[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Rules and Regulations]
[Pages 69896-69926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27232]
[[Page 69895]]
Vol. 76
Wednesday,
No. 217
November 9, 2011
Part IV
Environmental Protection Agency
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40 CFR Part 50
Approval and Promulgation of Implementation Plans; California; 2008 San
Joaquin Valley PM2.5 Plan and 2007 State Strategy; Final Rule
Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 /
Rules and Regulations
[[Page 69896]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2010-0516; FRL-9482-2]
Approval and Promulgation of Implementation Plans; California;
2008 San Joaquin Valley PM2.5 Plan and 2007 State Strategy
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving in part and disapproving in part state
implementation plan (SIP) revisions submitted by California to provide
for attainment of the 1997 fine particulate matter (PM2.5)
national ambient air quality standards in the San Joaquin Valley (SJV).
These SIP revisions are the SJV 2008 PM2.5 Plan (revised
2010 and 2011) and SJV-related provisions of the 2007 State Strategy
(revised 2009 and 2011). EPA is approving the emissions inventory, the
reasonably available control measures/reasonably available control
technology demonstration, reasonable further progress demonstration,
attainment demonstration and associated air quality modeling, and the
transportation conformity motor vehicle emissions budgets. EPA is also
granting California's request to extend the attainment deadline for the
SJV to April 5, 2015 and approving commitments to measures and
reductions by the SJV Unified Air Pollution Control District and the
California Air Resources Board. Finally, it is disapproving the SIP's
contingency provisions and issuing a protective finding for
transportation conformity determinations under 40 CFR 93.120(a)(3) for
this disapproval.
DATES: The rule is effective January 9, 2012.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2010-0516 for
this action. The index to the docket is available electronically at
http://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/PM_Plans.htm and http://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, [email protected]
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 2008 State
Implementation Plan for Attainment of the 1997 PM2.5
Standards in the San Joaquin Valley
II. Response to Public Comments Received on the Proposals
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 and Trading
Mechanism for Transportation Conformity
V. Final Actions and Resulting Clean Air Act Consequences
VI. Statutory and Executive Order Reviews
I. Summary of EPA's Proposed and Final Actions on the 2008 State
Implementation Plan for Attainment of the 1997 PM2.5
Standards in the San Joaquin Valley
On July 13, 2011, EPA proposed to approve in part and disapprove in
part California's state implementation plan (SIP) for attaining the
1997 fine particulate (PM2.5) national ambient air quality
standards (NAAQS) in the San Joaquin Valley (SJV). See 76 FR 41338.
California developed this SIP to provide for expeditious attainment of
the PM2.5 standards in the SJV and to meet other applicable
PM2.5 planning requirements in Clean Air Act (CAA) section
172(c) and EPA's PM2.5 implementation rule.\1\
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\1\ ``The Clean Air Fine Particle Implementation Rule for the
1997 PM2.5 NAAQS,'' 72 FR 20586 (April 25, 2007) and
codified at 40 CFR part 51, subpart Z (PM2.5
implementation rule).
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In all, California has made six submittals to address the
PM2.5 SIP planning requirements for the SJV. The two
principal ones are the SJV Unified Air Pollution Control District's
(SJVUAPCD or District) 2008 PM2.5 Plan (amended 2010 and
2011) and the California Air Resources Board's (CARB) State Strategy
for California's 2007 State Implementation Plan (amended 2009 and
2011).\2\ Together, the 2008 PM2.5 Plan and the 2007 State
Strategy present a comprehensive and innovative strategy for attaining
the 1997 PM2.5 standards in the SJV.
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\2\ These SIP submittals are:
1. SJVUAPCD, 2008 PM2.5 Plan, adopted on April 30, 2008 by the
SJVUAPCD and on May 22, 2008 by CARB, submitted on June 30, 2008.
2. CARB, Proposed State Strategy for California's 2007 State
Implementation Plan, as amended and adopted on September 27, 2007 by
CARB, submitted on November 16, 2007.
3. CARB, Status Report on the State Strategy for California's
2007 State Implementation Plan (SIP) and Proposed Revisions to the
SIP Reflecting Implementation of the 2007 State Strategy (pages 11-
27 only), adopted on April 24, 2009 by CARB, submitted on August 12,
2009.
4. SJVUAPCD, 2008 PM2.5 Plan Amendment to Extend the Rule 4905
Amendment Schedule, adopted on June 17, 2010 by the SJVUAPCD,
submitted on September 15, 2010
5. CARB, Progress Report on Implementation of PM2.5 State
Implementation Plans (SIP) for the South Coast and San Joaquin
Valley Air Basins and Proposed SIP Revisions (Appendices B, C and D
only), adopted on April 28, 2011 by CARB, submitted on May 18, 2011.
``2011 Progress Report.''
6. 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 by CARB and
submitted on July 29, 2011. (``2011 Ozone SIP Revisions'') Only the
PM2.5 motor vehicle emissions budgets in this submittal
are addressed in today's action.
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In our July 2011 notice, EPA proposed multiple approval actions on
the SJV 2008 PM2.5 SIP. First, we proposed to approve the
SIP's reasonably available control measure/reasonably available control
technology (RACM/RACT) demonstration, reasonable further progress (RFP)
demonstration, attainment demonstration and associated air quality
modeling, base year emissions inventory; air quality modeling; and
motor vehicle emissions budgets.\3\ Second, we proposed to approve
enforceable commitments by both the District and CARB to certain
measures and specific amounts of emissions reductions. Third, we
proposed to concur with the State's determination that volatile organic
compounds (VOC) and ammonia are not attainment plan precursors for
attainment of the 1997 PM2.5 NAAQS in
[[Page 69897]]
the SJV. Lastly, we proposed to grant California's request to extend
the attainment date for the San Joaquin Valley PM2.5
nonattainment area to April 5, 2015. See 76 FR 41338, 41361.
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\3\ The 2011 Progress Report contained budgets that were not
approvable because they included emissions reductions from a rule
that was ineligible for SIP credit. These budgets also included data
entry errors. See 76 FR 41338, 41360. We proposed instead to approve
alternative budgets that CARB had developed and posted for public
comment as part of its 2011 Ozone SIP Revisions and stated that the
approval was contingent on our receipt of the SIP revision
containing the revised budgets. Id. CARB submitted that SIP revision
on July 29, 2011.
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EPA also proposed to disapprove the contingency measures provisions
of the SJV 2008 PM2.5 SIP for failing to provide sufficient
emissions reductions.\4\ Id.
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\4\ We also proposed to disapprove a commitment by the District
to adopt revisions to its Rule 4702 ``Reciprocating Internal
Combustion Engines'' by December 2010 because that date had passed
and the District had not adopted revisions to the rule. We stated in
the proposal that we would not finalize this proposed disapproval if
the District adopted revisions to the rule by the time of our final
action on the SIP. See 76 FR 41338, 41361. On August 18, 2011, the
District adopted the revisions to Rule 4702; therefore, we are not
finalizing our proposed disapproval of this commitment.
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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 July 2011
proposal (76 FR 41338) 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 2008 PM2.5 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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Our July 2011 proposal was the second time that EPA proposed action
on California's SJV 2008 PM2.5 SIP. On November 30, 2010 (75
FR 74518), EPA proposed to disapprove the majority of the provisions in
this SIP. During the comment period for the November 2010 proposal, we
received several comment letters from the public as well as comment
letters from CARB and the District. Subsequent to the close of the
comment period, CARB adopted and submitted revisions to the SJV
PM2.5 Plan and 2007 State Strategy. After considering
information contained in the comment letters and the supplemental SIP
submittals, we issued the July 2011 proposed rule which substantially
amended our November 2010 proposal.
EPA is today approving most elements of the SJV 2008
PM2.5 SIP based on our conclusion that they comply with
applicable CAA requirements and provides for expeditious attainment of
the 1997 PM2.5 standards in the San Joaquin Valley. We are
also today disapproving the SIP's contingency measure provisions
because they do not provide sufficient emissions reductions. We are
continuing to working with the State and District to identify
additional control measures and incentive programs that meet the CAA's
requirements for contingency measures consistent with EPA regulations
and policy.
II. Response to Public Comments Received on the Proposals
As part of this final action, EPA has considered and provided
responses to the comments submitted in response to both the November
2010 and the July 2011 proposals. Comments on our proposals were
received from:
The Center on Race, Poverty & the Environment on behalf of the
Association of Irritated Residents (AIR) and other San Joaquin Valley-
based environmental and community organizations. AIR submitted comments
on both proposals.
Earthjustice, on behalf of Medical Advocates for Healthy Air and
other San Joaquin Valley-based environmental and community
organizations. Earthjustice submitted comments on both proposals.
SJVUAPCD provided comments on the November 2010 proposal.
CARB provided two comment letters on our November 2010 proposal.
The first transmitted air quality modeling documentation and the second
provided comments on the proposal.\6\
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\6\ The majority of CARB's and the District's comments addressed
the November 2010 proposed disapprovals and EPA's grounds for them.
These comments were, for the most part, addressed by our July 2011
amended proposal.
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Tom Frantz, President, AIR, submitted comments on our November 2010
proposal.
Arthur D. Unger submitted comments on our November 2010 proposal.
A copy of these comment letters and their attachments can be found
in the docket for this final rule.
In the following sections, we summarize our responses to the most
significant comments received on the proposals. Our full responses to
all comments received can be found in the ``Response to Comments''
section (section III) of the TSD for this final rule.
A. Comments on the Proposed Action on the Emissions Inventory
Comment: Earthjustice comments on the importance of emissions
inventories, noting that CAA section 172(c)(3) requires that
nonattainment plans ``include a comprehensive, accurate, current
inventory of actual emissions from all sources of the relevant
pollutant or pollutants in such area.'' Earthjustice objects to EPA's
proposal to approve the inventories in the 2008 PM2.5 SIP
because they were current and accurate ``at the time the Plan was
developed and submitted,'' arguing that such language is not in the CAA
and is not a reasonable extension of Congress's intent, which is to
ensure the adoption and approval of SIPs that will achieve clean air
meeting the NAAQS. Earthjustice argues that an inventory that is
``known to be wrong'' undermines the modeling demonstration of the
emissions reductions needed to attain, and that EPA's interpretation
suggests that revisions to an inventory are needed only when it is
found that the inventory is not current or accurate as of the date it
is submitted. Earthjustice argues that such an interpretation
undermines any assurance that ``the requirements of [Part D of the CAA]
are met.'' Finally, Earthjustice asserts that ``EPA cannot approve
these inventories as complying with the requirements of section
172(c)(3) knowing that the data are not valid for purposes of building
an attainment plan.''
Response: EPA does not dispute the importance of emissions
inventories. We evaluated the emissions inventories in the 2008
PM2.5 Plan to determine whether they satisfy the
requirements of CAA section 172(c)(3) and adequately support the Plan's
RACM, RFP and attainment demonstrations. Based on this evaluation, we
have concluded that the Plan's 2005 base year emissions inventory was
based on the most current and accurate information available to the
State and District at the time the Plan was developed and submitted and
comprehensively addresses all source categories in the SJV area,
consistent with applicable CAA requirements and EPA guidance. See 76 FR
41338 at 41342-41343 and 2011 Proposal TSD \7\ at section IIA; see also
``General Preamble for Implementation of Title I of the Clean Air Act
Amendments of 1990,'' 57 FR 13498 at 13502 (April 16, 1992) (``General
Preamble'').
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\7\ ``Technical Support Document for the Revised Proposed
Rulemaking Action on the San Joaquin Valley 2008 PM2.5
Plan and the San Joaquin Valley Portions of the Revised 2007 State
Strategy,'' Air Division, U.S. EPA, Region 9, June 29, 2011, ``2011
Proposal TSD.''
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We do not agree with Earthjustice's suggestion that EPA interprets
the CAA to require revisions to an emissions inventory only when it is
found that such inventory is not current or accurate as of the date it
is submitted. Significant changes to a base year inventory that
undermine the assumptions in an attainment demonstration may, on a case
by case basis, call for a reevaluation of the modeling or other
planning analyses supporting that demonstration. In this case, however,
as discussed in the proposed rule (76 FR 41562, 41567) and in section
II.A. below, we have concluded that the State's changes to its
methodologies for estimating future
[[Page 69898]]
emissions do not significantly affect the 2002 base year inventories
and, consequently, do not undermine the modeling or other analyses that
rely on those inventories and that support the attainment demonstration
in the Plan. Based on this technical assessment, we have concluded that
it is not necessary in this case for the State to submit a revised base
year inventory. We note that states are required to report
comprehensive emissions inventories to EPA every three years under the
Air Emissions Reporting Requirements in 40 CFR part 51, subpart A. See
40 CFR 51.30(b).
CAA section 172(b) provides that ``the State containing [a
nonattainment] area shall submit a plan or plan revision (including the
plan items) meeting the applicable requirements of [section 172(c) and
section 110]'' on the schedule established by EPA, and section 172(c)
contains, inter alia, the requirement that nonattainment plans ``shall
include a comprehensive, accurate, current inventory of actual
emissions from all sources of the relevant pollutant or pollutants in
such area.'' We believe it is reasonable to read these provisions
together as requiring that the State submit an inventory that is
``comprehensive, accurate, [and] current'' at the time the State
submitted it to EPA, rather than requiring that the State continually
revise its plan as new emissions data becomes available. See Brief of
Respondents, EPA, in Sierra Club, et al. v. U.S. EPA, et al., Case Nos.
10-71457 and 10-71458 (consolidated), May 5, 2011. States could never
effectively plan for air quality improvements if they had to constantly
revise their inventories as new data became available. Air quality
planning is an iterative process and states and EPA must rely on the
best available data at the time the plans are created.
Comment: Throughout its comments, AIR uses the term ``recession
reductions'' which it defines as ``the emissions reductions the [C]ARB
claims have occurred as a result of the recession.''
Response: In its comments, AIR calculates what it considers ``the
total reductions from baseline reductions without recession
reductions'' as 11 tpd of PM2.5, 195 tons per day (tpd) of
nitrogen oxides (NOX), and 0.9 tpd of sulfur oxides
(SOX). These figures are the same as the calculated
reductions from the baseline measures prior to the updates to the 2014
baseline inventory.\8\ Based on these calculations, AIR seems to
consider the ``recession reductions'' to be the difference between the
2014 baseline inventory submitted with the 2008 PM2.5 Plan
in 2008 and the revised 2014 baseline inventory submitted with the 2011
Progress Report in 2011. By labeling this difference as ``recession
reductions,'' AIR attributes the differences entirely to revisions to
the economic forecasts. This is not entirely correct.
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\8\ See line D on Table 7 in the November 30, 2010 proposed
action on the SJV PM2.5 SIP at 75 FR 74518. On this
table, the baseline NOX reductions are listed as 199.2
tpd but include 4.2 tpd of uncreditable reductions that are not
included in AIR's numbers. By ``baseline inventories'' or
``projected baseline inventories,'' we mean projected emissions
inventories for future years that account for, among other things,
the ongoing effects of economic growth and adopted emissions control
requirements. A 2014 baseline inventory is important because this
year is the ``attainment year,'' the year by which all reductions
needed for attainment need to be in place for the SJV. See 40 CFR
51.1007(b).
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Changes to the 2014 baseline inventory include revisions not only
to the economic forecasts but also to a variety of other factors (out-
of-state vehicle miles traveled (VMT) estimates, cumulative mileage,
equipment populations, load factors, and hours of use, etc.) used to
calculate emissions from trucks, buses, and certain off-road equipment
categories. See 2011 Progress Report, Appendix E. CARB estimates that
revisions to the truck inventory excluding recession impacts reduced
truck emissions statewide by 10 percent from the 2014 baseline levels
estimated when the Truck rule was adopted in 2008 while recession
impacts reduced the baseline level by a further 7 percent. See 2010
Truck Rule ISOR, p. 19.\9\ For off-road equipment, CARB estimates that
inventory changes independent of the recession were responsible for
half the overall reduction in projected statewide emissions. See 2010
Off Road Rule ISOR, p. 17.\10\ We note that these figures are average
statewide figures and not specific to the SJV.
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\9\ CARB, ``Staff Report: Initial State of Reasons for Proposed
Rulemaking, Proposed Amendments to the Truck and Bus Regulations,
The Drayage Truck Regulation and the Tractor-Trailer Greenhouse Gas
Regulation,'' October 2010 (``2010 Truck Rule ISOR'').
\10\ CARB Staff Report: Initial Statement of Reasons for
Proposed Amendments to the Regulation for In-Use Off-Road Diesel-
Fueled Fleets and the Off-Road Large Spark-Ignition Fleet
Requirements, October 2010, including Appendix D1 (``2010 Off-Road
Rule ISOR'').
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Comment: AIR contends that in the 2011 Progress Report, CARB first
claims that the reduced economic activity caused by the recession has
reduced 2014 emissions levels in the SJV by 2.7 tpd of
PM2.5, 63.1 tpd of NOX and 0.1 tpd of
SOX. AIR further contends that CARB claims that the
recession has caused current inventories of the goods movement and
construction sectors to be lower than projected in the 2008
PM2.5 Plan. Finally, citing EPA's statement in the 2011
Proposal TSD about the effect of the 2007-2009 economic recession on
activity levels in the State's construction and goods movement sectors,
AIR asserts that accounting for the recession through inventory
adjustments is improper.
Response: CARB does not claim that the recession alone has reduced
the projected 2014 baseline emissions in the SJV nor did it provide the
numbers cited by AIR. As discussed in the response to the preceding
comment, revisions to the baseline inventory took into account not only
changes to the State's economic forecasts but also updated information
on out-of-state VMT estimates, cumulative mileage, equipment
populations, and other data used to calculate emissions from trucks,
buses, and certain off-road equipment. The emissions reduction figures
that AIR ascribes to CARB are figures EPA calculated using data
provided by CARB.
EPA uses the phrase ``adjustments to the baseline'' to refer to the
difference between the 2014 baseline initially submitted in the 2008
SJV PM2.5 Plan and the recently revised 2014 baseline as
submitted in the 2011 Progress Report. This ``adjustments to baseline''
figure is nothing more than EPA's summary of the overall impact of both
recession and non-recession related changes between the two projected
inventories. EPA calculated this adjustment from summary data CARB
provided in Appendix E of the 2011 Progress Report. The adjustment
represents the net results of CARB's changes to its inventories rather
than the changes themselves.
CARB revised its inventories for trucks and diesel off-road
equipment to incorporate new and better data including new research on
truck travel within California. See 2010 Truck Rule ISOR, Appendix G.
These revisions were not mere adjustments to previous inventories but
thorough reviews of much of the data that goes into estimating
emissions from these sources. See 2010 Truck Rule ISOR, Appendix G and
2010 Off-Road Rule ISOR, Appendix D.\11\ These inventory revisions also
included review of current and future activity data (such as fuel
consumption, diesel fuel sales,
[[Page 69899]]
trucking industry tonnage reports, truck sales trends, and truck
registration data) for these categories as well as economic forecasts
from a number of reputable sources.\12\ Throughout its development of
these revisions, CARB held workshops seeking public review and input
into its work. See 2010 Truck Rule ISOR, p. 13.
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\11\ For an overview of these changes and their results, see the
presentation to the CARB Board by CARB's Planning and Technical
Support Division on November 18, 2010, entitled, ``Diesel Inventory
Improvements for Regulatory Development,'' available at http://www.arb.ca.gov/board/books/2010/111810/10-10-9pres.pdf and in the
docket for this rule.
\12\ See CARB, ``ARB Staff Assessment of the Impact of the
Economy on California Trucking Activity and Emissions 2006-2014,''
draft December 2009, available in the docket for this rule. Sources
of economic data included California Department of Finance,
California Legislative Analyst's Office, California Energy
Commission, UCLA Anderson School, Beacon Economics, University of
the Pacific, Congressional Budget Office, and US Energy Information
Agency. Id. pp. 11-12.
