses only one. We disagree with this characterization of 

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

provisions in the South Coast 2007 Ozone SIP. 

As explained above and in our proposed rule, EPA interprets 

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

technology provisions and credit them toward the attainment 

demonstration if the state makes the required commitment to 

submit contingency measures, which then must be submitted to EPA 

no later than 3 years before proposed implementation and EPA 

concludes that the measures are not needed to achieve the first 

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

57846, 57854. The five “requirements” for approval of new 

technology provisions that commenters reference are not 

statutory or regulatory requirements but recommended criteria. 

See General Preamble at 13524.34

 

34 EPA‟s General Preamble states that in order to rely on “new 

technology provisions” under CAA section 182(e)(5), a SIP must satisfy the 

following criteria: (1) identify all measures, including the long-term 

measure(s) for which additional time would be needed for development and 

adoption; (2) show that the long-term measure(s) cannot be fully developed 

and adopted by the submittal date for the attainment demonstration and 

contain a schedule outlining the steps leading to final development and 

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

would be involved in developing and implementing the schedule for the 

measure; (4) contain a commitment to develop and submit contingency measures 

(in addition to those otherwise required for the area) that could be 

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

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

meet any emissions reductions requirements within the first 10 years after 

enactment. See 57 FR 13498, 13524 (April 16, 1992). We note that this 

language is non-binding guidance although it is phrased in mandatory terms.
73

As also explained in the proposed rule, CARB and the 

District have demonstrated a clear need for additional time to 

fully develop and adopt the long-term measures under 

consideration and have met the statutory requirements for 

approval of such conceptual measures under CAA section 

182(e)(5). See 76 57872 57881-57883. The General Preamble at 

13524 recommends that a SIP relying on new technology provisions 

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

outlining the specific steps leading to final development and 

adoption, and contain commitments from the agencies that would 

be involved in developing and implementing these measures, in 

addition to satisfying the statutory criteria. However, as

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

Strategy and the South Coast 2007 AQMP provide lists of the 

types of technologies and measures that they are pursuing to 

achieve the emissions reductions needed for attainment of the 8-

hour ozone standards in the South Coast. See 76 FR 57872, 57882-

57853 and TSD, section II.C.2.d; see also, 2007 AQMP, Chapters 4 

and 7; 2007 State Strategy, pp. 54-57; 2009 State Strategy 

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

has also committed to share the results of its efforts with the 

public through Board meetings, workshops and other means. See 

2009 State Strategy Update, p. 25; see also, letter, James 
74

Goldstene, Executive Officer, CARB, to Jared Blumenfeld, 

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

the State has committed to work to secure resources for 

continuing research and development and to develop schedules for 

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

State and District have adequately addressed the policy criteria 

in the General Preamble given the significant emissions 

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

South Coast and the type of sources (i.e., mobile sources) for 

which technology must be developed, tested, and deployed in 

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

to support the needed research and development activities of 

CARB and the District.

Comment: Commenters state that the South Coast will exceed the 

1-hour ozone standards by 30% in 2010 and that this is relevant 

because the South Coast‟s 1-hour ozone plan relied heavily on 

“black box” measures. Commenters argue that the South Coast area 

failed to meet the 1-hour standards “because the commitments to 

develop and implement Black Box measures never fully came to 

fruition” (citing EPA‟s September 14, 2011 proposal to determine 

that the South Coast area failed to attain the 1-hour ozone 

standards by the applicable attainment date (76 FR 56694)) and

that EPA cannot reasonably rely on the continued use of the 

“black box” because the District and CARB‟s track record using 
75

this approach has not delivered the pollution reductions that 

were promised in prior plans. Commenters state that EPA must 

direct CARB to “extract from the black box” needed reductions 

they know will not come from future technologies, reduce the 

overall size of the black box to a reasonable level and better 

define where the remaining black box reductions are expected to 

come from.

Response: EPA is acting today on the South Coast 2007 Ozone 

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

D, title I of the CAA for the 1997 8-hour ozone standards. 

Neither the CAA‟s planning requirements related to attainment of 

the 1-hour ozone standards nor the State‟s submittals to meet 

the Act‟s requirements for that prior standards are germane to 

our action on the South Coast 2007 SIP under CAA section 110(k). 

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

implementing regulations requires EPA to take into account the 

success or failure of a prior plan for a different NAAQS in 

approving extreme area plan provisions that meet the 

requirements of CAA section 182(e)(5) for the 1997 8-hour ozone 

standards. EPA‟s proposed rule to determine that the South Coast 

area failed to attain the 1-hour ozone standards by its 

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

which commenters reference, likewise has no bearing on our
76

action on the South Coast 2007 Ozone SIP under CAA section 

110(k).

