[Federal Register Volume 75, Number 96 (Wednesday, May 19, 2010)]
[Rules and Regulations]
[Pages 27938-27943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11867]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0269; FRL-9152-6]


Approval and Promulgation of Implementation Plans; State of 
California; Legal Authority

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to clarify the contents of the 
applicable implementation plan for the State of California under the 
Clean Air Act. Specifically, EPA is taking final action to clarify that 
the statutory provisions submitted by California and approved by EPA in 
1972 supporting the State's legal authority chapter of the original 
implementation plan were superseded by a subsequent approval by EPA in 
1980 of California's revision to the legal authority chapter of the 
plan. EPA is taking this action to clarify the status in the California 
plan of the statutory provisions submitted and approved in 1972.

DATES: Effective Date: This rule is effective on June 18, 2010.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2009-0269 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov or 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.

FOR FURTHER INFORMATION CONTACT: Gerardo Rios, Chief, Permits Office 
(AIR-3), U.S. Environmental Protection Agency, Region IX, (415) 972-
3974: <a href="/cdn-cgi/l/email-protection#b1c3d8dec29fd6d4c3d0c3d5def1d4c1d09fd6dec7"><span class="__cf_email__" data-cfemail="42302b2d316c2527302330262d022732236c252d34">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On January 29, 2010 (75 FR 4742), under the Clean Air Act (CAA or 
``Act''), we proposed to clarify that the statutory provisions 
submitted by California in 1972 supporting the State's legal authority 
chapter of the original implementation plan were superseded by a 
subsequent approval by EPA in 1980 of a revision to California's legal 
authority chapter of the plan.
    In support of our proposed action, we provided a detailed account 
of the regulatory context in which the original California State 
implementation plan (SIP) was submitted and approved by EPA. We also 
described in detail the contents of the original California SIP, which 
consisted of 13 parts, the first part (``State General Plan'') of which 
included a chapter 7 (``Legal Considerations''), referred to herein as 
the ``legal authority'' chapter. The original SIP also included an 
appendix (entitled ``Appendix II: State Statutes and other Legal 
Documents Pertinent to Air Pollution Control in California'') to the 
legal authority chapter. The legal authority chapter included many 
citations to individual sections within the California Health & Safety 
Code (CH&SC) and other California codes, as well as citations to (then) 
recently approved legislation, and attorney general opinions as support 
for the assurance that adequate legal authority exists in the State to 
meet CAA and EPA SIP requirements.
    As described in the proposal, the appendix to the legal authority 
chapter in the plan (herein, ``appendix II'') included the specific 
sections of California code and other legal documents cited in chapter 
7, but also included many sections of California code that were not 
cited specifically in chapter 7. Our proposed rule describes in detail 
the contents of appendix II and its 14 categories of statutory and 
other legal documents.
    In May 1972, we approved in part and disapproved in part the 
original California SIP. See 37 FR 10842 (May 31, 1972) and 40 CFR 
52.220(b). EPA's approval included both chapter 7 and the statutory and 
other documents contained in appendix II as described above.
    As explained in our proposed rule, in response to EPA's request and 
in response to the Clean Air Act Amendments of 1977, California 
undertook a comprehensive update to the California SIP. On March 16, 
1979, the California Air Resources Board (ARB) submitted a revision to 
the legal authority chapter of the SIP, entitled ``Chapter 3--Legal 
Authority, Revision to State of California Implementation Plan for the 
Attainment and Maintenance of Ambient Air Quality Standards (December 
1978),'' (also referred to herein as ``Chapter 3--Legal Authority'' or 
the ``revised legal authority'' chapter). Much like the original legal 
authority chapter, the revised legal authority chapter provides an 
overview of air pollution control in California. While the general 
topics covered in the revised legal authority chapter were similar to 
those covered in the original legal authority chapter, the discussion 
is completely re-organized and updated to reflect, among other things, 
recodifications of statutory provisions. Also, like the legal authority 
chapter in the original SIP, the revised legal authority chapter 
includes numerous citations to individual sections of the CH&SC (which 
had been re-numbered and re-codified since the time of the original 
SIP), certain citations to other California codes and other legal 
documents. However, unlike the legal authority chapter in the original 
SIP, the revised legal authority chapter, as submitted in 1979, did not 
include physical copies of the actual statutory provisions nor the 
other documents cited in the chapter. Instead, the 1979 SIP revision 
simply incorporates by reference the 1978 edition of California Air 
Pollution Control Laws as ``appendix 3-A'' to the chapter. Later in 
1979, we proposed approval of the revised SIP ``Chapter 3--Legal 
Authority'' as an update and clarification of the 1972 SIP. See 44 FR 
38912 (July 3, 1979). The following year, we took final action, 
effective September 10, 1980, to approve the revised legal authority 
chapter. See 45 FR 53136 (August 11, 1980) and 40 CFR 52.220(c)(48). 
Since that time, EPA has not approved any other revision to the chapter 
that addresses legal authority in the California SIP.
    Based upon our review of the relevant provisions of the original 
California SIP and the related 1979 SIP revision, and the corresponding 
EPA approval actions, we proposed to clarify the contents of the SIP to 
reflect our determination that the statutory provisions and other legal 
documents

