
[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12652-12672]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4674]



[[Page 12651]]

Vol. 77

Thursday,

No. 41

March 1, 2012

Part II





Environmental Protection Agency





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40 CFR Part 52





Approval of Air Quality Implementation Plans; California; San Joaquin 
Valley; Attainment Plan for 1997 8-Hour Ozone Standards; Final Rule

  Federal Register / Vol. 77 , No. 41 / Thursday, March 1, 2012 / Rules 
and Regulations  

[[Page 12652]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0589; FRL-9624-5]


Approval of Air Quality Implementation Plans; California; San 
Joaquin Valley; Attainment Plan for 1997 8-Hour Ozone Standards

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

ACTION: Final rule.

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SUMMARY: EPA is approving state implementation plan (SIP) revisions 
submitted by California to provide for attainment of the 1997 8-hour 
ozone national ambient air quality standards in the San Joaquin Valley 
(SJV). These SIP revisions are the 2007 Ozone Plan (revised 2008 and 
2011) and SJV-related portions of the 2007 State Strategy (revised 2009 
and 2011). EPA is approving the base year emissions inventory, 
reasonably available control measures demonstration, provisions for 
transportation control strategies and measures, provisions for advanced 
technology/clean fuels for boilers, reasonable further progress (RFP) 
and attainment demonstrations, transportation conformity motor vehicle 
emissions budgets for all RFP milestone years and the attainment year, 
contingency measures for failure to make RFP or attain, and Clean Air 
Act section 182(e)(5) new technologies provisions and associated 
commitment to adopt contingency measures. EPA is also approving 
commitments to measures and reductions by the SJV Air Pollution Control 
District and the California Air Resources Board.

DATES: The rule is effective April 30, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0589 for 
this action. The index to the docket is available electronically at 
www.regulations.gov and in hard copy at EPA Region 9, 75 Hawthorne 
Street, San Francisco, California. While all documents in the docket 
are listed in the index, some may be publicly available only at the 
hard copy location (e.g., copyrighted material) and some may not be 
publicly available at either location (e.g., CBI). To inspect the hard 
copy materials, please schedule an appointment during normal business 
hours with the contact listed in the FOR FURTHER INFORMATION CONTACT 
section below.
    Copies of the SIP materials are also available for inspection at 
the following locations:
     California Air Resources Board, 1001 I Street, Sacramento, 
California 95812.
     San Joaquin Valley Air Pollution Control District, 1990 E. 
Gettysburg, Fresno, California 93726.
    The SIP materials are also electronically available at: http://www.valleyair.org/Air_Quality_Plans/Ozone_Plans.htm and 
www.arb.ca.gov/planning/sip/sip.htm.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Air Planning Office 
(AIR-2), U.S. Environmental Protection Agency, Region 9, (415) 972-
3957, wicher.frances@epa.gov.

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

Table of Contents

I. Summary of EPA's Proposed and Final Actions on the 2007 State 
Implementation Plan for Attainment of the 1997 8-Hour Ozone 
Standards in the San Joaquin Valley
II. Response to Public Comments Received on the Proposal
III. Approval Status of the Control Strategy Measures and Final 
Actions on the Attainment Demonstration and Enforceable Commitments
IV. Approval of the Motor Vehicle Emissions Budgets for 
Transportation Conformity
V. Final Actions
VI. Statutory and Executive Order Reviews

I. Summary of EPA's Proposed and Final Actions on the 2007 State 
Implementation Plan for Attainment of the 1997 8-Hour Ozone Standards 
in the San Joaquin Valley

    On September 16, 2011, EPA proposed to approve California's state 
implementation plan (SIP) for attaining the 1997 8-hour ozone national 
ambient air quality standards (NAAQS) in the San Joaquin Valley (SJV). 
See 76 FR 57846. California developed this SIP to provide for 
expeditious attainment of the 1997 8-hour ozone standards in the SJV 
and to meet other applicable ozone planning requirements in Clean Air 
Act (CAA) sections 172(c) and 182 and EPA's 8-hour ozone implementation 
rule.\1\
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    \1\ See 40 CFR part 51, subpart X and 69 FR 23951 (April 30, 
2004) and 70 FR 71612 (November 29, 2005).
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    California has made five SIP submittals to address the CAA's 
planning requirements for attaining the 1997 8-hour ozone standard in 
the San Joaquin Valley. We refer to these submittals collectively as 
the ``[SJV] 2007 8-hour Ozone SIP.'' The two principal ones are the San 
Joaquin Valley Unified Air Pollution Control District's (SJVUAPCD) 2007 
Ozone Plan (also Plan) and the California Air Resources Board's (CARB) 
State Strategy for California's 2007 State Implementation Plan (2007 
State Strategy).\2\
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    \2\ These five SIP submittals are:
    1. SJVUAPCD, 2007 Ozone Plan, adopted on April 30, 2007 by the 
SJVUAPCD and on June 14, 2007 by CARB, submitted on November 16, 
2007.
    2. CARB, Proposed State Strategy for California's 2007 State 
Implementation Plan, amended and adopted on September 27, 2007 by 
CARB, submitted on November 16, 2007.
    3. CARB, Status Report on the State Strategy for California's 
2007 State Implementation Plan (SIP) and Proposed Revisions to the 
SIP Reflecting Implementation of the 2007 State Strategy (pages 11-
27 only), adopted on April 24, 2009, submitted on August 12, 2009. 
(``2009 State Strategy Status Report'')
    4. SJVUAPCD, Amendments to the 2007 Ozone Plan (amending the 
rulemaking schedule for Measure S-GOV-5 Organic Waste Operations) 
adopted on December 18, 2008 by the SJVUAPCD, submitted on April 24, 
2009.
    5. CARB, 8-Hour Ozone State Implementation Plan Revisions and 
Technical Revisions to the PM2.5 State Implementation 
Plan Transportation Conformity Budgets for the South Coast and San 
Joaquin Valley Air Basins,'' adopted on July 21, 2011, submitted 
July 29, 2011. ``2011 Ozone SIP Revisions.''
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    Together, the 2007 Ozone Plan and the 2007 State Strategy present a 
comprehensive and innovative strategy for attaining the 1997 8-hour 
ozone standards in the SJV.
    In our September 2011 notice, EPA proposed to approve as meeting 
the applicable requirements of the CAA the SJV 2007 8-hour Ozone SIP's 
base year emissions inventory, reasonably available control measures 
demonstration, provisions for transportation control strategies and 
measures, provisions for advanced technology/clean fuels for boilers, 
reasonable further progress (RFP) and attainment demonstrations, 
transportation conformity motor vehicle emissions budgets (MVEB) for 
all RFP milestone years and the attainment year, contingency measures 
for failure to make RFP or attain, and CAA section 182(e)(5) provisions 
for new technologies and the associated commitment to adopt contingency 
measures.\3\ EPA also proposed to approve commitments to measures and 
reductions by the District and CARB.\4\ 76 FR 57846, 57867.
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    \3\ See letter, James Goldstene, Executive Officer, CARB, to 
Jared Blumenfeld, Regional Administrator, EPA Region 9, dated 
November 18, 2011.
    \4\ We also proposed in the alternative to disapprove the SIP 
with respect to certain provisions in CAA section 182(d)(1)(A) for 
transportation control strategies and measures sufficient to offset 
any growth in emissions from growth in vehicle miles traveled or the 
number of vehicle trips. In Association of Irritated Residents v. 
EPA, 632 F.3d 584 (9th Cir. 2011) (AIR), the U.S. Court of Appeals 
for the Ninth Circuit held that, with respect to the first element, 
section 182(d)(1)(A) of the CAA requires States to adopt 
transportation control measures and strategies whenever vehicle 
emissions are projected to be higher than they would have been had 
vehicle miles traveled not increased, even when aggregate vehicle 
emissions are actually decreasing. EPA has filed a petition for 
rehearing on this issue. Docket Nos. 09-71383 and 09-71404 
(consolidated), Docket Entry 41-1, Petition for Panel Rehearing.
    At the time of our September proposal, the Ninth Circuit had not 
yet issued its mandate in the AIR case, and EPA had not adopted the 
court's interpretation for the reasons set forth in the Agency's 
petition for rehearing, pending a final decision by the court. We 
stated in our proposed rule that if the court denied the Agency's 
petition for rehearing and issued its mandate before EPA issued a 
final rule on the SJV 2007 8-hour Ozone SIP, then we anticipated 
that we would not be able to finalize approval of the SJV 2007 8-
hour Ozone SIP with respect to the first element (i.e., offsetting 
emissions growth) of section 182(d)(1)(A). See 76 FR 57846, 57863. 
Therefore, we proposed in the alternative to disapprove the SJV 2007 
8-hour Ozone SIP with respect to the first element of section 
182(d)(1)(A) based on the plan's failure to include sufficient 
transportation control strategies and TCM to offset the emissions 
from growth in VMT. Id. The court has still not issued its mandate; 
therefore, we are approving the SJV 2007 8-hour Ozone SIP as meeting 
the requirements of CAA section 182(d)(1)(A).

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[[Page 12653]]

    A more detailed discussion of each of California's SIP submittals 
for the SJV area, the CAA and EPA requirements applicable to them, and 
our evaluation and proposed actions can be found in our September 2011 
proposed rule (76 FR 57846) and the technical support document (TSD) 
for this final action.\5\
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    \5\ ``Technical Support Document and Response to Comments Final 
Rule on the San Joaquin Valley 2007 8-hour State Implementation 
Plan,'' Air Division, U.S. EPA Region 9, September 30, 2011. The TSD 
can be found in the docket for this rulemaking.
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    EPA is today approving all elements of the SJV 2007 8-hour Ozone 
SIP based on our conclusion that they comply with applicable CAA 
requirements and provide for expeditious attainment of the 1997 8-hour 
ozone standards in the San Joaquin Valley.

II. Response to Public Comments Received on the Proposals

    EPA provided the public an opportunity to comment on its proposed 
approval of the SJV 2007 8-hour ozone SIP for 30 days following the 
proposed rule's September 16, 2011 publication in the Federal Register. 
We received two comment letters on the proposed rule. The first letter 
came from CARB who requested that we limit the approval of the SIP's 
MVEB until such time as the State submits and EPA finds adequate new 
budgets. We address CARB's request in Section IV below. The second 
letter was submitted jointly by the Center on Race, Poverty and the 
Environment; Earthjustice; and the Natural Resources Defense Council on 
behalf of themselves, the Association of Irritated Residents (AIR) and 
other San Joaquin Valley-based environmental and community 
organizations (collectively ``AIR''). See letter Brent Newell, General 
Counsel, Center on Race, Poverty & the Environment, October 17, 2011. 
We respond to AIR's main comments below. The entire Response to 
Comments document received can be found section III of the TSD. A copy 
of the comment letters can be found in the docket for this rule.

A. Enforceable Commitments

    Comment: AIR characterizes CARB's and the District's commitments to 
achieve aggregate emissions reductions in specific years as ``global 
commitments'' and argues that they could be interpreted as ``goals'' 
unenforceable by citizens under Ninth Circuit precedent rather than 
enforceable ``strategies'' to achieve those goals, citing Bayview 
Hunters Point Community Advocates v. Metropolitan Transp. Comm'n, 366 
F.3d 692, 701 (9th Cir. 2004) and El Comite Para El Bienstar de 
Earlimart v. Warmerdam, 539 F.3d 1062, 1067 (9th Cir. 2008).
    AIR argues that the plans' global commitments are not enforceable 
for two reasons. First, AIR claims that enforcement is not practical 
because it is not possible for citizens or EPA to determine whether the 
CARB and the District have met the global commitments. AIR argues 
further that because no measures are submitted to EPA for inclusion 
into the SIP citizens have no idea which measures CARB has used to 
satisfy the total tonnage commitments. AIR also argues that there are 
no provisions for CARB and the District to report to EPA and the public 
what actions they have taken to comply with the tonnage commitments and 
thus EPA and citizens are left to determine, based on information 
exclusively held and maintained by CARB and the District, whether the 
commitments have in fact been met.
    Second, AIR claims that because ``enforcing the global commitment 
ultimately turns on how the ARB and the District calculate emissions 
reductions achieved through the measures,'' CARB's and the District's 
emissions reduction commitments are not enforceable unless the 
methodology for calculating the reductions is also enforceable. 
Otherwise, AIR argues, the manner in which CARB and the District 
determine compliance with the tonnage target is left to their 
discretion, and citizens and EPA would be placed in the situation held 
by the plaintiffs in Warmerdam. In conclusion, AIR asserts that the CAA 
``does not condone a discretionary commitment and EPA should not 
approve the ARB's latest attempt to achieve a reduction target based on 
discretionary actions.''
    Response: Under CAA section 110(a)(2)(A), SIPs must include 
enforceable emissions limitations and other control measures, means or 
techniques as necessary to meet the requirements of the Act, as well as 
timetables for compliance. Similarly, section 172(c)(6) provides that 
nonattainment area SIPs must include enforceable emission limitations 
and such other control measures, means or techniques ``as may be 
necessary or appropriate to provide for attainment'' of the NAAQS by 
the applicable attainment date.
    Control measures, including commitments in SIPs, are enforced 
directly by EPA under CAA section 113 and also through CAA section 
304(a) which provides for citizen suits to be brought against any 
person who is alleged ``to be in violation of * * * an emission 
standard or limitation * * *.'' ``Emission standard or limitation'' is 
defined in subsection (f) of section 304. As observed in Conservation 
Law Foundation, Inc. v. James Busey et al., 79 F.3d 1250, 1258 (1st 
Cir. 1996):

    Courts interpreting citizen suit jurisdiction have largely 
focused on whether the particular standard or requirement plaintiffs 
sought to enforce was sufficiently specific. Thus, interpreting 
citizen suit jurisdiction is limited to claims ``for violations of 
specific provisions of the act or specific provisions of an 
applicable implementation plan,'' the Second Circuit held that suits 
can be brought to enforce specific measures, strategies, or 
commitments designed to ensure compliance with the NAAQS, but not to 
enforce the NAAQS directly. See, e.g., Wilder, 854 F.2d at 613-14. 
Courts have repeatedly applied this test as the linchpin of citizen 
suit jurisdiction. See, e.g., Coalition Against Columbus Ctr. v. 
City of New York, 967 F.2d 764, 769-71 (2d Cir. 1992); Cate v. 
Transcontinental Gas Pipe Line Corp., 904 F. Supp. 526, 530-32 (W.D. 
Va. 1995); Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 
1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).

    Thus courts have found that the citizen suit provision cannot be 
used to enforce the aspirational goal of attaining the NAAQS, but can 
be used to enforce specific strategies to achieve that goal, including 
enforceable commitments to develop future emissions controls.
    We describe CARB's and the District's commitments in the 2007 State 
Strategy (revised in 2009 and 2011) and the 2007 Ozone Plan in detail 
in our proposed rule. See 76 FR 57846, 57851-57856 and 57857-57860. The 
2007 State Strategy includes commitments to propose defined new 
measures and an enforceable commitment for emissions reductions 
sufficient, in combination

[[Page 12654]]

with existing measures, the District's commitments, and the new 
technology provisions to attain the 1997 8-hour ozone NAAQS in the SJV 
by June 15, 2024. See CARB Resolution 07-28, Attachment B at pp. 3 and 
6 and 2009 State Strategy Status Report, p. 21. For the SJV, CARB's 
emissions reductions commitments as submitted in 2007 and 2009 are to 
specific reductions of NOX and VOC in 2014, 2017, 2020, and 
2023 as well as additional reductions from CAA section 182(e)(5) 
measures in 2023. These commitments are shown in Table 8 of the 
proposed rule (76 FR 57846, 57854) and Table D-6 of the TSD.
    SJVUAPCD's commitments as submitted in 2007 are also to specific 
reductions of NOX and VOC in 2008, 2011, 2012, 2014, 2017, 
2020 and 2023 and are shown Table 6-1 of the 2007 Ozone Plan (as 
revised in 2008). These commitments are also shown (for all years 
except for 2008) on Table 3 of the proposed rule (76 FR 57846, 578524) 
and Table D-2 of the TSD. The language used in the Board's resolution 
adopting the 2007 8-hour Ozone Plan at page 5 to describe its 
commitment is mandatory and unequivocal in nature:

    10. The District Governing Board commits to adopt and implement 
the rules and measures in the 2007 Ozone Plan by the dates specified 
in Chapter 6 to achieve the emissions reductions shown in Chapter 6, 
and to submit these rules and measures to the ARB within one month 
of adoption for transmittal to EPA as a revision to the State 
Implementation Plan. If the total emissions reductions from the 
adopted rules are less than those committed to in the Plan, the 
District Governing Board commits to adopt, submit, and implement 
substitute rules and measures that will achieve equivalent 
reductions in emissions of ozone precursors in the same adoption and 
implementation timeframes or in the timeframes needed to meet CAA 
milestones.

