
[Federal Register: March 10, 2009 (Volume 74, Number 45)]
[Rules and Regulations]               
[Page 10176-10182]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10mr09-11]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0677; FRL-8770-1]

 
Approval and Promulgation of Implementation Plans; State of 
California; 2003 State Strategy and 2003 South Coast Plan for One-Hour 
Ozone and Nitrogen Dioxide

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

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve one state implementation 
plan (SIP) revision, and to approve in part and to disapprove in part a 
second SIP revision, submitted by the California Air Resources Board to 
provide for attainment of the one-hour ozone standard and maintenance 
of the nitrogen dioxide standard in the Los Angeles-South Coast Air 
Basin. The two SIP revisions include the 2003 State Strategy and the 
2003 South Coast SIP, both of which were submitted on January 9, 2004.
    With respect to the 2003 State Strategy, EPA is taking final action 
to approve the commitment by the State to develop and propose near-term 
defined measures sufficient to achieve specific emissions reductions in 
the South Coast and to continue implementation of an existing measure. 
With respect to the 2003 South Coast SIP, EPA is taking final action to 
approve certain elements, and to disapprove other elements. The plan 
elements that are being disapproved are not required under the Clean 
Air Act because they represent revisions to previously-approved SIP 
elements, and thus, the disapprovals will not affect the requirements 
for the State to have an approved SIP for these SIP elements. 
Therefore, the disapprovals do not trigger sanctions clocks nor EPA's 
obligation to promulgate a Federal implementation plan.
    EPA is taking these actions under provisions of the Clean Air Act 
regarding EPA action on SIP submittals and plan requirements for 
nonattainment areas.

[[Page 10177]]


DATES: Effective Date: This rule is effective on April 9, 2009.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2008-0677 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.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (520) 622-1622, 
tax.wienke@epa.gov.

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

Table of Contents

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

I. Proposed Action

    On October 24, 2008 (73 FR 63408), under the Clean Air Act (CAA or 
``Act''), EPA proposed to approve one state implementation plan (SIP) 
revision, and to approve in part and to disapprove in part, a second 
SIP revision, submitted by the California Air Resources Board (ARB) to 
provide for attainment of the one-hour ozone national ambient air 
quality standard (NAAQS) and for maintenance of the nitrogen dioxide 
NAAQS in the Los Angeles-South Coast Air Basin Area (South Coast).\1\ 
The two SIP revisions include the Final 2003 State and Federal Strategy 
(``2003 State Strategy'') and the 2003 revisions to the SIP for ozone 
and nitrogen dioxide in the South Coast Air Basin (``2003 South Coast 
SIP''),\2\ both of which were submitted by ARB on January 9, 2004. 
These SIP revisions were developed in recognition of a need for 
additional emissions reductions to attain the one-hour ozone NAAQS than 
had been planned for in the late 1990s, and to establish new motor 
vehicle emissions budgets (MVEBs) for transportation conformity.
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    \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\ The ``2003 South Coast SIP'' refers to the January 9, 2004 
submittal of the Final 2003 South Coast Air Quality Management Plan 
(AQMP) adopted by the SCAQMD on August 1, 2003, as modified by ARB 
through its resolution of adoption (Resolution 03-23) on October 23, 
2003.
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    With respect to the 2003 State Strategy, we proposed to approve the 
commitments by ARB to develop and propose for adoption 15 near-term 
defined control measures, and the commitment by the California Bureau 
of Automotive Repair (BAR) to develop and propose one near-term defined 
control measure, sufficient to achieve specified emissions reductions 
in the South Coast. We also proposed to approve the continuation of the 
existing SIP pesticide strategy adopted by the California Department of 
Pesticide Regulation (DPR).
    With respect to the 2003 South Coast SIP, we proposed to approve 
the base year and projected baseline emissions inventories, the South 
Coast Air Quality Management District's (District's or SCAQMD's) 
commitment to adopt and implement near-term stationary and mobile 
source control measures (with the exception of ``FSS-05--Mitigation Fee 
Program for Federal Sources'') and commitment to achieve aggregate 
emission reductions through a schedule of rule adoption and 
implementation, the District's contingency measure (``CTY-01--
Accelerated Implementation of Control Measures''), the District's 
``black box'' emission reduction commitment,\3\ the vehicle emissions 
offset demonstration, and the nitrogen dioxide maintenance 
demonstration and related MVEBs.
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    \3\ ``Black box'' commitment refers to the provisions under CAA 
section 182(e)(5) that anticipate development of new control 
techniques or improvement of existing control technologies.
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    Also, in connection with the 2003 South Coast SIP, we proposed to 
disapprove the District commitment to adopt one particular control 
measure (``FSS-05--Mitigation Fee Program for Federal Sources''); the 
``black box'' emissions reduction assignment to EPA; the revised rate-
of-progress (ROP) and attainment demonstrations; and the ozone MVEBs.
    The primary rationale for proposing approval of certain control 
measures and the specific SIP elements described above is that they 
would strengthen the SIP by adding to, or updating, SIP elements 
previously approved by EPA. The reasons for proposing disapproval of 
the other specified elements of the 2003 South Coast SIP include 
incorrect ROP calculation methods and the withdrawal by ARB of the 
state emissions reductions commitments in the 2003 State Strategy that 
were relied upon in the 2003 South Coast SIP. In our proposed rule, we 
explained that no sanctions clocks or Federal implementation plan (FIP) 
requirement would be triggered by our disapprovals because the plan 
revisions that are the subject of the proposed disapprovals represent 
revisions to previously-approved SIP elements that EPA determined met 
the CAA requirements, and thus, the revisions are not required under 
the Act. For additional information, please see our October 24, 2008 
proposed rule.