[[Page 27939]]

submitted in support of the legal authority chapter in the original SIP 
were superseded by our 1980 approval of the revised legal authority 
chapter of the California SIP (codified at 40 CFR 52.220(c)(48)) and 
are no longer part of the California SIP. Our determination that the 
1979 submittal of the revised legal authority chapter represented a 
wholesale replacement of the original chapter was based on the nature 
and scope of the revised chapter and the mismatch between the statutory 
citations in the revised chapter and those contained in the original 
chapter.\1\ We also noted that the actual statutory provisions and 
other legal documents relied upon to support a State's assurance of 
adequate legal authority need not be approved into the SIP under CAA 
section 110 or EPA's SIP regulations in 40 CFR part 51 (although such 
provisions are required to be submitted with the plan). Thus, EPA could 
approve, consistent with CAA and EPA requirements, and did so in this 
instance, a wholesale revision to the original legal authority chapter 
without also approving the actual statutory provisions and other legal 
documents cited therein.\2\
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    \1\ ARB described the nature and purpose of that agency's 
comprehensive update of the California SIP during the late 1970's as 
follows: ``The [EPA] has formally requested that the [ARB] update 
the State of California Implementation Plan for Achieving and 
Maintaining the National Ambient Air Quality Standards, usually 
referred to simply as the `SIP.' The original SIP document, 
submitted to EPA in 1972, has become obsolete largely because of the 
many modifications to Federal, state, and local air pollution rules 
and regulations and substantial advancements in technical aspects of 
air pollution prediction and control. A new SIP 1978 Working 
Document has been prepared as an initial response to the EPA request 
and contains an updated summary and description of the California 
SIP. * * * The SIP 1978 Working Document is a step towards replacing 
the obsolete 1972 SIP.'' See page 1 of Chapter 1 (``Introduction'') 
(April 1978) of the SIP--78 Working Document. Therefore, the revised 
legal authority chapter was intended by ARB, and approved by EPA, as 
a wholesale replacement of the original legal authority chapter, 
including the related statutory provisions and other materials 
submitted in support of the original chapter.
    \2\ We view the revised legal authority chapter's incorporation 
(as appendix 3-A) of the 1978 edition of California Air Pollution 
Control Laws as simply providing a general reference to where the 
statutory citations in the chapter could be located rather than as 
having the effect of a literal reading of the provisions into the 
chapter.
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    To memorialize our interpretation of the effect of our 1980 
approval of the revised legal authority chapter of the California SIP, 
we proposed under CAA section 301(a)(1) \3\ to revise 40 CFR 
52.220(b)(12)(i) to clarify that none of the statutory provisions (and 
other legal documents) submitted in connection with chapter 7 (``Legal 
Considerations'') of the original California SIP remain in the SIP, not 
just the few provisions currently listed as being deleted.\4\
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    \3\ CAA section 301(a)(1) states: ``The Administrator is 
authorized to prescribe such regulations as are necessary to carry 
out his functions under this chapter. * * *.'' We believe that our 
rule proposed herein today is necessary to clarify the contents of 
the California SIP and thereby carry out the functions of EPA in 
connection with the state's plan.
    \4\ As noted in the proposed rule, the status of the statutory 
provisions from the original SIP has recently come into question in 
the context of third party litigation, an EPA rulemaking action on a 
revision to new source review rules in the San Joaquin Valley, and a 
lawsuit filed against EPA challenging certain EPA actions on the 
premise that such actions were arbitrary and capricious if a certain 
statutory provision submitted and approved by EPA in connection with 
the original SIP remains in effect as part of the current applicable 
California SIP. Thus, we believe that clarification of the status of 
the statutory provisions (and other legal documents) submitted in 
connection with the original SIP is necessary and appropriate at 
this time.
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    Additional background information for today's action can be found 
in our January 29, 2010 proposed rule (75 FR 4742).