SJVUAPCD Board Resolution No. 07-04-11a, p. 6. (Emphasis added).
    Thus, CARB's and the District's commitments here are to adopt and 
implement measures that will achieve specific amounts of NOX 
and VOC emissions reductions by specific years. These are not mere 
aspirational goals to ultimately achieve the standards. Rather, the 
State and District have committed to adopt enforceable measures that 
will achieve these specific amounts of emissions reductions by 
specified milestone years and ultimately by the attainment year (2023). 
See 70 FR 71612, 71633 (November 29, 2005) and 40 CFR 51.910(a)(1) and 
51.908(d) (requiring implementation of all control measures needed for 
expeditious attainment no later than the beginning of the year prior to 
the attainment date). All of these control measures are subject to 
State and local rulemaking procedures and public participation 
requirements, through which EPA and the public may track the State/
District's progress in achieving the requisite emissions reductions. 
EPA and citizens may enforce these commitments under CAA sections 113 
and 304(a), respectively, should the State/District fail to adopt 
measures that achieve the requisite amounts of emissions reductions by 
each specified year. We conclude that these enforceable commitments to 
adopt and implement additional control measures to achieve aggregate 
emissions reductions on a fixed schedule are appropriate means, 
techniques, or schedules for compliance under sections 110(a)(2)(A) and 
172(c)(6) of the Act.
    AIR cites Bayview as support for their contention that the SIP's 
commitments are unenforceable aspirational goals. Bayview does not, 
however, provide any such support. That case involved a provision of 
the 1982 Bay Area 1-hour ozone SIP, known as TCM 2, which states in 
pertinent part:

    Support post-1983 improvements identified in transit operator's 
5-year plans, after consultation with the operators adopt ridership 
increase target for 1983-1987.
    EMISSION REDUCTION ESTIMATES: These emission reduction estimates 
are predicated on a 15% ridership increase. The actual target would 
be determined after consultation with the transit operators. 
Following a table listing these estimates, TCM 2 provided that 
``[r]idership increases would come from productivity improvements * 
* *.''

    Ultimately, the 15 percent ridership estimate was adopted by the 
Metropolitan Transportation Commission (MTC), the implementing agency, 
as the actual target. Plaintiffs subsequently attempted to enforce the 
15 percent ridership increase. The court found that the 15 percent 
ridership increase was an unenforceable estimate or goal. In reaching 
that conclusion, the court considered multiple factors, including the 
plain language of TCM 2 (e.g., ``[a]greeing to establish a ridership 
`target' is simply not the same as promising to attain that target,'' 
Bayview at 698); the logic of TCM 2, i.e., the drafters of TCM 2 were 
careful not to characterize any given increase as an obligation because 
the TCM was contingent on a number of factors beyond MTC's control, id. 
at 699; and the fact that TCM 2 was an extension of TCM 1 that had as 
an enforceable strategy the improvement of transit services, 
specifically through productivity improvements in transit operators' 
five-year plans, id. at 701. As a result of all of these factors, the 
Ninth Circuit found that TCM 2 clearly designated the productivity 
improvements as the only enforceable strategy. Id. at 703.
    The commitments in the 2007 State Strategy (revised in 2009 and 
2011) and 2007 Ozone Plan are in stark contrast to the ridership target 
that was deemed unenforceable in Bayview. The language in CARB's and 
the District's commitments, as stated multiple times in multiple 
documents, is specific; the intent of the commitments is clear; and the 
strategy of adopting measures to achieve the required reductions is 
completely within CARB's and the District's control. Furthermore, as 
stated previously, CARB and the District identify specific emissions 
reductions that they will achieve, how they could be achieved and the 
time by which these reductions will be achieved. See 76 FR 57846, 57854 
(Table 8) (listing CARB's commitments) 57852 (Table 3) (listing the 
District's commitments).
    CARB's and the District's commitments here are analogous to the 
terms of the contingency measures for the transportation sector in the 
1982 Bay Area 1-hour ozone SIP in Citizens for a Better Environment v. 
Deukmejian, 731 F.Supp. 1448 (N.D. Cal. 1990) (known as CBE I.) The 
provision states: ``If a determination is made that RFP is not being 
met for the transportation sector, MTC will adopt additional TCMs 
within 6 months of the determination. These TCMs will be designed to 
bring the region back within the RFP line.'' The court found that 
``[o]n its face, this language is both specific and mandatory.'' Id. at 
1458. In CBE I, CARB and MTC argued that TCM 2 could not constitute an 
enforceable strategy because the provision fails to specify exactly 
what TCMs must be adopted. The court rejected this argument, finding 
that ``[w]e discern no principled basis, consistent with the Clean Air 
Act, for disregarding this unequivocal commitment simply because the 
particulars of the contingency measures are not provided. Thus we hold 
that the basic commitment to adopt and implement additional measures, 
should the identified conditions occur, constitutes a specific 
strategy, fully enforceable in a citizen's action, although the exact 
contours of those measures are not spelled out.'' Id. at 1457. In 
concluding that the transportation and stationary source contingency 
provisions were enforceable, the court stated: ``Thus, while this Court 
is not empowered to enforce the Plan's overall objectives [footnote 
omitted; attainment of the NAAQS]--or NAAQS--directly, it can

[[Page 12655]]

and indeed, must, enforce specific strategies committed to in the 
Plan.'' Id. at 1454; see also Citizens for a Better Environment v. 
Metropolitan Tranp. Comm'n, 746 F. Supp. 976, 980 (N.D.Cal. 1990) 
[known as CBE II] (rejecting defendants' argument that RFP and the 
NAAQS are coincident and stating that the court's enforcement of the 
contingency plan, an express strategy for attaining NAAQS, is distinct 
from simply ordering that NAAQS be achieved).
    As in the CBE cases, CARB and the District commit to propose or 
adopt measures, which are not specifically identified, to achieve a 
specific tonnage of emissions reductions by specific years. Thus, the 
commitment to a specific tonnage reduction is comparable to a 
commitment to achieve RFP. Similarly, a commitment to achieve a 
specific amount of emissions reductions through adoption and 
implementation of unidentified measures is comparable to the 
commitments to adopt unspecified TCMs and stationary source measures. 
The key is that the commitment must be clear in terms of what is 
required, e.g., a specified amount of emissions reductions or the 
achievement of a specified amount of progress (i.e., RFP). CARB's and 
the District's commitments are thus a specific enforceable strategy 
rather than an unenforceable aspirational goal.
    AIR's reliance on El Comite (also referred to as Warmerdam) to 
argue that CARB's commitments are not enforceable is also misplaced. In 
El Comite, the plaintiffs in the district court attempted to enforce a 
provision of the 1994 California 1-hour ozone SIP known as the 
Pesticide Element. The Pesticide Element relied on an inventory of 
pesticide VOC emissions to provide the basis to determine whether 
additional regulatory measures would be needed to meet the SIP's 
pesticides emissions target. To this end, the Pesticide Element 
provided that ``ARB will develop a baseline inventory of estimated 1990 
pesticidal VOC emissions based on 1991 pesticide use data * * *.'' El 
Comite Para El Bienestar de Earlimart v. Helliker, 416 F. Supp. 2d 912, 
925 (E.D. Cal. 2006). CARB subsequently employed a different 
methodology that it deemed more accurate to calculate the baseline 
inventory. The plaintiffs sought to enforce the commitment to use the 
original methodology, claiming that the calculation of the baseline 
inventory constitutes an ``emission standard or limitation.'' The 
district court disagreed:

    By its own terms, the baseline identifies emission sources and 
then quantifies the amount of emissions attributed to those sources. 
As defendants argue, once the sources of air pollution are 
identified, control strategies can then be formulated to control 
emissions entering the air from those sources. From all the above, I 
must conclude that the baseline is not an emission ``standard'' or 
``limitation'' within the meaning of 42 U.S.C. 7604(f)(1)-(4).

Id. at 928. In its opinion, the court distinguished Bayview and CBE I, 
pointing out that in those cases ``the measures at issue were designed 
to reduce emissions.'' Id.
    On appeal, the plaintiffs shifted their argument to claim that the 
baseline inventory and the calculation methodology were necessary 
elements of the overall enforceable commitment to reduce emissions in 
nonattainment areas. The Ninth Circuit agreed with the district court's 
conclusion that the baseline inventory was not an emission standard or 
limitation and rejected plaintiffs' arguments attempting ``to transform 
the baseline inventory into an enforceable emission standard or 
limitation by bootstrapping it to the commitment to decide to adopt 
regulations, if necessary.'' Id. at 1073.
    While AIR cites the Ninth Circuit's El Comite opinion, its utility 
in analyzing the CARB and District commitments here is limited to that 
court's agreement with the district court's conclusion that neither the 
baseline nor the methodology qualifies as an independently enforceable 
aspect of the SIP. Rather, it is the district court's opinion, in 
distinguishing the commitments in CBE and Bayview, that provides 
insight into the situation at issue in our action. As the court 
recognized, a baseline inventory or the methodology used to calculate 
it, is not a measure to reduce emissions. It instead ``identifies 
emission sources and then quantifies the amount of emissions attributed 
to those sources.'' In contrast, as stated previously, in the 2007 
State Strategy (revised 2009 and 2011) and SJV 2007 Ozone Plan, CARB 
and the District commits to adopt and implement measures sufficient to 
achieve specified amounts of emissions reductions by specified dates. 
As described above, a number of courts have found commitments 
substantially similar to CARB's here to be enforceable under CAA 
section 304(a).

B. Baseline Measures, Baseline Inventories, and Attainment 
Demonstration

    Comment: AIR asserts that EPA's approval of the inventory in the 
Plan would violate CAA sections 172(c)(3) and 182(a)(1) because the 
baseline inventory includes emissions reduction credit for both 
``waiver measures'' and ``non-waiver measures'' adopted before 2007 
(together referred to as ``baseline measures'') that have not been 
approved into the SIP. AIR argues that EPA has not evaluated each of 
these baseline measures to determine if they are creditable or 
quantified the emissions reductions attributed to each of these 
measures. Additionally, AIR asserts that EPA should disapprove the 
attainment demonstration because EPA has approved neither mobile source 
baseline measures nor pesticide measures as part of the SIP. AIR 
asserts that ``[t]he total tonnage attributed to these unsubmitted and 
non-SIP approved measures in the attainment demonstration is not clear, 
because EPA does not differentiate between reductions from SIP-approved 
measures, waiver measures, and those that have not received EPA 
approval.'' Thus, AIR argues, ``a significant amount of emission 
reductions claimed in the attainment demonstration are not SIP 
creditable, a finding that EPA must make before approving the 
attainment demonstration.'' AIR references CAA sections 110(a)(2)(A) 
and 172(c)(6) in support of these assertions and argues that ``EPA has 
failed to find that the reductions from the unsubmitted rules have 
occurred, are enforceable, or are otherwise consistent with the Act, 
EPA's implementing regulations, and the General Preamble.''
    Response: We disagree with these assertions. We explained in our 
Proposal TSD (section II.A.3.) our reasons for concluding both that the 
2002 base year inventory in the SIP is comprehensive, accurate, and 
current as required by CAA section 182(a)(1) and that the projected 
baseline inventories provide adequate bases and support for the RFP and 
attainment demonstrations in the SJV 2007 8-hour Ozone SIP.\6\
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    \6\ For ozone nonattainment areas, a State that satisfies the 
specific inventory requirements of CAA section 182(a)(1) also 
satisfies the general inventory requirements of CAA section 
172(c)(3). See General Preamble at 13503 (April 16, 1992).
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    Specifically, with respect to mobile source emissions, we believe 
that credit for emissions reductions from implementation of California 
mobile source rules that are subject to CAA section 209 waivers 
(``waiver measures'') is appropriate in the attainment and RFP 
demonstrations and for other SIP purposes notwithstanding the fact that 
such rules are not approved as part of the California SIP. In the 
Proposal TSD, we explained why we believe such credit is appropriate. 
See Proposal TSD at section II.D.3.a.i. Historically, EPA has granted 
credit for

[[Page 12656]]

the waiver measures because of special Congressional recognition, in 
establishing the waiver process in the first place, of the pioneering 
California motor vehicle control program and because amendments to the 
CAA (in 1977) expanded the flexibility granted to California in order 
``to afford California the broadest possible discretion in selecting 
the best means to protect the health of its citizens and the public 
welfare'' (H.R. Rep. No. 294, 95th Congr., 1st Sess. 301-2 (1977)). In 
allowing California to take credit for the waiver measures 
notwithstanding the fact that the underlying rules are not part of the 
California SIP, EPA treated the waiver measures similarly to the 
Federal motor vehicle control requirements, which EPA has always 
allowed States to credit in their SIPs without submitting the program 
as a SIP revision.
    EPA's historical practice has been to give SIP credit for motor-
vehicle-related waiver measures in attainment and RFP demonstrations 
and for other SIP purposes by allowing California to include motor 
vehicle emissions estimates made by using California's EMFAC (and its 
predecessors) motor vehicle emissions factor model in SIP inventories. 
EPA verifies the emissions reductions from motor-vehicle-related waiver 
measures through review and approval of EMFAC, which is updated from 
time to time by California to reflect updated methods and data, as well 
as newly-established emissions standards. (Emissions reductions from 
EPA's motor vehicle standards are reflected in an analogous model known 
as MOVES.\7\) The SJV 2007 8-hour Ozone SIP was developed using a 
version of the EMFAC model referred to as EMFAC2007, which EPA has 
approved for use in SIP development in California. See 73 FR 3464 
(January 18, 2008). Thus, the emissions reductions that are from the 
California on-road ``waiver measures'' and that are estimated through 
use of EMFAC are as verifiable as are the emissions reductions relied 
upon by states other than California in developing their SIPs based on 
estimates of motor vehicle emissions made through the use of the MOVES 
model. All other states use the MOVES model (and prior to release of 
MOVES, the MOBILE model) in their baseline inventories without 
submitting the federal motor vehicle regulations for incorporation into 
their SIPs.
---------------------------------------------------------------------------

    \7\ MOVES replaced the MOBILE model as EPA's on-road mobile 
source emission estimation model for use in SIPs and conformity in 
2010.
---------------------------------------------------------------------------

    Similarly, emissions reductions that are from California's waiver 
measures for non-road engines and vehicles (e.g., agricultural, 
construction, lawn and garden and off-road recreation equipment) are 
estimated through use of CARB's OFFROAD emissions factor model.\8\ 
(Emissions reductions from EPA's non-road engine and vehicle standards 
are reflected in an analogous model known as NONROAD). Since 1990, EPA 
has treated California non-road standards for which EPA has issued 
waivers in the same manner as California motor vehicle standards, i.e., 
allowing credit for standards subject to the waiver process without 
requiring submittal of the standards as part of the SIP. In so doing, 
EPA has treated the California non-road standards similarly to the 
Federal non-road standards, which are relied upon, but not included in, 
various SIPs. See generally TSD at section II.D.3.a.i.
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    \8\ Information about CARB's emissions inventories for on-road 
and non-road mobile sources, and the EMFAC and OFFROAD models used 
to project changes in future inventories, is available at http://www.arb.ca.gov/msei/msei.htm.
---------------------------------------------------------------------------

    CARB's EMFAC and OFFROAD models employ complex routines that 
predict vehicle fleet turnover by vehicle model years and include 
control algorithms that account for all adopted regulatory actions 
which, when combined with the fleet turnover algorithms, provide future 
baseline projections. See 2007 State Strategy, Appendix F at 7-8. For 
stationary sources, the California Emission Forecasting System (CEFS) 
projects future emissions from stationary and area sources (in addition 
to aircraft and ships) using a forecasting algorithm that applies 
growth factors and control profiles to the base year inventory.\9\ See 
id. at 7. The CEFS model integrates the projected inventories for both 
stationary and mobile sources into a single database to provide a 
comprehensive statewide forecast inventory, from which nonattainment 
area inventories are extracted for use in establishing future baseline 
planning inventories. See id. In 2011, CARB updated the baseline 
emissions projections for several source categories to account for, 
among other things, more recent economic forecasts and improved 
methodologies for estimating emissions from the heavy duty truck and 
construction source categories. See 2011 Ozone SIP Revisions, Appendix 
B. These methodologies for projecting future emissions based on growth 
factors and existing Federal, State, and local controls were consistent 
with EPA guidance on developing projected baseline inventories. See TSD 
at section II.A; see also ``Procedures for Preparing Emissions 
Projections,'' EPA Office of Air Quality Planning and Standards, EPA-
450/4-91-019, July 1991; ``Emission Projections,'' STAPPA/ALAPCO/EPA 
Emission Inventory Improvement Project, Volume X, December 1999 
(available at http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf).
---------------------------------------------------------------------------