II. Public Comments

    EPA's October 24, 2008 proposed rule provided a 30-day public 
comment period. We received comments dated November 17, 2008 from the 
Center on Race, Poverty & the Environment (CRP&E) on behalf of a number 
of environmental and community groups. CRP&E submitted additional 
comments by letter dated November 24, 2008. We also received comments 
from the Natural Resources Defense Council (NRDC) by letter dated 
November 24, 2008 that was followed shortly thereafter by a revised 
letter reflecting minor edits to the original letter. We summarize the 
comments and provide responses in the paragraphs below.
    Comment: ARB's Executive Officer does not have the authority to 
withdraw certain portions of the 2003 State Strategy as it applies to 
the South Coast Air Basin and does not have the authority to withdraw 
the TCM portion of the 2003 South Coast AQMP. The withdrawal letter 
submitted by the Executive Officer cannot be approved by EPA because it 
was not subject to the notice and hearing requirements for SIPs under 
the CAA. Also, due to procedural deficiencies, EPA should not take into 
consideration the supplemental material submitted by the SCAQMD. EPA 
must act on the 2003 State Strategy and 2003 South Coast AQMP as 
submitted on January 9, 2004 and defer action on the subsequent 
withdrawals and supplemental material until such time as ARB completes 
the necessary public process.
    Response: In our proposed rule, we describe in detail the letter 
from James Goldstene, ARB Executive Officer, dated February 13, 2008 
(``February Goldstene Letter'') withdrawing several portions of the 
2003 State Strategy that relate to the South Coast Air Basin. See 73 FR 
63408, at 63410-63411. We also cite a second letter from the ARB 
Executive Officer, dated October 14, 2008 (``October Goldstene 
Letter''), that corrects an error in the February Goldstene Letter and

[[Page 10178]]