Moreover, we disagree with commenters‟ contention that the 

South Coast area failed to meet the 1-hour ozone standards

“because the commitments to develop and implement Black Box 

measures never fully came to fruition.” The failure of an area 

to attain a NAAQS by the applicable attainment date does not 

mean that the State has failed to achieve the emissions 

reductions anticipated in the SIP, whether under CAA section 

182(e)(5) or otherwise. The control strategy (including the 

“black box”) that EPA previously approved for the South Coast 

area (62 FR 1150) was developed long before the attainment date 

using the best scientific information available at the time, 

including estimates of the area‟s carrying capacity using 

photochemical grid modeling and other technical tools and 

assumptions. This control strategy, however, has proven 

insufficient to attain the 1-hour ozone standards by the 

applicable attainment date of November 15, 2010, due to 

imperfect estimates as to the carrying capacity of the South 

Coast air basin with respect to the 1-hour ozone standards and 

other imperfections in the tools and assumptions upon which the 

prior plans were based. A State may fully implement all measures 

that are predicted as necessary to attain a particular NAAQS and 

still fail to attain that NAAQS. 
77

Finally, we disagree with commenters‟ argument that EPA 

must direct CARB to “extract from the black box needed 

reductions they know will not come from future technologies, 

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

and better define where the remaining black box reductions are 

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

to know that certain emission reductions will not come from 

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

require the State to reduce the amount of emission reductions 

attributed to the long-term strategy by either implementing 

measures or incremental reductions beyond those otherwise 

mandated by the Act or developing measures based on control 

techniques not yet identified or commercially available for 

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

met the statutory criteria for approval of its long-term 

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

Comment: Commenters state that the commitment by CARB to submit 

a revision to EPA by 2020 provides little assurance that the 

black box strategies will work. Citing Association of Irritated 

Residents (AIR) v. EPA, 632 F.3d 584, 592 n.2 (9th Cir. 2011) 

(discussing the triennial review process in California law and 

the triennial inventory requirement under the federal Clean Air 

Act), commenters state that delaying a revision until 2020 and 

not requiring more frequent updates is arbitrary and capricious
78

because both California law and the CAA contain requirements for 

updating clean air plans more frequently than every nine or ten 

years. Commenters also argue that delaying submittal of an 

update until 2020 is arbitrary and capricious because this is 

too late to allow time to remedy any problems that may need CARB 

regulations, transportation infrastructure and other technology 

developments that will require more than three years to develop. 

Response: As discussed in our proposed approval, CARB has 

committed to achieve all of the emission reductions attributed 

to the section 182(e)(5) conceptual new technology measures by 

the attainment year (2023) and has satisfied the section 

182(e)(5) criteria for approval of its new technology provisions 

by demonstrating that the measures are not relied on for RFP and 

committing to submit adopted contingency measures by 2020 to be 

implemented should the anticipated reductions from new or 

improved technologies not occur. In addition, as discussed 

above, CARB has stated its intent to continue the State‟s 

ambitious clean technology development programs and has 

committed to public outreach as well as annual meetings to 

update EPA on its progress. Although we recognize the 

commenters‟ concerns about the absence of any specific 

milestones or updates prior to 2020, the Act does not mandate 

that the SIP include specific enforceable actions during this 

period.
79

The triennial review process cited in AIR is a California 

state law requirement applicable to air quality plans developed 

pursuant to the California Clean Air Act to meet California‟s 

ambient air quality standards. See California Health and Safety 

Code Section 40924(b) and 40925(a). The CAA triennial inventory 

requirement cited in that decision is an emissions inventory 

requirement in CAA section 182(a)(3), which requires States with 

ozone nonattainment areas to submit revised inventories every 

three years until redesignation to attainment. See also 40 CFR 

part 51, subpart A. Neither the triennial review requirement 

under the California CAA nor the periodic inventory requirement 

under the Federal CAA applies to our evaluation of new 

technology provisions under CAA section 182(e)(5). 

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

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

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

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

control measures “to allow total area emissions to comply with 

RFP and attainment requirements.” NRDC argues that, because the 

area has not adopted sufficient enforceable control measures to 

provide for attainment (citing to its comments that the 

attainment demonstration is not approvable because, inter alia, 

measures relied on in that demonstration were not in the SIP), 
80

this provision must be met and EPA must direct the 

State/District to adopt the additional measures needed for 

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

as controls on other source categories so that total emissions 

reductions provide for attainment. 

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

“submit a revision that identifies and adopts specific 

enforceable transportation control strategies and transportation 

control measures ...to attain reductions in motor vehicle 

emissions as necessary, in combination with other emission 

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

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

(c)(2)(B)” and “to consider measures specified in section 

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

necessary to demonstrate attainment.”

We have determined that the South Coast 2007 8-hour Ozone 

plan meets the RFP requirements in sections 182(b)(2)(B) and 

(c)(2)(B) and demonstrates attainment consistent with the 

subpart 2 requirements and thus also meets the requirements of 

section 182(d)(1)(A) to adopt transportation control strategies 

and TCMs as necessary to demonstrate RFP and attainment. See 76 

FR 57872, 57890 and TSD, section II.F.3; see also TSD, section 

III.A.2. (responding to comments on the approvability of the 
81

baseline emissions inventory and the attainment demonstration). 