    \9\ Information on base year emissions from stationary point 
sources is obtained primarily from the districts, while CARB and the 
districts share responsibility for developing and updating 
information on emissions from various area source categories. See 
2007 State Strategy, Appendix F at 21.
---------------------------------------------------------------------------

    In sum, the 2002 base year and future projected baseline 
inventories in the SJV 2007 8-hour Ozone SIP were prepared using a 
complex set of CARB methodologies to estimate and project emissions 
from stationary sources, in addition to the most recent emissions 
factors and models and updated activity levels for emissions associated 
with mobile sources, including: (1) The latest EPA-approved California 
motor vehicle emissions factor model (EMFAC2007) and the most recent 
motor vehicle activity data from each of the MPOs in the San Joaquin 
Valley; (2) improved methodologies for estimating emissions from 
specific source categories; and (3) CARB's non-road mobile source model 
(the OFFROAD model). See TSD, section II.A. (referencing, inter alia, 
2007 State Strategy at Appendix F) and 2011 Ozone SIP Revisions. EPA 
has approved numerous California SIPs that rely on base year and 
projected baseline inventories including emissions estimates derived 
from the EMFAC, OFFROAD, and CEFS models. See, e.g., 65 FR 6091 
(February 8, 2000) (proposed rule to approve 1-hour ozone plan for 
South Coast) and 65 FR 18903 (April 10, 2000) (final rule); 70 FR 43663 
(July 28, 2005) (proposed rule to approve PM-10 plan for South Coast 
and Coachella Valley) and 70 FR 69081 (November 14, 2005) (final rule); 
74 FR 66916 (December 17, 2009) (direct final rule to approve ozone 
plan for Monterey Bay); 76 FR 41338 (July 13, 2011) (proposed rule to 
approve in part and disapprove in part the PM2.5 plan for 
the San Joaquin Valley) and 76 FR 69896 (November 9, 2011) (final 
rule); and 76 FR 41562), (July 14, 2011) (proposed rule to approve in 
part and disapprove in part the PM2.5 plan for the South 
Coast Air Basin) and 76 FR 69928 (November 9, 2011) (final rule). The 
commenter has provided no information to support a claim that these 
methodologies for developing base year inventories and projecting 
future emissions in the SJV are inadequate to support the RFP and 
attainment

[[Page 12657]]

demonstrations in the SJV 2007 8-hour Ozone SIP.
    For all of these reasons and as discussed in our proposed rule (76 
FR 57846, 57850), we conclude that the 2002 base year inventory in the 
2007 8-hour Ozone SIP is a ``comprehensive, accurate, current inventory 
of actual emissions from all sources of the relevant pollutant or 
pollutants'' in the SJV area, consistent with the requirements for 
emissions inventories in CAA section 182(a)(1), 40 CFR 51.915, and 40 
CFR part 51, subpart A. In addition, we conclude that the projected 
future year baseline inventories were prepared consistent with EPA's 
guidance on development of emissions inventories and attainment 
demonstrations and, therefore, provide an adequate basis for the RFP 
and attainment demonstrations in the SIP under CAA sections 172(c)(2), 
182(a), and 182(c)(2). See TSD at section II.A.3.
    Finally, we disagree with AIR's assertion that EPA has not 
identified the total amount of emissions reductions attributed to 
baseline measures in the projected inventories. The total amounts of 
emissions reductions attributed to baseline measures in the 2007 8-hour 
Ozone SIP, as revised in 2011, are 54.2 tpd of VOC and 338.6 tpd of 
NOX. See 76 FR 57846, 57858, table 9 at line E; see also 
TSD, Table F-4 at line D.
    Comment: AIR asserts that EPA has not approved any CARB mobile 
source baseline measures as part of the SIP or reviewed those measures 
to consider whether they achieve the reductions claimed by CARB, and 
that EPA cannot approve the SJV 2007 8-hour Ozone SIP when such a 
``huge component of the control strategy'' has not been SIP-approved. 
AIR also asserts that CARB has not submitted copies of its mobile 
source baseline measures to EPA as part of this plan. AIR also asserts 
that waiver measures may not be used in attainment demonstrations 
because EPA makes no finding during the waiver process that the rules 
achieve the reductions claimed or that the measures are SIP creditable. 
AIR also notes that these issues are the subject of litigation in the 
9th Circuit U.S. Court of Appeals in Sierra Club v. EPA, Consolidated 
Case Nos. 10-71457 and 10-71458.
    Response: We continue to believe that credit for emissions 
reductions from implementation of California mobile source rules that 
are subject to CAA section 209 waivers (``waiver measures'') is 
appropriate notwithstanding the fact that such rules are not approved 
as part of the California SIP. In our September 16, 2011 proposed rule 
and the technical support document (TSD) for that proposal, we 
explained why we believe such credit is appropriate. See 76 FR 57872, 
at 57879-57880 and the Proposal TSD, pp. 86-90. Historically, EPA has 
granted credit for the waiver measures because of special Congressional 
recognition, in establishing the waiver process in the first place, of 
the pioneering California motor vehicle control program and because 
amendments to the CAA (in 1977) expanded the flexibility granted to 
California in order ``to afford California the broadest possible 
discretion in selecting the best means to protect the health of its 
citizens and the public welfare,'' (H.R. Rep. No. 294, 95th Congr., 1st 
Sess. 301-2 (1977)). In allowing California to take credit for the 
waiver measures notwithstanding the fact that the underlying rules are 
not part of the California SIP, EPA treated the waiver measures 
similarly to the Federal motor vehicle control requirements, which EPA 
has always allowed States to credit in their SIPs without submitting 
the program as a SIP revision. As we explained in the Proposal TSD (p. 
87), credit for Federal measures, including those that establish on-
road and nonroad standards, notwithstanding their absence in the SIP, 
is justified by reference to CAA section 110(a)(2)(A), which 
establishes the following content requirements for SIPs: ``* * * 
enforceable emission limitations and other control measures, means, or 
techniques (including economic incentives such as fees, marketable 
permits, and auctions of emissions rights), * * * as may be necessary 
or appropriate to meet the applicable requirements of this chapter.'' 
(emphasis added). Federal measures are permanent, independently 
enforceable (by EPA and citizens), and quantifiable without regard to 
whether they are approved into a SIP, and thus EPA has never found such 
measures to be ``necessary or appropriate'' for inclusion in SIPs to 
meet the applicable requirements of the Act. Section 209 of the CAA 
establishes a process under which EPA allows California's waiver 
measures to substitute for Federal measures, and like the Federal 
measures for which they substitute, EPA has historically found, and 
continues to find, based on considerations of permanence, 
enforceability, and quantifiability, that such measures are not 
``necessary or appropriate'' for California to include in its SIP to 
meet the applicable requirements of the Act.
    First, with respect to permanence, we note that, to maintain a 
waiver, CARB's on-road waiver measures can be relaxed only to a level 
of aggregate equivalence to the Federal Motor Vehicle Control Program 
(FMVCP). See section 209(b)(1). In this respect, the FMVCP acts as a 
partial backstop to California's on-road waiver measures (i.e., absent 
a waiver, the FMVCP would apply in California). Likewise, Federal 
nonroad vehicle and engine standards act as a partial backstop for 
corresponding California nonroad waiver measures. The constraints of 
the waiver process thus serve to limit the extent to which CARB can 
relax the waiver measures for which there are corresponding EPA 
standards, and thereby serve an anti-backsliding function similar in 
substance to those established for SIP revisions in CAA sections 110(l) 
and 193. Meanwhile, the growing convergence between California and EPA 
mobile source standards diminishes the difference in the emissions 
reductions reasonably attributed to the two programs and strengthens 
the role of the Federal program in serving as an effective backstop to 
the State program. In other words, with the harmonization of EPA mobile 
source standards with the corresponding State standards, the Federal 
program is becoming essentially a full backstop to most parts of the 
California program.
    Second, as to enforceability, we note that the waiver process 
itself bestows enforceability onto California to enforce the on-road or 
nonroad standards for which EPA has issued the waiver. CARB has as long 
a history of enforcement of vehicle/engine emissions standards as EPA, 
and CARB's enforcement program is equally as rigorous as the 
corresponding EPA program. The history and rigor of CARB's enforcement 
program lends assurance to California SIP revisions that rely on the 
emissions reductions from CARB's rules in the same manner as EPA's 
mobile source enforcement program lends assurance to other state's SIPs 
in their reliance on emissions reductions from the FMVCP. While it is 
true that citizens and EPA are not authorized to enforce California 
waiver measures under the Clean Air Act (i.e., because they are not in 
the SIP), citizens and EPA are authorized to enforce EPA standards in 
the event that vehicles operate in California without either California 
or EPA certification.
    As to quantifiability, EPA's historical practice has been to give 
SIP credit for motor-vehicle-related waiver measures by allowing 
California to include motor vehicle emissions estimates made by using 
California's EMFAC (and its predecessors) motor vehicle emissions 
factor model in SIP inventories. EPA verifies the emissions reductions 
from motor-vehicle-related waiver measures

[[Page 12658]]

through review and approval of EMFAC, which is updated from time to 
time by California to reflect updated methods and data, as well as 
newly-established emissions standards. (Emissions reductions from EPA's 
motor vehicle standards are reflected in an analogous model known as 
MOVES.) The EMFAC model is based on the motor vehicle emissions 
standards for which California has received waivers from EPA but 
accounts for vehicle deterioration and many other factors. The motor 
vehicle emissions estimates themselves combine EMFAC results with 
vehicle activity estimates, among other considerations. See the 1982 
Bay Area Air Quality Plan, and the related EPA rulemakings approving 
the plan (see 48 FR 5074 (February 3, 1983) for the proposed rule and 
48 FR 57130 (December 28, 1983) for the final rule) as an example of 
how the waiver measures have been treated historically by EPA in 
California SIP actions.\10\ The South Coast 8-hour ozone plan was 
developed using a version of the EMFAC model referred to as EMFAC2007, 
which EPA has approved for use in SIP development in California. See 73 
FR 3464 (January 18, 2008). Thus, the emissions reductions that are 
from the California on-road ``waiver measures'' and that are estimated 
through use of EMFAC are as verifiable as are the emissions reductions 
relied upon by states other than California in developing their SIPs 
based on estimates of motor vehicle emissions made through the use of 
the MOVES model.
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    \10\ EPA's historical practice in allowing California credit for 
waiver measures notwithstanding the absence of the underlying rules 
in the SIP is further documented by reference to EPA's review and 
approval of a May 1979 revision to the California SIP entitled, 
``Chapter 4, California Air Quality Control Strategies.'' In our 
proposed approval of the 1979 revision (44 FR 60758, October 22, 
1979), we describe the SIP revision as outlining California's 
overall control strategy, which the State had divided into vehicular 
sources and non-vehicular (stationary source) controls. As to the 
former, the SIP revision discusses vehicular control measures as 
including technical control measures and transportation control 
measures. The former refers to the types of measures we refer to 
herein as waiver measures, as well as fuel content limitations, and 
a vehicle inspection and maintenance program. The 1979 SIP revision 
included several appendices, including appendix 4-E, which refers to 
``ARB vehicle emission controls included in title 13, California 
Administrative Code, chapter 3 * * *,'' including the types of 
vehicle emission standards we refer to herein as waiver measures; 
however, California did not submit the related portions of the 
California Administrative Code (CAC) to EPA as part of the 1979 SIP 
revision submittal. With respect to the CAC, the 1979 SIP revision 
states: ``The following appendices are portions of the California 
Administrative Code. Persons interested in these appendices should 
refer directly to the code.'' Thus, the State was clearly signaling 
its intention to rely on the California motor vehicle control 
program but not to submit the underlying rules to EPA as part of the 
SIP. In 1980, we finalized our approval as proposed. See 45 FR 63843 
(September 28, 1980).
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    Moreover, EPA's waiver review and approval process is analogous to 
the SIP approval process. First, CARB adopts its emissions standards 
following notice and comment procedures at the state level, and then 
submits the rules to EPA as part of its waiver request. When EPA 
receives new waiver requests from CARB, EPA publishes a notice of 
opportunity for public hearing and comment and then publishes a 
decision in the Federal Register following the public comment period. 
Once again, in substance, the process is similar to that for SIP 
approval and supports the argument that one hurdle (the waiver process) 
is all Congress intended for California standards, not two (waiver 
process plus SIP approval process). Second, just as SIP revisions are 
not effective until approved by EPA, changes to CARB's rules (for which 
a waiver has been granted) are not effective until EPA grants a new 
waiver, unless the changes are ``within the scope'' of a prior waiver 
and no new waiver is needed. Third, both types of final actions by 
EPA--i.e., final actions on California requests for waivers and final 
actions on state submittals of SIPs and SIP revisions may be challenged 
under section 307(b)(1) of the CAA in the appropriate United States 
Court of Appeals.
    AIR correctly notes that EPA's treatment of California waiver 
measures in SIP actions is the subject of current litigation in Sierra 
Club v. EPA, Consolidated Case Nos. 10-71457 and 10-71458 (9th 
Circuit).
    Comment: AIR argues that our reliance on the general savings clause 
in CAA section 193 for the proposal to grant emissions reduction credit 
to California's waiver measures without first having California submit 
and EPA approve them into the SIP is inappropriate for two reasons. 
First, AIR argues that CAA section 193 only saves those ``formal rules, 
notices, or guidance documents'' promulgated before the effective date 
of the 1990 amendment that are not inconsistent with the CAA. It 
asserts that the plain language of the CAA requires that California 
submit the control measures, rules and regulations used to meet CAA 
requirements as part of the SIP and that nothing in CAA title II or 
section 209 provide a basis for EPA's position. Second, AIR argues that 
there is no automatic presumption that Congress is aware of an agency's 
interpretations and we have not provided any evidence that Congress was 
aware of our interpretation regarding the SIP treatment of California's 
mobile source control measures. AIR also argues that our positions that 
Congress must expressly disapprove of EPA's long-standing 
interpretation and Congressional silence equates to a ratification of 
EPA's interpretation are incorrect.
    Response: In the Proposal TSD (pp. 89-90), we indicated that we 
believe that section 193 of the CAA, the general savings clause added 
by Congress in 1990, effectively ratified our long-standing practice of 
granting credit for the California waiver rules because Congress did 
not insert any language into the statute rendering EPA's treatment of 
California's motor vehicle standards inconsistent with the Act. Rather, 
Congress extended the California waiver provisions to most types of 
nonroad vehicles and engines, once again reflecting Congressional 
intent to provide California with the broadest possible discretion in 
selecting the best means to protect the health of its citizens and the 
public welfare. Requiring the waiver measures to undergo SIP review in 
addition to the statutory waiver process is not consistent with 
providing California with the broadest possible discretion as to on-
road and nonroad vehicle and engine standards, but rather, would add to 
the regulatory burden California faces in establishing and modifying 
such standards, and thus would not be consistent with Congressional 
intent. In short, we believe that Congress intended California's mobile 
source rules to undergo only one EPA review process (i.e., the waiver 
process), not two.
    In summary, we disagree that our interpretation of CAA section 193 
is fundamentally flawed. EPA has historically given SIP credit for 
waiver measures in our approval of attainment demonstrations and other 
planning requirements such as reasonable further progress and 
contingency measures submitted by California. We continue to believe 
that section 193 ratifies our long-standing practice of allowing credit 
for California's waiver measures notwithstanding the fact they are not 
approved into the SIP, and correctly reflects Congressional intent to 
provide California with the broadest possible discretion in the 
development and promulgation of on-road and nonroad vehicle and engine 
standards.\11\
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    \11\ In this regard, we disagree that we are treating the waiver 
measures inconsistently with other California control measures, such 
as consumer products and fuels rules, for the simple reason that, 
unlike the waiver measures, there is no history of past practice or 
legislative history supporting treatment of other California 
measures, such as consumer products rules and fuels rules, in any 
manner differently than is required as a general rule under CAA 
section 110(a)(2)(A), i.e., state and local measures that are relied 
upon for SIP purposes must be approved into the SIP.