withdraws the TCM portion of the 2003 South Coast SIP. Id.
    We acknowledge that our proposed action gives full effect to the 
two Goldstene letters cited above and thus we have proposed action only 
on those portions of the 2003 State Strategy and 2003 South Coast SIP 
that remain post-withdrawal. From the standpoint of CAA procedural 
requirements, we find nothing in the CAA that prevents states from 
withdrawing SIPs or SIP revisions prior to EPA approval. To be sure, 
such withdrawals may lead to sanctions under the CAA depending on the 
circumstances of the submittal, but the Act does not prevent states 
from subjecting themselves to potential liability for failure to submit 
SIPs and SIP revisions if they so choose. Moreover, no public process 
is required for withdrawal, once again, prior to the time EPA acts to 
approve the submittal as part of the applicable SIP.
    Once SIPs or SIP revisions have been approved by EPA, however, then 
a state must submit a request for a withdrawal of, or rescission of, 
for example, a portion of a SIP, and EPA must approve the request to 
effectively amend the SIP. In other words, a state's post-approval 
rescission is considered a SIP revision, and subject to CAA public 
process procedural requirements, whereas a state's pre-approval 
rescission is not considered a SIP revision and takes effect upon 
receipt by EPA regardless of the procedure that was followed so long as 
the procedure for withdrawal is consistent with state law. In this 
instance, we had not approved the portions of the 2003 State Strategy 
and the 2003 South Coast SIP that the Goldstene letters purport to 
withdraw and thus we gave the letters full effect under the belief that 
the ARB Executive Officer had the authority under State law to make the 
subject withdrawals.
    As to the challenge by the commenters to the authority of the ARB 
Executive Officer under State law to withdraw portions of the 2003 
State Strategy and 2003 South Coast SIP, we take note of a letter dated 
March 26, 2008 from Mary D. Nichols, chairperson of the ARB (``Nichols 
Letter''), to various environmental organizations defending the 
Executive Officer's authority to make the withdrawals set forth in the 
February Goldstene Letter. In the Nichols Letter, the chairperson of 
the ARB explains: ``California Health & Safety Code Sec. Sec.  39515 
and 39516 empower the Executive Officer to act on behalf of the Board, 
and provide that any power that the Board may lawfully delegate shall 
be conclusively presumed to have been delegated to the Executive 
Officer, unless the Board specifically has reserved that power for the 
Board's own action. Withdrawal of still-pending SIP submittals is not 
among the powers the Board has reserved for itself.'' As to the 
specific Board language in the resolution of adoption for the 2003 
South Coast SIP, the Nichols Letter explains: ``Moreover, the language 
of Resolution 03-23 * * * does not constitute such a reservation of 
powers. Resolution 03-23 directs the Executive Officer to take certain 
actions in 2003, which the Executive Officer did at that time. 
Resolution 03-23 does not prohibit the Executive Officer from taking 
different actions in 2008 when warranted by changed circumstances, 
which in this case is a logical administrative action to follow the 
Board's adoption of the new 2007 strategy.'' For the proposed rule, we 
reviewed the citations in the California Heath & Safety Code and the 
relevant provisions in ARB resolutions 03-22 and 03-23, adopting the 
2003 State Strategy and 2003 South Coast SIP, respectively, and found 
the Nichols Letter to be a reasonable interpretation of California law. 
We continue to believe that the ARB Executive Officer acted in a manner 
consistent with State law in withdrawing the SIP submittal elements set 
forth in the February Goldstene Letter and that we took into account 
the subject withdrawals appropriately. The same holds true also for the 
withdrawal of the TCM element in the 2003 South Coast SIP in the 
October Goldstene Letter.
    Lastly, a commenter challenges EPA's reliance on a September 10, 
2008 letter from Elaine Chang, DrPH, Deputy Executive Officer, SCAQMD 
(``Chang Letter''), because it had not been subject to the public 
notice, hearing and adoption process required for SIP submittals. We 
describe the contents of the Chang Letter on page 63417 of the proposed 
rule as ``supplemental motor vehicle emissions data drawn largely from 
emissions inventory estimates presented in appendix III of the 2003 
South Coast AQMP.'' We agree generally that amendments by a state to 
submitted SIPs (as opposed to withdrawals thereof) must undergo the 
necessary public process prior to submittal to meet CAA procedural 
requirements, but, in this instance, the supplemental information 
provided in the Chang Letter simply collects in a single table certain 
emissions data that had already been subject to the required public 
process and estimates certain other values through simple 
interpolation. Because we find that the underlying emissions data 
included in the Chang Letter were subject to the necessary public 
process, we continue to believe that reliance on the Chang Letter as 
support for the conclusion that the 2003 South Coast SIP meets the TCM 
offset requirement under CAA section 182(d)(1)(A) is appropriate.
    Comment: EPA must ensure that the 2003 South Coast AQMP provides 
for attainment of the 1-hour ozone NAAQS and cannot simply rely on 
previous approvals because existing commitments to achieve certain 
emissions reductions have not come to fruition and because the new 
inventory shows that the plan does not provide sufficient emissions 
reductions to attain the standard by 2010. Furthermore, ambient data 
for year 2008 already shows that the South Coast will not attain the 1-
hour ozone standard by 2010. EPA must ensure that there is a viable 
path to reaching the 1-hour ozone standard.
    Response: We had a responsibility to ensure that the South Coast 
had a viable path to attainment for the 1-hour ozone NAAQS. In 1997 (62 
FR 1150, January 9, 1997), and then again in 2000 (65 FR 18903, April 
10, 2000), we fulfilled that responsibility through our final 
rulemaking actions approving South Coast attainment demonstrations for 
the 1-hour ozone NAAQS. Our final approvals of the attainment 
demonstrations for the South Coast were based on the best information 
available at the time.
    As to unfulfilled commitments, we believe that a state is required 
to fulfill its commitments that have been approved into the SIP, but 
failure by a state to do so is a separate issue from our action on the 
2003 State Strategy and 2003 South Coast SIP and does not trigger a 
requirement to prepare a new plan. Further, we note that, absent a 
commitment by a state such as a mid-course correction or an action by 
EPA such as a ``SIP call'' under CAA section 110(k)(5), a state is not 
required to submit a new attainment demonstration to account for 
changed circumstances, such as new technical information reflected in 
the emissions estimates in the 2003 South Coast SIP or the ambient 
ozone concentration data from 2008.\4\
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    \4\ In support of the statement that the South Coast Air Basin 
will not attain the 1-hour ozone NAAQS by 2010, the commenter 
attached tables containing ARB summaries of preliminary 2008 ozone 
monitoring data from five sites in the South Coast: Asuza, Glendora-
Laurel, Crestline, Santa Clarita, and Perris. The summary tables 
submitted by the commenter highlight exceedance-days relative to the 
more stringent state 1-hour ozone standard (0.09 ppm) rather than 
the federal 1-hour ozone standard (0.12 ppm). The data shows that 
the number of days during which hourly ozone concentrations equaled 
or exceeded 0.125 ppm (i.e., exceedance-days for the revoked federal 
1-hour ozone standard) at the five sites cited by the commenter are 
as follows: Asuza (3), Glendora-Laurel (10), Crestline (16), Santa 
Clarita (8), and Perris (2). These numbers reflect substantial 
improvement in air quality in the South Coast Air Basin since the 
area's classification as an ``extreme'' nonattainment area for ozone 
under the 1990 Clean Air Act Amendments when the corresponding 
number of exceedance-days (year 1990) at these sites were as 
follows: Asuza (84), Glendora-Laurel (103), Crestline (103), Santa 
Clarita (62), and Perris (62).
    The total number of exceedance-days per monitor over the 2008-
2010 time period will determine if the area attains by 2010. 
However, CAA section 181(a)(5) allows EPA to approve up to two one-
year extensions of the attainment date if all requirements and 
commitments have been complied with and if no more than one 
exceedance of the standard occurs in the year preceding the 
extension year. We will not know whether the South Coast Air Basin 
qualifies for the first one-year extension until the end of 2010.