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Emissions projections are a function of change in activity (growth
or decline) combined with changes in the emissions rate or controls
applicable to emissions sources. Projected inventories are, therefore,
necessarily affected by forecasts of industrial growth, population
growth, and transportation growth, among other factors.\13\ EPA
guidance emphasizes the importance of developing reliable methods for
estimating future source activity levels as part of the SIP planning
process.\14\
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\13\ See ``Emission Projections,'' STAPPA/ALAPCO/EPA Emissions
Inventory Improvement Project, Volume X (December 1999) at 1-1
(available at http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf).
\14\ See ``Procedures for Preparing Emissions Projections,'' EPA
Office of Air Quality Planning and Standards, EPA-450/4-91-019 (July
1991) at p. 6 and section III.
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We disagree with AIR's assertion that ``EPA claims that the ARB has
opted to take credit for the decrease in the inventory in the
attainment demonstration as `a line-item adjustment to the baseline
inventories.' '' EPA stated in the 2011 Proposal TSD (pg. 18) that
``California is reflecting these recession impacts as a line-item
adjustment to the baseline inventories.'' This statement was incorrect
and should have read that EPA (not CARB) is reflecting the recession
impacts as a line-item adjustment to the baseline inventories. EPA
believes this adjustment is appropriate in light of the impact of these
emissions changes on the baseline. We should have also been clearer
that the 2014 adjustments included the technical revisions to the
inventory that are discussed on page 19 of the 2011 Proposal TSD.
Finally, we note that although AIR objects categorically to the
revisions to the projected emissions inventories based on CARB's
revised economic forecasts, it provides no information to refute CARB's
extensive documentation of the impact of the economic recession on air
pollution generating activity. It also provides no information to
refute CARB's non-recession related revisions to the projected
inventories.
B. Comments on the Proposed Action on the Air Quality Modeling
Comment: Earthjustice and AIR comment that CARB's emissions
inventory update necessitates new attainment demonstration modeling.
AIR alleges that EPA's 2011 Proposal TSD stated that updates should
trigger new modeling. AIR notes EPA's statement in that TSD that the
model underpredicts. In addition, AIR questions EPA's reliance on
unreviewed model sensitivity results from CARB as the basis for not
requiring new modeling. Earthjustice comments that the difficulty of
performing new modeling is not a valid reason for approving an
erroneous attainment demonstration. It adds that EPA's method for
assessing the effect of the inventory update has the ``obvious flaw''
that it relies on design value changes to within hundredths of a
percent, starting from design values that are, according to
Earthjustice, acknowledged to be erroneous.
Response: While some large emissions inventory changes might indeed
necessitate new modeling, EPA does not agree that the inventory changes
were large enough to substantially affect the SJV modeling conclusions,
or to invalidate the SJV attainment demonstration. As EPA stated in the
2011 Proposal TSD (p. 47), ideally new modeling would be performed when
an area's emissions inventory is changed. However, since the cost in
time and resources of remodeling and consequent reworking of a plan is
not trivial, administrative necessity requires a judgment call about
when changes are large enough to merit new modeling; there is no
automatic trigger. An important criterion in making this judgment is
whether the changes would affect the conclusion that the plan's
emissions reductions are adequate for attaining the NAAQS. Another
consideration is the uncertainty inherent in modeling; although model
results may be reported to several decimal places, model performance
goals for fractional bias are typically in the range of 30 percent.
Plan's Regional Model Performance Analysis,\15\ p.12, and EPA Guidance
\16\ Appendix B. Small changes in the emissions inventory could be in
the range of the ``noise'' of the model. This is not to discount the
importance of an accurate emissions inventory, but rather to make the
point that relatively small changes in inventory estimates do not
necessarily invalidate a model application. EPA finds that the 5-6
percent base year emissions decreases due to the inventory updates in
this case are relatively small.
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\15\ The ``Regional Model Performance Analysis'' is an appendix
to the 2008 PM2.5 Plan.
\16\ EPA ``Guidance on the Use of Models and Other Analyses for
Demonstrating Attainment of Air Quality Goals for the 8-Hour Ozone
and PM2.5 NAAQS and Regional Haze,'' April 2007. (``EPA
Guidance'').
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EPA did assess the effect of the emissions inventory improvements
on the attainment demonstration, using a procedure described in the
2011 Proposal TSD and other supporting documents. EPA did note in the
2011 Proposal TSD (p. 48) that the emissions update revealed some model
bias. The model appears to be underpredicting (biased low): Its
emissions inputs are now known to be too high, so its predicted
concentrations should have been higher, too. Model bias is an important
issue that modelers address in developing the model application for a
specific area and pollution episode, through testing and refinement of
a model's many inputs. The bias problem is somewhat ameliorated by the
use of models in a relative sense via ``relative reduction factors''
(RRFs), as recommended in EPA Guidance (p. 20). The various influences
that lead to model underestimation in the base year would also be
expected to cause underestimation in the attainment year, and these
tend to cancel out in the RRF ratio calculation used to project the
future effect of controls. In other words, the effect of model bias is
minimized when it is accounted for at both end points, the base and
attainment years. In a similar vein, EPA assessed the effect of the
emissions update on the attainment demonstration, essentially by
removing the bias revealed by the update from both the base year and
the attainment year.\17\ The bias was estimated by combining the
emissions changes with an estimate of model PM2.5
sensitivity per unit of emissions change. The effect of removing the
bias by this procedure was to increase predicted attainment year annual
PM2.5 design values by 1-2 percent. EPA finds that this is
small enough to be considered
[[Page 69900]]
within the ``noise'' of the model and does not change the overall
modeling conclusions. But even with this increase added in, the
predicted concentrations meet the NAAQS. This is a quantitative showing
that the emissions updates are small enough that they do not invalidate
the attainment demonstration.
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\17\ This procedure is in some ways parallel to but not the same
as the RRF calculation and could be applied even if the model were
not used in a relative sense. The inventory estimates the emissions
reduction between the base and future years. An RRF scales the
monitored design value using the relative model response to a given
emissions reduction estimate, in order to account for that
reduction. The procedure here scales the model's future predictions
using model sensitivity, in order to account for changes in the
emissions reduction estimate.
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As described in the 2011 Proposal TSD (section II.B), EPA reviewed
the development of the model application, the procedures used to
develop the model inputs, model testing methods and performance
statistics, and the methods used to compute RRFs and attainment year
PM2.5 design values. EPA finds that CARB applied these
methods appropriately, including to the sensitivity results and
believes that these modeling inputs and RRF calculations were carried
out as described by CARB. As a result, we find that the sensitivity
results provide a reasonable basis for assessing the effect of the
inventory update on the attainment demonstration.
EPA does not agree with Earthjustice that starting from the Plan's
modeled design values and ending with small design value changes
constitute flaws in the procedure for estimating the effect of the
baseline inventory revisions. All modeling has uncertainty and bias
including any new modeling that would be done using the updated
emissions inventory estimates. Every modeling result is an
approximation and is likely to contain errors. Administrative
necessity, therefore, requires a judgment call about whether such
problems are substantial enough to impact regulatory decisions.
Modeling experts from regulatory agencies, academia, and consulting
firms were involved in developing the SJV modeling. It underwent
successful diagnostic testing and performs well. EPA finds that it
continues to constitute an adequate basis for the attainment
demonstration.
Further, EPA believes that the original modeling is basically sound
in how it portrays SJV atmospheric chemistry and transport and that
results derived from model sensitivity tests are a reasonable
approximation to what would result from new modeling with the updated
inventory. EPA's procedure for estimating the effect of the inventory
changes using model sensitivity results does make a number of
assumptions: Emissions changes are small enough that the model response
is linear, model sensitivity is similar in the starting and ending
years, and the spatial and temporal distribution of emissions is little
changed with the inventory update. EPA believes that these assumptions
are reasonable and that the procedure it used provides strong evidence
for the attainment demonstration's validity.
As for the smallness of the design value changes resulting from the
procedure, EPA does not believe this is a substantive issue. Any
procedure (even new modeling) that starts with small emissions changes
will necessarily result in small design value changes. Within a small
range, over which the chemistry does not shift fundamentally, ambient
concentrations are approximately proportional to emissions, by the law
of conservation of matter. This is not a case of an overly precise tiny
number being added to a large erroneous random number, but rather of an
adjustment ratio applied to a number derived from extensive data and
analysis. Some intermediate steps in the calculation procedure that EPA
used to evaluate the emissions inventory change did involve tenths of a
percent (not hundredths as stated by the commenter), but this is
largely an artifact of showing the procedure in multiple steps for
comprehensibility. EPA could have done the calculation in a single step
to avoid this artifact. When modeling a 10 percent change in
NOX emissions results in a design value change of 1.4
percent, a calculation using this model sensitivity result will
necessarily involve fractions of 1 percent or less. In this case, the
emissions inventory update involved a change in NOX
emissions of less than 10 percent, and thus, would also be expected to
yield relatively small design value changes.
Comment: Earthjustice comments that a simple screening analysis
cannot substitute for an unmonitored area analysis, as it is inadequate
to address the sharp ambient concentration gradients that occur in
near-highway areas.
Response: EPA agrees that the simple screening analysis in the Plan
as originally submitted in June 2008 is not an adequate substitute for
an unmonitored area analysis (UAA) and noted this deficiency in our
November 2010 proposal. See 75 FR 74518, 74530. As noted in the 2011
proposal (76 FR 41388, 41348), CARB subsequently submitted a modeling
supplement that included a UAA that follows EPA Guidance. See CARB
modeling supplement, p. 139.\18\ The UAA led to the conclusion that
there would not be any NAAQS violations at locations away from
monitors, and EPA has evaluated and accepted that conclusion.
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\18\ Letter and enclosure, John DaMassa, Chief, Modeling and
Meteorology Branch; California Air Resources Board, January 28, 2011
(``CARB modeling supplement'').
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As for whether the UAA itself adequately addresses the commenter's
underlying concern about sharp concentration gradients, the EPA
Guidance states:
``The unmonitored area analysis is intended to be the primary
means for identifying high PM2.5 concentrations outside
of traditionally monitored locations. * * * Based on the monitoring
guidance, we believe that an unmonitored area analysis conducted at
12 km or finer resolution is sufficient to address unmonitored
PM2.5 for the annual NAAQS. Conducting the unmonitored
analysis at 4 km or finer resolution will provide an even more
detailed analysis of the spatial gradients of primary
PM2.5, especially when evaluating violations of the 24-
hr. NAAQS.''
This modeling guidance recommendations are consistent with the
requirements of the EPA's PM2.5 monitoring rules. The
modeling guidance UAA spatial scale recommendations are intended to
capture neighborhood scale and larger areas, since the monitoring rules
do not require micro or middle scale monitors for either the annual or
24-hr PM2.5 standards. CARB's UAA was conducted at a
resolution of 4 km, so it is more detailed than EPA's recommended
approach for UAA. In addition, it is intended for areas with a large
primary PM2.5 contribution (that is, directly emitted rather
than formed chemically over time), and relying on local primary PM
controls to reach attainment. EPA Guidance, p.100. By contrast, the
attainment demonstration in the 2008 p.m.2.5 Plan mainly relies on
area-wide control of NOX, a PM2.5 precursor,
rather than on control of local primary PM2.5.
Comment: Earthjustice comments that air quality worsened after 2005
despite the economic downturn, so that new air quality modeling should
be performed to account for this upward trend.
Response: EPA did review the evaluation of air quality progress
presented in the Plan and also independently examined air quality data.
See 2011 Proposal TSD, p.6 and p.45. Air quality monitoring data is
useful for a general understanding of the SJV's air quality problem, as
well as for use in supplemental analyses that accompany the modeled
attainment demonstration. Downward trending emissions and ambient
concentrations would tend to support the conclusion that the area is on
track toward attainment of the NAAQS, although evaluation of such
trends should account for the particular location, time period, and air
quality metric examined. In addition, overall trends may be hard
[[Page 69901]]
to discern given the year-to-year variability of meteorology and other
factors.
The Plan used the data that was available at the time it was
developed, focusing on 2001-2006, for which the Plan's Weight of
Evidence analysis makes a strong case for air quality progress
according to several metrics, including design value concentrations,
frequency of high concentrations, concentration of PM2.5
component species, and emissions. We conclude that these analyses
adequately support the attainment demonstration. EPA also looked at a
longer period, 2000-2010, and found that the slight PM2.5
concentration increase shown in the Plan for 2006 continued through
2008 and flattened in 2009. Although PM2.5 concentrations
continued to improve in 2010, the Bakersfield area's annual and 24-hour
PM2.5 design values calculated from 2008-2010 data were the
highest in the U.S. See 76 FR 41338, 41339. We note, however, that data
over the longer time frame shows there has been substantial air quality
progress over the past decade. See TSD, section I.B.1.
The concentration increases during 2006-2009 are not well
understood but may have been partly a result of unfavorable meteorology
during that time. District and CARB efforts to evaluate the effect of
meteorology on air quality trends are under way. The higher values
during that period do weaken the case made in the Plan's Weight of
Evidence analysis, which is a supplemental analysis to the attainment
demonstration itself, but are not themselves grounds for disapproving
the attainment demonstration or the Plan.
Comment: Citing 40 CFR 51.1000 and 72 FR at 20600, Earthjustice
asserts that attainment of the PM2.5 NAAQS by April 5, 2015
will require review of ambient data from 2012, 2013, and 2014.
Earthjustice also asserts that the majority of emissions reductions in
the Plan are delayed until 2014 and argues that modeling ambient
concentration in 2014 does not provide an accurate picture of what
emissions will be in 2012 and 2013. It further states that the modeling
year must be adjusted to give a more reasonable prediction of what a 3-
year average concentration from 2012-2014 will be since it is this
concentration that will determine if the Valley has attained the
PM2.5 standards by the attainment date. Finally,
Earthjustice asserts that the fact that the majority of reductions are
in 2014 violates the reasonable further progress requirement.
Response: We disagree with Earthjustice's assertion that the Plan
delays the majority of emissions reductions until 2014 and therefore
fails to satisfy RFP requirements. As explained in our amended proposal
(76 FR 41338 at 41355-41357) and further in section II.H. of the TSD,
the majority of the reductions needed for attainment occur well before
2014. The Plan's RFP demonstration shows that more than 87 percent of
the NOX, 80 percent of the PM2.5 and all the
SOX reductions needed for attainment will occur by 2012. See
2011 Progress Report, Appendix C, p. 1. We explain further in section
II.H. of the TSD our reasons for concluding that the 2008
PM2.5 SIP provides for RFP consistent with the CAA and the
PM2.5 implementation rule.\19\ We also explain in section
II.D. our reasons for concluding that the Plan demonstrates that all
control measures needed for attainment of the 1997 PM2.5
standards will be in place as expeditiously as practicable and no later
than the beginning of 2014, consistent with the CAA and 40 CFR
51.1007(b) (requiring ``implementation of all control measures needed
for attainment as expeditiously as practicable, but no later than the
beginning of the year prior to the attainment date''). See section
II.G. and II.D. of the TSD.
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\19\ Clean Air Fine Particulate Implementation Rule, 72 FR 20586
(April 25, 2007), codified at 40 CFR part 51, subpart Z
``PM2.5 implementation rule.''
---------------------------------------------------------------------------
We also concluded that the attainment demonstration in the Plan was
developed consistent with procedures in EPA's modeling guidance. In
addition, to a degree the modeling procedures already reflect the
expected continuing emissions decreases during the years before the
attainment year. The monitored base year design value reflects an
emissions decrease over the three years of 2004-2006, not just the
single 2005 emissions year. The projected design value reflects a
modeled change to that monitored design value, so it too is consistent
with some decreases occurring over multiple years, not just the single
year of 2014.
Finally, we note that Earthjustice conflates the requirements
governing EPA's action on an attainment demonstration under CAA section
172(c)(1) with those governing an attainment determination under CAA
section 179(c). Earthjustice appears to assume that a demonstration of
attainment by April 5, 2015, requires a demonstration that the area
will have air quality measurements at or below the levels of the
standards three years prior to that date. This is incorrect. An
attainment determination under CAA 179(c) is a fact-based determination
made after the attainment date based on air quality monitoring
data.\20\ An attainment demonstration, on the other hand, is a
predictive tool for assessing what air quality will be at a future
time. An attainment demonstration is based on air quality modeling
showing that the projected design value of the relevant pollutant in
attainment year will be at or below the level of the relevant ambient
air quality standard. See 72 FR from 20605 to 20609.
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\20\ A determination of attainment of the 1997 annual
PM2.5 standard is based on monitoring data that shows a
3-year average of annual mean PM2.5 concentrations of
less than 15 microgram per cubic meter ([mu]/m\3\), and a
determination of the attainment of the 1997 24-hour PM2.5
standard is based on monitoring data that shows the 3-year average
of 98th percentile 24-hour concentrations is less than 65 [mu]/m\3\.
See 40 CFR 50.7.
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Additionally, for a PM2.5 nonattainment area subject
only to the requirements of subpart 1 of title I, part D of the CAA, a
State may demonstrate that in the attainment year, the area will have
air quality such that the area could be eligible for the first of two
one-year extensions allowed under CAA section 172(a)(2)(C). Under CAA
section 172(a)(2)(C), an area that does not have three years of
monitored data demonstrating attainment of the PM2.5 NAAQS
but has complied with all requirements and commitments pertaining to
the area in the applicable SIP, and that has no more than minimal
number of exceedances of the NAAQS in the attainment year, may receive
a one-year extension of its attainment date. If the same conditions are
met in the following year, the area may receive an additional one-year
extension. Should the SJV area qualify for both of these extensions,
the relevant 3-year period for determining whether the area has
attained the PM2.5 NAAQS would be 2014-2016.\21\
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\21\ EPA has long interpreted analogous provisions for ozone
nonattainment areas in CAA sections 181(a)(5) and 182(c)(2) in this
same manner. See Brief of Respondents, EPA, in Sierra Club, et al.
v. U.S. EPA, et al., Case Nos. 10-71457 and 10-71458 (consolidated),
May 5, 2011; see also Environmental Defense v. U.S .EPA, 369 F.3d
193 (2nd Cir. 2004) (denying petition for review of EPA's approval
of New York's 1-hour ozone attainment plan based on, inter alia,
EPA's reasonable interpretation of the extension provision in CAA
section 181(a)(5)).
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Comment: Earthjustice comments that given the problems it has
described with the air quality modeling, the 9:1 NOX to
PM2.5 relative effectiveness ratio cannot be used for
transportation conformity or other purposes, unless it is supported
with new modeling.
Response: EPA does not agree with Earthjustice that the modeling
problems are substantial enough to invalidate the 9:1 ratio for
NOX to direct PM2.5 emissions trading in the
transportation
[[Page 69902]]
conformity context. As discussed above, EPA believes that the modeling
is basically sound, including the model's (relative) sensitivity to
emissions changes. There is no established method for determining
trading ratios in conformity, but as discussed in the 2011 Proposal TSD
(p.148), EPA finds that the model sensitivity-based method used by CARB
for determining an equivalency or relative effectiveness ratio is
adequate for assessing the effect of area-wide emissions changes, such
as are used in conformity budgets. The method modeled ``across the
board'' emissions changes over the entire modeling domain; emissions
considered in transportation conformity are also domain-wide. Trading
in other contexts could involve additional consideration of spatial and
temporal variation of the emissions, and would require an additional
technical demonstration by the State and evaluation by EPA. EPA is not
approving the trading ratio for any other purpose than in conformity
budgets.
C. Comments on the Identification of PM2.5 Attainment Plan
Precursors
Comment: Earthjustice comments that EPA should rely on the November
2010 proposal's technical demonstration that VOC should be considered a
PM2.5 plan precursor and should disapprove the Plan for its
failure to address control of VOC emissions. The commenter states that
EPA reversed its earlier VOC finding without receiving any new credible
evidence on the issue.
