MEMORANDUM
DATE:		September 18, 2012
FROM:	Jeanhee Hong, Assistant Regional Counsel, EPA Region 9
TO:		File / Public Docket: EPA-R09-OAR-2012-0734
RE:		Phone call from Paul Cort, Counsel for Earthjustice, re: EPA's proposed 
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            action on 1-hour ozone plan for San Joaquin Valley (SJV)

P. Cort:  EPA's proposed SIP call on the South Coast 1-hour plan states that the new 1-hour plan will be subject to CAA section 172(a)(2) deadlines (5-10 year language).  The way EPA got there is that those are the requirements that applied when the state developed the 1997/99 SIP.  Does this rationale apply to the SJV plan?  EPA approved the SJV 1-hour plan in 2010.  So is the belief that the requirements will be different for SJV because of the date that the ozone plan was approved?
J. Hong: the language about "requirements that applied when the state developed the 1997/99 SIP" reflects the standard for SIP calls in CAA section 110(k)(5).  Our proposed action on the 1-hour plan for SJV is not a proposed SIP call under CAA section 110(k)(5), so that standard does not apply.  EPA is proposing to withdraw our previous approval of the SJV 1-hour plan to set the stage for further proceedings consistent with the Ninth Circuit's remand of our action in Sierra Club v. EPA.
P. Cort: so outside of this proposal, any discussion of how we get to CAA 172(a)(2)?  What requirement governs the attainment date?
J. Hong: as discussed in the proposed rule, we are proposing to require that the State submit, among other plan elements, a new attainment demonstration meeting the requirements of CAA 182(c)(2)(A) and 172(a)(2).  In an earlier part of the notice we identified the plan elements that we had approved in March 2010, including an attainment demonstration meeting the requirements of CAA sections 182(c)(2)(A) and 181(a).  For purposes of a new 1-hour plan, however, we stated that the required plan elements would include an attainment demonstration meeting the requirements of CAA sections 182(c)(2)(A) and 172(a)(2).
P. Cort: what's the rationale for relying on section 172(a)(2) for the attainment date?
J. Hong: We did not elaborate in our proposal given the statute does not provide explicit direction in this particular context. 
P. Cort: We're going to let Jared know we'll have to advise our clients to file another deadline suit.  Until the plan is withdrawn and EPA makes a finding of failure to submit, EPA will be back in the same position it was in before Sierra Club brought its original deadline suit on the 1-hour plan  -  i.e., it will have a plan in-house on which EPA action is long overdue.
J. Hong: We appreciate the heads up.  What if the State promptly withdraws the plan as it has indicated it would, and EPA then promptly makes a finding of failure to submit?
P. Cort: Right, this issue may cure itself.  But we will have to keep that pressure on to make sure that happens.