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[[Page 10179]]

    Lastly, we agree that EPA must ensure a viable path to attainment, 
and previously did so for the 1-hour ozone NAAQS in the South Coast, 
but EPA's responsibility at the present time is to ensure that states 
adopt viable paths toward attainment of the 8-hour NAAQS, rather than 
the revoked 1-hour ozone NAAQS, and EPA will fulfill its obligations in 
this respect through review and action on submitted 8-hour ozone SIPs. 
For the South Coast, EPA is currently reviewing the 2007 South Coast 
AQMP to ensure that it meets all applicable requirements for 
demonstrating attainment of the 8-hour ozone NAAQS. By this, we do not 
mean to suggest that attainment of, or failure to attain, the revoked 
1-hour ozone standard by the applicable attainment date is irrelevant. 
Indeed, failure to attain the 1-hour ozone standard, in this case, by 
2010 (or 2011 or 2012 if the South Coast qualifies for an extension), 
can lead to regulatory consequences (such as the imposition of fees 
under CAA section 185 and the implementation of contingency measures) 
that are triggered to prevent backsliding during the transition from a 
1-hour ozone standard to the 8-hour ozone standard.
    Comment: EPA improperly fails to require a transportation control 
measure (TCM) plan pursuant to CAA section 182(d)(1)(A). Specifically, 
EPA has improperly construed section 182(d)(1)(A) not to require 
offsets for the emissions increases attributable to the increase in 
vehicle miles traveled (VMT) since 1990 despite clear guidance 
contained in a related House Committee report included in the 
legislative history of the Clean Air Act Amendments of 1990. Also, EPA 
has also failed to assess the adequacy of the 2003 South Coast AQMP's 
compliance with section 182(d)(1)(A) against the additional statutory 
requirement that the SIP provide adequate enforceable TCMs sufficient 
to allow total area emissions to comply with reasonable further 
progress (RFP) and attainment requirements.
    Response: CAA section 182(d)(1)(A), referred to herein as the TCM 
provision, requires a state to submit a SIP revision, for certain 
nonattainment areas such as the South Coast, that identifies and adopts 
specific enforceable transportation control strategies and TCMs to 
offset any growth in emissions from growth in VMT or numbers of vehicle 
trips in such areas and to attain reductions in motor vehicle emissions 
as necessary, in combination with other emission reduction 
requirements, to comply with ROP and attainment requirements. In our 
proposed rule, we indicate that ARB withdrew the TCM element of the 
2003 South Coast SIP, and we conclude that compliance with the VMT 
offset requirement under CAA section 182(d)(1)(A) is shown in the 2003 
South Coast SIP through supplemental material provided by SCAQMD 
showing a decline in motor vehicle emissions each year in the South 
Coast through the applicable attainment date (2010). See 73 FR 63408, 
at 63417 (October 24, 2008). EPA believes that it is appropriate to 
treat the three required elements of section 182(d)(1)(A) (i.e., 
offsetting growth, attainment of the ROP reduction, and attainment of 
the ozone NAAQS) as separable,\5\ and while not stated as such in the 
proposed rule, our proposed approval in this instance relates only to 
the first element of CAA section 182(d)(1)(A) (i.e., offsetting 
growth). The second and third elements of CAA section 182(d)(1)(A) were 
satisfied in 1997 when we approved the 1994 South Coast AQMP's 
transportation control strategies and TCMs, such as TCM-1 
(``Transportation Improvements''), which includes the capital and non-
capital facilities, projects, and programs contained in the Regional 
Mobility Element and programmed through the Regional Transportation 
Improvement Program (RTIP) process to reduce emissions, in the same 
action in which we approved the South Coast ROP and attainment 
demonstrations. See 62 FR 1150, at 1180-1181 (January 8, 1997).
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    \5\ We believe that the three elements of section 182(d)(1)(A) 
are separable because of the timing problem created by Congress in 
requiring a TCM SIP to be submitted years before the broader SIP 
submittals, such as the ROP and attainment demonstration SIPs. The 
SIP submittals showing attainment of the 1996 15 percent ROP and the 
post-1996 RFP and NAAQS attainment demonstration are broader in 
scope than growth in VMT or in numbers of vehicle trips in that they 
necessarily address emissions trends and control measures for non 
motor vehicle emissions sources and, in the case of attainment 
demonstrations, involve complex photochemical modeling studies. It 
was neither practicable nor reasonable to expect that the 
subsequently required submissions could be developed and implemented 
so far ahead of schedule as to effectively influence the TCM SIP 
submission.
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    As to EPA's interpretation of the first element of CAA section 
182(d)(1)(A), we point to the following excerpt on this subject from 
our General Preamble for the Implementation of Title I of the Clean Air 
Act Amendments of 1990 (``General Preamble''):