Response: The PM2.5 implementation rule establishes a
presumption that VOC is not a PM2.5 plan precursor requiring
controls. See 40 CFR 51.1002(c)(3). This presumption may be overturned
if either EPA or the State provides an appropriate technical
demonstration showing that VOC emissions from sources in the State
significantly contribute to PM2.5 concentrations in the
nonattainment area. See 40 CFR 51.1002(c)(3)(i) and (ii). The preamble
to the implementation rule suggests various analyses that could be part
of such a demonstration, such as emissions inventory, speciation data,
modeling information, or other special studies. But the preamble is not
prescriptive on required technical demonstrations, and neither the
preamble nor the rule defines ``significantly.'' Under the rule,
excluding VOC as an attainment plan precursor does not require a
showing that VOC controls are ineffective or counterproductive. Rather,
since VOC is already excluded by presumption, the lack of a clear
showing that VOC controls are effective is sufficient for it to remain
excluded.
For the November 2011 proposal, EPA reviewed various monitoring and
modeling studies on the role of VOC as a PM2.5 precursor in
the SJV. EPA proposed to find that these studies constitute a technical
demonstration that VOC is a PM2.5 attainment plan precursor,
and used that as a basis to propose disapproval of the Plan, which
lacks VOC controls.
Earthjustice correctly notes that CARB did not submit any new study
results per se in response to our 2010 proposal but rather
reinterpretation of the same modeling studies that EPA had already
examined. For the 2011 proposal, EPA reviewed and accepted several of
CARB's arguments made in its VOC supplement.\22\ CARB noted the
importance of considering simultaneous VOC and NOX
reductions, a more realistic scenario than VOC-only or NOX-
only reductions, given the various controls that are already in place
for the ozone plan. The only study to consider simultaneous reductions
found a disbenefit from VOC control, while NOX control
continued to be beneficial. CARB discounted one study that had found
VOC control to be beneficial by noting that it had used artificially
doubled VOC emissions in order to perform reasonably well at predicting
PM2.5. For another study, CARB pointed out some features of
the multi-day model response to VOC reductions that are inconsistent
with the photochemical VOC pathway to PM2.5 formation and
that the benefits from VOC reduction were seen only at high
PM2.5 concentrations that are seldom seen today.
---------------------------------------------------------------------------
\22\ Letter, James N. Goldstene, Executive Officer, CARB, to
Frances Wicher, Office of Air Planning, EPA Region 9, January 28,
2011, Attachment 4, ``Air Resources Board comments on U.S. EPA's
November 30, 2010 proposal that VOC be considered a significant
PM2.5 Precursor for the San Joaquin Valley 2008
PM2.5 State Implementation Plan (SIP).'' (``CARB VOC
supplement'').
---------------------------------------------------------------------------
EPA found these arguments persuasive enough to raise questions
about the efficacy of VOC controls for reducing PM2.5 levels
in the SJV. Even setting aside the concern that VOC control could
worsen PM2.5 concentrations in some circumstances, EPA finds
that the evidence of the effectiveness of VOC controls is at this time
not clear enough to overcome the presumption in the PM2.5
implementation rule that VOC should not be an attainment plan
precursor. However, EPA also believes it is important that reductions
of VOC, ammonia, and other PM2.5 precursors be more
thoroughly explored with realistic model sensitivity and other analyses
as part of future modeling efforts in the SJV.
In its comment letter, Earthjustice also included additional
information in favor of VOC as a precursor. We have reviewed this
information (which mainly duplicates information EPA has already
reviewed) and concluded that it does not provide sufficient grounds to
reverse the presumption that VOC is not a PM2.5 attainment
plan precursor in the SJV. Our complete analysis of Earthjustice's
information can be found in the response to comments section (section
III.D.) of the TSD.
D. Comments on the Proposed Action on the Reasonably Available Control
Measures/Reasonably Available Control Technology Demonstration
Comment: Earthjustice asserts that EPA must disapprove the Plan's
RACM/RACT demonstration because many of the rules that the District and
CARB rely on have not been approved as satisfying RACT requirements.
Earthjustice also states that the demonstration fails to address VOC
controls or to provide adequate air quality modeling documentation.
Finally, Earthjustice asserts that several of the rules intended to
provide the majority of NOX and PM reductions from
stationary sources in the Valley were adopted with substantially
weakened controls from what was anticipated during plan development and
will now provide only a fraction of what is needed to bring the area
into attainment by 2014.
Response: Section 172(c)(1) of the CAA 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. 40 CFR 51.1010; see also 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''); 57 FR 13498 at 13560 (April 16, 1992) (``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
[[Page 69903]]
implementation of such measures''); ``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 71661 (noting
that States ``need adopt measures only if they are both economically
and technologically feasible and will advance the attainment date or
are necessary for RFP''). 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).
Under the PM2.5 implementation rule at 40 CFR 51.1010, a
RACM demonstration must include ``the list of the potential measures
considered by the State, and information and analysis sufficient to
support the State's judgment that it has adopted all RACM, including
RACT.'' 40 CFR 51.1010(a). In addition, ``[p]otential measures that are
reasonably available considering technical and economic feasibility
must be adopted as RACM if, considered collectively, they would advance
the attainment date by one year or more.'' As explained in the preamble
to the PM2.5 implementation rule, Congress provided EPA and
States broad discretion to determine what measures to include in an
attainment plan, and the language in section 172(c)(1) requiring only
``reasonably available'' measures and implementation of these measures
``as expeditiously as practicable'' indicates that Congress intended
for the RACT/RACM requirement to be driven by an overall requirement
that the measure be ``reasonable.'' 72 FR 20586 at 20610 (April 25,
2007). Thus, the rule of ``reason'' drives the decisions on what
controls to apply, what should be controlled, by when emissions must be
reduced, and finally, the rigor required in a State's RACT/RACM
analysis. See id. States may, as part of a RACM analysis, consider the
costs of potential control measures and whether the measures can be
readily and effectively implemented without undue administrative
burden. See id. (citing 55 FR 38327 and 66 FR 26969).
As a threshold matter, we note that VOC controls are not a required
element of the RACM demonstration in the 2008 PM2.5 Plan
because EPA agrees with the State's determination that VOCs are not
attainment plan precursors for purposes of the 1997 PM2.5
NAAQS in the SJV area. See 76 FR at 41343 (citing 40 CFR 51.1002(c) and
51.1010) and our responses to comments on attainment plan precursors,
in section II.C. above.
Second, as to air quality modeling documentation, we explain in
section II.B. above in our responses to comments on the air quality
modeling our reasons for concluding that the modeling in the 2008
PM2.5 Plan adequately supports the Plan's RACM and
attainment demonstration.
Third, as to Earthjustice's assertions about RACT, we note that
although CAA section 182(b)(2) requires States to implement RACT for
specific types of sources in ozone nonattainment areas classified as
moderate or above, there is no specific RACT control mandate for
PM2.5 purposes that applies to specific sources in
PM2.5 nonattainment areas. Rather, under the
PM2.5 implementation rule, RACT and RACM are those measures
that a state finds are both reasonably available and contribute to
attainment as expeditiously as practicable in the specific
nonattainment area. See 76 FR at 41343 (citing 40 CFR 51.1010 and 72 FR
20586 at 20612). EPA has, therefore, evaluated the collection of
reasonably available control measures that CARB and the District have
adopted and submitted with the attainment demonstration in the 2008
PM2.5 Plan to meet the RACM/RACT requirement in CAA section
172(c)(1) and 40 CFR 51.1010. See 76 FR 41338 at 41343-41346 and 2011
Proposal TSD at section II.D.
Finally, as to the specific NOX and PM control options
that Earthjustice asserts should also be required as RACM, we have
considered whether these additional control options are reasonably
available for implementation in SJV considering technical and economic
feasibility, and as to those measures that are potentially reasonable,
whether they would considered collectively would advance the attainment
date in the SJV by one year or more. For the reasons discussed below,
we conclude that the control options identified by Earthjustice are not
required RACM for purposes of the 1997 PM2.5 NAAQS in the
SJV area.
Comment: Earthjustice states that EPA should not approve Rule 4692
(Commercial Charbroiling) as RACT because there is no justification for
the District's decision to exclude control requirements for under-fired
charbroilers (UFC) from the rule. In support of this assertion,
Earthjustice states, among other things, that: (1) SJVUAPCD had
initially found certain control options for UFC units to be cost-
effective and that its later revisions to these cost estimates in
response to comments were based on inappropriate criteria, such as its
``10 percent of the industry's profits'' test; (2) that BAAQMD's
adoption of UFC control requirements in 2007 indicates that such
controls are considered feasible; and (3) that SJVUAPCD's failure to
control UFCs means that PM emissions reductions from this rule are
reduced from more than 2 tons per day (tpd) to just 0.02 tpd.
Response: EPA recently determined that Rule 4692 satisfied
applicable CAA requirements and fully approved the rule into the SJV
portion of the California SIP.\23\ See 76 FR 38340 (June 30, 2011)
(proposed rule) and ``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 4692). As
part of that action, EPA reviewed the District's evaluation of
potential UFC controls and concurred with the District's conclusion
that those controls are not reasonably available for implementation in
the SJV area at this time, considering technological and economic
feasibility (see EPA's June 9, 2011 Proposal TSD at pp. 4-5). Given
EPA's long-standing position that States may justify rejection of
certain control measures as not ``reasonably available'' based on
economic grounds (among others), we believe that it is appropriate for
the District to consider the cost of controls at sources actually
located within the specific area to determine if they are economically
feasible with respect to those sources. Although we do not endorse the
District's use of a ``10 percent of the industry's profit'' test for
economic feasibility, we agree with the District's conclusion that UFC
controls are not economically feasible based on the facts and
circumstances related to actual cost of those controls in the SJV area.
For the reasons stated in our separate proposed and final rules on Rule
4692, we conclude in this final action on the 2008 PM2.5
Plan that Rule 4692 requires all RACM for charbroilers in SJV, and that
the additional controls for UFC identified by Earthjustice are not
required RACM for purposes of the 2008 PM2.5 Plan because
they are not
[[Page 69904]]
reasonably available considering technological and economic
feasibility.
---------------------------------------------------------------------------
\23\ As explained in our June 30, 2011 proposal to approve Rule
4692 (76 FR 38340), the specific ozone RACT requirement in CAA
section 182(b)(2) does not apply to this rule because there are no
Control Techniques Guideline (CTG) documents for this source
category and no major sources of NOX or VOC subject to
this rule in the SJV area. See 76 FR at 38341. We therefore
interpret the commenters' reference to RACT as referring to the
general requirement for reasonably available control measures
(including RACT for stationary sources) in CAA section 172(c)(1).
See 40 CFR 51.1010.
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Comment: Earthjustice asserts that Rule 4103 (Open Burning)
achieves far less than what was anticipated in the Plan, and that the
District had inappropriately relied on the 10 percent of profits test
to exempt from control the three largest source categories of
NOX, PM, and VOC covered by the Rule. Earthjustice asserts
that this resulted in foregone emissions reductions of 1,030 tpy
NOX, 1,262 tpy PM2.5 and 1,138 tpy VOC.
Response: EPA recently determined that Rule 4103 satisfied
applicable CAA requirements and fully approved the rule into the SJV
portion of the California SIP. See 76 FR 40660 (July 11, 2011)
(proposed rule) and ``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)). As part of that action, EPA reviewed the District's evaluation
of the postponements of certain burning prohibitions for certain
agricultural crop categories and concurred with the District's
conclusion that alternatives to open burning for these crop categories
are not reasonably available for implementation in the SJV area at this
time, considering technological and economic feasibility (see, e.g.,
EPA's June 2011 TSD at pp. 5-7). For the reasons stated in those
separate proposed and final rules on Rule 4103, we conclude in this
final action on the 2008 PM2.5 Plan that Rule 4103 requires
all RACM for open burning in SJV, and that the additional controls
identified by Earthjustice are not required RACM for purposes of the
2008 PM2.5 Plan because they are not reasonably available
considering technological and economic feasibility.
Comment: Earthjustice stated that SJVUAPCD added a contingency
provision to Rule 4901 (Wood Burning Fireplaces and Wood Burning
Heaters) stating that, should the Valley fail to attain the 1997
PM2.5 standards by the attainment date, the PM2.5
concentration triggering a mandatory wood burning curtailment would be
lowered from 30 to 20 [mu]g/m\3\. Earthjustice contends that, given the
underperformance of other SJVUAPCD rules, this ``contingency'' should
be adopted now to achieve additional reductions before the attainment
date.
Response: EPA determined that Rule 4901 satisfied applicable CAA
requirements and fully approved the rule into the SJV portion of the
California SIP. See 74 FR 57907 (November 10, 2009). As part of that
action, EPA reviewed the District's evaluation of available controls
and concluded that Rule 4901 requires implementation of Best Available
Control Measures under CAA section 189(b) for particulate matter of 10
microns or less (PM-10) in the SJV area. This conclusion was based in
part on our finding that SJV's 30 [mu]g/m\3\ threshold for mandatory
wood burning curtailment is more stringent than the 35 [mu]g/m\3\
threshold adopted in other areas such as Sacramento, South Coast and
Bay Area. See SJVUAPCD, ``Final Draft Staff Report, Proposed Amendments
to Rule 4901 ``Wood Burning Fireplaces and Wood Burning Heaters,''
October 16, 2008, at pp. 5-6.
Earthjustice has provided no information to support an argument
that reducing the threshold for mandatory wood burning curtailment in
the SJV from 30 to 20 [mu]g/m\3\ is a ``reasonably available'' control
measure, nor any information to support an argument that such a measure
would, individually or in combination with other reasonable measures,
advance attainment of the 1997 PM2.5 standards in the SJV by
at least a year. We have, nonetheless, evaluated in the section
entitled ``Evaluation of potential to advance attainment'' below the
additional PM emissions reductions that could be achieved by
implementing a mandatory wood burning curtailment at a 20 [mu]g/m\3\
threshold (1.6 tons per winter average day, see 76 FR at 41358) to
determine whether this measure could, in combination with other
potentially reasonable measures, advance attainment in the SJV area.
Comment: Earthjustice asserts that the exemption in Rule 4354
(Glass Melting Furnaces) for furnaces that actually emit less than 8
tons per year of NOX or VOC (but are located at major
sources) is ``illegal'' because the CAA requires that RACT be
implemented for all major sources. Earthjustice states that this
exemption cost the Valley 1.6 tons per day of SOX reductions
and 2.9 tons per day of PM reductions. Earthjustice also states that
the District had adopted a previous version of Rule 4354 that had
earlier compliance deadlines than the version EPA ultimately approved
into the SIP. Earthjustice asserts that the District should have
removed the exemption for small furnaces at large facilities and should
not have delayed compliance requirements, and that ``it is unacceptable
for the District to forego any emissions reductions in the years
leading up to attainment.''
Response: EPA recently determined that Rule 4354 satisfied
applicable CAA requirements and fully approved the rule into the SJV
portion of the California SIP. \24\ See 76 FR 53640 (August 29, 2011).
As part of that action, we determined that the VOC and NOX
emission limits in Rule 4354 meet the CAA section 182(b)(2) and (f)
RACT requirements for major sources of VOC and NOX. The
compliance schedule for NOX and VOC limits in the SIP-
approved rule requires implementation of all technologically and
economically feasible controls by January 2014. See SJVUAPCD, Final
Draft Staff Report, ``Proposed Amendments to Rule 4354 (Glass Melting
Furnaces),'' August 19, 2010, at pp. 10-12. We conclude, therefore,
that this rule implements all VOC and NOX controls that are
reasonably available for this source category in the SJV. We did not
fully evaluate in that action the stringency of the rule's requirements
for SOX and PM10 emissions, as there is no
specific RACT control mandate for SOX or PM10
purposes that necessarily applies to sources covered by this rule.\25\
We disagree with Earthjustice's assertion that the exemption from the
SOX and PM10 limits for certain furnaces that
actually emit less than 8 tpy of VOC or NOX (see Rule 4354,
section 4.3) is ``illegal,'' as the CAA does not establish a specific
RACT control mandate for major sources of SOX or
PM10. Under CAA section 172(c)(1), however, the State/
District are required to adopt all RACM necessary to demonstrate
attainment as expeditiously as practicable and to meet RFP
requirements. 40 CFR 51.1010. Given the need for substantial
NOX and PM2.5 emissions reductions in the SJV to
meet both the 1997 PM2.5 standards and the more stringent
2006 PM2.5 standard by the applicable attainment dates, we
encourage the SJVUAPCD to reevaluate the PM10 control
requirements in Rule 4354 and to adopt, as expeditiously as
practicable, any additional PM10 and PM2.5
control requirements that are reasonably available for implementation
in the Valley. For purposes of the 2008 PM2.5 Plan,
additional PM control requirements for glass melting facilities
[[Page 69905]]
may, upon SIP approval, be credited toward the District's remaining
enforceable commitments. See 76 FR at 41354, Table 8.
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\24\ As explained in our June 30, 2011 proposal to approve Rule
4692 (76 FR 38340), the specific ozone RACT requirement in CAA
section 182(b)(2) does not apply to this rule because there are no
Control Techniques Guideline (CTG) documents for this source
category and no major sources of NOX or VOC subject to
this rule in the SJV area. See 76 FR at 38341. We therefore
interpret the commenters' reference to RACT as referring to the
general requirement for reasonably available control measures
(including RACT for stationary sources) in CAA section 172(c)(1).
See 40 CFR 51.1010.
\25\ The CAA requires implementation of RACT at any major source
of NOX or VOC in ozone nonattainment areas classified as
moderate or above (see CAA 182(b)(2)(C) and 182(f)) but does not
contain such a major source RACT control mandate for SOX
or PM purposes.
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Earthjustice asserts that the exemption in Rule 4354 for furnaces
emitting less than 8 tpy of NOX or VOC cost the Valley 1.6
tons per day of SOX reductions and 2.9 tons per day of PM
reductions. For purposes of the 2008 PM2.5 Plan, the
foregone SOX emissions reductions do not affect the RACM and
attainment demonstration because SJV has exceeded its target level of
SOX reductions needed for attainment. See 76 FR at 41354,
Table 8. As to PM, we have evaluated the additional emissions
reductions that Earthjustice claims could have been achieved from glass
melting facilities \26\ in our evaluation below of the potential for
such additional controls, in combination with other potential control
options, to advance attainment of the 1997 PM2.5 standards
in the SJV. See section ``Evaluation of potential to advance
attainment'' below.
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\26\ For this assessment, we use Earthjustice's estimate of the
foregone PM reductions and assume conservatively that all such PM
reductions are PM2.5 reductions.
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Comment: Earthjustice states that EPA recently rejected all of the
NOX emission limits in Rule 4352 (Solid Fuel-Fired Boilers,
Steam Generators and Process Heaters) for failing to satisfy RACT and
asserts that substantial NOX reductions could be achieved if
the District amended this rule to meet the stringent limits in place in
other areas of the Country.
Response: Earthjustice correctly notes that EPA recently
disapproved all of the NOX emission limits in Rule 4352
based on our conclusion that the District had failed to adequately
demonstrate that these limits satisfy CAA section 182 RACT
requirements. See 75 FR 60623 (October 1, 2010). Earthjustice did not
provide any specific information about additional control measures that
are reasonably available, nor has it provided information about the
amount of emissions reductions that might be achieved by such controls.
We have, however, developed a conservative (high) estimate of the
additional NOX reductions that could be achieved under this
rule if the emission limits are strengthened. We developed this
estimate based on the NOX emission limits in the SIP-
approved version of Rule 4352, the emissions attributed in the 2008
PM2.5 plan to solid fuel-fired boilers, steam generators,
and process heaters in the SJV, emissions data from existing solid
fuel-fired boilers in the SJV, and technical information about
available control options from EPA's 1994 Alternative Control
Techniques Document for NOX Emissions from Industrial/
Commercial/Institutional Boilers, U.S. EPA 453/R-94-022 (1994 Boiler
ACT). Based on this information, we have conservatively estimated that
more stringent control requirements for solid fuel-fired boilers, steam
generators, and process heaters in SJV could achieve an additional 3.16
tpd of NOX reductions.\27\
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\27\ Documentation of this estimate can be found in the TSD,
section III.E.