The SIP also includes documentation that the state considered 

the transportation control measures listed in CAA section 

108(f), evaluated their effectiveness in contributing to 

expeditious attainment, and concluded that they would not. See

South Coast 2007 AQMP, Appendix IV-C; 76 FR 57872, 57879 and 

57890 and TSD, sections II.C.2.b. and II.F.2.

We disagree with NRDC‟s summary of the CAA section 

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

specific section does not require that the SIP provide “adequate 

enforceable control measures „to allow total area emissions to 

comply with RFP and attainment requirements‟” but rather it 

requires that the state adopt enforceable transportation 

strategies and TCM as necessary in combination with other 

emissions reduction requirement of subpart 2 to demonstrate RFP 

and to implement TCMs as necessary to demonstrate attainment. 

Thus, if other SIP provisions provide for RFP and attainment 

consistent with applicable CAA requirements (including, in this 

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

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

transportation control strategies and TCMs for RFP and 

attainment purposes.

F. Comments on Motor Vehicle Emissions Budgets
82

See section IV. Motor Vehicle Emissions Budgets for 

Transportation Conformity

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 8-hour 

ozone standards in the South Coast, the District made specific 

commitments to adopt or revise fifteen measures for SIP credit

on the schedule identified in the revised 2007 AQMP. See SCAQMD, 

Revisions to the 2007 PM2.5 and Ozone State Implementation Plans 

for the South Coast Air Basin and Coachella Valley (SIP 

Revisions), Tables 2 through 5. The District has now completed 

most of its adoption actions and EPA has approved most of the 

adopted rules. See Table 1 below. The rules we have not yet 

approved have not been credited with emissions reductions in the 

attainment demonstration.

Table 1. Approval and Submittal Status of District Rules in 

the South Coast 2007 AQMP

District Rule Adoption Date Current SIP 

Approval Status

Rule 445 - Woodburning 

fireplaces and wood stoves 03/07/08

74 FR 27716, 

6/11/09

Rule 461 – Gasoline 03/07/08 71 FR 18216, 
83

transfer and dispensing 4/11/06

Rule 1110.2 – Liquid and 

gaseous fuels – stationary 

ICEs

02/01/08

74 FR 18995, 

4/27/09

Rule 1111 - Further NOx 

reductions from space 

heaters

11/06/09

75 FR 46845, 

08/04/10

Rule 1127 - Livestock Waste 08/06/04 Under EPA review

Rule 1138 – Restaurant 

Operations 2012

66 FR 36170, 

7/11/01

Rule 1143 - Consumer Paint 

Thinners and Multi-Purpose 

Solvents

12/03/10

76 FR 70888, 

11/16/11 

Rule 1144 - Vanishing oils 

and rust inhibitors 07/09/10

76 FR 70888, 

11/16/11

Rule 1145 – Plastic, 

Rubber, Leather and Glass 

Coatings

12/3/04

75 FR 40726, 

07/14/10

Rule 1146 – NOx from 

industrial, institutional, 

commercial boilers, steam 

gens, and process heaters 

09/05/08

Proposed limited 

approval/limited 

disapproval 76 FR 

40303, 7/8/11

Rule 1146.1 - NOx from 

small industrial, 

institutional, commercial 

boilers, steam gens, and 

process heaters

09/05/08

Proposed limited 

approval/limited 

disapproval 76 FR 

40303, 7/8/11

Rule 1147 – NOx reductions 

from miscellaneous sources 12/05/08

75 FR 46845, 

08/04/10

Rule 1149- Storage Tank and 

Pipeline Cleaning and 

Degassing

05/02/08

74 FR 67821, 

12/21/09

Rule 2002- Further SOx 

reductions from RECLAIM 11/4/10

76 FR 50128, 

8/12/11

Rule 2301 – Indirect Source 

Review

Scheduled for 

SCAQMD Board 

adoption in 

2012
84

Rule 1123 - Refinery Pilot 

Program

Scheduled for 

SCAQMD Board 

adoption in 

February 2012a

N/A

Rule 2449 - SOON program 5/2/08 Under EPA review

AB923 Light and medium duty 

vehicle high emitter 

program

No rules 

associated 

with these 

measures

N/A

AB923 Light and medium duty 

vehicle high emitter 

program

No rules 

associated 

with these 

measures

N/A

aSee SCAQMD Governing Board Agenda Item 22, December 2, 2011 Board Meeting.

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

ozone standards in the South Coast, CARB committed to propose 

certain measures on the schedule identified in the 2007 State 

Strategy. These commitments, which were updated in the 2011

Ozone SIP revision, 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 Improvements,” “Cleaner In-Use Heavy-Duty Trucks 

and Buses,” “Cleaner In-Use Off-Road Equipment (over 25 hp),” 

“Ship Auxiliary Engine Cold Ironing and Clean Technology,” 

“Cleaner Main Ship Engines and Fuel – Main Engines,” “Clean UP 

Existing Harbor Craft,” and “Consumer Products” are currently 

credited with emissions reductions in the attainment 

demonstration. See 76 FR 57872 (Table 5).
85

Generally, EPA will approve a State plan that takes 

emissions reduction credit for a control measure only where EPA 

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

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

related waiver of preemption or authorization under CAA section 

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

in calculating and proposing to approve the State‟s aggregate 

emissions reductions commitment in connection with our proposed 

approval of the attainment demonstration, we assumed that full 

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

rules would occur prior to our final action on the South Coast

8-hour ozone plan. See 76 FR 57872, at 57880-57881 (Table 5). 