    ``The EPA has received comment indicating that section 
182(d)(1)(A) should be interpreted to require areas to offset any 
growth in VMT above 1990 levels, rather than offsetting VMT growth 
only when such growth leads to actual emissions increases. Under 
this approach, areas would have to offset VMT growth even while 
vehicle emissions are declining. Proponents of this interpretation 
cite language in the House Committee Report which appears to support 
the interpretation. The report states that `(t)he baseline for 
determining whether there has been growth in emissions due to 
increased VMT is the level of vehicle emissions that would occur if 
VMT held constant in the area.' (H.R. No. 101-490, part 1, 101st 
Cong. 2nd Sess., at 242).
    Although the statutory language could be read to require 
offsetting of any VMT growth, EPA believes that the language can 
also be read so that only actual emissions increases resulting from 
VMT growth need to be offset. The statute by its own terms requires 
offsetting of `any growth in emissions from growth in VMT.' It is 
reasonable to interpret this language as requiring that VMT growth 
must be offset only where such growth results in emissions increases 
from the motor vehicle fleet in the area.
    While it is true that the language of the H.R. 101-490 appears 
to support the alternative interpretation of the statutory language, 
such an alternative interpretation would have drastic implications 
for many of the areas subject to this provision. Since VMT is 
growing at rates as high as 4 percent per year in some cities such 
as Los Angeles, these cities would have to impose draconian TCM's 
such as mandatory no-drive restrictions, to fully offset the effects 
of increasing VMT if the areas where [sic] forced to ignore the 
beneficial impacts of all vehicle tailpipe and alternative fuel 
controls.
    Although the original authors of the provision and H.R. 101-490 
may in fact have intended this result, EPA does not believe the 
Congress as a whole, or even the full House of Representatives, 
believed at the time it voted to pass the CAAA that the words of 
this provision would impose such severe restrictions. There is no 
further legislative history on this aspect of the provision; it was 
not discussed at all by any member of the Congress during subsequent 
legislative debate and adoption.
    Given the susceptibility of the statutory language to these two 
alternative interpretations, EPA believes that it is the Agency's 
role in administering the statute to take the interpretation most 
reasonable in light of the practical implications of such

[[Page 10180]]

interpretation, taking into consideration the purposes and intent of 
the statutory scheme as a whole. In the context of the intricate 
planning requirements Congress established in title I to bring areas 
towards attainment of the ozone standard, and in light of the 
absence of any discussion of this aspect of the VMT offset provision 
by the Congress as a whole (either in floor debate or in the 
Conference Report), EPA concludes that the appropriate 
interpretation of section 182(d)(1)(A) requires offsetting VMT 
growth only when such growth would result in actual emissions 
increases.'' 57 FR 13498, at 13522-13523 (April 16, 1992).