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[[Page 12659]]

C. Reasonably Available Control Measures

    Comment: AIR takes issue with EPA's policy interpretation of the 
RACM requirement in CAA section 172(c)(1) that a SIP meets the RACM 
requirement if it includes all reasonably available measures that 
individually or in combination with other such measures can advance 
attainment of the relevant standard by at least one year. The commenter 
claims this interpretation is ``not based on the language of the 
statute and is irrational and perverse in the context of the SIP 
approval here.'' Specifically, AIR argues that because the 2007 8-hour 
Ozone SIP includes a ``black box,'' under EPA's reasoning no controls 
would need to be adopted as RACM because even the controls that the 
District and State have identified as RACM would not advance attainment 
by a year.
    In addition, AIR claims that the 2007 8-hour Ozone SIP neither 
provides for attainment nor identifies the controls needed to attain, 
and that it is not rational to suggest that additional, feasible 
controls need not be adopted. AIR asserts that if a control is 
economically and technically feasible, then it is reasonably available 
and must be adopted. Finally, AIR argues that such controls could 
advance attainment and that ``[a]s technology is developed, it very 
well could allow for earlier attainment, especially if the Plan 
minimizes the magnitude of emissions reductions put into the `black 
box.' '''
    Response: Section 172(c)(1) of the Act requires that each 
attainment plan ``provide for the implementation of all reasonably 
available control measures as expeditiously as practicable (including 
such reductions in emissions from existing sources in the area as may 
be obtained through the adoption, at a minimum, of reasonably available 
control technology), and shall provide for attainment of the national 
primary ambient air quality standards.'' For over 30 years, EPA has 
consistently interpreted this provision to require that States adopt 
only those ``reasonably available'' measures necessary for expeditious 
attainment and to meet RFP requirements. See 40 CFR 51.912(d) and 
51.1010; 44 FR 20372 (April 4, 1979) (Part D of title I of the CAA 
``does not require that all sources apply RACM if less than all RACM 
will suffice for [RFP] and attainment''); General Preamble \12\ at 
13560 (``where measures that might in fact be available for 
implementation in the nonattainment area could not be implemented on a 
schedule that would advance the date for attainment in the area, EPA 
would not consider it reasonable to require implementation of such 
measures'') \13\; ``Guidance on the Reasonably Available Control 
Measures (RACM) Requirement and Attainment Demonstration Submissions 
for Ozone Nonattainment Areas,'' November 30, 1999 (1999 Seitz Memo) (a 
State may justify rejection of a measure as not ``reasonably 
available'' for that area based on technological or economic grounds); 
and 70 FR 71612 (November 29, 2005) at 71660, 71661 (noting that ``to 
require areas to adopt and implement as RACM every control technology 
or measure that obtains a small amount of emissions reductions--even if 
such measure would not advance the attainment date or is not required 
to meet RFP requirements--is not justified'' as it ``would be extremely 
burdensome to planning agencies, would detract from the effort to 
develop more reasonable and effective controls to meet the NAAQS, and 
would not be necessary to meet the statutory goal of expediting 
attainment''); see also preamble to PM2.5 Implementation 
Rule, 72 FR 20586 at 20613, 20615 (April 25, 2007) (stating that a RACM 
demonstration should ``focus on the most effective measures with the 
greatest possibility for significant air quality improvements''). EPA's 
interpretation of section 172(c)(1) has been upheld by several courts. 
See, e.g., Sierra Club v. EPA, et al., 294 F. 3d 155--(DC Cir. 2002); 
Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002).
---------------------------------------------------------------------------

    \12\ The ``General Preamble for the Implementation of Title I of 
the Clean Air Act Amendments of 1990,'' published at 57 FR 13498 on 
April 16, 1992, describes EPA's preliminary view on how we would 
interpret various SIP planning provisions in title I of the CAA as 
amended in 1990, including those planning provisions applicable to 
the 1-hour ozone standard. EPA continues to rely on certain guidance 
in the General Preamble to implement the 8-hour ozone standard under 
title I.
    \13\ EPA also believes it is not reasonable to require the 
adoption of measures that are absurd, unenforceable, or 
impracticable. See General Preamble at 13560; see also 55 FR 38236 
(September 18, 1990) (revoking prior EPA guidance to the extent it 
suggested or stated that areas with severe pollution problems must 
implement every conceivable control measure including those that 
would cause severe socioeconomic disruption.
---------------------------------------------------------------------------

    Second, we disagree with AIR's assertion that our approach to RACM 
is ``irrational'' or ``perverse'' in the context of a plan that 
includes a ``black box,''--i.e., an attainment demonstration that 
relies to some extent on the development of new control techniques or 
improvement of existing control technologies in accordance with CAA 
section 182(e)(5). Congress first enacted the RACM requirement as part 
of the CAA Amendments of 1977, which required SIPs for all 
nonattainment areas to provide for application of all ``reasonably 
available control measures,'' \14\ including RACT for all stationary 
sources. See 44 FR 53761 at 53762 (September 17, 1979) (citing sections 
172(b)(2) and (b)(3) of the 1977 CAA).\15\ As part of the 1990 
Amendments to the CAA, Congress created specific nonattainment area 
planning requirements for ozone, including section 182(e)(5) of the 
Act, which allows for approval of a plan for an extreme ozone 
nonattainment area that relies in part on the development of new 
control techniques or improvements to existing technologies. Notably, 
however, Congress did not substantively alter the RACM requirement, 
although it moved the provision from section 172(b)(2) to section 
172(c)(1) of the amended Act. Following the 1990 Amendments, EPA has 
consistently reaffirmed its pre-existing interpretation of the RACM 
requirement, i.e., that only those measures that would advance 
attainment or that are needed to meet reasonable further progress 
requirements are ``reasonably available'' within the meaning of section 
172(c)(1). See, e.g., 57 FR 13498 at 13560 (April 16, 1992); 1999 Seitz 
Memo; 40 CFR 51.912(d) and 70 FR 71612 at 71660, 71661 (November 29, 
2005); see also Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002) 
(concluding that section 193 of the 1990 CAA expresses Congress' intent 
to preserve EPA's pre-1990 interpretation of the RACM requirement).
---------------------------------------------------------------------------

    \14\ The term ``reasonably available control measures'' is not 
specifically defined in the CAA. EPA first interpreted the term in 
guidance issued in 1979. See 44 FR 20,372 (April 4, 1979). That 
guidance established the principle that RACM is determined based on 
evaluation of a collection of control measures submitted as part of 
the reasonable further progress (RFP) plan and attainment 
demonstration for a particular NAAQS. See id. at 20, 375; see also 
id. at 20,373 (noting that ``states often have flexibility to obtain 
more or less emission reduction from any one measure, as long as a 
group of measures in the plan is adequate'').
    \15\ Section 172(b) of the 1977 CAA stated, in relevant part, as 
follows: ``The plan provisions required by subsection (a) of this 
section [for nonattainment areas] shall-- (2) provide for the 
implementation of all reasonably available control measures as 
expeditiously as practicable; [and] (3) require, in the interim, 
reasonable further progress * * * including such reduction in 
emissions from existing sources in the area as may be obtained 
through the adoption, at a minimum, of reasonably available control 
technology; * * *''
---------------------------------------------------------------------------

    Thus, the CAA explicitly contemplates that, for an extreme ozone 
nonattainment area, even where all RACM necessary for expeditious 
attainment and RFP are implemented, additional control measures based 
on

[[Page 12660]]

new or improved control techniques (i.e., control measures yet to be 
defined) may be necessary to attain the ozone NAAQS. These new or 
improved control techniques are, by definition, not reasonably 
available for current implementation in the nonattainment area. AIR's 
comment suggests that our approval of a plan containing only those RACM 
necessary for expeditious attainment and RFP under CAA section 
172(c)(1), together with new technology provisions under CAA section 
182(e)(5) and other plan elements required under subpart 2 of part D, 
is somehow absurd. For the reasons discussed above, however, we believe 
Congress intended to allow for approval of both those reasonably 
available measures that contribute to expeditious attainment and new 
technology provisions as elements of a reasonable strategy for 
attaining the ozone NAAQS in the SJV area. We therefore disagree with 
AIR's claim that the 2007 8-hour Ozone SIP fails to provide for 
attainment of the 1997 8-hour ozone standard.
    As explained in our proposed rule, the 2007 Ozone Plan includes an 
enforceable commitment by the SJVUAPCD to adopt 19 control measures in 
the near term, all but one of which the District has since adopted. See 
2007 Ozone Plan, Table 6-1 and 76 FR 57846, 57851 (Table 2).\16\ Also 
as part of the near term emissions reductions, CARB committed to bring 
11 measures to its Board that would contribute emissions reductions to 
the SJV and now has completed rulemaking on many of them including 
requirements for in-use off-road equipment and in-use heavy duty diesel 
trucks that are the first of their kind nationwide. See 76 FR 57846, 
57853 (Table 5). We anticipate that these measures will accelerate 
introduction of the most stringent currently available new engine and 
retrofit technologies for these sources and result in almost full 
deployment of these technologies by 2023.\17\ These new measures are in 
addition to the many rules and regulations adopted by the District and 
State prior to the development of the SJV 8-Hour Ozone SIP (baseline 
measures), which collectively achieve more than 80 percent of 
NOX and 47 percent of VOC reductions needed to attain the 8-
hour ozone standard. See 76 FR 57846, 87859 (Table 10); see also 
Appendices A and B of TSD. Thus, contrary to the implication of AIR's 
argument, this is not a situation where the area is not adopting and 
implementing a variety of control measures that have been determined 
reasonable for other areas. In fact, SJVUAPCD is on the cutting edge of 
the type and level of controls it has required for sources in the 
area.\18\
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    \16\ The one measure that the SJVUAPCD has not adopted is a 
measure regulating aviation fuel storage (Control Measure S-PET-3), 
which the District determined was infeasible. See SJVUAPCD, ``Final 
Draft Staff Report, Revised Proposed Amendments to Rules 2020, 4621, 
4622, and 4624,'' December 20, 2007, p. 2.
    \17\ The California Bureau of Automotive Repair, which 
implements California's SmogCheck program, and the California 
Department of Pesticides also have adopted measures as part of the 
2007 State Strategy. See 2009 State Strategy Status Report, p. 4.
    \18\ Neither the District nor CARB rejected any potential RACM 
based on a finding that it would not advance attainment (alone or in 
combination with other potential measures), and AIR has not 
identified any such measures.
---------------------------------------------------------------------------

    Finally, we do not dispute AIR's statement that ``[a]s technology 
is developed, it very well could allow for earlier attainment'' and 
reduce the magnitude of emissions reductions put into the ``black 
box''--i.e., attributed to the plan provisions for new and improved 
technologies. At this time, however, we are not aware of currently 
available technologies or control measures that would achieve emissions 
reductions sufficient to advance attainment of the ozone NAAQS in the 
SJV, and AIR has not identified any such measures.
    Comment: AIR disputes EPA's statement that the process and criteria 
the District used to select certain measures and reject others are 
consistent with EPA's RACM guidance, asserting that the District's 
approach to evaluating economic feasibility is not consistent with EPA 
guidance because the District rejects control options based on the 
``affordability'' of controls for a particular industry. Citing, for 
example, the District's ``Revised Proposed Staff Report and 
Recommendations on Agricultural Burning,'' at p. 1-4 (May 20, 2010), 
AIR states that the District rejects controls ``not based solely on the 
cost-effectiveness of controls but based on an overly simplistic ratio 
of costs to profits for the industry,'' referred to as the `` `10 
percent of profits' test, to determine whether controls are 
economically feasible.'' AIR also asserts that this 10-percent-of-
profits test ``has no connection to whether an industry is actually 
capable of bearing the costs of control, let alone whether the control 
should be considered cost-effective on a dollars per ton of emission 
reduction basis.''
    In support of these assertions, AIR quotes from EPA's Supplement to 
the General Preamble (57 FR 18070, 18074 (April 28, 1992)) and states 
that EPA ``presumes that it is reasonable for similar sources to bear 
similar costs of emission reductions'' because ``[e]conomic feasibility 
rests very little on the ability of a particular source to `afford' to 
reduce emissions to the level of similar sources.'' AIR further quotes 
from this same document to assert that ``capital costs, annualized 
costs, and cost effectiveness * * * should be determined for all 
technologically feasible emissions reduction options'' and notes that 
cost effectiveness is the cost per amount of emissions reduction (in 
tons) per year.
    Response: We agree generally that an economic feasibility analysis 
based on the use of a ``10 percent of profits'' test is not a 
sufficient basis for rejecting a control option from consideration as 
RACM under CAA section 172(c)(1). As AIR correctly notes, under EPA's 
long-standing guidance on evaluating economic feasibility for RACM/RACT 
under CAA section 172(c)(1), EPA presumes that the cost of using a 
control measure is reasonable if those same costs are borne by other 
comparable facilities. See, e.g., 57 FR 18070, 18074 (April 28, 1992) 
and 59 FR 41998, 42009 (August 16, 1994). EPA guidance provides that 
economic feasibility is largely determined by evidence that other 
sources in a source category have in fact applied the control 
technology in question and may also be based on cost effectiveness 
(i.e., calculation of the cost per amount of emissions reduction in $/
ton). Id. However, we note that our policy merely establishes a 
presumption and RACT is determined based on a source category or single 
source analysis; therefore, states can present additional or other 
evidence of what constitutes RACT for a source category or a single 
source.
    For that reason, we disagree, with AIR's suggestion that cost 
effectiveness must be the sole criterion for evaluating economic 
feasibility. EPA's Supplement to the General Preamble (57 FR 18070, 
April 28, 1992), which AIR quotes from, provides that a state ``may 
give substantial weight to cost effectiveness in evaluating the 
economic feasibility of an emissions reduction technology'' but does 
not indicate that cost effectiveness is the only acceptable 
criterion.\19\ See

[[Page 12661]]

57 FR 18070, 18074 (emphasis added). To the contrary, in numerous 
guidance documents EPA has identified cost effectiveness as one of 
several factors that states may consider in evaluating the economic 
feasibility of an available control option. See, e.g., 57 FR at 18074 
(``[t]he capital costs, annualized costs, and cost effectiveness of an 
emissions reduction technology should be considered in determining its 
economic feasibility'') (emphasis added); 57 FR 55620 at 55625 
(November 25, 1992) (``NOX Supplement to General Preamble'') 
(``comparability'' of a NOX RACT control level ``shall be 
determined on the basis of several factors including, for example, 
cost, cost-effectiveness, and emission reductions''); 59 FR 41998 at 
42013 (August 16, 1994) (``PM-10 Addendum to General Preamble'') 
(``capital costs, annualized costs, and cost effectiveness of an 
emission reduction technology should be considered in determining its 
economic feasibility''); and Memorandum from D. Kent Berry, EPA, Air 
Quality Management Division, to Air Division Directors, EPA Regions I--
X, ``Cost-Effective Nitrogen Oxides (NOX) Reasonably 
Available Control Technology (RACT)'' (``[w]hile cost effectiveness * * 
* is an important consideration, it must be noted that other factors 
should be integrated into a RACT analysis [such as] emissions 
reductions and environmental impact * * *'').\20\
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    \19\ In the Supplement to the General Preamble, EPA stated that 
``[c]ost effectiveness provides a value for each emission reduction 
option that is comparable with other options and other facilities'' 
but also stated that companies may provide other source-specific 
information about costs for consideration in an economic feasibility 
analysis:
    If a company contends that it cannot afford the technology that 
appears to be RACT for that source or group of sources, the claim 
should be supported with such information as impact on:
    1. Fixed and variable production cost ($/unit),
    2. Product supply and demand elasticity,
    3. Product prices (cost absorption vs cost pass-through),
    4. Expected costs incurred by competitors,
    5. Company profits, and
    6. Employment.
    57 FR 18070, 18074.
    \20\ EPA also included guidance on economic feasibility 
determinations in the preamble to its 2007 PM2.5 
Implementation Rule. See 72 FR 20586, 20619-20620 (April 25, 2007). 
In June 2007, a petition to the EPA Administrator was filed on 
behalf of several public health and environmental groups requesting, 
among other things, reconsideration of elements of this economic 
feasibility guidance. See Earthjustice, Petition for 
Reconsideration, ``In the Matter of Final Clean Air Fine Particle 
Implementation Rule,'' June 25, 2007. On April 25, 2011, EPA granted 
this petition. See Letter, Lisa P. Jackson, EPA, to Paul Cort, 
Earthjustice, April 25, 2011. EPA did not rely on the economic 
feasibility guidance in the PM2.5 implementation rule 
preamble in its review of the SJV 2007 8-hour Ozone Plan.
---------------------------------------------------------------------------