II. Public Comments and EPA Responses

    Our January 29, 2010 proposed rule (75 FR 4742) provided for a 30-
day comment period. During that period, we received comments from four 
groups: Earthjustice, on behalf of the Sierra Club, by letter dated 
March 1, 2010; Center on Race, Poverty & the Environment (referred to 
herein as ``AIR''), on behalf of the Association of Irritated Residents 
and many other community and environmental groups, by letter dated 
March 1, 2010; San Joaquin Valley Air Pollution Control District 
(``District''), by letter dated February 24, 2010; and Greenberg-
Glusker law firm (referred to herein as ``Dairy Cares''), on behalf of 
Dairy Cares, a coalition of California's dairy producer and processor 
associations, by letter dated March 1, 2010.
    Earthjustice expresses support for EPA's proposed rule. The three 
other commenters object to our proposed action. Dairy Cares joins in 
the District's comments and adds comments of its own. In the following 
paragraphs, we provide a summary of all significant adverse comments 
and we provide our corresponding responses. For the purposes of this 
section of the document, ``District'' refers herein to both the 
District and Dairy Cares, whereas ``Dairy Cares'' is used in reference 
to the additional comments submitted by this commenter.
    Comment #1: AIR contends that there has never been an exemption for 
agricultural sources in the SIP as it relates to San Joaquin Valley. 
Under the Safe Air case, AIR contends that there can be no exemptions 
in the SIP by virtue of the original 1972 SIP and 1978 SIP Revision 
because the SIP's plain language as adopted and submitted contains no 
exemption and the vague references to California statutory authority 
are not in the SIP as incorporated by reference in the Code of Federal 
Regulations (CFR). AIR also asserts that EPA could not have lawfully 
approved the original 1972 SIP and 1978 SIP Revision with exemptions 
for agricultural sources without violating the Clean Air Act.
    Response #1: We recognize that our approval of the original 
California SIP in 40 CFR 52.220(a) (``Title of plan: `The State of 
California Implementation Plan for Achieving and Maintaining the 
National Ambient Air Quality Standards' '') and (b) (``The plan was 
officially submitted on February 21, 1972'') on May 31, 1972 (37 FR 
10842, at 10851) says nothing about the contents of the original SIP. 
To uncover its contents, we reviewed a copy of the original SIP 
maintained in the collection of materials at the National Archives and 
Record Center in San Bruno, California. From that copy, we determined 
that the original SIP contained an appendix to the legal authority 
chapter that contained various statutory provisions, and other legal 
documents.
    Among the statutes in the appendix was CH&SC section 24265, which 
excludes certain categories of emission sources, including equipment 
used in agricultural operations in the growing of crops or raising of 
fowls or animals, from the general grant of authority to local air 
districts to require permits for new and existing emissions sources 
(herein, ``agricultural permitting exemption''). We found no evidence 
in the original SIP itself that the materials in the appendix to the 
legal authority chapter were not intended by the State to be included 
in the plan itself. Nor did we find any evidence in our approval action 
that we did not intend to approve the entire contents of the appendix 
to the legal authority chapter of the original California SIP. In our 
May 31, 1972 final approval of the original California SIP, we added 40 
CFR 52.233, which states: ``With the exceptions set forth in this 
subpart, the Administrator approves California's plan for the 
attainment and maintenance of the national standards.'' See 37 FR 
10842, at 10852. In the case of our May 1972 action on the original 
SIP, none of the ``exceptions set forth in this subpart,'' such as our 
findings in 40 CFR 52.225 (``Legal Authority'') that the California SIP 
failed to provide sufficient legal