    For the reasons given in the General Preamble excerpt provided 
above, EPA believes that the first element of CAA section 182(d)(1)(A) 
requires states to adopt sufficient TCMs so that projected motor 
vehicle emissions, taking into account motor-vehicle-related emissions 
controls and growth in VMT, will never be higher during the ozone 
season in one year than during the ozone season in the year before, but 
that a state may comply with this provision through a demonstration of 
declining motor vehicle emissions each year through the attainment year 
rather than through submittal of TCMs.\6\ Thus, we continue to accept 
the supplemental material submitted by letter dated September 10, 2008 
from Elaine Chang, Deputy Executive Officer, SCAQMD, showing a decline 
in motor vehicle emissions each year in the South Coast through 2010, 
as a demonstration showing that the 2003 South Coast SIP meets the TCM 
offset requirement under CAA section 182(d)(1)(A).
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    \6\ EPA has previously discussed its interpretation of the 
section 182(d)(1)(A) requirement in our approval of the VMT offset 
plan for the Houston/Galveston ozone nonattainment area. See 66 FR 
57247 (November 14, 2001).
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    Comment: Because conformity is still applicable under the 1-hour 
ozone standard and because the 8-hour ozone motor vehicle emissions 
budgets are less stringent than the 1-hour ozone budgets, EPA cannot 
allow the use of the former to serve as the conformity budgets for 
attainment of the 1-hour ozone standard.
    Response: In our proposed rule, we proposed to disapprove the VOC 
and NOX motor vehicle emissions budgets (MVEBs) for 1-hour 
ozone (``1-hour ozone MVEBs'') based on our proposed disapprovals of 
the one-hour ozone ROP and attainment demonstrations in the 2003 South 
Coast SIP. See 73 FR 63408, at 63418. We noted in our proposed rule 
that the 1-hour ozone MVEBs would not be used for conformity purposes 
even if we were to approve them because EPA has revoked the 1-hour 
ozone standard and transportation conformity determinations are no 
longer required for that air quality standard, and because we have 
already found 8-hour ozone MVEBs from the 2007 South Coast AQMP to be 
adequate for transportation conformity purposes. See 73 FR 63408, at 
63418.
    The commenter takes issue with our statement in the proposed rule 
that transportation conformity determinations are no longer required 
for the 1-hour ozone standard, citing the D.C. Circuit's decision in 
South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. 
Cir. 2006), and with our conclusion that the 1-hour ozone MVEBs would 
not be used for conformity even if we approved them.
    We agree that the D.C. Circuit's decision in the South Coast 
overruled EPA's decision that 1-hour ozone MVEBs do not constitute one 
of the ``applicable requirements'' that must be retained for anti-
backsliding purposes during the transition from the 1-hour to the 8-
hour ozone standard, but the regulatory impact of the South Coast 
ruling is not what the commenter believes. On June 8, 2007, the D.C. 
Circuit amended its opinion to limit the scope of its decision 
regarding continued application of the 1-hour ozone conformity 
obligation to clarify that the court's reference to conformity 
determinations speaks only to the use of 1-hour ozone MVEBs as part of 
8-hour ozone conformity determinations until 8-hour ozone MVEBs are 
found adequate or are approved. See EPA memorandum from Robert J. 
Meyers, Acting Assistant Administrator, to Regional Administrators, 
dated June 15, 2007. The court thus clarified that 1-hour ozone 
conformity determinations are not required for anti-backsliding 
purposes. Therefore, the court's decision does not change the 
transportation conformity regulations in place before the court's 
ruling on December 22, 2006.
    In this instance, the relevant transportation conformity 
regulations are the amendments to the conformity regulations that EPA 
promulgated to address conformity in nonattainment and maintenance 
areas for the 8-hour ozone NAAQS. See 69 FR 40004 (July 1, 2004) and 
also 73 FR 4420, at 4434 (January 24, 2008). Under the 2004 amendments 
to the transportation conformity rule, 8-hour MVEBs replace the 
existing 1-hour ozone MVEBs once the 8-hour MVEBs are found adequate or 
are approved. See 40 CFR 93.109(e)(1) and (2). In this instance, we 
found certain 8-hour ozone MVEBs in the 2007 South Coast AQMP 
(specifically, ROP milestone years 2008, 2011, 2014, 2017, and 2020) to 
be adequate for transportation conformity purposes. See 73 FR 28110 
(May 15, 2008), as corrected at 73 FR 34837 (June 18, 2008). As a 
result of our finding, the U.S. Department of Transportation and the 
area's Metropolitan Planning Organization, the Southern California 
Association of Governments, must use the 8-hour ozone MVEBs, and may 
not use the 1-hour ozone MVEBs, for transportation conformity 
determinations.
    Lastly, the commenter juxtaposes the 8-hour ozone MVEBs, that have 
been found adequate, with the 1-hour ozone MVEBs that the 8-hour MVEBs 
replaced, to show that the 8-hour ozone MVEBs in 2011 are higher than 
the 1-hour ozone MVEBs, and concludes therefore the EPA cannot allow 
use of the former to serve as the MVEBs for attainment of the 1-hour 
ozone standard. However, as discussed above, conformity need no longer 
be shown for the 1-hour ozone NAAQS, and 1-hour ozone MVEBs no longer 
apply once a finding of adequacy is made for 8-hour ozone MVEBs, a 
circumstance that applies to the South Coast.
    Comment: EPA should disapprove the Pesticide Strategy portion of 
the 2003 State Strategy because of a recent Ninth Circuit Court of 
Appeals decision that held that a particular document that had 
supported EPA's approval of the original Pesticide Strategy in the 1994 
California Ozone SIP was not a part of the California SIP and thus was 
unenforceable under provisions of the Clean Air Act.
    Response: One of the State's original purposes in adopting the 2003 
State Strategy was to entirely replace the existing State control 
strategy for the South Coast (primarily comprised by commitments from 
the approved 1994 Ozone SIP) with a new strategy that included three 
components: an annual adoption schedule for aggregate emissions 
reductions, defined measures, and a set of long-term commitments 
including aggregate long-term emissions reductions. See section I, 
chapter D, of the 2003 State Strategy. In this context, the State 
included PEST-1 (``Implement Existing Pesticide Strategy''), which 
simply retains the existing SIP commitment, into the list of defined 
measures for the sake of completeness to allow for the wholesale 
replacement of the existing strategy for the South Coast with the new 
strategy from the 2003 State Strategy.
    As described in the proposed rule (73 FR 63408, at 63410-63411), 
however, the State withdrew several components of the new State 
Strategy as it relates to the South Coast, including the aggregate 
annual emissions reductions commitments and long-term