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Comment: Earthjustice states that EPA's proposal fails to address
the fact that the RACM/RACT analysis ``does not include reasonable
controls for condensable [PM2.5] emissions'' and contains no
discussion of such controls. Earthjustice references 40 CFR 51.1002(c)
to support its assertion that ``[t]he transition period allowing
agencies to ignore controls on condensable emissions ended on January
1, 2011,'' and also quotes EPA's statement in the preamble to the
PM2.5 implementation rule (72 FR at 20652) that ``[w]e
expect States to address the control of direct PM2.5
emissions, including condensables with any new actions taken after
January 1, 2011.'' Earthjustice asserts that EPA must disapprove the
RACM demonstration for failure to assess reasonably available controls
on condensable emissions.
Response: EPA's PM2.5 implementation rule states that
``[a]fter January 1, 2011, for purposes of establishing emission limits
under 51.1009 and 51.1010, States must establish such limits taking
into consideration the condensable fraction of direct PM2.5
emissions.'' 40 CFR 51.1002(c). Prior to this date, the rule required
that nonattainment area SIPs identify and evaluate sources of
PM2.5 direct emissions and PM2.5 attainment plan
precursors as part of the RFP and RACM/RACT demonstrations but did not
specifically require states to address condensable PM2.5.
See id.\28\ Because the attainment, RFP and RACM demonstrations in the
2008 PM2.5 Plan were adopted on May 22, 2008 (see 76 FR at
41340), California was not required to address condensable PM in
establishing the emission limits contained in these demonstrations as
originally submitted, or in adopting any other PM emission limits under
40 CFR sections 51.1009 and 51.1010 prior to January 1, 2011.
Consistent with these requirements, EPA has evaluated the RFP and RACM
demonstrations in the 2008 PM2.5 Plan and concluded that
these elements of the Plan appropriately address all sources of direct
PM2.5 emissions and PM2.5 attainment plan
precursors (SO2 and NOX) in the SJV. See 76 FR
41338 at 41343.\29\
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\28\ See also Letter dated April 25, 2011, from Lisa P. Jackson,
EPA, to Paul Cort, Earthjustice, denying Petition for
Reconsideration with respect to the deferral of the requirement to
establish emission limits for condensable particulate matter (CPM)
until January 1, 2011.
\29\ In our proposed rule, we noted that the SJVUAPCD has
deferred limits for CPM in its rules but that this limited deferral
does not affect the Plan's RACM/RACT and expeditious attainment
demonstrations. 76 FR 41338 at 41342, n. 12. We also noted that we
would evaluate any PM2.5 rule adopted or revised by the
District after January 1, 2011 to assure that it appropriately
addresses CPM. See id.
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The 2008 PM2.5 Plan relies on several rules regulating
direct PM2.5 emissions as part of the PM2.5
control strategy (e.g., Rule 4692 (Commercial Charbroiling, adopted 9/
17/09), Rule 4103 (Open Burning, adopted 4/15/10), Rule 4354 (Glass
Melting Furnaces, adopted 9/16/10) and Rule 4901 (Wood Burning
Fireplaces and Wood Burning Heaters, adopted 10/16/08)) as well as
rules controlling NOX and SOX emissions. See 2011
Proposal TSD at Tables F-2, F-3, and F-4. Of the rules that control
direct PM2.5 emissions, only two establish emission limits
for particulate matter (Rule 4692 (Commercial Charbroiling) and Rule
4354 (Glass Melting Furnaces)). EPA has not yet acted on any District
rule adopted or revised after January 1, 2011 that regulates direct
PM2.5 emissions. As part of our action on any such rule, we
will evaluate the emission limits in the rule to ensure that they
appropriately address CPM as required by 40 CFR 51.1002(c). We note
that the revised version of Rule 4692 (Commercial Charbroiling) that
EPA has recently proposed to approve (see 76 FR 38340 (June 30, 2011))
requires testing in accordance with the SCAQMD Protocol, which requires
measurement of both condensable and filterable PM in accordance with
South Coast Air Quality Management District (SCAQMD) Test Method
5.1.\30\ We also note that the SIP-approved version of Rule 4354 (Glass
Melting Furnaces) requires testing for condensable PM emissions using
EPA Method 202. See 76 FR 53640 (August 29, 2011).
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\30\ See SCAQMD Protocol, Determination of Particulate and
Volatile Organic Compound Emissions From Restaurant Operations,
November 14, 1997 (available at http://yosemite.epa.gov/R9/
R9Testmethod.nsf/0/3D4DEB4D21AB4AAF882570AD005DFF69/$file/
SC%20Rest%20emiss.pdf) and SCAQMD Test Method 5.1, Determination of
Particulate Matter Emissions From Stationary Sources Using a Wet
Impingement Train, March 1989 (available at http://aqmd.gov/tao/methods/stm/stm-005-1.pdf).
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[[Page 69906]]
Evaluation of Potential to Advance Attainment
Table E-2 of our 2011 Proposal TSD indicates that to advance
attainment of the 1997 PM2.5 standards in the SJV by one
year, i.e., from 2014 to 2013, the area would need an additional 15.6
tpd of NOX reductions and an additional 3.9 tpd of direct
PM2.5 reductions. These figures represent the difference
between the 2013 ``controlled inventory'' and the 2014 ``NOX
emissions level needed for PM2.5 attainment.'' See 2011
Proposal TSD at Table E-2 (pg. 80).\31\ The 2013 ``controlled
inventory'' figures were based on the District's expected emissions
reductions from individual measures as identified in the 2008
PM2.5 Plan. See Plan at pp. 6-11 and 6-12 (Table 6-3).\32\
Following adoption of these measures, however, the District updated its
estimates of the emissions reductions associated with several of these
measures. See 2011 Proposal TSD at Table F-4 (pg. 91). Based on these
updated estimates of the reductions associated with specific control
measures, which alter the 2013 ``controlled inventory'' estimates, we
have re-calculated the amount of PM2.5 reductions needed to
advance attainment by one year as 6.4 tpd.\33\
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\31\ For NOX, 15.6 tpd represents the difference
between the 2013 ``controlled inventory'' (306.8 tpd) and the 2014
``NOX emissions level needed for PM2.5
attainment'' (291.2 tpd). For PM2.5, 3.9 tpd represents
the difference between the 2013 ``controlled inventory'' (67.2 tpd)
and the 2014 ``Direct PM2.5 emissions level needed for
PM2.5 attainment'' (63.3 tpd).
\32\ For example, the 2013 ``controlled inventory'' for
PM2.5 (67.2 tpd) is the sum of the expected emissions
reductions from four PM2.5 control measures identified in
Table F-2. See 2011 Proposal TSD at Table E-2 (pg. 87).
\33\ The updates to the PM2.5 emissions reduction
estimates reduced the creditable reductions from 6.7 tpd to 4.2 tpd,
which in turn increased the 2013 ``controlled inventory'' from 67.2
tpd to 69.7 tpd. 6.4 tpd is the difference between the updated 2013
``controlled inventory'' (69.7 tpd) and the 2014 ``Direct
PM2.5 emissions level needed for PM2.5
attainment'' (63.3 tpd).
---------------------------------------------------------------------------
As discussed above, with respect to Rule 4692 (Charbroiling) and
Rule 4103 (Open Burning), we have concluded that the additional PM
emissions control options that Earthjustice identified are not
reasonably available considering economic and technical feasibility.
Therefore, these potential control measures are not required RACM for
purposes of the 1997 PM2.5 standards in the Valley. With
respect to Rule 4901 (Wood Burning), Rule 4354 (Glass Melting
Furnaces), and Rule 4352 (Solid Fuel-Fired Boilers), we assume for
purposes of this analysis that additional control options are
reasonably available for implementation in the SJV. We therefore
evaluate whether the emissions reductions from these additional control
options would, collectively, advance attainment of the 1997
PM2.5 standards in the SJV by at least one year.
Our estimate of the total reductions of direct PM2.5
that could be achieved by the potential control options for wood
burning (1.6 tpd) and glass melting furnaces (2.9 tpd) identified by
Earthjustice is 4.5 tpd. As to NOX reductions, although
Earthjustice did not provide any estimate of the reductions that could
be achieved by more stringent requirements for solid fuel-fired
boilers, steam generators, and process heaters, we have conservatively
estimated that such controls could result in an additional 3.12 tpd of
NOX reductions from existing emissions units in the SJV.
These combined emissions reductions (4.5 tpd of direct PM2.5
and 3.12 tpd of NOX) are significantly lower than the total
reductions necessary to advance attainment by one year in the SJV (6.4
tpd of direct PM2.5 and 15.6 tpd of NOX).
Therefore, even assuming that additional control options for these
three source categories are reasonably available for implementation in
the SJV, they are not required RACM for purposes of the 1997
PM2.5 standards because they would not advance the
attainment date in SJV by at least one year. See 40 CFR 51.1010(b).
Conclusion on RACM Demonstration
For all of these reasons and as discussed in our proposed rule (76
FR 41338) and 2011 Proposal TSD, we conclude that the 2008
PM2.5 Plan includes all RACM (including RACT for stationary
sources) necessary for RFP and expeditious attainment of the 1997
PM2.5 standards in the SJV and, therefore, satisfies the
requirements of CAA section 172(c)(1) and 40 CFR 51.1010.
E. Comments on the Proposed Actions on the Control Strategy and
Enforceable Commitments
1. Baseline Measures
Comment: Earthjustice and AIR assert that the baseline inventories
are flawed because they include emissions reduction credit from both
``waiver measures'' and ``non-waiver measures'' adopted before December
2006 (together referred to as ``baseline measures'') that have not been
approved into the SIP, and that the inclusion of credit for these
baseline measures undermines the attainment and progress demonstrations
attached to these inventories. For example, both commenters object to
the inclusion of credit for CARB's anti-idling requirements in the
baseline inventories because these requirements have never been
submitted for SIP approval, and Earthjustice suggests that EPA should
have adjusted the credit for these anti-idling requirements based on
CARB's failure to enforce them. Both commenters assert that EPA has not
specifically evaluated these baseline measures to determine how they
should be credited in the baseline inventories, and Earthjustice
asserts that the measures upon which the attainment and progress
demonstrations rely must be enforceable, creditable controls approved
into the SIP subject to the CAA's anti-backsliding provisions.
In addition, based on information provided in Table 7 of the 2011
Proposal and tables F-7 and F-9 of the 2011 Proposal TSD, AIR provides
its own calculations of the total amount of emissions reduction credits
attributed to baseline measures and requests that EPA confirm the
accuracy of AIR's calculations.
Finally, AIR asserts that these additional ``non-waiver'' baseline
measures should also be SIP-approved:
Heavy Duty Diesel Chip Reflash (adopted March 27, 2004);
Diesel Particulate Matter Control Measure for On-Road
Heavy-Duty Diesel-Fueled Vehicles Owned or Operated by Public Agencies
and Utilities (adopted December 8, 2005);
Solid Waste Collection Vehicle Rule (adopted September 24,
2003);
Fork Lifts and Other Industrial Equipment (adopted May 26,
2006);
Pesticides--Field Fumigant Limits (submitted to EPA
October 12, 2009).
Response: We disagree that there is any inadequacy in the emissions
projections that undermines the RACM, RFP or attainment demonstrations
in the 2008 PM2.5 Plan. We explained in our 2011 proposal
(76 FR 41338 at 41342, 41343) our reasons for concluding both that the
2005 base year inventory in the 2008 PM2.5 Plan is
comprehensive, accurate, and current as required by CAA section
172(c)(3) and that the projected baseline inventories for 2009, 2012
and 2014 provide adequate bases for the RACM, RFP and attainment
demonstrations in the Plan.
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 notwithstanding the fact that such rules are not
approved as part of the California SIP. In the TSD supporting our 2011
proposal, we explained why we believe such credit is appropriate. See
2011 Proposal TSD at section
[[Page 69907]]
II.F.4.a.i. Historically, EPA has granted credit for the waiver
measures because of special Congressional recognition, in establishing
the waiver process in the first place, of the pioneering California
motor vehicle control program and because 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 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.\34\) The 2008 PM 2.5 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. 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.
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\34\ MOVES replaced the MOBILE model as EPA's on-road mobile
source emissions 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.\35\
(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 2011 Proposal TSD at section II.F.4.a.i.
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\35\ 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.
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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 Emissions 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.\36\ 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 Progress Report at Appendix E.
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
2011 Proposal 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; ``Emissions Projections,''
STAPPA/ALAPCO/EPA Emissions Inventory Improvement Project, Volume X,
December 1999 (available at http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf).
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\36\ 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.
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In sum, the 2005 base year and future projected baseline
inventories in the 2008 PM2.5 Plan were prepared using a
complex set of CARB methodologies to estimate and project emissions
from stationary sources, in addition to the most recent emissions
factors and models and updated activity levels for emissions associated
with mobile sources, including: (1) The latest EPA-approved California
motor vehicle emissions factor model (EMFAC2007) and the most recent
motor vehicle activity data from each of the metropolitan planning
organizations (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 Progress Report. 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). 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
RACM, RFP, and attainment demonstrations in the 2008 PM2.5
Plan.
For all of these reasons and as discussed in our 2011 proposal (76
FR 41338 at 41342, 41343), we have concluded that the 2005 base year
inventory in the 2008 PM2.5 Plan is a ``comprehensive,
accurate, current inventory of actual emissions from all sources of the
relevant pollutant or pollutants'' in the SJV area, consistent
[[Page 69908]]
with the requirements for emissions inventories in CAA section
172(c)(3), 40 CFR 51.1008, and 40 CFR part 51, subpart A. In addition,
we conclude that the projected baseline inventories for 2009, 2012 and
2014 were prepared consistent with EPA's guidance on development of
emissions inventories and attainment demonstrations and, therefore,
provide an adequate basis for the RACM, RFP and attainment
demonstrations in the Plan. See 2011 Proposal TSD at section II.A.
As to the six specific baseline measures that CRPE asserts should
be SIP-approved, we note first that the SJV 2008 PM2.5 SIP
does not rely on credit for emissions reductions from the Pesticides
regulations (Field Fumigant Limits) as those regulations address only
VOC and therefore do not apply to any pollutant that is a
PM2.5 attainment plan precursor in the SJV
(PM2.5, NOX, or SO2).
Second, both the Requirements to Reduce Idling Emissions from New
and In-Use Trucks (effective November 15, 2006) \37\ and the Fork Lifts
and Other Industrial Equipment measure (adopted May 26, 2006) are
pending EPA waiver determinations under CAA section 209(b) or section
209(e).\38\ We expect that EPA will act on these requests for waivers
of preemption or authorization under CAA section 209 in the near term,
and that our final approval of the 2008 PM2.5 Plan based in
part on its reliance on the emissions reductions associated with these
rules is, therefore, reasonable and appropriate. If, however, EPA
either denies or does not issue the State's requested waiver for any of
these measures prior to the effective date of today's action, we will
take appropriate remedial action to ensure that our action on the plan
is fully supportable or to reconsider that action.
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\37\ EPA is currently reviewing a request from CARB for a
determination as to whether certain requirements of these anti-
idling rules are preempted by section 209(a) of the CAA; certain
provisions are conditions precedent pursuant to section 209(a) of
the Act; certain provisions are within-the-scope of previous waivers
and authorizations issued pursuant to sections 209(b) and 209(e) of
the Act, respectively; and at least one provision requires and
merits a full authorization pursuant to section 209(e) of the Act.
See 75 FR 43975 (July 27, 2010). CARB estimates that the operational
requirement of the anti-idling rule, which is not subject to a CAA
section 209 waiver, achieves 0.2 tpd of NOX in the SJV.
See Memorandum, Doris Lo, Air Division, Planning Office (AIR-2); to
the San Joaquin Valley PM2.5 Docket No. EPA-R09-OAR-2010-
0516, ``SIP Credit for Heavy-Duty Diesel Engine Low-NOX
Software (``Chip Reflash'')''; from, September 28, 2011.
\38\ See letter, James Goldstene, Executive Officer, CARB to
Stephen L. Johnson, Administrator, EPA RE: Request for Authorization
Determination Pursuant to Clean Air Act Section 209(e) for
Amendments to California's Off-Road Emissions Standards Regulation
for large Spark-Ignition (LSI) Engines and Fleet Requirement for In-
Use LSI Forklifts and Other Industrial Equipment and California
State Motor Vehicle and Nonroad Engine Pollution Control Standards;
Truck Idling Requirements; Opportunity for Public Hearing and
Request for Public Comment; Notice Of Opportunity For Public Hearing
And Comment. 75 FR 43975 (July 27, 2010).
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Third, as to the Diesel Particulate Matter Control Measure for On-
Road Heavy-Duty Diesel-Fueled Vehicles Owned or Operated by Public
Agencies and Utilities (adopted December 8, 2005), CARB's staff report
on this measure indicates that the projected baseline inventories have
attributed emissions reductions of 0.1 tpd PM2.5 and 0.18
tpd NOX statewide to this measure. See Staff Report:
Proposed Diesel Particulate Matter Control Measure for On-Road Heavy-
Duty Diesel-Fueled Vehicles Owned or Operated by Public Agencies and
Utilities, October 2005, at pg. 55. Assuming less than 25 percent of
these reductions are attributed to the SJV area, the de minimis amounts
of emissions reductions attributed to this measure in the 2008
PM2.5 SIP do not affect our evaluation of the attainment and
RFP demonstrations in the 2008 PM2.5 SIP.
Similarly, as to the Solid Waste Collection Vehicle Rule (adopted
September 24, 2003), CARB's staff report on this measure indicates that
the projected baseline inventories have attributed emissions reductions
of 0.17 tpd PM2.5 and 2.3 tpd NOX statewide to
this measure. See Supplemental Staff Report: Proposed Diesel
Particulate Matter Control Measure for On-Road Heavy-Duty Residential
and Commercial Solid Waste Collection Vehicles, August 8, 2003, at pg.
18. Assuming less than 25 percent of these reductions are attributed to
the SJV area, the de minimis amounts of emissions reductions attributed
to this measure in the 2008 PM2.5 SIP also do not affect our
evaluation of the attainment and RFP demonstrations in the 2008
PM2.5 SIP.
Finally, the Heavy Duty Diesel Engine-Chip Reflash rule (adopted
March 27, 2004) (``Chip Reflash'' rule) was intended to ensure
expeditious compliance with CARB's NOX emissions standard
for heavy-duty diesel (HDD) engines by requiring installation of ``Low-
NOX Software.'' The Chip Reflash rule was invalidated in
part by a California State Court, and CARB repealed the related
regulations in June 2007. The emissions reduction credit attributed to
Chip Reflash in CARB's baseline inventories is limited to vehicles that
have been ``reflashed,'' i.e., physically installed the Low-
NOX Software,\39\ removal of which would constitute a
violation of the CAA and/or California state law. See the statutory
anti-tampering laws in CAA section 203(a)(3) and California Vehicle
Code section 27156. Thus, the NOX emissions reductions
attributed to ``reflashed'' engines are enforceable under the CAA and/
or California state law.
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\39\ The 2007 State Strategy, Appendix A, ``Emissions Inventory
Output Tables'' documents the adjustment in the baseline that CARB
made to account for Chip Reflash (or Heavy-Duty Diesel Engine
Software Upgrade). As described in appendix A, CARB staff estimates
that the overall benefits of the software upgrade regulation plus
related actions provided approximately 38 tons per day of
NOX emissions reductions statewide in year 2007. CARB
also indicates that it took into account the fact that the software
upgrade regulation had been invalidated by including no additional
emissions reductions from chip reflash other than those that had
already occurred due to compliance with the regulation (prior to
invalidation by the court), voluntary upgrade programs, ongoing
engine rebuilds, engine upgrades by manufacturers exempt from the
regulation, and interstate trucks. CARB staff recently confirmed
that the baseline adjustment for chip reflash in the 2007 State
Strategy reflects emissions reduction credit only for engines that
have been ``reflashed''. See Memorandum, Doris Lo, Air Division,
Planning Office (AIR-2); to the San Joaquin Valley PM2.5
Docket No. EPA-R09-OAR-2010-0516, ``SIP Credit for Heavy-Duty Diesel
Engine Low-NOX Software (``Chip Reflash'')''; from
September 28, 2011.