Two specific CARB rules on which the attainment demonstration 

relies include the Truck Rule and the Drayage Truck Rule. 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 plan 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. On November 9, 2011, OAL approved the Drayage Truck rule, 

and December 14, 2011 OAL approved the Cleaner In-Use Heavy Duty 

Truck rule. CARB submitted the drayage rule on December 9, and 
86

the truck rule on December 15, and we expect to complete action 

on these rules prior to the effective date of this rule.

Based on anticipated approval of these CARB rules, we are 

allowing the plan‟s attainment demonstration, and our final 

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

CARB rules for the following reasons: 

Both rules have been adopted by CARB, approved by the 

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

California SIP,35 and the adopted versions are essentially 

the same as those for which EPA proposed approval;

The comments that we have received on our proposed approval 

of the CARB rules 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 a SIP [see Union 

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

We are confident that the final action on the rules will be 

completed in the near term and that, as a result, continued

 

35 The Truck Rule and Drayage Truck Rules were included in a SIP submittal 

dated September 21, 2011. We have placed this SIP submittal in the docket for 

this rulemaking.
87

reliance by the South Coast 2007 8-hour ozone plan, and our 

final approval of it, on the emissions reductions associated 

with the rules is reasonable and appropriate. If, however, we 

are unable to complete a final action on the rules 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. Revised 2007 State Strategy Defined Measures Schedule 

for Consideration and Current Status

State Measures

Expected 

Action 

Year

Implement

ation 

Date

Current Status

Defined Measures in 2007 State Strategy

Smog Check 

Improvements

(Bureau of 

Automotive 

Repair)

2007-2009

2008-

2010; 

2013

Elements approved 75 

FR 38023 (July 1, 

2010)36

Expanded Vehicle 

Retirement (AB 

118)

2007

2009

Adopted by CARB, June 

2009; by BAR, 

September 2010.

Modifications to 

Reformulated 

Gasoline Program

2007

2010

Approved 75 FR 26653 

(May 12, 2010)

Cleaner In-use 

Heavy Duty Trucks

2007, 

2008, 2011-2015

Proposed approval 76 

FR 40562, July 11, 

2011. See discussion 

 

36 California Assembly Bill 2289, passed in 2010, requires the Bureau of 

Automotive Repair to direct older vehicles to high performing auto 

technicians and test stations for inspection and certification effective 

2013. 
88

Table 2. Revised 2007 State Strategy Defined Measures Schedule 

for Consideration and Current Status

State Measures

Expected 

Action 

Year

Implement

ation 

Date

Current Status

(includes Drayage 

Truck Rule)

2010 above.

Auxiliary Ship 

Cold Ironing and 

Other Clean 

Technologies

2007-2008 2010

Waiver granted; 76 FR 

77515, December 13, 

2011.

Cleaner Main Ship 

Engines and Fuels

Fuel: 

2008-2011

Engines: 

2008

Fuel: 

2009-2015

Engines: 

2011

Proposed approval 76 

FR 40562, July 11, 

2011. See discussion 

above.

Port Truck 

Modernization 

2007, 

2008, 

2010 2008-2020

Adopted December 2007 

and December 2008

Accelerated 

Introduction of 

Cleaner 

Locomotives

2008

2012

Prop 1B funds awarded 

to upgrade line-haul 

locomotive engines not 

already accounted for 

by enforceable 

agreements with the 

railroads. Those 

cleaner line-hauls 

will begin operation 

by 2012.

Clean Up Existing 

Harbor Craft

2007, 

2010 2009-2018

Waiver granted; 76 FR 

77521, December 13, 

2011.

Cleaner In-Use 

Off-Road Engines

2007, 

2010 2009

Waiver decision

pending

New Emissions 

Standards for 

Recreational 

Boats

2013 tbd

Partially adopted, 

July, 2008; additional 

action expected 2013.
89

Table 2. Revised 2007 State Strategy Defined Measures Schedule 

for Consideration and Current Status

State Measures

Expected 

Action 

Year

Implement

ation 

Date

Current Status

Expanded Off-Road 

Recreational 

Vehicle Emissions 

Standards

2013 tbd

Partially adopted, 

July, 2008; additional 

action expected 2013.

Enhanced Vapor 

Recovery for 

Above Ground 

Storage Tanks

2008 2009-2016 Adopted June, 2007. 