[[Page 10181]]

commitments, leaving just the bare commitment to bring certain measures 
(listed in table 1 of our October 24, 2008 proposed rule) to the ARB's 
Board for any action within the Board's discretion and to implement the 
existing Pesticide Strategy. The withdrawal of key components of the 
new State Strategy eliminated any possibility for the wholesale 
replacement of the existing State strategy for the South Coast with the 
new strategy.
    Given the changed circumstances, PEST-1 did not need any longer to 
be brought forward as part of the 2003 State Strategy, but because ARB 
did not specifically withdraw it, EPA had to propose action on it. We 
did so through a proposed approval. A footnote to table 1 (of the 
proposed rule) sets forth our interpretation of what approval of PEST-1 
would mean: ``We interpret our approval of this measure as maintaining 
the status quo with respect to the existing pesticide strategy (i.e., 
the SIP will continue to reflect the strategy as approved by EPA in 
1997).'' Furthermore, since disapproval of PEST-1 in the 2003 State 
Strategy would not act to rescind the existing Pesticide Strategy, 
approval or disapproval of PEST-1 amounts to the same thing: namely, 
the continuation of the existing EPA-approved Pesticide Strategy. 
Therefore, deficiencies in the enforceability of the Pesticide Element, 
whatever they might be, are the same whether EPA approves PEST-1 or 
disapproves PEST-1.
    Comment: EPA should disapprove the State's commitments to adopt new 
measures because they are unenforceable.
    Response: With the withdrawal of key components of the 2003 State 
Strategy, including the aggregate annual and long-term emissions 
reductions commitments for the South Coast, the State has left only the 
bare commitment to bring certain near-term measures (listed in table 1 
of our October 24, 2008 proposed rule) to the ARB's Board (for any 
action within the Board's discretion) and to implement the existing 
Pesticide Strategy. We acknowledge the limited scope of the State's 
commitment, but do not find it to be entirely unenforceable. For 
instance, ARB staff must bring to the Board the measures listed in 
table 1 of the proposed rule (drawn from the 2003 State Strategy) 
consistent with the schedule set forth in table 1. Further, the ARB 
staff proposal for each measure must, at a minimum, achieve the lower 
end of a range of reductions. Failure by ARB to act accordingly is 
subject to enforcement under applicable provisions of the Act once EPA 
approves the commitment into the California SIP. We concluded in our 
proposed approval that the California SIP would be more effective with 
the commitment than without the commitment. We explained our rationale 
for proposing approval of the State defined measures as follows: 
``Assuming that the remaining component of the 2003 State Strategy adds 
to, but does not replace, the existing SIP ozone strategy, we propose 
to approve the State commitments with respect to the near-term defined 
measures listed in table 1 as described above as strengthening the 
SIP.'' See 73 FR 63408, at 63414. On this limited basis, we take final 
action today to approve the State's near-term defined measures from the 
2003 State Strategy as part of the California SIP.