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As to AIR's calculation of the reductions from baseline measures,
AIR calculates what it considers ``the total reductions from baseline
reductions without recession reductions'' to be 11 tpd of
PM2.5, 195 tpd of NOX, and 0.9 tpd of
SOX. These figures are not correct because they do not take
into account CARB's recent updates to the projected 2014 inventory.
For the 2008 PM2.5 SIP, ``baseline reductions'' are
calculated by subtracting the 2005 base year inventory form the
projected 2014 pre-control-strategy inventory. As we have discussed
above, CARB revised its projected 2014 inventories to incorporate not
only the continuing effects of the recent economic recession but also
many non-recession related changes. These revisions have resulted in a
more accurate projected 2014 inventory.
As we have discussed previously, projected emissions inventories
are a function in part of changes in activity. Projected inventories
are, therefore, necessarily affected by forecasts of industrial growth,
population growth, and transportation growth, among other factors. EPA
guidance emphasizes the importance of developing reliable methods for
estimating future source activity levels as part of the SIP planning
process. We believe that CARB has done this.
[[Page 69909]]
2. Waiver Measures
Comment: Earthjustice and CRPE object to our proposal to grant
emissions reduction credit to California's mobile source control
measures that have received a waiver of preemption under CAA section
209 without first approving them into the SIP. Both commenters argue
that our reliance for this proposal on the general savings clause in
CAA section 193 is inappropriate for several reasons.
First, the commenters assert that CAA section 193 only saves those
``formal rules, notices, or guidance documents'' that are not
inconsistent with the CAA. They argue that both the CAA and EPA's long-
standing policies and regulations require SIPs to contain the state and
local emission limitations and control measures that are necessary for
attainment and RFP and to meet other CAA requirements. They assert that
our position on the treatment of California's waived measures is
inconsistent with this requirement. CRPE asserts that EPA has, in
contrast, approved other (non-mobile source) state measures into the
SIP, e.g., the consumer products rules and fuel standards. Earthjustice
also argues that only SIP approval provides for the CAA's enforcement
oversight (CAA sections 179 and 304) and anti-backsliding (CAA section
110(l) and 193) safeguards.
Second, the commenters argue that we cannot claim that our position
was ratified by Congress because section 193 saves only regulations,
standards, rules, notices, orders and guidance ``promulgated or
issued'' by the Administrator and we have not identified documents
promulgated or issued by EPA that establish our position here.
Earthjustice further asserts that our interpretation has not been
expressed through any affirmative statements and the only statements of
relevant statutory interpretations are contrary to our position on
California's waived measures.
Third, Earthjustice 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. Similarly, CRPE 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.
Finally, CRPE argues 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. CRPE 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 2011 proposal and the 2011
Proposal TSD, we explained why we believe such credit is appropriate.
See 76 FR 41338 at 41345 and 2011 Proposal TSD at section II.F.4.a.i.
Historically, EPA has granted credit for the waiver measures because of
special Congressional recognition, in establishing the waiver process
in the first place, of the pioneering California motor vehicle control
program and because 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 2011 Proposal TSD (pp. 100-102), 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.\40\ 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.
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\40\ In addition, the commenters' concerns over the potential
for relaxation by the State of the waiver measures because the
underlying regulations are not subject to EPA review and approval as
a SIP revision are not a practical concern for this particular plan
given that the plan's horizon is very short term (next couple of
years), and the on-road and nonroad vehicles that in part will
determine whether the area attains the standard are already in
operation or in dealer showrooms. There is no practical means for
the State to relax the standards of vehicles already manufactured,
even if the State wanted to relax the standards.
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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
[[Page 69910]]
vehicle/engine emissions standards as EPA, and CARB's enforcement
program is equally as rigorous as the corresponding EPA program. The
history and rigor of CARB's enforcement program lends assurance to
California SIP revisions that rely on the emissions reductions from
CARB's rules in the same manner as EPA's mobile source enforcement
program lends assurance to other state's SIPs in their reliance on
emissions reductions from the FMVCP. While it is true that citizens and
EPA are not authorized to enforce California waiver measures under the
Clean Air Act (i.e., because they are not in the SIP), citizens and EPA
are authorized to enforce EPA standards in the event that vehicles
operate in California without either California or EPA certification.
As to quantifiability, EPA's historical practice has been to give
SIP credit for motor-vehicle-related waiver measures by allowing
California to include motor vehicle emissions estimates made by using
California's EMFAC (and its predecessors) motor vehicle emissions
factor model in SIP inventories. EPA verifies the emissions reductions
from motor-vehicle-related waiver measures through review and approval
of EMFAC, which is updated from time to time by California to reflect
updated methods and data, as well as newly-established emissions
standards. (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. The San Joaquin Valley
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.
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.
In the 2011 Proposal TSD (pp. 102-103), 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.\41\
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\41\ 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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CRPE 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).
3. Enforceable Commitments
Comment: AIR argues that EPA cannot make a finding that the
``recession reductions'' are an ``enforceable'' measure within the
meaning of CAA section 110(a)(2)(A) and 172(c)(6) because ``recession
reductions'' are only voluntary behavior to reduce activity for
economic reasons and nothing prevents such an increase in activity as
the economy improves. Based on this argument, AIR asserts that EPA's
approval of the attainment demonstration is arbitrary and capricious
and not in accordance with the law. AIR asserts that CARB concedes that
the reductions coming from reduced activity may change in the future.
Response: EPA is not making a finding that emissions ``reductions''
related to the economic recession are ``enforceable'' measures under
CAA sections 110(a)(2)(A) and 172(c)(6). As explained in our amended
proposal (76 FR 41338 at 41354-41356), we are concluding that CARB's
2011 SIP revisions, which updated the State's projected (``baseline'')
emissions inventories based on improved
[[Page 69911]]
methodologies for estimating emissions and more recent growth factors,
reduced the total amount of emissions reductions needed for attainment
and that the control strategy in the 2008 PM2.5 Plan, as
revised in 2011, demonstrates expeditious attainment of the 1997
PM2.5 NAAQS in the SJV from the revised baseline.
Section 110(a)(2)(A) of the CAA requires that each implementation
plan submitted by a State include ``enforceable emission limitations
and other control measures, means, or techniques * * * as well as
schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of [the CAA].'' Section
172(c)(6) contains substantively identical requirements for all
nonattainment area plans. Baseline emissions inventories, however, are
not ``enforceable emission limitations and other control measures,
means, or techniques'' or ``schedules and timetables for compliance''
that are necessary or appropriate to meet CAA requirements. See El
Comite Para El Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062 (9th
Cir. 2008) (concluding that a baseline inventory is not an enforceable
``standard or limitation'' as defined by the CAA and is not, therefore,
an independently enforceable aspect[] of the SIP''). Rather, baseline
emissions inventories provide the basis for, among other things, the
demonstrations of attainment and progress toward attainment required by
CAA sections 172(c)(1) and 172(c)(2). Specifically, CAA section
172(c)(3) requires that each plan for a nonattainment area include ``a
comprehensive, accurate, current inventory of actual emissions from all
sources of the relevant pollutant or pollutants in such area * * *'').
After developing this ``base year'' emissions inventory, States use
modeling and other analyses to calculate future emissions projections
and ``target'' emissions levels, which then inform the State's
development of progress milestones and control strategies for attaining
the NAAQS. See General Preamble at 13507-13510. In short, emissions
inventories provide estimates of current and future emissions that, in
turn, provide the starting point for the State's attainment
demonstration and enforceable control strategy.
Nothing in the CAA precludes a State from revising a submitted plan
to take into account revised emissions estimates and projections. All
projections of future emissions-generating activity (including the
original projections in the 2008 PM2.5 Plan that AIR would
have CARB and EPA continue to use) are based on projections of
population and employment and other growth factors that reflect
voluntary behavior, all of which can increase or decrease as economic
conditions change. However, reliance on projections from reputable
sources of economic behavior based on established methods of predicting
such behavior is the historic practice for development of emissions
inventories. CARB's revised projections of future emissions-generating
activity are based on reputable sources, represent the most current
understanding of expected economic conditions through at least 2014,
and were subject to extensive public review and comment before CARB
adopted its 2011 SIP revisions containing these updated projections.
Given the magnitude of the economic recession's impact on emissions-
generating activity in SJV and other parts of California, and the
resulting impact on the State's assessment of the control strategy
necessary to demonstrate attainment of the 1997 PM2.5
standards, we conclude that it is appropriate to take these updated
emissions projections into account as part of our action on the 2008
PM2.5 Plan. Other than asserting generally that CARB and EPA
should not rely on the revised economic data to determine the
reductions needed for attainment and that future conditions may change,
AIR provides no information that undermines the State's revised
economic data or the related changes to the projected inventories.
We disagree with AIR's unsupported assertion that ``CARB concedes
that the reductions coming from reduced activity may change in the
future.'' CARB has stated that it will continue to track emissions
trends to ensure that the 2014 emissions targets are met and maintains
its commitment to adopt and implement additional control requirements,
incentive programs, or other measures as appropriate to reduce
emissions to the levels necessary to attain. See 2011 Progress Report,
p. 4.
Moreover, as discussed above, the revisions to the 2014 baseline
inventory that AIR characterizes as ``recession reductions'' took into
account not only the State's revised economic forecasts but numerous
other factors, including updated activity data and growth projections.
See section II.A (``Comments on the Proposed Actions on the Emissions
Inventory'') above.
Comment: AIR asserts that the Plan relies on emissions reductions
caused by the recent economic recession to demonstrate attainment,
rather than requiring reductions from diesel trucks and other diesel
equipment in 2014. Noting CARB's recent revisions to five of its in-use
rules,\42\ AIR argues that these rule revisions ``reduc[ed] the amount
of reductions that those five in-use rules would have achieved by
2014,'' and that CARB has equated recession-related emissions
reductions with the reductions necessary to meet the 2014 tonnage
targets. AIR asserts that the difference between the pre-recession and
recession inventories in the Valley is 40 tons per day of
NOX.
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\42\ These five in-use rules are CARB's Truck rule, Heavy-Duty
Vehicle Greenhouse Gas Emission Reduction Regulation, In-Use On-Road
Diesel-Fueled Heavy-Duty Drayage Trucks Regulation, Off-Road rule),
and the LSI regulation (collective ``in-use rules'').
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Response: As discussed above, CARB's revisions to the 2014 baseline
inventories took into account not only the State's revised economic
forecasts but numerous other factors, including updated activity data
and growth projections. See section II.A above. These improvements to
the emissions estimates reduced the projected 2014 emissions levels for
trucks, buses and certain off-road equipment compared to the levels
expected when CARB initially adopted its rules for these sources in
2007 and 2008. These revised projections, in turn, reduced the State's
assessment of the amount of emissions reductions needed from these
emissions sources to provide for attainment of the 1997
PM2.5 NAAQS in the SJV and allowed CARB to provide some
economic relief to the affected industries.\43\ We note that because
EPA has not previously approved California's in-use truck rules into
the SIP, EPA's approval of these rules strengthens the SIP and meets
the requirements of CAA section 110(l). See CAA 110(l) (prohibiting EPA
from approving a revision of a plan ``if the revision would interfere
with any applicable requirement concerning attainment and reasonable
further progress * * * or any other applicable requirement of [the
Act]'').
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\43\ To determine the extent to which it could revise its in-use
rules to provide economic relief and still meet the attainment
target, CARB evaluated whether the lower emissions from the revised
inventories for both trucks, buses and off-road equipment, when
combined with the effects of the recession, provided greater
emissions reductions from the in-use rules than were initially
expected. CARB referred to these greater-than-expected emissions
reductions as the ``emission margin.'' Because the in-use diesel
rules reduced both direct PM2.5 and NOX and
both pollutants contribute to ambient levels of PM2.5,
CARB calculated the margin on a ``NOX equivalent'' basis
and found that the margin for the SJV was 40 tpd of NOX
equivalents. See 2010 Truck Rule ISOR, p. 23.
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Both the revised Truck rule and the revised Off-Road rule continue
to require reductions from diesel trucks
[[Page 69912]]
and other diesel equipment in 2014 and future years. See 2010 Truck
Rule ISOR, p. 45 and 2010 Off-Road Equipment ISOR, p. 38; see also, 76
FR 41338, 41346 (Table 6).
Comment: AIR claims that the 2011 Progress Report shows CARB
considers ``recession reductions'' as a part of its ``global''
emissions reduction commitment. In support of this claim, AIR quotes
the 2011 Progress Report at page 4:
As a result of the recession, actual emissions decreases moved
California closer to the emissions levels needed for attainment in
2014. The recession has reduced economic activity and emissions,
most notably in the goods movement sector. This has allowed ARB to
maintain the State's SIP commitments in the South Coast and San
Joaquin Valley while also providing some near-term economic relief
to affected industries.
As the economy recovers, ARB will continue to track emissions
trends to ensure the 2014 emissions targets are met. If future
emissions were to exceed the SIP target, the State's commitment
could be made up with additional controls, incentive programs, or
other programs to bring emissions down to the necessary levels. A
discussion of how ARB accounted for the recession is found later in
this report.
Response: EPA is not treating any ``recession reductions'' as part
of the State's enforceable commitments. As explained above, we are
approving the attainment demonstration and control strategy in the 2008
PM2.5 Plan based on our conclusion that the Plan, as revised
by CARB's 2011 revisions to the projected baseline inventories,
demonstrates expeditious attainment of the PM2.5 standards
in the SJV. EPA interprets the quoted language as a statement of CARB's
future plans to revise the SIP as necessary should economic activity
change significantly in the future.
Comment: AIR claims that in proposing to disapprove the CARB's
global commitment in November 2010, EPA recognized that the Truck rule
could reduce that percentage of reductions remaining as commitments
below 10 percent. It then asserts that EPA cannot now approve the
commitment and the attainment demonstration because CARB's relaxation
of the Truck rule and the Off-Road rule to delay reductions beyond 2014
mean that the percentages of PM2.5 and NOX
reductions needed for attainment that remain as commitments are still
well above the 10 percent threshold. AIR states that based on its
calculations, the percentage of total reductions remaining as
commitments, if adjustments to the baseline are not included, would be
25.1 percent for PM2.5 and 26.7 percent for NOX.
Response: EPA did not propose to disapprove CARB's aggregate
commitments in its 2010 proposal. We proposed then and again in our
2011 proposal to approve CARB's aggregate emissions reductions
commitments as described in CARB Resolution 07-28, Attachment B. See 75
FR 74518 at 74541 and 76 FR 41338 at 41361. EPA did initially propose
to disapprove the attainment demonstration based in part on our finding
that the percentage of the emissions reductions needed for attainment
that remained as commitments was too high. See 75 FR at 74541. As
explained in our 2011 proposal, however, additional submittals from
CARB have reduced the percentages of emissions reductions remaining as
commitments to 13.2 percent for direct PM2.5 and 4.5 percent
for NOX. These percentages are reasonably close to the 10
percent range that EPA has historically accepted as appropriate for
enforceable commitments in approving attainment demonstrations. See 76
FR at 41355, 41356. Because the State's revisions to the projected
baseline inventories in the SJV 2008 PM2.5 SIP have reduced
the total tonnage of emissions reductions necessary to attain the 1997
PM2.5 standards (see section II.A above), we disagree with
AIR's calculation of the percentage of total reductions remaining as
commitments.
Comment: Earthjustice comments that EPA has outlined a three-factor
test to assess whether the commitments in the SJV 2008 PM2.5
SIP are reasonable but has not documented, under the first factor, how
we determine the level of remaining reductions and what is meant by
``reasonably close.''
Response: In our 2011 proposal we provide a detailed discussion of
the emissions reductions needed for attainment and how they have been
or will be achieved. See generally 76 FR 41339, 41344-41347 and 41354-
41357 and 2011 Proposal TSD, sections II.F. and G. These reductions
include those from measures adopted prior to 2007 (baseline measures),
measures adopted since 2007 and measures that are yet to be adopted
(i.e., enforceable commitments). The expected reductions from each of
these sets of measures are provided in the 2011 proposal, as are EPA's
calculations of the percentages of needed reductions remaining as
commitments. See 76 FR 41338 at 41354, Table 8; see also 2011 Proposal
TSD at pp. 105-106 and 113-114. As provided in the tables in our 2011
proposal and 2011 Proposal TSD, the reductions remaining as commitments
are 12.9 tpd of NOX and 3.0 tpd of PM2.5. Id.
These reductions represent 4.5 percent and 13.2 percent of the total
NOX and PM2.5 emissions reductions (respectively)
needed for attainment. Id.
In support of our statement that these percentages (4.5 percent of
NOX and 13.2 percent of PM2.5) are ``reasonably
close to the 10 percent range that EPA has historically accepted in
approving attainment demonstrations,'' we referenced several prior EPA
approvals of SIPs relying on similar enforceable commitments. See 76 FR
41339 at 41355 and n. 30. We also explained our legal rationale for
approving such enforceable commitments and referenced several court
decisions that support our interpretation of the CAA. See id. at n. 27
and 28. Based on our evaluations, we proposed to allow the State to
rely on these limited enforceable commitments as part of the attainment
demonstration in the 2008 PM2.5 Plan and 2007 State
Strategy. Id. at 41356. Earthjustice does not explain why these
explanations were not adequate or why reliance on enforceable
commitments consistent with these court cases is inappropriate.
Comment: Earthjustice comments that it is not reasonable to approve
a ``plan to make a plan,'' which is what they believe the District and
CARB have provided. Earthjustice states that the District and CARB are
asking EPA to trust them that they will find emissions reductions
needed to meet the standards by 2015. Earthjustice states that this is
not what the CAA contemplates, citing section 110(a)(2)(A) of the CAA
(requiring plans to include ``enforceable emission limitations and
other control measures * * * necessary or appropriate to meet the
applicable requirements of this Act''). Earthjustice states that there
is no point in having a plan which does not specifically identify how
it plans to accomplish the needed reductions.
Response: We disagree with Earthjustice's assertion that the 2008
PM2.5 SIP does not identify how CARB and the SJVUAPCD plan
to accomplish the reductions needed for attainment of the 1997
PM2.5 standards in the SJV by 2015. As discussed in our
amended proposal, the 2008 PM2.5 Plan relies principally on
adopted measures approved into the SIP or given waivers under CAA
section 209 rules to achieve the emissions reductions needed to attain
the 1997 PM2.5 standards in the SJV by April 5, 2015,
including baseline (pre-2007) measures that continue to achieve
emissions reductions through 2014. See 76 FR at 41356. The balance of
the needed reductions is currently in the form of enforceable
commitments that account for 13.2 percent of the
[[Page 69913]]
direct PM2.5 and 4.5 percent of the NOX emissions
reductions needed from 2005 levels to attain. See id. These SIP-
approved or CAA-waived control measures and enforceable commitments
satisfy the requirement in CAA section 110(a)(2)(A) to include
``enforceable emission limitations and other control measures, means or
techniques * * * as well as schedules and timetables for compliance, as
may be necessary or appropriate to meet the applicable requirements''
of the CAA. See id. at 41355, n. 27. Although CARB's and the District's
enforceable commitments to achieve additional emissions reductions are
expressed in aggregate tonnages and not tied to specific measures, both
CARB and the District have provided a list of potential measures that
may achieve the additional reductions needed to attain the standards,
together with expeditious rule development, adoption, and
implementation schedules consistent with EPA's policy on acceptable
enforceable commitments. See id. at 41355, 41356. Both CARB and the
District have also made significant progress to date in meeting their
enforceable commitments. Id.
Comment: AIR notes that one of EPA's criteria for evaluating an
attainment demonstration that relies on commitments is whether the
state is capable of fulfilling the commitment. AIR argues that CARB is
not capable of fulfilling its commitment given CARB's alleged use of
``recession reductions'' instead of actual measures to meet its
commitment when diesel emissions can change based on economic forces
that the State cannot control. It also claims that CARB's decision to
revise its five in-use rules is evidence that CARB can and likely will
amend rules in the future that may undermine its commitment.