Additional 

Evaporative 

Emissions 

Standards

2009 2010-2012

Partial adoption: 

September, 2008 

(outboard marine 

tanks)

Consumer Products 

Program (I & II)

2008, 

2009, 

2011

2010-2014

Approved 74 FR 57074 

(November 4, 2009), 76 

FR 27613 (May 12, 

2011), and approval 

signed December 7, 

2011.

Sources: 2009 State Strategy Status Report, p. 23 (footnotes in original not 

included) and 2011 Progress Report, Appendix B, Table B-1. Additional 

information from www.ca.arb.gov. Only defined measures with 8-hour ozone, 

VOC, SOx or NOx reductions in South Coast are shown here.

B. Enforceable Commitments

For the 2007 Ozone Plan, the District committed to achieve 

certain aggregate emissions reductions of NOx and VOC. See 

SCAQMD, Revisions to the 2007 PM2.5 and Ozone State 

Implementation Plans for the South Coast Air Basin and Coachella 

Valley (SIP Revisions), Table 1. EPA is approving these aggregate 

emissions reductions commitments.
90

Table 3. South Coast AQMD 2007 Ozone Plan Emissions Reductions 

Commitments (2023 tons per summer day)

NOx VOC

2023 9.2 19.3

Source: SCAQMD, 2007 AQMP, Table 4-2A, page 4-10, as revised by Appendix F 

of the 2011 Progress Report.

In the 2007 State Strategy, CARB committed to achieve 

certain aggregate emissions reductions of 141 tpd NOx and 54 tpd 

VOC in the South Coast by the attainment year of 2023 that are 

sufficient, in combination with existing SIP-creditable 

measures, the District‟s commitments, and commitments for 

reductions under the CAA section 182(e)(5) new technologies 

provision, to attain the 1997 8-hour ozone standards in the 

South Coast by the applicable attainment date of June 15, 2024. 

CARB also made enforceable commitments to achieve aggregate

emissions reductions in the South Coast in the RFP milestone 

years of 2014, and 2020. See 2007 State Strategy, p. 63; CARB 

Resolution 07-28, Attachment B, p. 4; and 2009 State Strategy 

Status Report, p. 20. See Table 4 below. 

Table 4. CARB Commitments to Specific Aggregate Emissions 

Reductions (tons per summer day)

NOx VOC

2014 152 46

2020a 144 52

2023 141 54

2023 CAA 241 40
91

182(e)(5)

aThe 2020 commitment in the South Coast is necessary to provide for 

attainment in the downwind nonattainment areas. The South Coast 8-hour 

ozone plan does not rely on this emission reduction commitment for 

2020. Source: 2009 State Strategy Status Report, p. 20.

The 2011 Ozone SIP Revision revised the State's emissions 

estimates for certain source categories and projection years and 

provided additional information on the State and District's 

progress to date in achieving their total emission reduction 

commitments. In this action, we are approving CARB's and the 

SCAQMD's emission reduction commitments as submitted in the 2007 

State Strategy, 2009 State Strategy Update and the 2007 AQMP 

without change, because we do not have sufficient information to 

determine how the 2011 SIP Revision alters the State's near-term 

and long-term emission reduction commitments. We note that the 

amount and relative proportion of reductions from measures 

scheduled for long-term adoption under section 182(e)(5), as 

compared to measures already adopted or scheduled for near-term 

adoption, should decrease in any future SIP update.

IV. Approval of Motor Vehicle Emissions Budgets for 

Transportation Conformity

CARB submitted revised transportation conformity motor 

vehicle emissions budgets for the South Coast nonattainment area 

and their documentation in Appendices A and C, respectively, of 

the 2011 Ozone SIP Revision. The revised budgets are for NOx and 
92

VOC for the RFP years of 2011, 2014, 2017 and 2020, and the 

attainment year of 2023. No budgets were included for the RFP 

year of 2008 because it is no longer applicable as a conformity 

analysis year. Additional information associated with the motor 

vehicle emission budget calculations were provided in Attachment 

1 of the CARB Ozone SIP Revision supplement and an electronic 

mail from CARB.37

As part of our review of the approvability of the budgets, 

we have evaluated the revised budgets using our adequacy 

criteria in 40 CFR 93.318(e)(4). We posted the revised budgets 

on our website for adequacy review on September 19, 2011 for a 

30-day comment period which ended on October 19, 2011 (see 

http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). 

We received no comments on our adequacy posting. We have 

completed our adequacy review of these budgets (see the TSD, 

Section H) and also have completed our detailed review of the 

South Coast 2007 8-hour ozone plan and supplemental submittals,

including the 2011 Ozone SIP Revision, and are approving the 

SIP‟s attainment and RFP demonstrations. We have also reviewed 

the revised budgets submitted with the 2011 Ozone SIP Revision 

and have found that they are consistent with the attainment and 

RFP demonstrations and are based on control measures that have 

 

37 See electronic mail from Douglas Ito, Chief, Air Quality and Transportation 

Planning Branch, CARB, to Elizabeth Adams, Deputy Director, Air Division, EPA 

Region 9, dated August 11, 2011.
93

already been adopted and implemented. Therefore, we are 

approving the 2011, 2014, 2017, 2020 and 2023 budgets as shown 

in Table 5 below.