[[Page 27940]]

authority to meet the requirements related to air pollution emergencies 
and to make emissions data publicly available, provide evidence that we 
disapproved any of contents of the appendix to the legal authority 
chapter of the original SIP. Therefore, we concluded that the statutory 
provisions and other legal documents contained in the appendix to the 
legal authority chapter of the original California SIP were approved 
along with the rest of the plan in May 1972, and the agricultural 
permitting exemption found in CH&SC section 24265 was swept into the 
SIP by virtue of being included among the appendix materials so 
approved.
    AIR points to the Safe Air case in support for its contention that 
no exemptions are in the SIP by virtue of the original 1972 SIP 
(submitted and approved in 1972) and the ``1978 SIP Revision'' (i.e., 
the revision to the legal authority chapter, which was adopted in 
December 1978, submitted in March 1979, and approved in September 
1980). In so doing, AIR states that the SIP's plain language contains 
no exemption and asserts that the vague references to California 
statutory authority are not in the SIP as incorporated by reference in 
the CFR. In the Safe Air case, the court held that ``SIPs are 
interpreted based on their plain meaning when such a meaning is 
apparent, not absurd, and not contradicted by the manifest intent of 
EPA, as expressed in the promulgating documents available to the 
public.'' See Safe Air for Everyone v. EPA, 488 F.3d 1088, 1100 (9th 
Cir. 2007). Under the circumstances of the Safe Air case, the court 
found that the plain language of the Idaho SIP did not include the 
State's statutory restrictions on regulation of field burning, nor were 
the statutory restrictions on regulation of field burning made manifest 
in EPA's approval of the State's open burning rule, and thus, were not 
relevant in interpreting the existing SIP.
    With respect to the agricultural permitting exemption and the 
California SIP, the existence of the exemption as part of the original 
California SIP as approved by EPA is apparent from a review of the 
submitted plan itself. We also do not believe our approval of the 
exemption in 1972 to be absurd or contradicted by the manifest intent 
of the State of California or EPA. As such, our interpretation is 
consistent with the holding of the Safe Air case. As clarified in 
today's action, our approval of California's 1979 update to the legal 
authority chapter of the California SIP superseded the original legal 
authority chapter and the related supporting appendix materials in the 
California SIP, including the agricultural permitting exemption.
    Lastly, AIR asserts that EPA should interpret the Agency's 
California SIP approvals under the presumption that, absent a 
demonstration to the contrary, we acted consistent with the CAA and 
related Agency policies, and because in AIR's view, we could not have 
lawfully approved the original 1972 SIP and the ``1978 SIP Revision'' 
with exemptions for agricultural sources without violating the Clean 
Air Act, then the presumption should be that the exemptions were not 
approved into the SIP. First, we did not approve the agricultural 
permitting exemption when we took action in 1980 to approve 
California's 1979 update to the legal authority chapter of the SIP. As 
discussed in our January 29, 2010 proposed rule, we have concluded, 
however, that we did approve the agricultural permitting exemption in 
1972 when we approved the original California SIP.
    We disagree that our 1972 approval did not comport with the 
requirements for SIPs under the Clean Air Act and EPA's regulations in 
effect at that time. Given the state of air pollution knowledge at the 
time, a SIP exemption from permitting for agricultural sources is not 
surprising. In 1972, stationary sources had yet to be divided under the 
Clean Air Act into ``major'' and ``minor'' categories (the requirement 
for permitting of ``major'' sources came later), and given the state of 
knowledge concerning air pollution sources and control methods at the 
time, it is certainly plausible that neither the State of California 
nor EPA foresaw that regulation of new and modified agricultural 
sources, as opposed to new and modified factories and smelters, and the 
regulation of motor vehicles, would be necessary to attain and maintain 
the national ambient air quality standards (NAAQS).
    As noted above, we have concluded that the agricultural permitting 
exemption, along with the other statutes and legal documents, submitted 
in the appendix to the legal authority chapter in the original 1972 SIP 
were approved by EPA and made part of the applicable SIP. To the 
extent, however, that uncertainty remains on this point, it does not 
matter from the standpoint of the California SIP over the past 30 
years, because, as we are clarifying in this final rule, our 1980 
approval of the legal authority chapter superseded the 1972 approval of 
the corresponding chapter (and its related appendix) such that the 
agricultural exemption was no longer in the SIP beginning with the 
effective date of our final rule approving the revised chapter (i.e., 
September 10, 1980).
    Comment #2: The District contends that California's agricultural 
permitting exemption was approved into the SIP in 1972.
    Response #2: We agree. As explained in detail in the January 29, 
2010 proposed rule (75 FR at 4743), we have concluded that the 
statutory provisions contained in appendix II to chapter 7 of the 
original California SIP, including the agricultural permitting 
exemption in CH&SC section 24265, were indeed approved into the 
California SIP. Our interpretation of SIP requirements is that, while 
the SIP must provide ``necessary assurances'' of ``adequate authority'' 
and must identify the provisions of law that provide for ``adequate 
authority,'' the statutes themselves need not be approved as part of 
the SIP. That does not mean that the statutes supporting the legal 
authority portion of a SIP cannot be approved into the SIP, only that 
they need not be. In 1972, California submitted the statutes supporting 
the legal authority chapter of the original California SIP to EPA, and 
EPA approved the original SIP, with exceptions not relevant here. Thus, 
while the statutory provisions need not have been approved into the 
California SIP, we agree that they in fact were so approved in 1972.
    Comment #3: The District disagrees with EPA's finding that the 
statutes supporting California's revised legal authority chapter, as 
submitted in 1979, were not physically submitted as part of the SIP 
revision containing the revised chapter. In support of its position, 
the District cites ``appendix 3-A'' to ``chapter 3--Legal Authority,'' 
which was submitted in 1979 and approved by EPA in 1980, and which, in 
the District's view, contains the 1978 edition of the California Air 
Pollution Control Laws, including the agricultural permitting exemption 
[by then re-codified to CH&SC section 42310(e)].
    Response #3: The legal authority chapter and appendix, as revised 
in 1979 by California and submitted to EPA, includes several references 
to the 1978 edition of California Air Pollution Control Laws. On page 
1, the revised legal authority chapter states:

    ``All section references hereafter in this chapter are to the 
Health and Safety Code unless otherwise indicated. The 1978 edition 
of California Air Pollution Control Laws include all applicable 
sections of the Health and Safety Code, the Business and 
Professional Code, and the Vehicle Code. This edition is 
incorporated as appendix 3-A to this chapter available separately 
from the ARB Public Information Office, P.O. Box 2815, Sacramento, 
CA 95812.''


[[Page 27941]]


    As noted in footnote 3 of our January 29, 2010 proposed rule (at 75 
at 4744), we view the phrase ``this edition is incorporated as appendix 
3-A'' as simply providing a general reference to where the statutory 
citations in the chapter could be located, rather than as having the 
effect of a literal reading of the provisions into the chapter. Our 
view is supported by the fact that the revised legal authority chapter 
does not ``incorporate by reference'' the 1978 edition of California 
Air Pollution Control Laws nor does the chapter identify any State law 
or rule that provides for a literal reading of large volumes of text 
into another State document, similar in purpose to the Office of the 
Federal Register's rules concerning ``incorporation by reference'' in 
connection with Federal rules (See 1 CFR part 51). In contrast, the 
statutory provisions and other legal documents supporting the legal 
authority chapter were physically submitted in ``appendix II'' to the 
original California SIP, as discussed above. ``Appendix 3-A'' itself is 
only found in the table of contents to the 1979 revised legal authority 
chapter. Next to the listing of ``Appendix 3-A'' in the table of 
contents is the following statement: ``California Air Pollution Control 
Laws, 1978 Edition, California Air Resources Board, Sacramento, CA 
95812 (available from ARB's Public Information Office).''
    Given the facts discussed above, we believe that the District is 
incorrect in claiming that appendix 3-A to the 1979 revised legal 
authority chapter ``contains'' the 1978 edition of California Air 
Pollution Control Laws. At most, it refers to the 1978 edition of 
California Air Pollution Control Laws. Not only did the revised legal 
authority chapter not contain the statutes, we believe that ARB's 
approach to keeping the statutes themselves physically separate from 
the revised legal authority chapter evinces an intent on the part of 
ARB not to include the statutes themselves in the SIP.
    Comment #4: Regardless of whether the statutes were resubmitted, 
the District claims that EPA provides no support for its finding that 
the statutory provisions and other legal documents contained in the 
1972 SIP were superseded by its approval of California's 1979 revised 
legal authority chapter.
    Response #4: In our proposed rule (75 FR at 4744), we provide the 
following support for our conclusion that our approval of the 1979 
legal authority chapter superseded our earlier approval of the legal 
authority chapter as well as the statutes and other legal documents 
submitted in support of the legal authority chapter from the original 
California SIP:
    <bullet> Contemporaneous statements by ARB as to the wholesale 
nature of the SIP update undertaken in 1978 and 1979;
    <bullet> The mismatch between the statutory citations in the 
revised legal authority chapter and the statutes submitted in support 
of the legal authority chapter of the original SIP; and
    <bullet> Our conclusion that statutes providing support for a 
State's ``necessary assurances'' of adequate legal authority for the 
purposes of CAA section 110(a)(2)(E) need not be approved in the SIP.
    As to the third bulleted item, above, the District objects to EPA's 
conclusion that the statutes providing support for a State's 
``necessary assurances'' of adequate legal authority need not be 
approved in the SIP to meet CAA and EPA SIP requirements. The District 
contends that EPA's reading of the SIP requirements in this regard is 
illogical and unsupported because there is no reason to conclude that 