Response: We disagree with AIR's assertion that CARB's revisions to
the in-use rules or to its projected emissions levels based on updated
economic forecasts undermine its commitments or demonstrate that the
State is not capable of fulfilling its commitment. We discussed above
in section II.A our reasons for concluding that the revisions to the
2014 baseline emissions inventories are legitimate.
Contrary to AIR's assertions, CARB's rulemaking record for the
revisions to its in-use rules indicate that the State intends to ensure
that any future revisions to the rules will not undermine its SIP
commitment. See, e.g., 2010 Truck Rule ISOR, p. 2 and 2010 Off-Road
Rule ISOR, p. 2 (stating that rule revisions should ``continue progress
toward cleaner air'' and ``meet state implementation plan (SIP)
commitments''). Before revising its in-use rules, CARB calculated the
maximum level of relief it could provide without violating it SIP
commitment. This ``SIP margin'' was calculated as 40 tpd in
NOX equivalent (a weighted combination of NOX and
PM2.5 emissions) in the SJV. See 2010 Truck Rule ISOR, p. 23
and 2010 Off-Road Rule ISOR, p. 20. The revisions to the in-use rules
did not decrease their combined benefits by more this amount. See 2010
Truck Rule ISOR, p. 51 and 2010 Off-Road Rule ISOR, p. 43. Thus, CARB's
actions did not reflect any lack of intention to fully meet its
enforceable commitments to provide emissions reductions sufficient for
timely attainment.
Comment: Earthjustice also contends that the second factor for
determining whether to approve an attainment demonstration that relies
on commitments, whether the state is capable of meeting its commitment,
is not met because CARB has repeatedly fallen short of achieving its
estimated emissions reduction from its rules and has not begun to
develop its Agricultural Equipment Rule which was to achieve 5 to 10
tons per day of NOX in the SJV and be adopted by 2009. To
support its argument, it points to the methodology changes associated
with the Truck Rule and Off-Road Rule and the ``massive recession
reductions'' that have resulted in fewer reductions being needed from
these rules. Earthjustice concludes that it does not believe that CARB
is capable of meeting the ``massive, last-minute commitments'' relied
upon in the Plan given CARB's history of avoiding satisfying its
commitments. It also argues that CARB cannot rely on changes to the
inventory to lessen the reductions from its rules without reassessing
the relationship between emissions and ambient concentrations of fine
particulates and that the ``massive recession reductions'' are neither
permanent nor enforceable.
Response: We disagree with Earthjustice's assertion that CARB has a
history of not satisfying its commitments or that the State's recent
revisions to its future emissions projections indicate it is not
capable of meeting its commitments. We discussed above in section II.A.
our reasons for concluding that the revisions to the 2014 baseline
emissions inventories are valid. We also note that Earthjustice has
provided no information or data to undermine CARB's revisions to its
future emissions projections based on its revised economic forecasts
and updated methodologies for estimating emissions.
In addition, Earthjustice's assertion that CARB's actions with
respect to regulation of in-use agricultural equipment indicate it will
not meet its enforceable commitment is unsupported. CARB recently
adopted changes to its rulemaking schedule to establish an adoption
date of 2013 for regulation of in-use agricultural equipment. See 2011
Ozone SIP Revisions, p. 3. The 2007 State Strategy indicates that this
measure is expected to achieve 5 to 10 tpd NOX reductions in
2017, well after the period covered by the 2008 PM2.5 SIP.
See 2009 State Strategy Status Report, p. 18. CARB did not quantify
emissions reductions for this measure for 2014. See id. at 16. The fact
that the State revised its adoption schedule for a measure that is not
relied on for attainment or RFP in the SJV 2008 PM2.5 SIP
does not establish that the State is generally incapable of meeting its
enforceable commitments in that SIP. As discussed in the 2011 proposal
and its TSD and in our response to comments on the air quality modeling
above in section II.B., EPA has concluded as a technical matter that
the revisions to the base year inventory are not significant enough to
change the basic conclusions drawn from the air quality modeling or to
warrant a new air quality modeling assessment at this time. See 76 FR
41338, 41349 and 2011 Proposal TSD, section II.B.
Comment: Earthjustice states that CAA sections 110(a)(2)(A) and
172(c)(6) require SIPs to contain ``enforceable limitations * * * as
may be necessary or appropriate'' to achieve attainment. Earthjustice
further states that, while section 110(k)(4) allows EPA to grant
``conditional approval'' of a SIP lacking certain statutory elements
``based on a commitment of the state to adopt specific enforceable
measures'' by a date certain, the statute provides that the conditional
approval automatically becomes a disapproval if the state fails to
comply with the commitment within one year. Earthjustice then claims
that EPA appears to be trying to avoid this limitation by treating
open-ended promises of the State to reduce emissions as enforceable
commitments even though the State has never specified exactly what it
commits to do. Earthjustice states that courts have rejected similar
attempts to circumvent the statute's limitations on conditional
approval and cites Sierra Club v. EPA, 356 F.3d 296, 298 (DC Cir. 2004)
as overturning EPA's conditional approval of SIPs based in part on the
fact that the commitments identified no specific measures the state
would implement.
Response: As pertinent to the comment, Sierra Club involved EPA's
conditional approval under section 110(k)(4) of SIPs lacking in their
entirety
[[Page 69914]]
RACM and rate-of-progress (ROP) demonstrations and contingency measures
based on letters submitted by states that committed to cure these
deficiencies. The court rejected EPA's construction of section
110(k)(4) as contrary to the unambiguous statutory language requiring
the state to commit to adopt specific enforceable measures. Sierra Club
at 302. The court found that EPA's construction turned the section
110(k)(4) conditional approval into a means of circumventing SIP
deadlines. Id. at 303.
EPA does not dispute the holding of Sierra Club. However that case
is not germane to EPA's approval of CARB's and the District's
commitments here because the Agency is not approving those commitments
under section 110(k)(4). The relevant precedent is instead BCCA Appeal
Group v. EPA, 355 F.3d 817 (5th Cir. 2003). The facts in BCCA were very
similar to those presented here. In BCCA, EPA approved an enforceable
commitment in the Houston ozone SIP to adopt and implement unspecified
NOX controls on a fixed schedule to achieve aggregate
emissions reductions. Petitioners claimed that EPA lacked authority
under the CAA to approve a SIP containing an enforceable commitment to
adopt unspecified control measures in the future. The court disagreed
and found that section 110(k)(4) conditional approvals do not supplant
EPA's practice of fully approving enforceable commitments:
Nothing in the CAA speaks directly to enforceable commitments.
The CAA does, however, provide EPA with great flexibility in
approving SIPs. A SIP may contain ``enforceable emission limitations
and other control measures, means, or techniques * * * as well as
schedules and timetables for compliance, as may be necessary or
appropriate'' to meet the CAA's requirements * * *. Thus, according
to the plain language of the statute, SIPs may contain ``means,''
``techniques'' and/or ``schedules and timetables for compliance''
that the EPA considers ``appropriate'' for attainment so long as
they are ``enforceable.'' See id. Sec. 7410(a)(2)(A). ``Schedules
and timetables'' is broadly defined as ``a schedule of required
measures including an enforceable sequence of actions or operations
leading to compliance with an emission limitation, prohibition or
standard.'' 42 U.S.C. 7602(p). The remaining terms are not defined
by the Act. Because the statute is silent on the issue of whether
enforceable commitments are appropriate means, techniques, or
schedules for attainment, EPA's interpretation allowing limited use
of an enforceable commitment in the Houston SIP must be upheld if
reasonable.
BCCA at 839-840. The court upheld EPA's approval of the commitment,
finding that ``EPA reasonably concluded that an enforceable commitment
to adopt additional control measures on a fixed schedule was an
`appropriate' means, technique, or schedule or timetable for
compliance'' under sections 110(a)(2)(A) and 172(c)(6). Id. at 841.
Thus the court recognized that sections 110(a)(2)(A) and 172(c)(6)
provide a basis for EPA to approve enforceable commitments as distinct
from the commitments contemplated by section 110(k)(4), which are not
in fact enforceable but instead lead to SIP disapproval if not honored.
See also Environmental Defense v. EPA, 369 F.3d 193, 209-210 (2nd Cir.
2004) (similarly upholding enforceable SIP commitments). As a result,
contrary to Earthjustice's contention, section 110(k)(4) is not a bar
to EPA's approval of CARB's and the District's enforceable commitments
and that approval under section 110(k)(3) is permissible as an
appropriate means, technique or schedule or timetable for compliance
under sections 110(a)(2)(A) and 172(c)(6).
Comment: Earthjustice states that the commitments are ``absurd''
because CARB may claim credit toward its aggregate commitments from
everything from new regulations to unenforceable incentive programs to
``actual decreases occurring in any air basin for which emissions
reduction commitments have been made.'' Earthjustice states this is
arbitrary and that EPA needs to explain how the commitments offered in
the plan would be enforced, what relief EPA or the public could demand,
and when a suit could be brought. Earthjustice states that it does not
see how these open-ended commitments are practically enforceable in a
court of law and asserts that EPA must lay out a roadmap that can be
followed by courts in the future to ensure that meaningful emissions
reductions are achieved.
Response: As discussed in our amended proposal (76 FR at 41355),
the CAA allows approval of enforceable commitments that are limited in
scope where circumstances warrant the use of such commitments in place
of adopted control measures. Commitments approved by EPA under section
110(k)(3) of the CAA are enforceable by EPA and citizens under,
respectively, sections 113 and 304 of the CAA. In the past, EPA has
approved enforceable commitments and courts have enforced these actions
against states that failed to comply with those commitments: See, e.g.,
American Lung Ass'n of N.J. v. Kean, 670 F. Supp. 1285 (D.N.J. 1987),
aff'd, 871 F.2d 319 (3rd Cir. 1989); NRDC, Inc. v. N.Y. State Dept. of
Env. Cons., 668 F. Supp. 848 (S.D.N.Y. 1987); Citizens for a Better
Env't v. Deukmejian, 731 F. Supp. 1448, recon. granted in par, 746 F.
Supp. 976 (N.D. Cal. 1990); Coalition for Clean Air v. South Coast Air
Quality Mgt. Dist., No. CV 97-6916-HLH, (C.D. Cal. Aug. 27, 1999). See
76 FR at 41355, n. 27.
In response to Earthjustice's comment, we are clarifying in this
final action that we are not providing SIP credit for ``actual
decreases'' in air pollution emissions or ``recession-related
reductions'' in approving the 2008 PM2.5 Plan. Rather, we
are approving the 2008 PM2.5 Plan taking into account CARB's
revisions to the control strategy based on the revisions to its
projected baseline inventories.
Specifically, as explained in our 2011 proposal, CARB's aggregate
emissions reduction commitment in the 2008 PM2.5 Plan as
submitted in 2008 is to achieve 76 tpd of NOX reductions and
5 tpd of PM2.5 reductions by 2014. See 76 FR at 41346; CARB
Resolution 07-28, Attachment B at pp. 3-6 and 2009 State Strategy
Status Report, p. 21.\44\ The District's aggregate emissions reduction
commitment in the Plan as submitted in 2008 is to achieve 8.97 tpd of
NOX reductions, 6.7 tpd of PM2.5 reductions, and
0.92 tpd of SO2 reductions by 2014. See 76 FR at 41345,
Table 3. More broadly, however, CARB's emissions reduction commitment
is to achieve the ``total emissions reductions necessary to attain
Federal standards'' through ``the implementation of control measures;
the expenditure of local, State, or federal incentive funds; or through
other enforceable measures.'' See CARB Resolution 07-28, Attachment B
at pp. 3-6. The updates and improvements to the inventories as
presented in CARB's 2011 Progress Report altered the calculation of the
reductions needed for attainment of the 1997 PM2.5 standards
in SJV by reducing the total reductions needed from control strategy
measures to 9 tpd (for PM2.5), 26.1 tpd (for
NOX), and 0.8 tpd (for SO2). See 76 FR at 41354,
Table 7. We therefore interpret CARB's emissions reduction commitment,
together with the adjustments to the 2014 baseline inventories provided
in CARB's 2011 SIP revision and the District's commitments, as
adjusting CARB's total emission reduction commitment such that the CARB
is now obligated to achieve 2.3 tpd of PM2.5 reductions and
[[Page 69915]]
17.1 tpd of NOX reductions \45\ by 2014 through enforceable
control measures to provide for attainment of the 1997 PM2.5
NAAQS in SJV. The District's aggregate emissions reduction commitment
in the Plan as submitted in 2008 (8.97 tpd of NOX
reductions, 6.7 tpd of PM2.5 reductions, and 0.92 tpd of
SO2 reductions by 2014) remains unchanged. See Table 3
below.
---------------------------------------------------------------------------
\44\ In our proposed rule (76 FR 41338, 41346) we reference the
2007 State Strategy, p. 63 and CARB Resolution 07-28, Attachment B.
p.6. Note that page 63 of the 2007 State Strategy was replaced with
information in the 2009 State Strategy Status Report, pp. 20-21.
\45\ Note that the District has already achieved all of the
SOX reductions necessary to attain. See 76 FR 41338,
41354, Table 8.
---------------------------------------------------------------------------
We also note that we do not agree with CARB's position that
``actual decreases occurring in any air basin for which emissions
reduction commitments have been made'' or incentive programs may be
counted as SIP credit toward CARB's enforceable commitment, unless the
State provides a demonstration that such emissions decreases are
actually enforceable or otherwise meet EPA's requirements for SIP
creditability.
CARB's commitment is to adopt and implement measures that will
achieve specific reductions of NOX and PM2.5
emissions and are, as such, specific strategies designed to achieve the
SIP's overall objectives. Further, if CARB fails to meet its
commitments, EPA could make a finding of failure to implement the SIP
under CAA Section 179(a), which starts an 18-month period for the State
to correct the non-implementation before mandatory sanctions are
imposed, or alternatively either EPA or citizens could enforce the
commitments directly against CARB under CAA section 113 or 304,
respectively.
Comment: Earthjustice states that courts ``may only enforce SIP
strategies'' and that ``[m]ere approval of an aspirational goal or non-
specific promise into the SIP does not convert that goal or promise
into an enforceable commitment.'' In support of these assertions,
Earthjustice cites Bayview Hunters Point Community Advocates v.
Metropolitan Transp. Comm'n, 366 F.3d 692, 701 (9th Cir. 2004) and
Citizens for a Better Environment v. Metropolitan Tranp. Comm'n, 746 F.
Supp. 976, 980 (N.D.Cal. 1990) [known as CBE II]. In addition,
Earthjustice singles out El Comite Para El Bienstar de Earlimart v.
Warmerdam, 539 F.3d 1062, 1067 (9th Cir. 2008), stating that in El
Comite the court explained that because an inventory in a SIP is not a
``standard or limitation'' as defined by the CAA, it was not an
independently enforceable aspect of the SIP. Thus, Earthjustice
reasons, in order to be enforceable, not only must a state's commitment
to adopt additional measures to attain emission standards be specific
and announced in plain language, but any data or rubric that will be
used to determine when and how the state will adopt those measures must
be enforceable.
Similarly, citing Bayview and El Comite, AIR characterizes CARB's
and the District's commitments to achieve aggregate emissions
reductions by the attainment year as ``global commitments'' that could
be interpreted as ``goals'' unenforceable by citizens under Ninth
Circuit precedent, rather than enforceable ``strategies'' to achieve
those goals. AIR argues that the plans' global commitments are not
enforceable for two reasons. First, enforcement is not practical
because it is virtually impossible for citizens or EPA to determine
whether the CARB and the District have, in fact, met the global
commitments. Second, 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.
AIR adds that even if the commitments are viewed as ``strategies''
enforcement is not practical because when 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 states
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. EPA and citizens are left to determine, based on
information collected by CARB and the District, whether the commitments
have in fact been met.
Response: Under CAA section 110(a)(2)(A), SIPs must include
enforceable emission limitations and other control measures, means or
techniques necessary to meet the requirements of the Act, as well as
timetables for compliance. Similarly, section 172(c)(6) provides that
nonattainment area SIPs must include enforceable emission limitations
and such other control measures, means or techniques ``as may be
necessary or appropriate to provide for attainment'' of the NAAQS by
the applicable attainment date.
Control measures, including commitments in SIPs, are enforced
directly by EPA under CAA section 113 and also through CAA section
304(a) which provides for citizen suits to be brought against any
person who is alleged ``to be in violation of * * * an emission
standard or limitation* * *.'' ``Emission standard or limitation'' is
defined in subsection (f) of section 304. As observed in Conservation
Law Foundation, Inc. v. James Busey et al., 79 F.3d 1250, 1258 (1st
Cir. 1996):
Courts interpreting citizen suit jurisdiction have largely
focused on whether the particular standard or requirement plaintiffs
sought to enforce was sufficiently specific. Thus, interpreting
citizen suit jurisdiction as limited to claims ``for violations of
specific provisions of the act or 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 2008 PM2.5 Plan
in detail in our amended proposal. See 76 FR at 41343-41347. The 2007
State Strategy includes commitments to propose defined new measures and
an enforceable commitment for emissions reductions sufficient, in
combination with existing measures and the District's commitments, to
attain the PM2.5 NAAQS in the SJV by April 5, 2015. See CARB
Resolution 07-28, Attachment B at pp. 3-6 and 2009 State Strategy
Status Report, p. 21. For the SJV, the CARB's emissions reductions
commitments as submitted in 2008 were to achieve 76 tpd NOX
and 5 tpd of direct PM2.5 by 2014. Id.
SJVUAPCD's commitments as submitted in 2008 were to achieve 9 tpd
NOX and 6.7 tpd direct PM2.5 by 2014. See 76 FR
at 41345-41346, See also 2008 PM2.5 Plan, p. 6-9, Table 6-2.
The language used in the Board's resolution adopting the 2008
PM2.5 Plan at page 5 to describe its commitment is mandatory
and unequivocal in nature:
9. The District Governing Board commits to adopt and implement
the rules and measures in the 2008 PM2.5 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
[[Page 69916]]
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 direct
PM2.5 or PM2.5 precursors in the same adoption
and implementation timeframes or in the timeframes needed to meet
CAA milestones. (emphasis added).
SJVUAPCD Board Resolution No. 08-04-10, p. 5.
As discussed above, the 2011 SIP revisions reduced the reductions
needed from new measures in 2014 to attain to 9 tpd of PM2.5
reductions, 26.1 tpd of NOX reductions, and 0.8 tpd of
SOX. See 76 FR at 41354, Table 7. The District's aggregate
emissions reduction commitment in the Plan as submitted in 2008 remains
unchanged (8.97 tpd of NOX reductions, 6.7 tpd of
PM2.5 reductions, and 0.92 tpd of SO2 reductions
by 2014). Thus, CARB remains obligated to achieve through the adoption
of enforceable measures by 2014, 2.3 tpd of PM2.5 and 17.1
tpd of NOX. The District's commitments remain as submitted
in 2008 at 9 tpd NOX, 6.7 tpd direct PM2.5 and
0.9 tpd SOX by 2014. See Table 3 below.
Thus, CARB's and the District's commitments here are to adopt and
implement measures that will achieve specific amounts of NOX
and direct PM2.5 emissions reductions by 2014. These are not
mere aspirational goals to ultimately achieve the standards or
emissions inventories as mentioned by Earthjustice. Rather, the State
and District have committed to adopt enforceable measures no later than
2014 that will achieve these specific amounts of emissions reductions
prior to the attainment date of April 5, 2015. 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 the beginning of 2014. See 40 CFR 51.1007(b)
(requiring implementation of all control measures needed for
expeditious attainment no later than the beginning of the year prior to
the attainment date). 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.
Both Earthjustice and AIR cite Bayview as support for their
contention that the plan's commitments are unenforceable aspirational
goals. Bayview does not, however, provide any such support. That case
involved a provision of the 1982 Bay Area 1-hour ozone SIP, known as
TCM 2, which states in pertinent part:
Support post-1983 improvements identified in transit operator's
5-year plans, after consultation with the operators adopt ridership
increase target for 1983-1987.