Now that the approval of the budgets is finalized, the 

area‟s metropolitan planning organization, the Southern 

California Association of Governments (SCAG) and the U.S. 

Department of Transportation are required to use the revised 

budgets in transportation conformity determinations after the 

effective date of the approval. Due to the formatting of the 

budgets (combining emissions changes, recession impacts and 

reductions from control measures), CARB will need to provide 

SCAG with emission reductions associated with the control 

measures incorporated into the budgets for the appropriate 

analysis years in future conformity determinations per 40 CFR 

section 93.122. In addition, for these conformity 

determinations, the motor vehicle emissions from implementation 

of the transportation plan should be projected and compared to 

the budgets at the same level of accuracy as the budgets in the 

plan, for example, emissions should be rounded to the nearest 

ton (e.g., 11 tpd).

Table 5. Motor Vehicle Emissions Budgets in the South Coast 

2007 8-Hour Ozone SIP as Revised on July 21, 2011 (tons per 

summer day)

2011 2014 2017 2020 2023
94

VOC NOx VOC NOx VOC NOx VOC NOx VOC NOx

South 

Coast 

Air 

Basin

172 328 136 277 119 224 108 185 99 140

Source: “8-Hour Ozone State Implementation Plan Revisions and Technical 

Revisions to the PM2.5 State Implementation Plan Transportation Conformity 

Budgets for the South Coast and San Joaquin Valley Air Basins,” Appendix C, 

submitted July 29, 2011.

During the comment period on the proposed approval of the 

South Coast 2007 8-hour ozone SIP, CARB requested that EPA limit 

the duration of our approval of the motor vehicle emission 

budgets submitted on July 29, 2011 until the effective date of 

EPA‟s adequacy finding for any subsequently submitted budgets.

See letter, Douglas Ito, Chief, Air Quality and Transportation 

Planning Branch, California Air Resources Board, October 17, 

2011.

The transportation conformity rule allows EPA to limit the 

approval of budgets. See 40 CFR 93.118(e)(1). However, we can 

only consider a state‟s request to limit our approval if a state 

adequately addresses three factors. First, the state must 

acknowledge and explain why the budgets under consideration have 

become outdated or deficient; second, the state must make a 

commitment to update the budgets as part of a comprehensive SIP 

update. Finally, the state must request that EPA limit the 

duration of its approval to the point in time when the new 

budgets have been found to be adequate for transportation 
95

conformity purposes. See 67 FR 69141 (November 15, 2002) 

(limiting our prior approval of budgets in certain California 

SIPS).

Because CARB‟s request does not include all these elements,

we cannot address CARB‟s request at this time. Once CARB has 

submitted additional information to adequately address these 

factors, EPA intends to propose to limit the duration of our 

approval of the budgets in the South Coast 2007 8-hour ozone 

plan and to provide the public an opportunity to comment.

38 The 

duration of the approval of the budgets will not be limited 

until we complete the rulemaking initiated by that proposal. 

V. Final Actions

For the reasons discussed in our September 16, 2011 

proposal and explained further above, EPA is approving

California‟s SIP for attaining the 1997 8-hour ozone NAAQS in the 

South Coast nonattainment area. California‟s 8-hour ozone

attainment SIP for the South Coast nonattainment area is 

composed of the relevant portions of the South Coast 2007 AQMP 

as revised in 2011 and the South Coast-specific portions of 

CARB‟s 2007 State Strategy as revised in 2009 and 2011 that 

address CAA requirements and EPA regulations for attainment of 

 

38 In the same comment letter, CARB also requested that we limit the duration 

of our recent approval of the PM2.5 motor vehicle budgets. These budgets were 

also submitted on July 29, 2011 as an appendix to the 2011 Ozone SIP 

Revision.
96

the 1997 8-hour ozone standards in the South Coast nonattainment 

area. 

Specifically, EPA is approving under CAA section 110(k)(3) 

the following elements of the South Coast 8-hour ozone

attainment SIP:

1. the revised 2002 base year emissions inventory as 

meeting the requirements of CAA section 182(a)(1) and 40 CFR 

51.915; 

2. the reasonably available control measure demonstration 

as meeting the requirements of CAA section 172(c)(1) and 40 CFR 

51.912(d); 

3. the reasonable further progress demonstration as meeting 

the requirements of CAA sections 172(c)(2) and 182(c)(2)(B) and 

40 CFR 51.910; 

4. the attainment demonstration as meeting the requirements 

of CAA section 182(c)(2)(A) and 40 CFR 51.908; 

5. the provisions for the development of new technologies

pursuant to CAA section 182(e)(5) and CARB‟s commitment to adopt 

and submit by 2020 contingency measures to be implemented if the 

new technologies do not achieve the planned emissions 

reductions, in addition to additional attainment contingency 

measures meeting the requirements of CAA section 172(c)(9), 
97

pursuant to CAA section 182(e)(5) as given in CARB Resolution 

11-22 (July 21, 2011); and CARB‟s commitment to develop and 

submit by 2020, revisions to the SIP that will (1) reflect 

modifications to the 2023 emission reduction target based on 

updated science and (2) identify additional strategies and 

implementing agencies needed to achieve the needed reductions by 

the beginning of the 2023 ozone season as given in the 2011 

Ozone SIP Revision, p. A-8;