    We also disagree with AIR's suggestion that the ``affordability'' 
of controls for a particular industry cannot play any role as part of 
an economic feasibility analysis. Although EPA has stated that 
``[e]conomic feasibility rests very little on the ability of a 
particular source to `afford' to reduce emissions to the level of 
similar sources'' (57 FR at 18074) (emphasis added), this does not mean 
that affordability on an industry-wide basis may not be considered as 
part of an economic feasibility analysis, among other factors.\21\
---------------------------------------------------------------------------

    \21\ The SJVUAPCD's ``percent of profits'' evaluation considers 
the economic impact of a rule or rule revision on the industries 
located within SJV as a whole rather than the economic impact for 
any particular source. See, for examples, the socioeconomic studies 
prepared for Rule 4570 found in Appendix D of the District's Final 
Staff Report, Revised Proposed Amendments to Rule 4570 (Confined 
Animal Facilities), October 21, and for Rule 4311 found in Appendix 
D to SJVUAPCD, Final Draft Staff Report, Revised Proposed Amendments 
to Rule 4311 (``Flares''), June 18, 2009.
---------------------------------------------------------------------------

    As we explained in our SJV 2009 RACT SIP final action,\22\ the 
District generally considers multiple factors in evaluating the 
economic feasibility of available control options during its rule 
development processes, including capital costs, annualized costs, cost-
effectiveness, and compliance costs as a percentage of profits. Given 
EPA's long-standing position that states may justify rejection of a 
control measure as not ``reasonably available'' based on the technical 
and economic circumstances of the particular sources being regulated, 
it is appropriate for the District to consider multiple factors in 
evaluating the costs of potential control options to determine if they 
are economically feasible for sources located within the SJV. With 
respect to SJVUAPCD Rule 4103 (Open Burning), which AIR references as 
an example of the District's use of a ``10 percent of profits'' test to 
evaluate economic feasibility, EPA previously reviewed the District's 
analyses and explained our bases for concluding that the rule requires 
all control measures for open burning that are technically and 
economically feasible for implementation in the SJV area. See 
``Revisions to the California State Implementation Plan, San Joaquin 
Valley Unified Air Pollution Control District;'' final rule, pre-
publication notice signed September 30, 2011 (Rule 4103).
---------------------------------------------------------------------------

    \22\ See ``Partial Approval and Partial Disapproval of Air 
Quality Implementation Plans; California; San Joaquin Valley; 
Reasonably Available Control Technology for Ozone;'' Final rule, 
pre-publication notice signed December 15, 2011, Response to Comment 
4 (``SJV 2009 RACT SIP final action''). The 2009 RACT SIP 
is SJVUAPCD's ``Reasonably Available Control Technology (RACT) 
Demonstration for Ozone State Implementation Plans (SIP), April 16, 
2009, which was adopted by the SJVUAPCD on April 16, 2009 and 
submitted to EPA on June 18, 2009.)
---------------------------------------------------------------------------

    Comment: AIR asserts that EPA cannot defend the cost-effectiveness 
criteria used by the District because the criteria have not been 
justified based on the attainment needs of the area. AIR further 
asserts that ``EPA's cursory and conclusory analysis of the District's 
RACM demonstration is not sufficient to comply with the requirements 
and objectives of the [CAA],'' and that it not possible to make a RACM 
demonstration for the SJV without explaining what is needed for 
attainment and using the attainment need to justify the thresholds used 
to accept or eliminate available control options. AIR cites EPA's 1992 
General Preamble at 13541 in support of these assertions.
    Response: It is not clear what AIR is referring to by ``cost-
effectiveness criteria used by the District.'' We are not aware of a 
specific dollar per ton threshold that the District routinely uses to 
reject control options during its rule development processes and AIR 
does not provide one.
    To the extent AIR intended to object to the District's use of a 
``10 percent of profits'' test, rather than to any particular ``cost-
effectiveness'' criteria, we have responded to that concern above. We 
note also that since the District's submittal of the 8-hour ozone plan 
in 2007, EPA has SIP-approved a number of rules that the District 
adopted despite cost estimates exceeding the ``10 percent of profits'' 
threshold for one or more industries subject to the rule, including 
Rule 4311--Flares (June 18, 2009); Rule 4682--Polystyrene Foam, 
Polyethylene and Polypropylene Manufacturing (September 20, 2007); and 
Rule 4570--Confined Animal Facilities (October 21, 2010).\23\
---------------------------------------------------------------------------

    \23\ EPA approved Rule 4311 at 76 FR 68106 (November 3, 2011); 
proposed a limited approval/limited disapproval of Rule 4682 at 76 
FR 41745 (July 15, 2011); and approved Rule 4570 on December 13, 
2011. See Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified Air Pollution Control District; Final rule. 
Pre-publication version signed December 13, 2011.
---------------------------------------------------------------------------

    We agree with AIR's position that it is not possible to make a RACM 
demonstration for the 1997 8-hour ozone standard in the SJV without 
explaining what is needed to attain that standard in the area. This 
explanation is provided in both the 2007 Ozone Plan and EPA's proposed 
approval of the Plan. See 2007 Ozone Plan, Chapter 3 (``What is Needed 
To Demonstrate Attainment?'') and 76 FR 57846, 57857 (September 16, 
2011). See also 2007 State Strategy, p. 33 and EPA's TSD, section II.F. 
To provide the emissions reductions needed to attain, the State and 
District developed a four part control strategy which is described in 
the Plan. See 2007 Ozone Plan at Chapter 4 (``Strategy''), Chapter 6 
(``District Regulatory Control Measures for Stationary Sources''), 
Chapter 7 (``Action Plan for Reducing Emissions

[[Page 12662]]

with Incentive Funds''), Chapter 8 (``Innovative Strategies and 
Programs''), and Chapter 9 (``Local, State, and Federal Controls''). 
See also 2007 State Strategy, Chapter 3 (``ARB's 2007 SIP State 
Strategy'').
    Chapter 6 of the Plan describes the process the District undertook 
to identify potential stationary source control measures for adoption; 
that is, to identify potential RACM within its jurisdiction.\24\ This 
measure identification process resulted in the development of a 
stationary source regulatory implementation schedule which lists not 
only the specific control measures that the District committed to adopt 
but also the schedule for their adoption and implementation and their 
anticipated emissions reductions by year. See 2007 Ozone Plan, Table 6-
1, p. 6-5. It is this regulatory implementation schedule (and a similar 
one developed for the subsequent SJV 2008 PM2.5 Plan) that 
has in large part determined the District's rulemaking calendar over 
the last few years, and the anticipated emissions reductions listed in 
this implementation schedule have helped to define the needed 
stringency of the individual rules. Supporting information for the 
District's adopted rules shows that during the rule-development 
process, the District considers its control strategies and the 
emissions reductions needed for attainment that it has identified in 
its plans. For example, section I.A. (``Reasons for Rule Development 
and Implementation'') in the Rule 4320 SJV Staff Report \25\ discusses 
both the deadline for adoption and the anticipated reductions from 
these new and revised rules in the 2007 Ozone Plan and states: ``[t]his 
rulemaking project is intended to satisfy the attainment goals of the 
District's 2007 Ozone plan,'' ``[t]he plan calls for a total of 1.1 
tons per day of NOX reductions [from large and medium 
boilers] * * *, '' and ``[t]he proposed amendments * * * will seek to 
obtain as much reduction of [NOX] from boilers, steam 
generators, and process heaters as expeditiously [as] practicable and 
technologically and economically feasible.'' \26\
---------------------------------------------------------------------------

    \24\ The detailed evaluation of each potential controls is found 
in Appendix I of the 2007 Ozone Plan.
    \25\ SJVUAPCD, Final Draft Staff Report, Proposed Amendments to 
Rule 4306, Proposed Amendments to Rule 4307, and Proposed New Rule 
4320, October 16, 2008 (Rule 4320 SJV Staff Report).
    \26\ Most if not all District staff reports on proposed rule 
adoptions or amendments include a section discussing the reasons for 
rule develop and implementation. This section generally list the CAA 
provisions applicable to the rule (e.g., section 182(b)(2) RACT) and 
identifies whether the rulemaking project is part of the area's 
ozone and/or PM2.5 control strategy and the reductions 
from the rule called for in the plan.
---------------------------------------------------------------------------

    Comment: AIR states that RACM is not limited to major sources, 
quoting EPA's recommendation in the General Preamble at 13541 that ``a 
State's control analysis for existing stationary sources go beyond 
major stationary sources and that the state require control technology 
for other sources that are reasonable in light of the areas attainment 
needs.'' AIR claims that an analysis of the effect of applying 
additional controls to non-major sources has not been conducted and 
therefore, EPA has no basis for its determination that additional 
reasonable controls are not available or that such control could not 
advance attainment. AIR further claims that the District's RACT 
demonstration only explores controls on sources down to 10 tons per 
year.
    Response: We agree that a RACM analysis should not be limited to 
major sources.\27\ See General Preamble at 13541. We disagree, however, 
with AIR's assertion that the District failed to evaluate controls for 
non-major sources. The District's control measure evaluation 
(documented in Appendices H and I of the Plan) was not limited to major 
stationary sources but covered a wide variety of small stationary 
sources (e.g., gasoline stations, p. I-75), area sources (e.g., 
architectural coatings, p. I-100; asphalt roofing, p. I-56; and 
residential water heaters, p. I-28), indirect sources (e.g., employer 
trip reduction, p. I-141) and mobile sources (e.g., school buses, p. I-
156).
---------------------------------------------------------------------------

    \27\ A major stationary source in an ozone nonattainment area 
classified as extreme is any stationary facility or source of air 
pollutant which directly emits or has the potential to emit 10 tons 
of VOC or 10 tons of NOX per year. See CAA sections 
302(j) and 182(e).
---------------------------------------------------------------------------

    Most of the District's rules currently apply to sources much 
smaller than major sources. See, for example, Rule 4607--Graphic Arts 
which applies to any graphic arts source that emits more that 1.2 tpy 
of VOC, Rule 4308--Boilers 0.75--2 MMBtu/hr which applies to all 
boilers of this size without regard to the source size; Rule 4622--
Gasoline Transfer into Motor Vehicles which applies to most retail 
gasoline station; and Rule 4902--Residential Water Heaters.\28\ We also 
note that of the 18 measures that the District has adopted following 
its submittal of the 2007 Ozone Plan, all but two (glass melting 
furnaces and brandy and wine aging) regulate non-major sources. See 
2007 Ozone Plan, Table 6-1. See also, Table 1 below.
---------------------------------------------------------------------------

    \28\ We have identified only seven District prohibitory rules 
(of the approximately 60 District rules that regulate NOX 
and/or VOC) which apply only to units at major sources: Rule 4354--
Solid Fuel Boilers (NOX); Rule 4356--Glass Melting 
Furnaces (NOX and VOC); Rule 4311--Flares 
(SOX, NOX, and VOC); Rule 4610--Glass Coating 
Operations (VOC); Rule 4693--Bakeries (VOC); Rule 4694--Wine 
Fermentation and Storage Tanks (VOC); and Rule 4695--Brandy and Wine 
Aging (VOC).
---------------------------------------------------------------------------

    As to AIR's claim that ``[t]he District's RACT demonstration only 
explores controls on sources down to 10 tons per year,'' this statement 
is not germane to our evaluation of the Plan's RACM demonstration under 
CAA 172(c)(1). The District submitted the 2009 RACT SIP \29\ to meet 
the technology-based RACT requirements for specific types of sources in 
CAA section 182(b)(2) and (f). These requirements are separate from the 
RACM obligation in CAA section 172(c)(1), and EPA therefore evaluated 
the 2009 RACT SIP for compliance only with these specific control 
technology requirements. See SJV 2009 RACT SIP final action.
---------------------------------------------------------------------------

    \29\ We assume here that AIR intended to refer to the SJV 2009 
RACT SIP.
---------------------------------------------------------------------------

Evaluation of Potential To Advance Attainment
    As discussed above, under EPA's longstanding policy, a SIP meets 
the RACM requirement in CAA section 172(c)(1) if it includes all 
reasonably available measures that individually or in combination with 
other such measures can advance attainment of the relevant standard by 
one year or more. Thus to determine whether the SJV Ozone SIP meets 
this statutory requirement, we evaluated whether implementation of 
potential RACM (including any missing section 182 RACT controls and 
those identified by AIR in its comments (see TSD, section III.C.) would 
expedite attainment of the 1997 8-hour ozone standard in the SJV.
    Attainment of the 1997 8-hour ozone standard in the SJV depends on 
significant reductions in NOX emissions. Air quality 
modeling shows that no level of VOC reductions will bring about 
attainment of the 8-hour ozone standard in the SJV absent these 
NOX reductions and no reasonable level of VOC reductions 
will expedite attainment absent significant NOX reductions. 
See 2007 Ozone Plan, Chapter 3; see also, section II.C.3. of the TSD.
    Because VOC reductions will not advance attainment of the 1997 8-
hour ozone standard unless substantial NOX reductions are 
also achieved, we have focused our evaluation on the potential RACM 
that reduce NOX emissions. Specifically, we evaluated 
whether additional emissions reductions from the control measures 
suggested by the

[[Page 12663]]

commenter (e..g, requiring RACT-level controls on major source solid 
fuel-fired boilers and prohibiting the use of pre-baseline emissions 
reductions credits as discussed in section III.C. below) and certain 
control measures not yet eligible for SIP credit, would provide 
sufficient additional reductions in 2023 to attain by June 15, 2024 
without reliance on the CAA section 182(e)(5) new technology 
provision.\30\ We used 2023 rather than 2022 because more information 
is available on projected controlled emissions levels in that year. 
Fleet turnover from existing mobile source measures will provide an 
additional 10 tpd in NOX emissions reductions in the SJV 
between 2022 and 2023. Therefore, if we conclude that additional RACM 
measures would not provide sufficient reductions in 2023 to attain, we 
can also conclude that they would not provide sufficient emissions 
reductions in 2022.
---------------------------------------------------------------------------

    \30\ As an extreme ozone nonattainment area, SJV's statutory 
attainment date is as expeditiously as practicable but no later than 
June 15, 2024. 40 CFR 51.903(a). The SIP as submitted demonstrates 
that the most expeditious attainment date is June 15, 2024. See 2007 
Ozone Plan, p. 11-1. In order to attain by that date, the area must 
have all reductions needed for attainment in place by 2023. Thus, to 
advance attainment by one year, all reductions needed for attainment 
must be in place by 2022.
---------------------------------------------------------------------------

    After analyzing the maximum potential emissions reductions from 
additional controls on source categories for which we have not yet 
approved rules meeting RACT and measures recommended by AIR (including 
eliminating the use of pre-baseline emissions reduction credits in the 
area's new source review program) and comparing them against the level 
of reductions needed for attainment in the SJV by June 15, 2024, we 
find that even with these additional controls, the 2023 NOX 
emissions level in the SJV would still be well above the level needed 
for attainment. See Table C-5 in the TSD. We conclude, therefore, that 
the SJV 2007 8-hour ozone SIP provides for RACM as required by CAA 
section 172(c)(1).\31\
---------------------------------------------------------------------------

    \31\ This finding under CAA section 172(c)(1) does not affect 
the District's separate obligation under CAA sections 182(b)(2) and 
(f) and 40 CFR 51.905(a)(1)(ii) to implement RACT for all major 
sources and all CTG source categories.
---------------------------------------------------------------------------

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

    Comment: AIR states that California's reliance on ``black box'' 
measures in the SJV 2007 8-hour Ozone SIP fails to meet the 
requirements and intent of the Clean Air Act by allowing the State and 
District to defer their responsibility to attain the 8-hour ozone 
standards. AIR argues that there are three problems with how the State 
and District are using the CAA 182(e)(5) new technology provision.
    First, AIR argues that it is arbitrary for EPA to approve a new 
technology provision of 80 tons per day of NOX reductions or 
59 percent of the reductions needed for attainment given its lack of 
definition.
    Second, AIR asserts that section 182(e)(5) is intended to address 
new technologies that will develop over time but that in California, 
``new technologies alone will not sufficiently reduce pollution to 
attain federal air quality standards.'' Citing a description in the 
Proposal TSD (at page 81) of a potential measure described by CARB as 
``prioritizing federal transportation funding to support air quality 
goals,'' AIR argues that ``[t]his example clearly fails to meet all the 
criteria required for Black Box use,'' and that while ``tying air 
quality to transportation planning'' is important for attainment, the 
black box cannot be used as a basis for not requiring implementation of 
``existing'' strategies such as increased public transit that do not 
require the development of new technologies.
    Third, AIR states that the section 182(e)(5) commitments are vague 
and insufficient and that EPA cannot approve the attainment 
demonstration ``unless the Section 182(e)(5) measures comply with the 
CAA.'' Citing both CAA section 182(e)(5) and EPA's January 8, 1997 
final rule approving the 1-hour ozone plan for several California 
nonattainment areas (62 FR 1150, 1179), AIR asserts that the new 
technology measures must: (1) Contain sufficient definition; (2) 
contain schedules for development of the new technologies; (3) contain 
commitments for funding; (4) depend on development of new technologies; 
and (5) include an enforceable commitment to develop and adopt 
necessary contingency measures. AIR asserts that the SJV 2007 8-hour 
Ozone SIP ``only attempts to comply with requirement number (5),'' that 
the generalized discussion in the SIP provides little assurance of 
CARB's ability to develop these measures, and that approval of these 
measures is therefore arbitrary and capricious.
    Response: First, we disagree with the commenters' contention that 
EPA's approval of the SIP is arbitrary because of the amount of 
emissions reductions attributed to the new technology provision or 
because they are undefined. As an initial matter, we note that the 
commenters' assertion about the 59 percent of the emissions reductions 
needed for attainment of the 1997 8-hour ozone standard in the SJV that 
are attributed to the new technologies provision is not correct.\32\ 
The correct percentage of the needed NOX emissions 
reductions attributed to the new technology provision in the SJV 2007 
8-hour Ozone SIP is 12 percent as explained further below.
---------------------------------------------------------------------------