statutes that must be submitted with the plan need not be approved into 
the plan. However, as explained below, the language of both the statute 
itself and our SIP regulations support our finding that the statutes 
supporting a State's ``necessary assurances'' of adequate legal 
authority need not be approved into the SIP. In other words, the 
statutes may be approved into the SIP, but are not required to be 
approved into the SIP.
    First, under CAA section 110(a)(2), each SIP shall ``(E) provide 
(i) necessary assurances that the State * * * will have adequate * * * 
authority under State * * * law to carry out such implementation plan * 
* *.'' The statute thus requires that SIPs provide ``necessary 
assurances,'' of adequate legal authority, not that SIPs must include 
statutes that establish legal authority. A State's demonstration of 
``necessary assurances'' must be contained in the SIP, but the form in 
which the demonstration is made can take various forms, including but 
not limited to a narrative discussion (e.g., legal authority chapter), 
an Attorney General's letter, the statutes themselves, or some 
combination of the above. In contrast, for other SIP elements, the CAA 
requires the underlying regulations to be included in the SIP, not just 
``necessary assurances'' of such regulations. For instance, under 
section 110(a)(2)(A), each SIP must ``include enforceable emission 
limitations and other control measures * * *.'' A State's ``necessary 
assurances'' of such enforceable emission limitations is not enough to 
satisfy this CAA requirement. The State must submit the enforceable 
emission limitations themselves, which generally take the form of air 
pollution control rules and regulations, to comply with the relevant 
CAA requirement.
    Second, the relevant EPA SIP regulations require that ``Each plan 
must show that the State has legal authority to carry out the plan, * * 
*'' (emphasis added) (See 40 CFR 51.230), but, as to the statutes 
themselves, EPA's regulations state: ``The provisions of law or 
regulation which the State determines provide the authorities required 
* * * must be specifically identified, and copies of such laws or 
regulations be submitted with the plan.'' (emphasis added). See 40 CFR 
51.231(a). The phrase, ``each plan must show,'' refers to elements that 
must be included as part of the plan, whereas the latter phrase, 
``submitted with the plan,'' is, at most, ambiguous as to whether the 
items that must be submitted must also be included in the plan itself. 
But, when considered with the statutory language in CAA section 
110(a)(2)(E) that requires the SIP to include ``necessary assurances'' 
of adequate legal authority, not the statutes themselves, it is 
reasonable to interpret 40 CFR 51.231(a) as requiring the submittal of 
the statutory provisions (providing support for the necessary showing 
of adequate legal authority) for the purpose of allowing EPA to conduct 
an informed review of a State's demonstration of ``necessary 
assurances'' of adequate legal authority, and as not requiring approval 
of the statutory provisions themselves as part of the SIP.
    Lastly, the District points to EPA's own description of the 
Agency's approval of the revised legal authority chapter as 
``nonsignificant'' and ``administrative in nature'' as inconsistent 
with EPA's contention that the approval of the revised legal authority 
chapter superseded the earlier chapter and related statutory provisions 
given the significance that the District attaches to the supersession 
of those provisions. However, EPA's description of its action approving 
the revised legal authority chapter as ``administrative'' mirrors ARB's 
foreword to the revised legal authority chapter: ``Chapter 3 is an Air 
Resources Board (ARB) revision to the State of California 
Implementation Plan for the Attainment and Maintenance of Ambient Air 
Quality Standards (SIP). It is an administrative chapter which outlines 
the State's legal authority to implement the measures contained in the 
State Implementation Plan required by the Clean Air Act * * *.'' Our 
approval action was thus