6. the contingency measure provisions for failure to make 

RFP and to attain as meeting the requirements of CAA sections 

172(c)(9) and 182(c)(9); 

7. the demonstration that the SIP provides for 

transportation control strategies and measures sufficient to 

offset any growth in emissions from growth in VMT or the number 

of vehicle trips, and to provide for RFP and attainment, as 

meeting the requirements of CAA section 182(d)(1)(A);

8. the revised motor vehicle emissions budgets for the RFP 

milestone years of 2011, 2014, 2017 and 2020, and for the 

attainment year of 2023, because they are derived from 

approvable RFP and attainment demonstrations and meet the 

requirements of CAA sections 176(c) and 40 CFR part 93, subpart 

A; 
98

9. the SCAQMD's commitments to achieve specific aggregate 

emission reductions of NOx and VOC as listed in Table 4-2A of 

the South Coast 2007 AQMP (as revised March 4, 2011) and as 

given in Table 3; and

10. CARB's commitments to propose certain defined measures, 

as listed in Appendix B, Table B-1 of the 2011 Ozone SIP 

Revision; to achieve specific aggregate emission reductions of 

152 tpd of NOx and 46 tpd of VOC by 2014; 141 tpd of NOx and 54 

tpd of VOC from existing technologies in the South Coast 

nonattainment area by 2023; and 241 tpd of NOx and 40 tpd of VOC 

from new technologies by 2023 as provided in CARB Resolution 07-

28, Attachment B, and the 2009 State Strategy update, p. 20; and 

to achieve the emissions reductions needed to attain the 8-hour 

ozone standards in the South Coast nonattainment area as 

provided in CARB Resolution 07-28, Attachment B, p. 4, 2009 

State Strategy Status Report, p. 20 and as given in Table 4.

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 
99

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 under 

section 110 and subchapter I, part D of the Clean Air Act do not 

create any new requirements but simply approve requirements that 

the State is already imposing. Therefore, because this approval 

action does not create any new requirements, I certify that this 

action will not have a significant economic impact on a 

substantial number of small entities.

Moreover, due to the nature of the Federal-State 

relationship under the Clean Air Act, preparation of flexibility 

analysis would constitute Federal inquiry into the economic 
100

reasonableness of State action. The Clean Air Act forbids EPA 

to base its actions concerning SIPs on such grounds. Union 

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

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

D. Unfunded Mandates Reform Act

Under sections 202 of the Unfunded Mandates Reform Act of 

1995 (“Unfunded Mandates Act”), signed into law on March 22, 

1995, EPA must prepare a budgetary impact statement to accompany 

any proposed or final rule that includes a Federal mandate that 

may result in estimated costs to State, local, or tribal 

governments in the aggregate; or to the private sector, of $100 

million or more. Under section 205, EPA must select the most 

cost-effective and least burdensome alternative that achieves 

the objectives of the rule and is consistent with statutory 

requirements. Section 203 requires EPA to establish a plan for 

informing and advising any small governments that may be 

significantly or uniquely impacted by the rule.

EPA has determined that the approval 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 
101

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 
102

Agency consults with State and local officials early in the 

process of developing the proposed regulation.

This rule will not have substantial direct effects on the 

States, on the relationship between the national government and 

the States, or on the distribution of power and responsibilities 

among the various levels of government, as specified in 

Executive Order 13132, because it merely approves a State rule 

implementing a Federal standard, and does not alter the 

relationship or the distribution of power and responsibilities 

established in the Clean Air Act. Thus, the requirements of 

section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (65 FR 67249, 

November 9, 2000), requires EPA to develop an accountable 

process to ensure “meaningful and timely input by tribal 

officials in the development of regulatory policies that have 

tribal implications.” This final rule does not have tribal 

implications, as specified in Executive Order 13175. It will not 

have substantial direct effects on tribal governments, on the 

relationship between the Federal government and Indian tribes, 

or on the distribution of power and responsibilities between the 
103

Federal government and Indian tribes. Thus, Executive Order 

13175 does not apply to this rule.

G. Executive Order 13045, Protection of Children from 

Environmental Health Risks and Safety Risks

EPA interprets Executive Order 13045 (62 FR 19885, April 

23, 1997) as applying only to those regulatory actions that

concern health or safety risks, such that the analysis required 

under section 5-501 of the Executive Order has the potential to 

influence the regulation. This rule is not subject to Executive 

Order 13045, because it approves a State rule implementing a 

Federal standard. 