    \32\ It appears that the commenters overestimated the percentage 
of emissions reductions attributed to the new technology provision 
in the SIP by calculating the amount of needed reductions without 
taking into account the reductions attributed to baseline measures. 
The 59 percent figure represents the percent contribution of the new 
technology provision to the new emissions reductions (that is, the 
non-baseline emissions reductions) in the SIP. See TSD, Table F-2.
---------------------------------------------------------------------------

    The CAA does not provide a quantitative limit on the extent to 
which the attainment demonstration for an extreme ozone nonattainment 
area may rely on the new technology provisions under CAA section 
182(e)(5). As we explained in our proposed rule, CAA section 182(e)(5) 
authorizes EPA to approve provisions in an extreme area plan which 
``anticipate development of new control techniques or improvement of 
existing control technologies,'' and to approve an attainment 
demonstration based on such provisions if the State demonstrates that: 
(1) such provisions are not necessary to achieve incremental reductions 
required during the first 10 years after the effective date of 
designation for the 1997 8-hour ozone standards, and (2) the State has 
submitted enforceable commitments to submit adopted contingency 
measures meeting certain criteria no later than three years before 
proposed implementation of the new technology measures. See 76 FR 
57846, 57854. EPA guidance on section 182(e)(5) states, among other 
things, that the SIP should show that the long-term measure(s) cannot 
be fully developed and adopted by the submittal date for the attainment 
demonstration and that the measures approved under section 182(e)(5) 
may include those that anticipate future technological developments as 
well as those that require complex analyses, decision making and 
coordination among a number of government agencies. See General 
Preamble at 13524.
    The majority of the emissions reductions in the SJV 2007 8-hour 
Ozone SIP are attributed to already adopted and near-term measures. See 
76 FR 57846, 57850-61. Our summary of SJV's 8-hour ozone attainment 
demonstration in the proposed rule shows that the area needs to reduce 
emissions from 2002 levels by a total of 424 tpd of NOX and 
116 tpd of VOC to attain the 1997 8-hour ozone standards by June 15, 
2024. See 76 FR 57846, 57859 (Table 10) (values rounded to the ones 
place). Of these needed reductions,

[[Page 12664]]

approximately 88 percent of the NOX reductions and all of 
the VOC reductions are attributed to already adopted measures or 
commitments to adopt and implement existing technologies by 2014. See 
76 FR 57846, 57859 (Table 10) and 57851, 57853 (Tables 2 and 5) 
(identifying CARB and District measures recently adopted or scheduled 
for near-term consideration). These measures include all reasonably 
available control measures and generally represent the most stringent 
air pollution control requirements for stationary, area, and mobile 
sources nationwide. This leaves just 12 percent of the needed 
NOX reductions and none of the needed VOC reductions to be 
met through new technologies under CAA section 182(e)(5). See 76 FR 
57846, 57859 (Table 10).
    Given the demonstrated need for emissions reductions from new and 
improved control techniques needed to attain the 1997 8-hour ozone 
standard in the SJV, we believe it is reasonable for the State to 
attribute this amount of emissions reductions to the new technology 
provision. However, as we stated in our proposed rule, we expect the 
amount and relative proportion of reductions from measures scheduled 
for long-term adoption under section 182(e)(5) should decrease in any 
future SIP update, and EPA will not approve any future SIP revisions 
with an increase in the 182(e)(5) reductions for 2023 without a 
convincing showing that the technologies relied upon in the near-term 
rules are infeasible or ineffective in achieving emissions reductions 
in the near-term. See 76 FR 57846, 57856. Moreover, to the extent new 
modeling performed in any subsequent SIP revision demonstrates that 
there is an increase in the year 2023 carrying capacity for VOC and 
NOX, this change may not be used to decrease the amount of 
emissions reductions scheduled to be achieved by any existing 
technology measures from the SJV 2007 8-hour Ozone SIP unless CARB or 
the District make the convincing showing described above.
    Second, we disagree with AIR that CAA section 182(e)(5) allows only 
for plan provisions that rely on ``new technologies'' and that the 
District must adopt additional ``existing strategies'' that do not rely 
on new technologies. CAA section 182(e)(5) allows for approval of 
extreme area plan provisions that ``anticipate development of new 
control techniques or improvement of existing control technologies,'' 
which EPA interprets to include ``[those that may anticipate future 
technological developments as well as those that may require complex 
analyses and decision making and coordination among a number of 
government agencies.'' See 57 FR 13498, 13524. Thus, in addition to 
plan provisions that rely on ``new technologies,'' section 182(e)(5) 
contemplates provisions that are as of yet undefined because they 
require, for example, time for State and local agencies to evaluate 
complex technical information and to seek public participation in their 
regulatory processes.
    AIR correctly notes that EPA's TSD identified ``prioritiz[ation of] 
federal transportation funding to support air quality goals'' among a 
number of potential long-term strategies that CARB had identified for 
further consideration (see Proposal TSD, p. 81, citing 2007 State 
Strategy, pp. 55-56), but it does not describe any specific control 
measure that such budgetary decisions could support and that is 
reasonably available for current implementation in the SJV. Likewise, 
although AIR asserts generally that ``increased transit'' and other 
``existing strategies'' should be required as control measures because 
these do not require the development of new technologies, they have not 
identified any particular control measure that the State should be 
obligated to include in its plan for attaining the 1997 8-hour ozone 
standards in the SJV. CARB and the District have adopted all of the 
control measures for NOX and VOC that are ``reasonably 
available'' within the meaning of CAA section 172(c)(1) for current 
implementation in the SJV and have submitted enforceable commitments to 
adopt additional measures achieving specific amounts of emissions 
reductions by specific years. See 76 FR 57846, 57850-57854. These 
measures are not sufficient, however, to achieve the significant 
amounts of NOX and VOC reductions necessary to attain the 
1997 8-hour ozone NAAQS in the SJV by June 15, 2024. Absent new 
information about additional control measures that are cost-effective 
and technically feasible for current implementation in the area, we 
believe it is reasonable to allow the State and District time to 
develop additional control measures based on new or improved control 
technologies under CAA section 182(e)(5).
    Third, we disagree with AIR that the SIP's section 182(e)(5) 
provisions are vague and insufficient. As discussed in our proposed 
rule, CARB has submitted enforceable commitments to achieve specific 
amounts of NOX and VOC reductions by 2023 through the 
development of new or improved control technologies under CAA section 
182(e)(5). The total tonnage commitment in the SJV is for 81 tpd 
NOX. See 76 FR 57846, 57854-57855 and 2009 State Strategy 
Status Report, p. 21. With respect to the requirement for contingency 
measures in CAA section 182(e)(5)(B), we explained in our proposed rule 
that CARB's 2011 Ozone SIP Revisions contain the State's enforceable 
commitment ``to develop, adopt, and submit contingency measures by 2020 
if advanced technology measures do not achieve planned reductions'' (76 
FR 57846, 57855, referencing CARB Resolution 11-22, July 21, 2011), and 
in a letter dated November 18, 2011 to EPA Region 9, CARB confirmed 
that EPA's understanding of this enforceable commitment is correct. See 
letter James N. Goldstene, Executive Officer, California Air Resources 
Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region 9, 
November 18, 2011.
    In addition, as explained in our proposed rule (76 FR 57846, 
57855), the SJV 2007 8-hour Ozone SIP identifies numerous potential 
measures currently under consideration as part of the long-term 
strategy, and CARB has committed to submit a SIP revision by 2020 that 
will identify the additional strategies and implementing agencies 
needed to achieve the needed reductions by the beginning of the 2023 
ozone season. See 2011 Ozone SIP Revisions, p. A-8; see also the August 
29, 2011 Goldstene letter which describes California's climate change 
programs, clean car technologies, programs to accelerate hybrids and 
plug-in technologies, greenhouse gas emissions reduction targets for 
passenger vehicles, and the District's efforts to shift goods movement 
to lower-emission alternatives and to reduce emissions caused by 
electricity and natural gas consumption in residential, industrial, and 
institutional settings). We note also that CARB has stated its intent 
to convene annual strategy meetings with the South Coast and SJV 
Districts and EPA to discuss progress in the development of its new 
technology measures, and to secure resources for continuing research 
and development of new technologies. See August 29, 2011 Goldstene 
letter; see also 2009 State Strategy Status Report, pp. 25-27.
    Finally, AIR references CAA section 182(e)(5) and EPA's final rule 
approving an ozone SIP previously submitted by California (62 FR 1150, 
1179) \33\ in

[[Page 12665]]

support of its assertion that the long-term strategy must satisfy five 
``requirements,'' of which, commenters contend, the SJV 2007 8-hour 
Ozone SIP addresses only one. We disagree with this characterization of 
both the requirements of CAA section 182(e)(5) and the provisions in 
the SIP.
---------------------------------------------------------------------------

    \33\ We note that although this final action included EPA's 
approval of new technology provisions under CAA section 182(e)(5) as 
part of California's SIP for the 1-hour ozone NAAQS in the South 
Coast area, this prior rulemaking action is not germane to today's 
action on the SJV 2007 Ozone SIP. We assume that the commenters 
intended to refer, instead, to the source of the five criteria that 
EPA has recommended for consideration in evaluating new technology 
provisions under CAA 182(e)(5), which is the General Preamble (57 FR 
13498, 13524 (April 16, 1992)).
---------------------------------------------------------------------------

    As explained above and in our proposed rule, EPA interprets the Act 
to allow EPA to approve the State's conceptual new technology 
provisions and credit them toward the attainment demonstration if the 
state makes the required commitment to submit contingency measures, 
which then must be submitted to EPA no later than 3 years before 
proposed implementation and EPA concludes that the measures are not 
needed to achieve the first 10 years of required rate of progress 
reductions. See 76 FR 57846, 57854. The five ``requirements'' for 
approval of new technology provisions that commenters reference are not 
statutory or regulatory requirements but recommended criteria. See 
General Preamble at 13524.\34\
---------------------------------------------------------------------------

    \34\ EPA's General Preamble states that in order to rely on 
``new technology provisions'' under CAA section 182(e)(5), a SIP 
must satisfy the following criteria: (1) Identify all measures, 
including the long-term measure(s) for which additional time would 
be needed for development and adoption; (2) show that the long-term 
measure(s) cannot be fully developed and adopted by the submittal 
date for the attainment demonstration and contain a schedule 
outlining the steps leading to final development and adoption of the 
measure(s); (3) contain commitments from those agencies that would 
be involved in developing and implementing the schedule for the 
measure; (4) contain a commitment to develop and submit contingency 
measures (in addition to those otherwise required for the area) that 
could be implemented if the measure is not developed or if it fails 
to achieve the anticipated reductions; and (5) not rely on the new 
technology measures to meet any emissions reductions requirements 
within the first 10 years after enactment. See 57 FR 13498, 13524 
(April 16, 1992). We note that this language is non-binding guidance 
although it is phrased in mandatory terms.
---------------------------------------------------------------------------

    As also explained in the proposed rule, CARB and the District have 
demonstrated a clear need for additional time to fully develop and 
adopt the long-term measures under consideration and have met the 
statutory requirements for approval of such conceptual measures under 
CAA section 182(e)(5). See 76 57846 57854-57855. The General Preamble 
at 13524 recommends that a SIP relying on new technology provisions 
under CAA section 182(e)(5) identify all of the specific long-term 
measures the State intends to adopt, contain a schedule outlining the 
specific steps leading to final development and adoption, and contain 
commitments from the agencies that would be involved in developing and 
implementing these measures, in addition to satisfying the statutory 
criteria. However, as discussed in our proposed rule and above, both 
the 2007 State Strategy and the 2007 Ozone Plan provide lists of the 
types of technologies and measures that they are pursuing to achieve 
the emissions reductions needed for attainment of the 8-hour ozone 
standard in the SJV. See 76 FR 57846, 57854-57855 and TSD, section 
II.E.2.; see also, 2007 Ozone Plan, Chapters 7, 8, and 11; 2007 State 
Strategy, pp. 54-57; 2009 State Strategy Update, p. 25; and 2011 Ozone 
Plan Update, Appendix A. The State has also committed to share the 
results of its efforts with the public through Board meetings, 
workshops and other means. See 2009 State Strategy Update, p. 25; see 
also, letter, James Goldstene, Executive Officer, CARB, to Jared 
Blumenfeld, Regional Administrator, EPA Region 9, August 29, 2011. 
Finally, the State has committed to work to secure resources for 
continuing research and development and to develop schedules for moving 
from research to implementation. Id. We find that the State and 
District have adequately addressed the policy criteria in the General 
Preamble given the significant emissions reductions needed to attain 
the 1997 8-hour ozone NAAQS in the SJV and the type of sources (i.e., 
mobile sources) for which technology must be developed, tested, and 
deployed in order to achieve these reductions. EPA commits to do its 
share to support the needed research and development activities of CARB 
and the District.
    Comment: AIR asserts that the SJV already violates the 1-hour ozone 
standard and failed to attain that standard by November 15, 2010 
(citing 76 FF 56694 (September 14, 2011)) is ``particularly'' relevant 
to the approval of the new technology provisions in the 8-hour ozone 
plan because, according to AIR, the District and CARB ``relied 
heavily'' on new technology measures in its previous plans for the 1-
hour ozone standard and these commitments have not been met. AIR 
further asserts that EPA cannot reasonably rely on the continued use of 
the new technologies provision because, according to AIR, the 
District's and CARB's track record for using this approach has not 
resulted in the pollution reductions committed to in the SJV 2004 1-
hour attainment plan.
    Response: EPA is acting today on the SJV 2007 8-hour Ozone SIP, 
which the State submitted to meet the requirements of part D, title I 
of the CAA for the 1997 8-hour ozone standard. Neither the CAA's 
planning requirements related to attainment of the 1-hour ozone 
standard nor the State's submittals to meet the Act's requirements for 
that prior standard are germane to our action on the SJV 2007 8-hour 
Ozone SIP under CAA section 110(k). Additionally, nothing in section 
182(e)(5) of the CAA or our implementing regulations requires EPA to 
take into account the success or failure of a prior plan for a 
different ambient air quality standard in approving extreme area plan 
provisions that meet the requirements of CAA section 182(e)(5) for the 
1997 8-hour ozone standard. EPA's proposed rule to determine that the 
SJV failed to attain the 1-hour ozone standard by its applicable 
attainment date (76 FR 56694, September 14, 2011), which commenters 
reference, likewise has no bearing on our action on the SJV 2007 8-hour 
Ozone SIP under CAA section 110(k).
    We disagree with AIR's assertions that the District and CARB relied 
heavily on new technology measures in its previous plans for the 1-hour 
ozone standards and that these commitments have not been met. The 
District relied on emissions reductions from new technology measures 
only in its 2004 Ozone SIP.\35\ Reductions from new technology measures 
in the 2004 Ozone SIP accounted for less than 4 percent of the overall 
reductions in that SIP's attainment demonstration; and the District 
subsequently showed that it had

[[Page 12666]]

adopted sufficient measures to achieve these reductions. See 74 FR 
33933, 33937 (July 14, 2009).
---------------------------------------------------------------------------

    \35\ The 2004 Ozone SIP is the ``Extreme Ozone Attainment 
Plan,'' adopted by the SJVUAPCD on October 8, 2004 and submitted to 
EPA by CARB on November 15, 2004 and the relevant portions of the 
CARB's ``2003 State and Federal Strategy for the California State 
Implementation Plan'' adopted on October 23, 2003 and submitted to 
EPA on January 9, 2004.
    As initially submitted, the attainment demonstration in the 2004 
Ozone SIP included 5 tpd of NOX and 5 tpd of VOC 
emissions reductions from new technology measures (referred to as 
``long-term measures'' in 2004 Ozone SIP). See CARB, ``Staff Report, 
Proposed 2004 State Implementation Plan for Ozone in the San Joaquin 
Valley,'' September 28, 2004, Table E-2, p. 5. These reductions were 
part of the District's emissions reductions commitments. Id. 
However, prior to EPA's action on the 2004 Ozone SIP, the District 
adopted and submitted rules that provided sufficient emissions 
reductions to meet all its commitments including its commitments for 
reductions from new technology measures. See 74 FR 33933, 33937 
(July 14, 2009). As a result, EPA did not approve any element of the 
2004 SIP under the CAA section 182(e)(5) new technology provision. 
See 75 FR 10420, 10436-37 (March 8, 2010). The 2004 Ozone SIP also 
included commitments by CARB to achieve 15 tpd of VOC and 20 tpd of 
NOX emissions reductions in the SJV by 2010; likewise, 
these commitments were approved as meeting the requirements of CAA 
section 110(a)(2)(A) and 172(c)(6) and not CAA section 182(e)(5). 
Id.
---------------------------------------------------------------------------

    Finally, we disagree with commenters' argument that EPA must direct 
CARB to ``extract from the black box needed reductions they know will 
not come from future technologies, reduce the overall size of the black 
box to a reasonable level and better define where the remaining black 
box reductions are expected to come from.'' It is not possible at this 
point in time to know that certain emissions reductions will not come 
from future technologies, and we do not believe it is reasonable to 
require the State to reduce the amount of emissions reductions 
attributed to the long-term strategy by either implementing measures or 
incremental reductions beyond those otherwise mandated by the Act or 
developing measures based on control techniques not yet identified or 
commercially available for implementation in the area. As explained 
above, the State has met the statutory criteria for approval of its 
long-term strategy under CAA section 182(e)(5).