[[Page 27942]]

consistent with ARB's description of the revised legal authority 
action.
    Retention of the statutory provisions that had been submitted as 
part of the original SIP would imply that they have significance 
outside of their purpose in providing support for the State's 
``necessary assurances'' of adequate legal authority, which ARB 
submitted in the form of a narrative chapter. But, ARB's description of 
the chapter itself as ``administrative'' shows that the underlying 
statutory provisions have no place in the applicable SIP other than 
with the demonstration of ``necessary assurances.'' Our conclusion that 
the statutes submitted in support of the original chapter were 
superseded upon our approval of the revised chapter is consistent with 
this understanding of the inherent connection between the ``necessary 
assurances'' demonstration in the SIP and the supporting statutory 
provisions.
    As described above, the statutes submitted by a State in support of 
the ``necessary assurances'' demonstration of adequate legal authority 
may be approved as part of the SIP (e.g., original California SIP) but 
are not required to be part of the SIP. Where EPA has approved the 
supporting statutes into the SIP, EPA views the statutes as 
``nonregulatory'' provisions of the SIP. See, e.g., 62 FR 27968, at 
27971 (May 22, 1997) (``Examples of nonregulatory SIP provisions 
include, but are not limited to, the following subject matter: SIP 
narratives * * * State Statutes * * *.''); and again in 72 FR 64158, at 
64160 (November 15, 2007) (``EPA-approved non-regulatory control 
measures include * * * State statutes * * * which have been submitted 
for inclusion in the SIP by the State. * * * Examples of EPA-approved 
documents and materials associated with the SIP include, * * * State 
Statutes submitted for the purposes of demonstrating legal authority; * 
* *.''). ARB's and EPA's description of the revised legal authority 
chapter of the California SIP as ``administrative'' is consistent with 
the idea that even if the supporting statutes had been approved into 
the SIP in 1980 (which they were not), EPA would have categorized the 
statutes as ``nonregulatory.''
    The statutes are considered ``nonregulatory'' because statutes that 
provide State or local administrative agencies with the authority to 
establish regulatory requirements do not in themselves establish the 
requirements. Rather, the rules promulgated under the relevant 
authorities establish the requirements. In this instance, such rules 
have included permitting rules that were adopted by the individual 
county-based air districts in San Joaquin Valley (and later by the San 
Joaquin Valley Unified Air Pollution Control District) exempting 
agricultural sources, that were approved by EPA as part of the San 
Joaquin Valley portion of the California SIP, and that continued in 
effect in the SIP until 2004, notwithstanding the supersession of the 
underlying statutory provision back in 1980. Hence, EPA's description 
of the Agency's approval of the revised legal authority chapter as 
being ``nonsignificant,'' because no new requirements would be imposed 
nor would any requirements be withdrawn, is correct. Such requirements 
are not established in the statutes providing the legal authorities, 
but are found in the approved State and local district rules.\5\
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    \5\ The District refers to 40 CFR 52.220(b)(12)(i) as an 
instance where California removed certain sections of the CH&SC 
approved in 1972 from the California SIP. California did not remove 
these CH&SC sections; EPA did so under the error correction 
authority of CAA section 110(k)(6). See 69 FR 67062 (November 16, 
2004). We now recognize that we did not need to do so, since all of 
the statutory provisions submitted in support of the original legal 
authority chapter of the SIP had been superseded by our approval of 
the revised legal authority chapter in 1980. See response to comment 
<greek-i>7.
---------------------------------------------------------------------------