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 2008 PM2.5 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 will be
achieved and the time by which these reductions could be achieved,
i.e., by 2014.
Earthjustice also cites CBE II at 980 for the proposition that
courts can only enforce ``express'' or ``specific'' strategies.
However, as discussed below, there is nothing in the CBE cases that
supports the commenter's view that the CARB and District commitments
are neither express nor specific. In fact, these cases support our
interpretation of CARB's and the District's commitments.
Citizens for a Better Environment v. Deukmejian, 731 F.Supp.1448
(N.D. Cal. 1990), known as CBE I, concerned in part contingency
measures for the transportation sector in the 1982 Bay Area 1-hour
ozone SIP. The provision states: ``If a determination is made that RFP
is not being met for the transportation sector, MTC will adopt
additional TCMs within 6 months of the determination. These TCMs will
be designed to 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 citizens
action, although the exact contours of those measures are not spelled
out.'' Id. at 1457.\46\ In concluding that the transportation and
stationary source contingency provisions were enforceable, the court
stated: ``Thus, while this Court is not empowered to enforce the Plan's
overall objectives [footnote omitted; attainment of the NAAQS]--or
NAAQS--directly, it can and indeed, must, enforce specific strategies
committed to in the Plan.'' Id. at 1454.
---------------------------------------------------------------------------
\46\ In this passage, the court was referring specifically to
the stationary source contingency measures in the Bay Area plan
which contained a commitment to adopt such measures if emissions
targets were not met. The Plan identified a number of potential
stationary sources but did not commit to any particular one. In
discussing the transportation contingency measures, the court
applied this same reasoning. Id. at 1456-1457.
---------------------------------------------------------------------------
Earthjustice's reliance on CBE II is misplaced. It also involves in
part the
[[Page 69917]]
contingency measures in the 1982 Bay Area Plan. In CBE II, defendants
argued that RFP and the NAAQS are coincident because, had the plan's
projections been accurate, then achieving RFP would have resulted in
attainment of the NAAQS. The court rejected this argument, stating
---------------------------------------------------------------------------
that:
the Court would be enforcing the contingency plan, an express
strategy for attaining NAAQS. Although enforcement of this strategy
might possibly result in attainment, it is distinct from simply
ordering that NAAQS be achieved without anchoring that order on any
specified strategy. Plainly, the fact that a specified strategy
might be successful and lead to attainment does not render that
strategy unenforceable.
(Emphasis in original). CBE II at 980.
CARB's and the District's commitments here are analogous to the
terms of the contingency measures in the CBE cases. CARB and the
District commit to adopt measures, which are not specifically
identified, to achieve a specific tonnage of emissions reductions.
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 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). ARB's and the District's
commitments are thus clearly a specific enforceable strategy rather
than an unenforceable aspirational goal.
Earthjustice's reliance on El Comite is also misplaced. 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 Earthjustice 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 emissions 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 PM2.5 Plan, ARB and the District commits to adopt and
implement measures sufficient to achieve specified emissions reductions
by a date certain. As described above, a number of courts have found
commitments substantially similar to ARB's here to be enforceable under
CAA section 304(a).
Comment: Earthjustice comments that before EPA can approve the
commitments in the PM2.5 plan it must explain how the
promise to reduce emissions by some amount is a ``standard or
limitation'' enforceable under section 113 or 304 of the Act. Moreover,
citing CAA section 110(a)(2)(A), Earthjustice asserts that EPA must
explain how enforcement of these commitments, which arguably could not
even be considered until after the attainment deadline has come and
gone, is adequate to assure the requirements of the Act (including
timely attainment) are met. Earthjustice contends that the strategy of
relying on these open-ended commitments is a recipe for failure and is
not a reasonable substitute for the detailed, enforceable plan
envisioned and required by the Act.
Response: We disagree. As discussed above, EPA believes that CARB's
and the District's commitments to adopt and implement control measures
to achieve the specified aggregate tonnage by 2014 are enforceable as
an emission standard or limitation under CAA section 304. The fact that
the State may meet its SIP obligation by adopting measures that are not
specifically identified in the SIP, or through one of several available
techniques, does not render the requirement to achieve the aggregate
emissions reductions unenforceable. State and local control measures
are subject to 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 in
the years leading up to 2014 and before the attainment date of April 5,
2015. Should the State/District fail to adopt measures that achieve the
requisite amounts of emissions reductions by the beginning of 2014 (see
40 CFR 51.1007(b)), EPA and citizens may enforce these commitments
under CAA sections 113 and 304(a), respectively.
F. Comments on the Proposed Action on the Attainment Demonstration and
Attainment Date Extension
Comment: Earthjustice comments that EPA cannot grant an extension
of the attainment date to April 5, 2015 because the flaws Earthjustice
alleges are in the 2008 PM2.5 Plan's attainment modeling and
RACM/RACT analysis meant that the demonstration required to grant a 5-
year extension have not been met. Earthjustice asserts that the alleged
flaws include the exemptions for significant sources of emissions from
the charbroiling, glass melting and open burning rules; the delay in
the implementation of certain control requirements (glass melting and
agricultural equipment), and the
[[Page 69918]]
exclusion of controls for VOC and condensable PM2.5
emissions in the Plan
Response: We have evaluated Earthjustice's comments on the RACM/
RACT analysis, VOC as an attainment plan precursor, and condensable
particulate and have determined that none change our conclusion that
the SJV 2008 PM2.5 Plan provides for RACM as required by CAA
section 172(c)(1).
Under the PM2.5 implementation rule, states that request
an extension of the attainment date under CAA section 172(a)(2) must
provide sufficient information to show that attainment by April 5, 2010
is impracticable due to the severity of the nonattainment problem in
the area and the lack of available and feasible control measures to
provide for faster attainment. 40 CFR 51.1004(b). States must also
demonstrate that all RACM and RACT for the area are being implemented
to bring about attainment of the standard by the most expeditious
alternative date practicable for the area. 72 FR 20586 at 20601. As
discussed in our 2011 proposal, we believe that California has met the
relevant tests for granting an extension of the attainment date under
CAA section 172(a)(2). See 76 FR 41388, 41341.
Comment: Earthjustice comments that EPA should not approve the
attainment demonstration, because of its ``heavy'' reliance on State
commitments to adopt last-minute control measures and because the
emissions reductions and the attainment targets are not valid given the
problems in the inventory and the modeling analysis. Furthermore, the
defective modeling results in inaccurate attainment target levels.
Response: The SJV 2008 PM2.5 SIP does not rely heavily
on State commitment to ``adopt last-minute controls.'' As noted
previously, the bulk of the emissions reductions needed for attainment
are from measures adopted prior to 2007. 76 FR 41338, 41354. Moreover,
one of EPA's criteria for approving attainment demonstrations that rely
on commitments is that the commitments represent a limited portion of
the reductions needed for attainment. As we have shown, CARB's and the
District's remaining commitments account for only 4.5 percent (12.9
tpd) of the NOX and 13.2 percent (3.0 tpd) of the
PM2.5 reductions needed for attainment. Id. In comparison,
already achieved reductions are 271 tpd of NOX and 19.7 tpd
of PM2.5. See 76 FR 41338, 41354 (Table 8) (numbers are the
sum of lines B and C). Finally, we have determined that the SJV
PM2.5 Plan provides for a generally linear reduction in
emissions demonstrating reasonable further progress as required by CAA
172(c)(2).
G. Comments on the Proposed Actions on the Reasonable Further Progress
Demonstration
Comment: Earthjustice comments that EPA should disapprove the RFP
demonstration because it fails to address VOC and to show generally
linear progress in reducing emissions. It also argues that because of
the alleged defects in the inventory and the alleged failure of the
modeling analysis to identify the target level of emissions reductions,
it is impossible to assess progress. It further argues that the RFP
demonstration must also be updated to reflect corrections to the
inventory.
Response: For the reasons discussed in the 2011 proposal and
response to comments on the precursor issue above, EPA has found that
insufficient data exist to reverse the presumption in the
PM2.5 implementation rule that VOC is not a PM2.5
attainment plan precursor for attainment of the 1997 PM2.5
standards in the SJV. See 76 FR 41350 and 2011 Proposal TSD, p. 50.
Because VOC is not considered an attainment plan precursor, it need not
be addressed in the RFP demonstration. See 40 CFR 51. 1009(c).
For the reasons discussed in the 2011 proposal and response to
comments on the air quality modeling above in section II.B., EPA has
found that the air quality modeling in the SJV 2007 PM2.5
SIP is adequate to support the attainment demonstration and thus to
establish the target level of emissions. See 76 FR 41338, 41348 and
2011 Proposal TSD, section II.B. As discussed in the 2011 proposal, EPA
evaluated the effect of the changes in the base year inventory on the
RFP demonstration and determined that it did not revise our conclusion
that the Plan provided for RFP. See 76 FR 41338, 41357 (ftn. 32) and
2011 Proposal TSD, p. 122.
H. Comments on the Proposed Actions on the Contingency Measures
Comment: Earthjustice states that EPA's analysis of the contingency
measures in the 2008 Plan is generally sound. Earthjustice, however,
contends that our analysis relies on an RFP analysis that in turn
relies on invalid NOX to PM2.5 interpollutant
equivalency ratios. It further argues that because these ratios are
invalid, the assessment of the excess reductions in the RFP
demonstration is also invalid and the shortfall targets must be
recalculated using valid methods and results.
Response: EPA's calculation of the excess reductions in the RFP
demonstration is done on a per pollutant basis and does not assume any
interpollutant trading. See 76 FR 41339, 41359 (Table 10) and 2011
Proposal TSD, p. 130. In the 2011 Progress Report, CARB states that
these reductions are equal to at least one-year's worth of RFP when
considered on a PM2.5 equivalency basis (see 2011 Progress
Report, p. 2); however, to make this statement, the State relies in
part on an interpollutant trading ratio of 1 ton of SOX
reductions to 1 ton of PM2.5 reductions. As discussed in
section II.B.4. of the 2011 Proposal TSD, EPA found that there was
insufficient technical support for this ratio and EPA did not allow its
use in the RFP demonstration or for any other purpose. Id. at 42358 and
p. 129.
Comment: In its comments on the 2010 proposal, Earthjustice notes
that the District proposes to rely on emissions reductions achieved by
the ozone nonattainment fee and other incentive programs. It argues
that the District does not have criteria for how these monies will be
spent and does not provide a mechanism for ensuring that any claimed
emissions reductions are enforceable and that any future reliance on
funding programs to reduce emissions must demonstrate that the
emissions reductions meet statutory creditability requirements
including an explanation of how these agreements between the District
and the subsidized source can be enforced by EPA or the public.
Response: We are not approving reductions from the District's
incentive grant programs as part of the 2008 PM2.5 SIP's
contingency measures provisions; therefore, comments related to them
are not germane to this action. In both its 2010 and 2011 proposals EPA
proposed to disapprove the Plan's contingency measures provisions and
is disapproving those provisions in today's action. See 75 FR 74518,
74539 and 76 FR 41338, 41358. Those provisions include the District's
ozone nonattainment fee program and other incentive programs as
potential contingency measures.
In both proposals, we noted that while neither the CAA nor EPA
policy bar the use of emissions reductions from incentive programs to
meet all or part of an area's contingency measure obligation, the
incentive programs must assure that the reductions are surplus,
quantifiable, enforceable, and permanent in accordance with EPA's
guidance. See ``Improving Air Quality with Economic Incentive
Programs,'' EPA-452/R-01-001 (January 2001). We also noted that the
2008 PM2.5 Plan does not identify the incentive grant
programs expected to generate the emissions reductions. The Plan also
does not identify the quantity of these
[[Page 69919]]
emissions reductions that the District intended to use to meet the
contingency measure requirement. Therefore, we are unable to determine
if they are SIP creditable or sufficient to provide in combination with
other measures the roughly one-year's worth of RFP needed. For these
reasons, we determined that programs did not currently meet the CAA
requirements for contingency measures. See 75 FR 74518, 74538 and 76 FR
41338, 41358.
Comment: While AIR agrees with EPA's proposed disapproval of the
contingency measures, it argues against the use of waiver measures and
on-road fleet turnover as contingency measures because waiver measures
are not in the SIP and there are no control measures that require fleet
turnover. It further argues that reductions from fleet turnover are
derived from assumptions based on voluntary future activity that fail
to meet the Act's requirements for enforceable measures. Finally, it
asserts that EPA has made no finding that such fleet turnover
reductions have actually occurred.
Response: As discussed previously, we believe that reductions from
CAA 209 waiver measures can be used to meet CAA requirements including
the contingency measure requirement even though they are not in the
SIP.
The measures relied on in part for contingency measure emissions
reductions are the State and federal on- and off-road new engines
standards. Fleet turnover is the mechanism by which these new engine
standards are implemented, and it is how these standards actually
result in emissions reductions in an area. CARB calculates reductions
from its mobile sources, including base year and future projected year,
using its EMFAC2007 and OFFROAD models. These models included
assumptions regarding fleet turnover based on historical records.\47\
Recent updates to the truck, bus, and offroad equipment inventories
included review and adjustments of fleet turnover rates which are also
based on available records. See 2010 Truck Rule ISOR, section F.
---------------------------------------------------------------------------
\47\ See CARB, ``Public Meeting to Consider Approval of
Revisions to the State's On-Road Motor Vehicle Emissions Inventory,
Technical Support Document,'' May 2000, section 7.3 ``Retention
Rates'' which can be found at http://www.arb.ca.gov/msei/onroad/doctable_test.htm.
---------------------------------------------------------------------------
Comment: SJVUACPD commented that EPA's current requirement that
contingency measures provide for one-year's worth of emissions
reductions is not practical for areas like the SJV and that EPA should
work towards realistic and specific solutions for future implementation
rules. It also stated that it would continue to work with EPA to
incorporate reductions from the District's incentive programs into the
SIP so that they may be used satisfy the contingency measures
requirement.
Response: EPA recognizes the difficulty of identifying contingency
measures and appreciates the District's concerns. We will continue to
work with the District to identify potential contingency measures
including incentive programs that produce reductions that are surplus,
quantifiable, enforceable, and permanent in accordance with EPA
guidance.
I. Comments on the Proposed Actions on the Motor Vehicle Emissions
Budgets and Trading Mechanism
Comment: Earthjustice comments that EPA cannot approve the revised
motor vehicle emissions budgets because they are derived from
attainment and RFP demonstrations that Earthjustice asserts are not
approvable because they are based on invalid modeling. It also claims
the issues with the modeling also affect the conformity analysis
because it depends on interpollutant equivalency ratio between
NOX and PM2.5 that is derived from the modeling.
Earthjustice notes that CARB derived this ratio by conducting a
sensitivity analysis with the model which according to Earthjustice,
EPA acknowledged was not a legitimate basis for determining
interpollutant equivalency ratios, citing the 2011 Proposal TSD at p.
47. Earthjustice further claims that these ``defective ratios'' were
used to demonstrate RFP and conformity.
Response: We agree that EPA would not be able to approve budgets
that are derived from unapprovable or disapproved attainment or RFP
demonstrations. However, we are approving these demonstrations in the
SJV 2008 PM2.5 Plan and, because they are derived from those
demonstrations and otherwise meet all applicable requirements for
transportation conformity budgets, EPA's is also approving the budgets.
For the reasons discussed above in our response to comments on the air
quality modeling, we do not agree with Earthjustice that the modeling
is invalid.
CARB included a trading mechanism to be used in transportation
conformity analyses that use the proposed budgets as allowed for under
40 CFR 93.124. This trading mechanism allows future decreases in
NOX emissions from on-road mobile sources to offset any on-
road increases in PM2.5, using a NOX:
PM2.5 ratio of 9:1. As proposed by CARB and proposed for
approval by EPA, the trading mechanism would only be used, if needed,
for conformity analyses for years after 2014. Also, to ensure that the
trading mechanism does not impact the ability of the SJV to meet the
NOX budget, the NOX emissions reductions
available to supplement the PM2.5 budget would only be those
remaining after the 2014 NOX budget has been met. See 2011
Progress Report, Appendix D, p. 2 and 76 FR 41338, 41361. We found that
the method CARB used to derive the 9:1 NOX to
PM2.5 ratio, which was based on the SIP's photochemical
modeling, is adequate for purposes of assessing the effect of area-wide
emissions changes, such as are used in RFP, contingency measures, and
conformity budgets. See 76 FR 41338, 41349 and 2011 Proposal TSD, p.
46.
EPA did find that the method used by CARB and the District (a
modified rollback approach) to derive the 1:1 SOX to
PM2.5 is inadequate for determining interpollutant
equivalency ratios and stated that this issue would be better explored
with a photochemical model. See 76 FR 41338, 41349 and 2011 Proposal
TSD, p. 47. It is this latter discussion that Earthjustice incorrectly
cites as its basis for claiming that EPA rejected the interpollutant
trading ratio used in establishing the trading mechanism for
transportation conformity analyses. The 2008 PM2.5 SIP does
not establish motor vehicle emissions budgets for SO2 and
therefore does not establish an SO2: PM2.5
trading mechanism for transportation conformity purposes.
Comment: Earthjustice claims that a transportation agency cannot
rely on budgets derived from what it considers to be the unapprovable
SJV 2008 PM2.5 SIP without violating CAA section 176(c)(1)
because they would not be able to assure that their actions would not
interfere with timely attainment or reasonable further progress.
Response: As documented in the TSD and our 2011 proposed rule, EPA
has found that the SJV 2008 PM2.5 SIP demonstrates
reasonable further progress and expeditious attainment of the 1997
PM2.5 standards consistent with the requirements of the CAA
and EPA's implementing regulations. We have also concluded that the
budgets in this SIP are consistent with these demonstrations and are
both adequate and approvable. Therefore, the SJV MPOs must use these
budgets in their transportation conformity determinations.
J. Comments on Other Topics Not Covered Previously
Comment: AIR claims that EPA fails to list the 2009 State Strategy
Status Report (pages 11-23) among the documents which it proposes to
include
[[Page 69920]]
as part of the SIP, citing 76 FR 41338, 41361, and that this is an
error given CARB's intent in the 2009 State Strategy Status Report
(citing p. 11). AIR requests that EPA clarify its intent to approve a
CARB commitment for staff to propose a rule to regulate in-use mobile
agricultural equipment. AIR notes that this commitment was part of the
2007 State Strategy (citing CARB Resolution 07-28, Attachment B, p. 7),
included in the 2009 State Strategy Status Report, and was a component
of EPA's previous proposed approval of the 2007 State Strategy (citing
75 FR 74518, 74541 (November 30, 2011)), but is not included in the
updated rulemaking schedule in 2011 Progress Report.
Response: EPA lists the 2009 State Strategy Status Report as one of
five submittals that comprise the 2007 PM2.5 SIP for the
SJV. See 76 FR 41338, 41340. We also state in section VI. (EPA's
proposed Actions and Potential Consequences) that we were proposing to
approve the SJV portions of CARB's 2007 State Strategy as revised in
2009 and 2011 addressing CAA and EPA regulations for attainment of the
1997 PM2.5 NAAQS in the SJV. We specifically proposed to
approve 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
submittal based on CARB's own characterization of that submittal as its
updates to its rulemaking schedule for the PM2.5 measures in
the 2007 State Strategy. See 2011 Progress Report, p. 8, Table 1.
On June 20, 2011 CARB provided public notice of proposed revisions
to the ozone portions of the 2007 State Strategy including revisions to
the rulemaking schedule for in-use agricultural equipment. See CARB,
Notice of Public Hearing to Consider a Status Report on the State
Strategy for California's 2007 State Implementation Plan and Consider
Approval of Proposed Revisions for the 8-Hour Ozone and Minor Technical
Revisions to the PM2.5 SIP Transportation Conformity
Budgets,'' June 20, 2011. As stated in the proposed revisions, CARB
does not consider the in-use agricultural measures to be part of its
PM2.5 control strategy and therefore did not include updates
to the schedule for that measure in its PM2.5 SIP
revision.\48\ 2011 Ozone SIP Revisions, p. 3. These revisions were
adopted by the Board on July 21, 2011, submitted to EPA on July 29,
2011 and proposed for approval by EPA on September 16, 2011 at 76 FR
57846. This proposed approval includes the revised schedule for the in-
use agricultural equipment measure. See 76 FR at 57846, 57853.\49\
---------------------------------------------------------------------------
\48\ As discussed previously, CARB provided emissions reductions
estimates for the in-use agricultural equipment measure only for
2017, which is three years after the 2014 attainment year for
PM2.5.