E. CAA Section 182(d)(1)(A) Requirements

    Comment: AIR asserts that EPA has also failed to assess the 
adequacy of the SIP's compliance with the requirement in CAA section 
182(d)(1)(A) that the SIP provide adequate enforceable control measures 
``to allow total area emissions to comply with RFP and attainment 
requirements.'' AIR argues that, because the area has not adopted 
sufficient enforceable control measures to provide for attainment 
(citing to its comments that the attainment demonstration is not 
approvable because, inter alia, measures relied on in that 
demonstration were not in the SIP), this provision must be met and EPA 
must direct the State/District to adopt the additional measures needed 
for attainment, either as TCMs to reduce motor vehicle emissions, or as 
controls on other source categories so that total emissions reductions 
provide for attainment.
    Response: CAA section 182(d)(1)(A) requires the State to ``submit a 
revision that identifies and adopts specific enforceable transportation 
control strategies and transportation control measures * * * to attain 
reductions in motor vehicle emissions as necessary, in combination with 
other emissions reduction requirements of [title 1, part D, subpart 2], 
to comply with the requirements of [sections 182] (b)(2)(B) and 
(c)(2)(B)'' and ``to consider measures specified in section 108(f) * * 
* and to choose from among and implement such measures as necessary to 
demonstrate attainment.''
    We have determined that the SJV 2007 8-hour Ozone SIP meets the RPF 
requirements in sections 182(b)(2)(B) and (c)(2)(B) and demonstrates 
attainment consistent with the subpart 2 requirements and thus also 
meets the requirements of section 182(d)(1)(A) to adopt transportation 
control strategies and TCMs as necessary to demonstrate RFP and 
attainment. See 76 FR 57846, 57863 and TSD, section II.H.3.; see also, 
TSD, section III.A.2. (responding to comments on the approvability of 
the baseline emissions inventory and the attainment demonstration). The 
SIP also includes documentation that the state considered the 
transportation control measures listed in CAA section 108(f), evaluated 
their effectiveness in contributing to expeditious attainment, and 
concluded that they would not. See 2007 Ozone SIP, appendix D; 76 FR 
57846, 57852 and 57863 and TSD, sections II.B.3.b. and II.H.2.
    We disagree with AIR's summary of the CAA section 182(d)(1)(A) 
requirements related to RFP and attainment. This specific section does 
not require that the SIP provide ``adequate enforceable control 
measures `to allow total area emissions to comply with RFP and 
attainment requirements' '' but rather it requires that the state adopt 
enforceable transportation strategies and TCM as necessary in 
combination with other emissions reduction requirement of subpart 2 to 
demonstrate RFP and to implement TCMs as necessary to demonstration 
attainment. Thus, if other SIP provisions provide for RFP and 
attainment consistent with applicable CAA requirements (including, in 
this case, the provisions of CAA section 182(e)(5)), then the state has 
no obligation under section 182(d)(1)(A) to adopt transportation 
control strategies and TCMs for RFP and attainment purposes.

III. Approval Status of the Control Strategy Measures and Final Actions 
on the Attainment Demonstration and Enforceable Commitments

A. Approval Status of Control Strategy Measures

    As part of its control strategy for attaining the 1997 8-hour ozone 
standards in the SJV, the District made specific commitments to adopt 
nineteen measures on the schedule identified in the Plan. See 2007 
Ozone Plan, Table 6-1 (revised December 18, 2009). The District has now 
completed its actions on all measures except for one which it found to 
be infeasible. See Table 1 below. As Table 1 shows, EPA has approved 
all of the adopted rules except for one, which EPA is not currently 
crediting with emissions reductions in the RFP or attainment 
demonstration.

                          Table 1--San Joaquin Valley Air Pollution Control District 2007 Ozone Plan Specific Rule Commitments
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Adoption date
     Measure number & description       District rule --------------------------------------------------------------------------        SIP status
                                             No.                   Anticipated                             Actual
--------------------------------------------------------------------------------------------------------------------------------------------------------
S-GOV-1 Composting Biosolids.........            4565  1st Q-2007.........................  March 2007.........................  Approved: December 13,
                                                                                                                                  2011 (signature date).
S-AGR-1 Open Burning (Phase IV)......            4103  2nd Q-2010.........................  April 2010.........................  Approved: September 29,
                                                                                                                                  2011 (signature date).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    S-SOL-11 Solvents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Organic Solvents.....................            4661  ...................................  September 2007.....................  Approved: 75 FR 24406
                                                                                                                                  (May 5, 2010).
Organic Solvent Degreasing...........            4662  3rd Q-2007.........................  September 2007.....................  Approved: 74 FR 37948
                                                                                                                                  (July 30, 2009).
Organic Solvent Cleaning.............            4663                                       September 2007.....................  Approved: 74 FR 37948
                                                                                                                                  (July 30, 2009).
S-COM-5 Stationary Gas Turbines......            4703  3rd Q-2007.........................  September 2007.....................  Approved: 74 FR 53888
                                                                                                                                  (October 21, 2009).

[[Page 12667]]

 
S-IND-24 Soil Decontamination........            4651  3rd Q-2007.........................  September 2007.....................  Approved: 74 FR 52894
                                                                                                                                  (October 15, 2009).
S-IND-6 Polystyrene Foam.............            4682  3rd Q-2007.........................  September 2007.....................  Approved: 76 FR 41745
                                                                                                                                  (July 15, 2011).
S-PET-1&2 Gasoline Storage & Transfer            4623  4th Q-2007.........................  December 2007......................  Approved: 74 FR 56120
                                                 4624                                                                             (October 30, 2009).
S-PET-3 Aviation Fuel Storage........  ..............  3rd Q-2007.........................  found not feasible.................  Found infeasible.
S-COM-1 Large Boilers................            4306  3rd Q-2008.........................  October 2008.......................  Approved: 75 FR 1715
                                                 4320                                                                             (January 13, 2010) and
                                                                                                                                  76 FR 16696 (March 25,
                                                                                                                                  2011).
S-COM-2 Boilers, Steam Generators and            4307  3rd Q-2008.........................  October 2008.......................  Approved: 75 FR 1715
 Process Heaters (2 to 5 MMBtu/hr).                                                                                               (January 13, 2010).
S-COM-7 Glass Melting Furnaces \1\...            4354  3rd Q-2008.........................  October 2008.......................  Approved: 76 FR 53640
                                                                                                                                  (August 29, 2011).
S-SOL-20 Graphic Arts................            4607  4th Q-2008.........................  December 2008......................  Approved: 74 FR 52894
                                                                                                                                  (October 15, 2009).
S-COM-9 Residential Water Heaters....            4902  1st Q-2009.........................  March 2009.........................  Approved: 75 FR 24408
                                                                                                                                  (May 5, 2010).
S-GOV-5 Composting Green Waste.......            4566  4th Q 0 2010.......................  August 2011........................  Rule adopted August
                                                                                                                                  2011, Submitted
                                                                                                                                  November 18, 2011.
S-IND-21 Flares......................            4311  2nd Q-2009.........................  June 2009..........................  Approved: 76 FR 68106
                                                                                                                                  (November 3, 2011).
S-IND-14 Brandy and Wine Aging.......            4695  3rd Q-2009.........................  September 2009.....................  Approved: 76 FR 47076
                                                                                                                                  (August 4, 2011).
S-SOL-1 Architectural Coatings.......            4601  4th Q-2009.........................  December 2009......................  Approved: 76 FR69135
                                                                                                                                  (November 8, 2011).
S-AGR-2 Confined Animal Facilities...            4570  2nd Q-2010.........................  October 2010.......................  Approved: December 13,
                                                                                                                                  2011 (signature date).
S-SOL-6 Adhesives....................            4653  3rd Q-2010.........................  September 2010.....................  Approved: November 18,
                                                                                                                                  2011 (signature date).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: List of measures and anticipated adoption dates: 2007 Ozone Plan, Table 6-1, revised December 18, 2009.

    As part of its control strategy for attaining the 1997 8-hour ozone 
standards in the SJV, CARB committed to propose certain measures on the 
schedule identified in the 2007 State Strategy. These commitments were 
updated in the 2011 Progress Report and 2011 Ozone SIP Revisions. We 
list these measures and their current approval status in Table 2. Of 
the measures listed in the 2007 State Strategy's updated rulemaking 
schedule, we note that only reductions from the ``SmogCheck 
Improvement,'' ``Cleaner In-Use Heavy Duty Trucks,'' ``Cleaner In-Use 
Off-Road Engines,'' and ``Consumer Products Program'' measures are 
currently credited with reductions in the attainment demonstration. See 
76 FR 57846, 57853 (Table 7).
    Generally, EPA will approve a State plan that takes emissions 
reduction credit for a control measure only where EPA has approved the 
measure as part of the SIP, or in the case of certain on-road and 
nonroad measures, where EPA has issued the related waiver of preemption 
or authorization under CAA section 209(b) or section 209(e). In our 
September 2011 proposed rule, in calculating and proposing to approve 
the State's aggregate emissions reductions commitment in connection 
with our proposed approval of the attainment demonstration, we assumed 
that full final approval, waiver, or authorization of a number of CARB 
rules would occur prior to our final action on the San Joaquin Valley 
8-hour ozone SIP. See 76 FR 57846, 57853 (Table 7). Two specific 
adopted CARB rules on which the attainment demonstration relies include 
the Truck Rule and the Drayage Truck Rule (that collectively are 
included in a State measure referred to as ``Cleaner In-Use Heavy Duty 
Trucks''). We proposed approval of both rules at 76 FR 40652 (July 11, 
2011) but could not take final action on the rules until these rules 
were approved by the California Office of Administrative Law (OAL). OAL 
approved the Drayage Truck Rule on November 9, 2011 and the Truck Rule 
on December 14, 2011. CARB submitted the rules to EPA for final 
approval on December 9 and 15, 2011, respectively. We expect to 
complete action on these rules prior to the effective date of this 
rule.
    Based on anticipated approval of these two CARB rules, we are 
allowing the plan's attainment demonstration, and our final approval of 
it, to rely on the emissions reductions from these rules for the 
following reasons:
     Both rules have been adopted by CARB, approved by the 
California OAL, and submitted to EPA as a revision to the California 
SIP,\36\ and the adopted versions are essentially the same as those for 
which EPA proposed approval; and
---------------------------------------------------------------------------

    \36\ The Truck Rule and the Drayage Truck Rule were included in 
a SIP submittal dated September 21, 2011. We have included the 
September 21, 2011 SIP submittal in the docket for this rulemaking.
---------------------------------------------------------------------------

     The comments that we have received on our proposed 
approval of the two CARB rules (Truck Rule and Drayage Truck Rule) 
contend that the rules are costly and may not be economically or 
technologically feasible, but such considerations cannot form the basis 
for EPA disapproval of a rule submitted by a state as part of the SIP 
[see Union Electric Company v. EPA, 427 U.S. 246, 265 (1976)].
    We are confident that the final action on the rules will be 
completed in the

[[Page 12668]]

near-term and that, as a result, continued reliance by the SJV 2007 8-
hour Ozone SIP, and our final approval of it, on the emissions 
reductions associated with the rules is reasonable and appropriate. If, 
however, we are unable to complete a final action on these rules prior 
to the effective date of today's action, we will take appropriate 
remedial action to ensure that our action on the plan is fully 
supportable or to reconsider that action.

    \37\ California Assembly Bill 2289, passed in 2010, requires the 
Bureau of Automotive Repair to direct older vehicles to high 
performing auto technicians and test stations for inspection and 
certification effective 2013. Reductions shown for the SmogCheck 
program in the 2011 Ozone SIP Revisions do not include reductions 
from AB 2289 improvements. 2011 Ozone SIP Revisions, Appendix C.

   Table 2--2007 State Strategy Defined Measures Applicable to the SJV, Schedule for Consideration and Current
                                                     Status
----------------------------------------------------------------------------------------------------------------
              State measures                      Expected action year                   Current status
----------------------------------------------------------------------------------------------------------------
Smog Check Improvements..................  2007-2009.........................  Elements approved 75 FR 38023
                                                                                (July 1, 2010).\37\
Expanded Vehicle Retirement (AB 118).....  2007..............................  Adopted by CARB, June 2009; by
                                                                                Bureau of Automotive Repair,
                                                                                September 2010.
Modification to Reformulated Gasoline      2007..............................  Approved, 75 FR 26653 (May 12,
 Program.                                                                       2010)
Cleaner In-Use Heavy Duty Trucks           2007, 2008, 2010..................  Proposed for approval: 76 FR
 (includes Drayage rule).                                                       40652 (July 11, 2011) See
                                                                                discussion above.
Accelerated Introduction of Cleaner        2008..............................  Prop 1B bond funds awarded to
 Locomotives.                                                                   upgrade line-haul locomotive
                                                                                engines not already accounted
                                                                                for by enforceable agreements
                                                                                with the railroads. Those
                                                                                cleaner line-hauls will begin
                                                                                operation by 2012.
Cleaner In-Use Off-Road Engines..........  2007, 2010........................  Waiver decision pending.
Cleaner In-Use Agricultural Equipment....  2013..............................  Incentive program in progress.
                                                                                Additional action expected 2013.
New Emissions Standards for Recreational   2013..............................  Action expected 2013.
 Boats.
Expanded Off-Road Recreational Vehicle     2013..............................  Action expected 2013.
 Emissions Standards.
Enhanced Vapor Recovery for Above Ground   2008..............................  Adopted June 2007. Requirements
 Storage Tanks.                                                                 implemented through District
                                                                                Rule 4621.
Additional Evaporative Emissions           2013..............................  Action expected 2013.
 Standards.
Consumer Products Program (I & II).......  2008, 2009, 2011..................  Approved 74 FR 57074 (November 4,
                                                                                2009), 76 FR 27613 (May 12,
                                                                                2011) and December 7, 2011
                                                                                (signature date).
Pesticide Regulation (DPR)...............  2008, 2009........................  Submitted October 2009, revisions
                                                                                submitted August 2011.
----------------------------------------------------------------------------------------------------------------
Source: 2009 State Strategy Status Report, p.4, 2011 Progress Report, Table 1, and 2011 Ozone SIP Revisions,
  Appendix A-3. Additional information from www.ca.arb.gov.

B. Enforceable Emissions Reductions Commitments

    For the 2007 Ozone Plan, the District committed to achieve certain 
aggregate emissions reductions of NOX and VOC. See 2007 
Ozone Plan, Table 6-1 (revised December 18, 2008). See Table 3. EPA is 
approving these aggregate emissions reductions commitments.