III. EPA Action

    Under section 110(k)(3) of the CAA, and for the reasons discussed 
above and in the proposed rule, EPA is taking the following actions on 
the 2003 State Strategy, as submitted on January 9, 2004:
    (1) Approval of commitments by State agencies to develop and 
propose 16 near-term defined control measures (15 for ARB and 1 for 
BAR) to achieve specified emissions reductions in the South Coast as 
listed in table 1 of the proposed rule and the continuation of the 
existing pesticide strategy.
    Also under section 110(k)(3) of the CAA, and for the reasons 
discussed above and in the proposed rule, EPA is taking the following 
actions on the 2003 South Coast SIP, as submitted on January 9, 2004:
    (1) Approval of base year and projected baseline emission 
inventories under CAA sections 172(c)(3) and 182(a)(1);
    (2) Approval of the District's commitment to adopt and implement 
near-term control measures as shown in table 2 of the proposed rule 
(except FSS-05), the District's commitment to achieve emissions 
reduction through a schedule of adoption and implementation as shown in 
table 3 of the proposed rule, and the District's contingency measure 
CTY-01 (``Accelerated Implementation of Control Measures''), as 
strengthening the SIP;
    (3) Disapproval of District control measure FSS-05 (``Mitigation 
Fee Program for Federal Sources'') that assigns control measure 
responsibility to the Federal Government;
    (4) Approval of District's ``black box'' VOC emission reduction 
commitment of 31 tpd;
    (5) Disapproval of the ``black box'' emission reduction commitment 
of 68 tpd of NOX and 18 tpd of VOC assigned to the Federal 
Government;
    (6) Disapproval of the attainment demonstration because control 
measures upon which the demonstration relies have been withdrawn;
    (7) Disapproval of the ROP demonstrations because the calculations 
do not properly account for the emissions reductions from the pre-1990 
Federal Motor Vehicle Control Program (FMVCP) and certain federal 
gasoline volatility requirements;
    (8) Approval of the demonstration that no TCM offsets are required 
under CAA section 182(d)(1)(A) based on baseline motor vehicle 
emissions projections as supplemented by the District;
    (9) Approval of the revised nitrogen dioxide maintenance 
demonstration based on the downward trend in baseline NOX 
emissions;
    (10) Disapproval of the 1-hour ozone (VOC and NOX) motor 
vehicle emissions budgets in the wake of proposed disapprovals of the 
ROP and attainment demonstrations; and
    (11) Approval of the nitrogen dioxide motor vehicle emissions 
budget of 686 tpd (year 2003), winter planning inventory.
    No sanctions clocks or FIP requirement are triggered by our 
disapprovals because the approved SIP already contains the plan 
elements that we are disapproving. A disapproval of the revisions to 
the already-approved elements does not alter the fact that the SIP 
already meets these statutory requirements.

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 approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions

[[Page 10182]]

of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule 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 May 11, 2009. 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: January 15, 2009.
Wayne Nastri,
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 (c)(339) 
introductory text and by adding paragraph (c)(339)(ii) to read as 
follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (339) New and amended plans were submitted on January 9, 2004, by 
the Governor's designee.
* * * * *
    (ii) Additional material.
    (A) The following portions of the Final 2003 State and Federal 
Strategy (2003 State Strategy) for the California State Implementation 
Plan, adopted by the California Air Resources Board (ARB) on October 
23, 2003:
    (1) State agency commitments with respect to the following near-
term defined measures for the South Coast Air Basin: LT/MED-DUTY-1 [Air 
Resources Board (ARB)], LT/MED-DUTY-2 (Bureau of Automotive Repair), 
ON-RD HVY-DUTY-1 (ARB), ON-RD HVY-DUTY-3 (ARB), OFF-RD CI-1 (ARB), OFF-
RD LSI-1 (ARB), OFF-RD LSI-2 (ARB), SMALL OFF-RD-1 (ARB), SMALL OFF-RD-
2 (ARB), MARINE-1 (ARB), MARINE-2 (ARB), FUEL-2 (ARB), CONS-1 (ARB), 
CONS-2 (ARB), FVR-1 (ARB), FVR-2 (ARB), and PEST-1 (Department of 
Pesticide Regulation) in Resolution 03-22 Attachments A-2, A-3, A-4 and 
A-6 Table I-7 and in 2003 State Strategy Section I Appendix I-1 and 
Sections II and III.
    (B) The following portions of the South Coast 2003 Air Quality 
Management Plan (AQMP), adopted by the South Coast Air Quality 
Management District (SCAQMD) on August 1, 2003 and adopted by the 
California Air Resources Board on October 23, 2003:
    (1) Base year and future year baseline planning inventories (summer 
and winter) in AQMP Chapter III and Appendix III; SCAQMD commitment to 
adopt and implement control measures CTS-07, CTS-10, FUG-05, MSC-01, 
MSC-03, PRC-07, WST-01, WST-02, FSS-04, FLX-01, CMB-10, MSC-05, MSC-07, 
MSC-08, FSS-06, and FSS-07 in AQMP Chapter 4, Table 4-1, as qualified 
and explained in AQMP, Chapter 4, pages 4-59 through 4-61 and in 
Appendix IV-A Section 1, and SCAQMD commitments to achieve near-term 
and long-term emissions reductions through rule adoption and 
implementation in AQMP Chapter 4, Tables 4-8A and 4-8B; contingency 
measure CTY-01 in AQMP Chapter 9, Table 2 and in Appendix IV-A Section 
2 (excluding FSS-05); nitrogen dioxide maintenance demonstration in 
AQMP Chapter 6 page 6-11; and motor vehicle emissions budget for 
nitrogen dioxide in year 2003 of 686 tons per day (winter planning 
inventory) in AQMP Chapter 6 Table 6-7.
    (2) Letter from Elaine Chang, Deputy Executive Officer, South Coast 
Air Quality Management District, dated September 10, 2008, containing 
supplemental material related to on-road motor vehicles emissions.
* * * * *
 [FR Doc. E9-4593 Filed 3-9-09; 8:45 am]

BILLING CODE 6560-50-P