H. Executive Order 13211, Actions that Significantly Affect 

Energy Supply, Distribution, or Use 

This rule is not subject to Executive Order 13211, “Actions 

Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use” (66 FR 28355, May 22, 2001) because it is 

not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and 

Advancement Act (NTTAA) of 1995 requires Federal agencies to 

evaluate existing technical standards when developing a new 

regulation. To comply with NTTAA, EPA must consider and use 
104

“voluntary consensus standards” (VCS) if available and 

applicable when developing programs and policies unless doing so 

would be inconsistent with applicable law or otherwise 

impractical.

The EPA believes that VCS are inapplicable to this action. 

Today‟s action does not require the public to perform activities 

conducive to the use of VCS.

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Population

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) 

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in 

the United States. 

EPA lacks the discretionary authority to address 

environmental justice in this rulemaking. In reviewing SIP 

submissions, EPA‟s role is to approve or disapprove state 
105

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 will not in-and-of itself create 

any new requirements. Accordingly, it does not provide EPA with 

the discretionary authority to address, as appropriate, 

disproportionate human health or environmental effects, using 

practicable and legally permissible methods, under Executive 

Order 12898.

K. Congressional Review Act

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

as added by the Small Business Regulatory Enforcement Fairness 

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

effect, the agency promulgating the rule must submit a rule 

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

Congress and to the Comptroller General of the United States. 

EPA will submit a report containing this rule and other required 

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

Representatives, and the Comptroller General of the United 

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

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

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

rule” as defined by 5 U.S.C. section 804(2). This rule will be 
106

effective on [FEDERAL REGISTER OFFICE: insert date 60 days from 

date of publication of this document in the Federal Register].

L. Petitions for Judicial Review

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

judicial review of this action must be filed in the United 

States Court of Appeals for the appropriate circuit by [FEDERAL 

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

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

reconsideration by the Administrator of this final rule does not 

affect the finality of this rule for the purposes of judicial 

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

judicial review may be filed, and shall not postpone the 

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

challenged later in proceedings to enforce its requirements (see 

section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation 

by reference, Intergovernmental relations, Oxides of nitrogen, 

Particulate matter, Reporting and recordkeeping requirements, 

Volatile organic compounds.

___December 15, 2011____ ____Jared Blumenfeld____________

Dated: Jared Blumenfeld,

Regional Administrator, Region 9
107

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

is amended as follows:

PART 52 [AMENDED]

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

follows:

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

Subpart F – California 

2. Section 52.220, is amended by adding paragraph

(c)(397)(i)(ii)(A)(5), (c)(398)(i)(ii)(A) and 

(c)(401)(ii)(A)(1)(i) and (2)(i). 

§52.220 Identification of plan.

* * * * *

(c) * * *

(397) * * * 

(i) * * * 

(ii) * * * 

(A) * * *

(5) 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 

South Coast air basin, which represent 152 tpd of NOx and 46 tpd 

of VOC by 2014, and 54 tpd of VOC and 141 tpd of nitrogen oxides

by 2023 for purposes of the 1997 8-hour ozone NAAQS, as 

described in Resolution No. 07-28 at Attachment B, p. 4, and 

modified by CARB Resolution No. 09-34 (April 24, 2009) adopting 

the “Status Report on the State Strategy for California‟s 2007 
108

State Implementation Plan (SIP) and Proposed Revision to the SIP 

reflecting Implementation of the 2007 State Strategy” 

(398) * * *

(i) * * *

(ii) * * *

(A) * * *

(3) SCAQMD Governing Board Resolution 07-9, “A Resolution of the 

Governing Board of the South Coast Air Quality Management 

District certifying the final Program Environmental Impact 

Report for the 2007 Air Quality Management Plan, adopting the 

Final 2007 Air Quality Management Plan (AQMP), to be referred to 

after adoption as the Final 2007 AQMP, and to fulfill USEPA 

Requirements for the use of emissions reductions form the Carl 

Moyer Program in the State Implementation Plan,” June 1, 2007. 

Commitments to achieve emissions reductions (including emissions 

reductions of 19.3 tpd of VOC and 9.2 tpd of nitrogen oxides by 

2023) as described by SCAQMD Governing Board Resolution No. 07-

9, p. 10, June 1, 2007, and modified by SCAQMD Governing Board 

Resolution 11-9, p. 3, March 4, 2011, and commitments to adopt 

and submit control measures as described in Table 4-2A of the 

Final 2007 AQMP, as amended March 4, 2011.

(401) * * *

(i) * * *

(ii) * * *
109

(A) * * *

(1) * * *

(i) Commitment to develop and submit by 2020 revisions to the 

SIP that will (1) reflect modifications to the 2023 emissions 

reduction target based on updated science, and (2) identify 

additional strategies and implementing agencies needed to 

achieve the needed reductions by 2023 as given in the 2011 Ozone 

SIP Revision on page A-8.

(2) * * *

(i) Commitment to develop, adopt and submit by 2020 contingency 

measures to be implemented if advanced technology measures do 

not achieve the planned emissions reductions, and attainment 

contingency measures meeting the requirements of CAA section 

172(c)(9), pursuant to CAA section 182(e)(5) as given on p. 4.