                  Table 3--San Joaquin Valley Air Pollution Control District 2007 Ozone Plan Aggregate Emissions Reductions Commitments
                                                                  [Tons per summer day]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               2011            2012            2014            2017            2020            2023
--------------------------------------------------------------------------------------------------------------------------------------------------------
NOX.....................................................             4.4             6.0             6.3             7.8             8.0             8.2
VOC.....................................................            15.3            26.5            40.5            42.2            44.5            46.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: 2007 Ozone Plan, Table 6-1, revised December 18, 2008.

    In the 2007 State Strategy, CARB committed to achieve certain 
aggregate emissions reductions of 46 tpd NOX and 25 tpd VOC 
in the SJV by the attainment year of 2023 that are sufficient, in 
combination with existing SIP-creditable measures, the District's 
commitments, and commitments for reductions under the CAA section 
182(e)(5) new technologies provision, to attain the 1997 8-hour ozone 
standard in the San Joaquin Valley by the applicable attainment date of 
June 15, 2024. CARB also made enforceable commitments to achieve 
aggregate emissions reductions in the SJV in the RFP milestone years of 
2014, 2017, and 2020. See 2007 State Strategy, p. 63; CARB Resolution 
07-28, Attachment B, p. 6; and 2009 State Strategy Status Report, p. 
21. See Table 4 below.
    The 2011 Ozone SIP Revisions revised the State's emissions 
estimates for certain source categories and projection years and 
provided additional information on the State and District's progress to 
date in achieving their total emissions reduction commitments. In this 
action, we are approving CARB's and the District's emissions reduction 
commitments as submitted in the 2007 State Strategy, 2009 State 
Strategy Update and the 2007 Ozone Plan without change, because we do 
not have sufficient information to determine how the 2011 SIP Revision 
alters the State's near-term and CAA section 182(e)(5) emissions 
reduction commitments. We note that the amount and relative proportion 
of reductions from measures scheduled for adoption under CAA section 
182(e)(5), as compared to

[[Page 12669]]

measures already adopted or scheduled for near-term adoption, should 
decrease in any future SIP update.

                      Table 4--CARB Commitments to Specific Aggregate Emissions Reductions
                                              [Tons per summer day]
----------------------------------------------------------------------------------------------------------------
                                                                                                     2023 CAA
                                       2014            2017            2020            2023          182(e)(5)
----------------------------------------------------------------------------------------------------------------
VOC.............................              23             (1)              24              25             (1)
NOX.............................        \2\ 17.1           88-93              56              46              81
----------------------------------------------------------------------------------------------------------------
Source: 2009 State Strategy Status Report, p. 21.
\1\ No commitment to VOC reductions in 2017 or to VOC reductions pursuant to CAA 182(e)(5) advanced technologies
  provision.
\2\ As modified in the final approval of the SJV 2008 PM2.5 SIP, see 76 FR 69896, 69924.

IV. Approval of the Motor Vehicle Emissions Budgets for Transportation 
Conformity

    CARB submitted updated MVEB for the San Joaquin Valley and their 
documentation in Appendices A and C, respectively, of the 2011 Ozone 
SIP Revisions. As part of our review of the budgets' approvability, EPA 
evaluated the revised budgets using our adequacy criteria in 40 CFR 
93.318(e)(4). We posted the revised budgets on EPA's adequacy review 
Web page on September 19, 2011 and requested public comment by October 
19, 2011. We did not receive any comments. As documented in Table K-3 
in the TSD, we found that the budgets meet each adequacy criterion. We 
have completed our detailed review of the 2007 SJV 8-hour Ozone SIP and 
supplemental submittals including the 2011 Ozone SIP Revisions and are 
approving the SIP's attainment and RFP demonstrations. We have also 
reviewed the MVEB submitted with the 2011 Ozone SIP Revisions and have 
found that they are consistent with the attainment and RFP 
demonstrations and are based on control measures that have already been 
adopted and implemented. Therefore, we are approving the 2011, 2014, 
2017, 2020, and 2023 MVEB as shown in Table 5.
    Now that the approval of the budgets is finalized, the SJV MPOs and 
the U.S. Department of Transportation are required to use the revised 
budgets in transportation conformity determinations. Due to the 
formatting of the budgets (combining emissions changes, recession 
impacts and reductions from control measures), CARB will need to 
provide the MPOs with emissions reductions associated with the control 
measures incorporated into the budgets for the appropriate analysis 
years so that they can include these reductions in future conformity 
determinations in accordance with 40 CFR 93.122. In addition, for these 
conformity determinations, the motor vehicle emissions from 
implementation of the transportation plan should be projected and 
compared to the budgets at the same level of accuracy as the budgets in 
the plan, for example emissions should be rounded to the nearest tenth 
(e.g., 0.1 tpd).
    During the comment period on the proposed approval of the SJV 2007 
8-hour Ozone SIP, CARB requested that EPA limit the duration of its 
approval of the budgets submitted on July 29, 2011 as part of the 2011 
Ozone SIP Revisions to last only until the effective date of EPA's 
adequacy finding for any subsequently submitted budgets. See letter, 
Douglas Ito, Chief, Air Quality and Transportation Planning Branch; 
California Air Resources Board, October 17, 2011.
    The transportation conformity rule allows EPA to limit the approval 
of budgets. See 40 CFR 93.118(e)(1). However, we can only consider a 
state's request to limit an approval of its MVEB if the request 
includes the following elements:
     An acknowledgement and explanation as to why the budgets 
under consideration have become outdated or deficient;
     A commitment to update the budgets as part of a 
comprehensive SIP update; and
     A request that EPA limit the duration of its approval to 
the time when new budgets have been found to be adequate for 
transportation conformity purposes.

See 67 FR 69141 (November 15, 2002) (limiting our prior approval of 
MVEB in certain California SIPs).
    Because CARB's request does not include all of these elements, we 
cannot address it at this time. Once CARB has adequately addressed 
them, we intend to propose to limit the duration of our approval of the 
MVEB in the SJV 2007 8-hour Ozone SIP and provide the public an 
opportunity to comment.\38\ The duration of the approval of the 
budgets, however, is not limited until we complete such a rulemaking.
---------------------------------------------------------------------------

    \38\ CARB's letter also requested that we limit the duration of 
our approval of the MVEB approved with the 2008 PM2.5 
Plan. These budgets were also submitted on July 29, 2011 as an 
appendix to the 2001 Ozone SIP Revisions.

          Table 5--Motor Vehicle Emissions Budget in the SJV 2007 Ozone SIP as Revised on July 21, 2011
                                              [Tons per summer day]
----------------------------------------------------------------------------------------------------------------
              Year                     2011            2014            2017            2020            2023
----------------------------------------------------------------------------------------------------------------
             County                 ROG     NOX     ROG     NOX     ROG     NOX     ROG     NOX     ROG     NOX
----------------------------------------------------------------------------------------------------------------
Fresno..........................    14.3    36.2    10.7    30.0     9.3    22.6     8.3    17.7     8.0    13.5
Kern (SJV)......................    12.7    50.3     9.7    42.7     8.7    31.7     8.2    25.1     7.9    18.6
Kings...........................     2.8    10.7     2.1     8.9     1.8     6.7     1.7     5.3     1.6     4.0
Madera..........................     3.4     9.3     2.5     7.7     2.2     5.8     2.0     4.7     1.9     3.6
Merced..........................     5.1    19.9     3.7    16.7     3.2    12.4     2.9     9.9     2.8     7.4
San Joaquin.....................    11.1    24.6     8.4    20.5     7.2    15.6     6.4    12.4     6.3    10.0
Stanislaus......................     8.5    16.9     6.4    13.9     5.6    10.6     5.0     8.4     4.7     6.4

[[Page 12670]]

 
Tulare..........................     8.8    16.0     6.7    13.2     5.8    10.1     5.3     8.1     4.9     6.2
----------------------------------------------------------------------------------------------------------------

V. Final Actions

    For the reasons discussed in our September 16, 2011 proposed rule 
(76 FR 57846) and further explained above, EPA is approving 
California's SIP for attaining the 1997 8-hour ozone NAAQS in the San 
Joaquin Valley. The California 8-hour ozone attainment SIP for the San 
Joaquin Valley is composed of the SJVUAPCD's 2007 Ozone Plan as revised 
in 2009 and 2011 and the SJV-specific portions of CARB's 2007 State 
Strategy as revised in 2009 and 2011 that address CAA and EPA 
regulations for attainment of the 1997 8-hour ozone NAAQS in the SJV.
    Specifically, EPA is approving under CAA section 110(k)(3) the 
following elements of the SJV 2007 8-hour ozone attainment SIP:
    1. The revised 2002 base year emissions inventory as meeting the 
requirements of CAA sections 182(a)(1) and 40 CFR 51.915;
    2. The reasonably available control measures demonstration as 
meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.912(d);
    3. The reasonable further progress demonstration as meeting the 
requirements of CAA section 172(c)(2) and 182(c)(2)(B) and 40 CFR 
51.910;
    4. The attainment demonstration as meeting the requirements of CAA 
sections 182(c)(2)(A) and 40 CFR 51.908;
    5. The provisions for the development of new technologies pursuant 
to CAA section 182(e)(5) and CARB's commitment to adopt and submit by 
2020 contingency measures to be implemented if the new technologies do 
not achieve the planned emissions reductions and additional attainment 
contingency measures meeting the requirements of CAA 172(c)(9) as given 
in CARB Resolution 11-22 (July 21, 2011), and CARB's commitment to 
develop and submit by 2020 revisions to the SIP that will: (1) Reflect 
modifications to the 2023 emissions reduction target based on updated 
science and (2) identify additional strategies and implementing 
agencies needed to achieve the needed reductions by 2023 as given in 
the 2011 Ozone SIP Revisions on page A-8;
    6. The contingency measure provisions for failure to make RFP and 
to attain as meeting the requirements of CAA sections 172(c)(9) and 
182(c)(9);
    7. The demonstration that the SIP provides for transportation 
control strategies and measures sufficient to offset any growth in 
emissions from growth in VMT or the number of vehicle trips and to 
provide for RFP and attainment as meeting the requirements CAA section 
182(d)(1)(A);
    8. The revised motor vehicle emissions budgets for the RFP years of 
2011, 2014, 2017, and 2020 and the attainment year of 2023 submitted on 
July 29, 2011 because they are derived from approvable RFP and 
attainment demonstrations and meet the requirements of CAA section 
176(c) and 40 CFR part 93, subpart A;
    9. SJVUAPCD's commitments to achieve specific aggregate emissions 
reductions of direct VOC and NOX, as listed in Table 6-1 of 
the 2007 Ozone Plan (as revised December 18, 2008) and as given in 
Table 3 above; and
    10. CARB's commitments to propose certain defined measures, as 
listed in Table B-1 on page 1 of Appendix B of the 2011 Progress Report 
and in Appendix A-3 of the 2011 Ozone SIP Revisions, to achieve 
aggregate emissions reductions of 23 tpd of VOC by 2014; 88-93 tpd of 
NOX by 2017; 24 tpd of VOC and 46 tpd of NOX by 
2023 from existing technologies and 81 tpd of NOX by 2023 
from new technologies as provided in CARB Resolution 07-28, Attachment 
B and the 2009 State Strategy Status Report; p. 20 and as given in 
Table 4 above; to update the SJV 2007 Ozone Plan modeling to reflect 
the emissions inventory improvements and any other new information by 
December 31, 2014 or by the date the SIPs are due for the revised 8-
hour ozone standard, whichever comes first, as provided in CARB 
Resolution 11-22 (July 21, 2011), p. 3, and to achieve the emissions 
reductions needed to attain the 8-hour ozone standard in the SJV as 
provided in CARB Resolution 07-28 (September 27, 2007), Appendix B, p. 
3, 2009 State Strategy Status Report, p. 13.
    Finally, we find that SJVUAPCD has satisfied the clean fuel/
advanced technology requirement for boilers in CAA section 182(e)(3) 
for the SJV.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because this approval action does not create any 
new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

[[Page 12671]]

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that this approval action as promulgated does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a State rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves a 
State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking. In reviewing SIP submissions, EPA's role is 
to approve or disapprove state choices, based on the criteria of the 
Clean Air Act. Accordingly, this action merely approves certain State 
requirements for inclusion into the SIP under CAA section 110 and 
subchapter I, part D and disapproves others, and will not in-and-of 
itself create any new requirements. Accordingly, it does not provide 
EPA with the discretionary authority to address, as appropriate, 
disproportionate human health or environmental effects, using 
practicable and legally permissible methods, under Executive Order 
12898.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress

[[Page 12672]]

and to the Comptroller General of the United States. EPA will submit a 
report containing this rule and other required information to the U.S. 
Senate, the U.S. House of Representatives, and the Comptroller General 
of the United States prior to publication of the rule in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. section 804(2). This rule will be effective on 
April 30, 2012.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 30, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Air pollution control, Incorporation by reference, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic 
compounds.

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

    Dated: December 15, 2011.
Jared Blumenfeld,
Regional Administrator, EPA Region 9.

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

PART 52 [AMENDED]

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 adding paragraphs (c)(356)(ii)(B)(4), 
(c)(396)(ii)(A)(1)(i) and (2)(i), (c)(397)(ii)(A)(4) and (B), and 
(c)(408).


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (356) * * *
    (ii) * * *
    (B) * * *
    (4) CARB Resolution No. 07-28 with Attachments A and B, September 
27, 2007. Commitments to achieve the total emissions reductions 
necessary to attain the Federal standards in the SJV air basin, which 
represent aggregate emissions reductions of 24 tons per day (tpd) of 
volatile organic compounds (VOC) and 46 tpd of nitrogen oxides 
(NOX) by 2023 from existing technologies and 81 tpd of 
NOX by 2023 from new technologies and to achieve 23 tpd of 
VOC by 2014; 88-93 tpd of NOX by 2017; 24 tpd of VOC and 56 
tpd of NOX by 2020 as provided in CARB Resolution 07-28, 
Attachment B, pp. 3-6 as modified by the 2009 State Strategy Status 
Report, pp. 20-21 as adopted by CARB Resolution No. 09-34 (April 24, 
2009).
* * * * *
    (396) * * *
    (ii) * * *
    (A) * * *
    (1) * * *
    (i) Commitment to develop and submit by 2020 revisions to the SIP 
that will: Reflect modifications to the 2023 emissions reduction target 
based on updated science and identify additional strategies and 
implementing agencies needed to achieve the needed reductions by 2023 
as given in the 2011 Ozone SIP Revisions on page A-8.
    (2) * * *
    (i) Commitment to develop, adopt and submit by 2020 contingency 
measures to be implemented if advanced technology measures do not 
achieve the planned reductions and attainment contingency measures 
meeting the requirements of CAA 172(c)(9), pursuant to CAA section 
182(e)(5) as given on page 4.
    (ii) Commitment to update the air quality modeling in the SJV 2007 
Ozone Plan to reflect the emissions inventory improvements and any 
other new information by December 31, 2014 or the date by which state 
implementation plans are due for the expected revision to the federal 
8-hour ozone standard whichever comes first, as provided on page 3.
* * * * *
    (397) * * *
    (ii) * * *
    (A) * * *
    (4) CARB Resolution No. 07-20 with Attachment A, June 14, 2007.
    (B) San Joaquin Valley Unified Air Pollution Control District.
    (1) 2007 Ozone Plan, adopted on April 30, 2007.
    (2) SJVUAPCD Governing Board, In the Matter of: Adopting the San 
Joaquin Valley Unified Air Pollution Control District 2007 Ozone Plan, 
Resolution No. 07-04-11a, April 30, 2007. Commitments to achieve 
emissions reductions as described in Table 6-1 of the 2007 Ozone Plan, 
as amended December 18, 2008.
* * * * *
    (408) An amended plan was submitted on April 24, 2009 by the 
Governor's designee.
    (i) [Reserved]
    (ii) Additional Material.
    (A) San Joaquin Valley Unified Air Pollution Control District.
    (1) Amendments to the 2007 Ozone Plan (amending the rulemaking 
schedule for Measure S-GOV-5 Organic Waste Operations) adopted on 
December 18, 2008.
    (2) SJVUAPCD Governing Board, In the Matter of: Proposed Amendment 
to the 2007 Ozone Plan to Extend the Rule Adoption Schedule for Organic 
Waste Operations, SJVUAPCD Governing Board Resolution No. 08-12-18. 
December 18, 2008.

[FR Doc. 2012-4674 Filed 2-29-12; 8:45 am]
BILLING CODE 6560-50-P