    Comment #5: The District states that the agricultural permitting 
exemption was removed from State law in 2003 as it relates to major 
sources, but states that the change in State law was never submitted to 
EPA as a SIP revision and thus the agricultural permitting exemption 
remains in the SIP.
    Response #5: We agree that the State law replacing the full 
agricultural permitting exemption with a limited permitting exemption 
for certain minor agricultural sources (Senate Bill 700) has never been 
submitted to EPA as a SIP revision. However, as we clarify through this 
final rule, California did not need to submit SB 700 to EPA as a SIP 
revision to remove the agricultural permitting exemption from the SIP 
because it was removed from the California SIP upon the effective date 
of our 1980 final rule approving the State's revision to the legal 
authority chapter of the California SIP.
    Comment #6: The District contends that Clean Air Act section 
301(a)(1) does not authorize EPA to unilaterally amend the agricultural 
exemption out of the California SIP.
    Response #6: We agree that CAA section 301(a)(1) does not authorize 
EPA to unilaterally amend the SIP. To amend the SIP, EPA is authorized 
to take action under CAA section 110. For instance, our action in 1980 
to approve California's revised legal authority chapter of the 
California SIP was an action taken by EPA under section 110. We do not 
view our action today as amending the California SIP. Our view as 
expressed in the proposed rule and in responses to comments above is 
that we are simply clarifying the effect of a previous rulemaking. We 
are taking this action to avoid further confusion as to the current 
status of the statutory provisions (such as the agricultural permitting 
exemption) submitted as part of the original 1972 California SIP.
    CAA section 301(a) authorizes EPA to prescribe such regulations as 
are necessary to carry out the Agency's functions under the CAA. One of 
the basic functions of the Agency under the CAA is to take actions on 
SIPs and SIP revisions (See section 110(k)), and in doing so, we are 
responsible for ensuring that the regulatory effect of our action is 
clearly set forth through rules published in the Federal Register and 
that our codification of SIP approvals in 40 CFR part 52 reasonably 
identifies the approved provisions.
    In this instance, we have discovered that our 1979 proposed rule 
and 1980 final rule approving a revision to the California SIP did not 
clearly identify the materials being superseded, and we appropriately 
rely upon our rulemaking authority under CAA section 301(a) to clarify 
the superseding effect of our 1980 action. In so doing, we are not 
amending the California SIP, but merely clarifying what the current SIP 
includes, or to be more specific, what the current SIP does not 
include.
    Comment #7: Dairy Cares notes that, in 2004, EPA undertook a 
rulemaking to remove from the SIP several specific statutes that were 
included in the 1972 original California SIP, and claims that such 
action would have been unnecessary if the statutory provision submitted 
with the original California SIP had been superseded by EPA's approval 
action on the revised legal authority chapter of the California SIP in 
1980. Dairy Cares asserts that EPA's action in 2004 reveals the 
Agency's understanding then that the statutory provisions from the 
original California SIP remain in the SIP, and concludes that there is 
simply no way to reconcile EPA's actions in 2004 with the action it now 
proposes as they are entirely inconsistent.
    Response #7: In our January 29, 2010 proposed rule, we recognize 
that our 2004 rulemaking (69 FR 67062, November 16, 2004) removed 
certain variance-related statutory provisions from the California SIP. 
See 75 FR at 4742, at 4744. We agree that our conclusion in the current 
rulemaking that all of the statutory provisions submitted in connection 
with the legal

[[Page 27943]]

authority chapter of the original California SIP were superseded in 
1980 is not consistent with our 2004 rulemaking. We also agree that, if 
all of the statutory provisions in question had been superseded in 
1980, then removal of the specific variance-related provisions in 2004 
would not have been necessary.
    Upon review of the 2004 rulemaking, however, we find no evidence of 
the type of detailed research into the contents of the California SIP 
that was conducted for this rulemaking. Furthermore, we believe that 
the Agency's own mistaken understanding in 2004 of the status of the 
variance-related statutory provisions simply highlights the need for 
the Agency to take some action, such as the one taken today, to clarify 
the status of the statutory provisions and other legal documents 
submitted in support of the legal authority chapter of the original 
California SIP. As described above, we have the authority under CAA 
section 301(a) to identify the superseding effect of a prior rulemaking 
(in this case, a rulemaking in 1980) and to thereby clarify the 
contents of the current California SIP.

III. Final Action

    None of the comments have caused us to modify our proposed rule, 
and thus, under CAA section 301(a)(1) and for the reasons discussed in 
the proposed rule and in this final rule, EPA is taking final action to 
clarify that the statutory provisions and other legal documents 
approved in connection with the legal authority chapter of the original 
1972 California SIP were superseded in the California SIP by EPA's 
approval of a revised legal authority chapter in 1980 (and codified at 
40 CFR 52.220(c)(48)). We are memorializing our interpretation of the 
effect of the 1980 final rule by revising the relevant provision in 40 
CFR 52.220 accordingly.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely clarifies the effect of a previous 
approval by EPA of a State submittal as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
State law. For that reason, this action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 19, 2010. 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, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: May 5, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by revising paragraph (b)(12)(i) to read 
as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (b) * * *
    (12) * * *
    (i) Previously approved on May 31, 1972 in paragraph (b) and 
deleted without replacement, effective September 10, 1980, chapter 7 
(``Legal Considerations'') of part I (``State General Plan'') of the 
plan submitted on February 21, 1972, and all of the statutory 
provisions and other legal documents contained in appendix II (``State 
Statutes and other Legal Documents Pertinent to Air Pollution Control 
in California'') to chapter 7.
* * * * *
[FR Doc. 2010-11867 Filed 5-18-10; 8:45 am]
BILLING CODE 6560-50-P


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