\49\ AIR notes that Table F-8 in EPA's 2011 Proposal TSD lists
the agricultural equipment rule as a defined measure in the 2011
Progress Report. This was an error and has been corrected in the
final TSD.
---------------------------------------------------------------------------
Comment: AIR requests clarification from EPA on whether the
omission of the proposed commitment in the 2011 Progress Report is an
administrative error, or whether CARB intentionally removed that
commitment from the 2007 State Strategy. AIR notes that based on CARB's
Web site, it appears that the omission was in error, because CARB
continues to represent to the public that it is working on the in-use
agricultural equipment rule. AIR asserts that to the extent that CARB
intentionally removed the commitment, such action violates 40 CFR
51.102 because CARB did not provide adequate notice to the public of
this fundamental change to CARB's strategy and that the public should
not be expected to search through ``voluminous SIP-related material,
searching out stealth amendments by omission.''
Response: As required by 40 CFR 51.102, CARB posted the draft 2011
Progress Report including the proposed revisions to the rulemaking
schedule in the 2007 State Strategy 30 days prior to the public hearing
and requested public comments. See CARB, Notice of Public Hearing to
Consider the Approval of a Progress Report and Proposed State
Implementation Plan Revisions for PM2.5, March 29, 2011.
Questions and comments on the State's proposed revisions to its
rulemaking schedule, including changes to the in-use agricultural
equipment measure, should be directed to CARB during the State's public
comment periods or at the public hearings.
Comment: AIR comments that the 2008 PM2.5 Plan and the
2007 State Strategy fail to demonstrate a monitoring program for CARB
mobile source measures and the pesticide regulation, stating EPA
regulations specifically require each plan to make this demonstration,
citing 40 CFR 51.111. It provides as an example, CARB's anti-idling
rules.
Response: EPA's regulation at 40 CFR 51.111 requires each plan
include a description of enforcement methods including, but not limited
to, procedures for monitoring compliance with each of the selected
control measures and procedures for handling violations. These
requirements apply to the control measures that are in the SIP. For the
reasons discussed previously, we do not believe that California's
mobile source measures that receive waivers under CAA section 209 need
to be submitted for inclusion into the SIP; therefore, California need
not include a description of the enforcement and or monitoring program
for these measures in its SIP.\50\ As noted previously, CARB's anti-
idling regulations are pending a section 209 waiver decision. Should
any of these provisions need to be submitted for SIP approval, we will
evaluate their monitoring procedures at the time we take action to
incorporate them into the SIP. As we have also noted previously, the
pesticide regulation is not part of the 2008 PM2.5 SIP's
control strategy; therefore, the lack of any monitoring procedures is
not material to our approval of this SIP.
---------------------------------------------------------------------------
\50\ For a description of CARB's source monitoring and
enforcement programs including its procedures for handling
violations, See http://www.arb.ca.gov/enf/enf.htm.
---------------------------------------------------------------------------
As a practical matter, to be effective, monitoring procedures
(which includes monitoring and recordkeeping requirements and testing
procedures) must be tailored to the specific emission limitation for
which they are to be used. For example, the procedures for monitoring
NOX emissions from utility boilers are very different from
the procedures for monitoring the VOC content of paints. Compare, for
example, Rule 4601 (Boilers > 5 million BTU per hour), sections 5.4
``Monitoring Requirements'' and 6.0 ``Administrative Requirements''
requiring continuous emissions monitoring and annual source testing
using specific test procedures to Rule 4601 (Architectural Coatings),
section 6.0 ``Administrative Requirements'' specifying label
requirements, requiring maintenance of annual sales records, and
specifying test methods for determining the VOC content of coatings.
Because of the need to tailor monitoring procedures to the emission
limit, EPA evaluates a prohibitory rule's monitoring, recordkeeping,
and testing procedures at the time it reviews the rule for
incorporation into the SIP. We note that we are not approving any rules
or regulations as part of this specific action on the SJV 2008
PM2.5 SIP.
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 PM2.5
standards in the SJV, the District made specific commitments
[[Page 69921]]
to adopt thirteen measures on the schedule identified in the Plan. See
2008 PM2.5 Plan, Table 6-2 (revised June 17, 2010). The
District has now completed its actions on all measures except for
revisions to Rule 4905 (Natural Gas-Fired, Fan Type Residential Central
Furnaces) which is not scheduled for adoption until 2014. See Table 1
below. As Table 1 shows, EPA has approved all of the adopted rules with
the exception of three, none of which is credited with emissions
reductions in the demonstrations.
Table 1--San Joaquin Valley Air Pollution Control District 2008 PM2.5
Plan Specific Rule Commitments
------------------------------------------------------------------------
Current SIP approval
District rule Adoption date status
------------------------------------------------------------------------
4103--Open Burning............ April 2010....... Final approval
signed: September
30, 2011.
4320--Advanced Emissions October 2008..... Approved.
Reductions for Boilers, Steam 75 FR 1715 (January
Generators and Process 13, 2010).
Heaters (> 5 MMBtu/hr).
4307--Boilers, Steam October 2008..... Approved.
Generators and Process 76 FR 5276 (January
Heaters (2 to 5 MMBtu/hr). 31, 2011).
4308--Boilers, Steam December 2009.... Approved.
Generators and Process 76 FR 16696 (March
Heaters (0.075 to < 2 MM Btu/ 25, 2011).
hr).
4703--Stationary Gas Turbines. September 2007... Approved.
74 FR 53888 (October
21, 2009).
4702--Reciprocating Internal August 2011...... Submittal pending.
Combustion Engines.
4354--Glass Melting Furnaces.. October 2008..... Approved.
76 FR 37044 (June 24,
2011).
4902--Residential Water March 2009....... Approved.
Heaters. 75 FR 24408 (May 5,
2010).
4905--Natural Gas-Fired, Fan Adoption Most current revision
Type Residential Central scheduled for of rule approved:
Furnaces. 2014. October 20, 2005 at
72 FR 29886 (May 30,
2007).
4901--Wood Burning Fireplaces October 2008..... Approved.
and Wood Burning Heaters. 74 FR 57907 (November
10, 2009).
4692--Commercial Charbroiling. September 2009... Final approval
signed: September
30, 2011.
4311--Flares.................. June 2009........ Proposed for approval
76 FR 52623 August
23, 2011).
9410--Employer Based Trip December 2009.... Action pending.
Reduction Program. Emissions reductions
from this rule
revision are not
currently included
in the attainment or
RFP demonstration.
------------------------------------------------------------------------
As part of its control strategy for attaining the PM2.5
standards in the SJV, CARB committed to propose certain measures on the
schedule identified in the 2007 State Strategy. These commitments,
which were updated in the 2011 Progress Report, and their current
approval status are shown in Table 2. Of the measures listed in the
2007 State Strategy's updated rulemaking schedule, we note that only
reductions from the ``SmogCheck Improvement,'' ``Cleaner In-Use Heavy
Duty Trucks,'' and ``Cleaner In-Use Off-Road Engines'' measures are
currently credited with reductions in the attainment demonstration. See
76 FR 41338, 41346 (Table 6).
Generally speaking, 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 July 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
PM2.5 Plan. See 76 FR 41338, 41346 (table 6). Two specific
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 will be unable to take final action on the rules until after
taking final action on the SJV 2008 PM2.5 SIP because, while
CARB has adopted the rules, the rules cannot take effect until approved
by the California Office of Administrative Law (OAL) and such approval
will not happen before EPA's final action must be taken on the plan.
We are nonetheless allowing the plan's attainment demonstration,
and our final approval of it, to rely on the emissions reductions from
the two CARB rules cited above for the following reasons:
Both rules have been adopted by CARB and submitted to EPA
as a revision to the California SIP,\51\ and the adopted versions are
essentially the same as those for which EPA proposed approval;
---------------------------------------------------------------------------
\51\ 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)];
The remaining administrative process, which involves
review of the final adopted rules by California's Office of
Administrative Law (OAL) is essentially procedural in nature, and
should be completed over the near term; \52\
---------------------------------------------------------------------------
\52\ See letter from James N. Goldstene, Executive Officer,
CARB, to Jared Blumenfeld, Regional Administrator, EPA Region IX,
dated September 21, 2011, submitting the Truck and Drayage Truck
rules SIP revision to EPA. CARB indicates that the Drayage Truck
Rule will be submitted to OAL no later than September 23, 2011, and
the Truck Rule will be submitted to OAL no later than October 29,
2011. Under California law, OAL must taken action within 30 working
days.
---------------------------------------------------------------------------
CARB intends to submit the final, effective rules to EPA
as soon as OAL completes its review and approves the rules.
Therefore, we are confident that the final action on the rules will be
[[Page 69922]]
completed in the near-term and that, as a result, continued reliance by
the SJV 2008 PM2.5 SIP, and our final approval of it, on the
emissions reductions associated with the rules is reasonable and
appropriate. If, however, California does not submit the adopted and
fully effective rules to EPA as a SIP revision prior to the effective
date of today's action, we will take appropriate remedial action to
ensure that our action on the plan is fully supportable or to
reconsider that action.
Table 2--2007 State Strategy Defined Measures Schedule for Consideration and Current Status
----------------------------------------------------------------------------------------------------------------
State measures Expected action year Implementation Current status
----------------------------------------------------------------------------------------------------------------
Smog Check Improvements......... 2007-2009................ 2008-2010, 2013.......... Elements approved 75 FR
38023 (July 1,
2010).\53\
Expanded Vehicle Retirement (AB 2007..................... 2009..................... Adopted by CARB, June
118). 2009; by BAR, September
2010.
Modification to Reformulated 2007..................... 2010..................... Approved, 75 FR 26653
Gasoline Program. (May 12, 2010).
Cleaner In-Use Heavy Duty Trucks 2007, 2008, 2010......... 2011-2015................ Proposed for approval 76
FR 40642 (July 11,
2011).
Accelerated Introduction of 2008..................... 2012..................... Prop 1B bond funds
Cleaner Locomotives. awarded to upgrade line-
haul locomotive engines
not already accounted
for by enforceable
agreements with the
railroads. Those
cleaner line-hauls will
begin operation by
2012.
Cleaner In-Use Off-Road Engines. 2007, 2010............... 2009..................... Waiver action pending.
New Emissions Standards for 2013..................... To be determined......... Partial adoption, July
Recreational Boats. 2008. Additional action
expected 2013.
----------------------------------------------------------------------------------------------------------------
Source: 2011 Progress Report, Table 1. Additional information from http://www.ca.arb.gov. Only defined measures
with direct PM2.5 or NOX reductions in the SJV are shown here.
B. Enforceable Emissions Reductions Commitments
---------------------------------------------------------------------------
\53\ 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 Progress Report do not include reductions from
AB 2289 improvements. CARB Progress Report supplement, attachment 5.
---------------------------------------------------------------------------
CARB's emissions reductions commitment is to achieve the ``total
emissions reductions necessary to attain Federal standards'' through
``the implementation of control measures; the expenditure of local,
State, or federal incentive funds; or through other enforceable
measures.'' See CARB Resolution 07-28, Attachment B at pp. 3-6; 2009
State Strategy Status Report, p. 20; and 2011 Progress Report, p. 6.
The updates and improvements to the inventories as presented in
CARB's 2011 Progress Report altered the calculation of the reductions
needed for attainment of the 1997 PM2.5 standards in SJV by
reducing the total reductions needed from District and State control
strategy measures to 9 tpd for PM2.5, 26.1 tpd for
NOX, and 0.8 tpd for SO2. See Table 3 below and
76 FR at 41354, Table 7.
We are approving the 2008 PM2.5 Plan taking into account
CARB's revisions to the control strategy based on the revisions to its
projected baseline inventories and its enforceable emissions reductions
commitment. Specifically, we are interpreting CARB's emissions
reductions commitment, together with the adjustments to the 2014
baseline inventories provided in CARB's 2011 SIP revision and the
District's commitments, as adjusting CARB's total emissions reductions
commitment such that CARB is now obligated to achieve 2.3 tpd of
PM2.5 reductions and 17.1 tpd of NOX reductions
by 2014 through enforceable control measures to provide for attainment
of the 1997 PM2.5 NAAQS in SJV. SJVUAPCD's commitments as
submitted in 2008 are to achieve 9 tpd NOX, 6.7 tpd direct
PM2.5, and 0.9 tpd SOX by 2014. See Table 3
below. The commitment numbers in this table do not include reductions
from measures already adopted by CARB and the District to meet their
commitments.
Table 3--SJVUAPCD and CARB 2014 Emissions Reductions Commitments
[Tons per average annual day in 2014]
----------------------------------------------------------------------------------------------------------------
Direct PM2.5 NOX SO2
----------------------------------------------------------------------------------------------------------------
A--Adjusted 2014 baseline emissions level \1\................... 72.3 317.3 25.4
B--2014 attainment target level \2\............................. 63.3 291.2 24.6
C--Reductions needed from control strategy measures (A - B)..... 9.0 26.1 0.8
D--District commitments \3\..................................... 6.7 9.0 0.9
E--CARB commitments (C - D)..................................... 2.3 17.1 ..............
----------------------------------------------------------------------------------------------------------------
\1\ From TSD, Table G-1.
\2\ 2008 PM2.5 Plan, p. 9-3.
\3\ 2008 PM2.5 Plan, pp. 6-11 to 6-12.
The level of emissions reductions remaining as commitments after
adjusting the baseline to reflect updates and improvements to the
inventories and crediting reductions from SIP-approved or otherwise
SIP-creditable measures is shown in Table 4. These levels remain
unchanged from our 2011 proposal as does our conclusion that the
attainment demonstration in the SJV 2008 PM2.5 SIP which
relies in part on these enforceable commitments is approvable. See 76
FR 41338, 41354 (Table 8) and 41356.
[[Page 69923]]
Table 4--Reductions Needed for Attainment Remaining as Commitments Based on SIP-Creditable Measures
[Tons per average annual day in 2014]
----------------------------------------------------------------------------------------------------------------
Direct PM2.5 NOX SOX
----------------------------------------------------------------------------------------------------------------
A--Total reductions needed from baseline and control strategy 22.7 284.2 1.8
measures and other adjustments to the baseline to attain.......
B--Reductions from baseline measures and adjustments to baseline 13.7 258.1 1.0
C--Total reductions from approved measures...................... 6.0 13.2 3.6
D--Total reductions remaining as commitments (A - B - C)........ 3.0 12.9 0.0
E--Percent of total reductions needed remaining as commitments.. 13.2 4.5 0.0
----------------------------------------------------------------------------------------------------------------
IV. Approval of the Motor Vehicle Emissions Budgets and Trading
Mechanism for Transportation Conformity
We noted in our July 2011 proposal that CARB had posted draft
technical revisions to the SJV 2008 PM2.5 SIP's motor
vehicle emissions budgets on June 20, 2011 (see 76 FR 41338, at 41360
and http://www.arb.ca.gov/planning/sip/2007sip/2007sip.htm) to correct
data entry errors in the budget calculations and to remove the
emissions reductions attributable to SJVUAPCD's Rule 9510 ``Indirect
Source Review.'' \54\ In our July 2011 proposal, we proposed to approve
these draft budgets contingent on our receiving the SIP submittal from
CARB containing these budgets before our final action on the SJV 2008
PM2.5 SIP. The budgets were submitted by CARB as a SIP
revision on July 29, 2011 (see letter, James Goldstene, Executive
Officer, CARB, to Jared Blumenfeld, Regional Administrator, EPA Region
9, dated July 29, 2011, with Attachments). We summarize the budgets we
are approving today in Table 5 below. We posted the draft version of
these budgets on our Web site for adequacy on July 14, 2011 for a 30-
day comment period which ended on August 15, 2011 (see http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). We received no
comments on our adequacy posting and have completed our adequacy review
(see TSD, section II.J.).
---------------------------------------------------------------------------
\54\ EPA has approved Rule 9510 into the California SIP but
disallowed the use of emissions reductions from the rule for any SIP
purpose including transportation conformity. See 75 FR 28509 (May
21, 2010) and 76 FR 26609 (May 9, 2011).
---------------------------------------------------------------------------
EPA is also approving the trading mechanism in the State's
submittal for use in transportation conformity analyses by the SJV MPOs
as allowed for under 40 CFR 93.124. The trading applies only to:
Analysis years after the 2014 attainment year.
On-road mobile emission sources.
Trades using vehicle NOX emission reductions in
excess of those needed to meet the NOX budget.
Trades in one direction from NOX to direct
PM2.5.
A trading ratio of 9 tpd NOX to 1 tpd
PM2.5.
Clear documentation of the calculations used in the trade would be
included in the conformity analysis. See 2011 Ozone SIP Revision,
Appendix A, p. A-6.
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 per 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).
Table 5--2.5 MVEB for the San Joaquin Valley
[Tons per average annual day]
----------------------------------------------------------------------------------------------------------------
2012 2014
County ---------------------------------------------------------------
PM2.5 NOX PM2.5 NOX
----------------------------------------------------------------------------------------------------------------
Fresno.......................................... 1.5 35.7 1.1 31.4
Kern (SJV)...................................... 1.9 48.9 1.2 43.8
Kings........................................... 0.4 10.5 0.3 9.3
Madera.......................................... 0.4 9.2 0.3 8.1
Merced.......................................... 0.8 19.7 0.6 17.4
San Joaquin..................................... 1.1 24.5 0.9 21.6
Stanislaus...................................... 0.7 16.7 0.6 14.6
Tulare.......................................... 0.7 15.7 0.5 13.8
----------------------------------------------------------------------------------------------------------------
V. Final Actions and Resulting Clean Air Act Consequences
A. EPA's Final Actions
For the reasons discussed in our July 13, 2011 proposal, EPA
approves, with the exception of the contingency measures provisions,
California's SIP for attaining the 1997 PM2.5 NAAQS in the
San Joaquin Valley and grants the State's request for an extension of
the attainment date to April 5, 2015. The California PM2.5
attainment SIP for the San Joaquin Valley is composed of the SJVUAPCD's
2008 PM2.5 Plan as revised in 2010 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
PM2.5 NAAQS in the SJV.
Specifically, EPA approves under CAA section 110(k)(3) the
following elements of the SJV PM2.5 attainment SIP:
[[Page 69924]]
1. The 2005 base year emissions inventories as meeting the
requirements of CAA section 172(c)(3) and 40 CFR 51.1008;
2. The reasonably available control measures/reasonably available
control technology demonstration as meeting the requirements of CAA
section 172(c)(1) and 40 CFR 51.1010;
3. The reasonable further progress demonstration as meeting the
requirements of CAA section 172(c)(2) and 40 CFR 51.1009;
4. The attainment demonstration and associated air quality modeling
as meeting the requirements of CAA sections 172(c)(1) and (6) and 40
CFR 51.1007;
5. The 2012 RFP year and 2014 attainment year motor vehicle
emissions budgets (as submitted on July 29, 2011) and CARB's trading
mechanism to be used in transportation conformity analyses as allowed
under 40 CFR 93.124;
6. SJVUAPCD's commitments to the adoption and implementation
schedule for specific control measures listed in Table 6-2 (amended
June 15, 2010) of the 2008 PM2.5 Plan to the extent that
these commitments have not yet been fulfilled, and to achieve specific
aggregate emissions reductions of direct PM2.5,
NOX and SOX by year, as listed in Table 6-3 of
the PM2.5 Plan; and
7. 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
to the extent that these commitments have not yet been fulfilled and to
achieve aggregate emissions reductions of 17.1 tpd NOX and
2.3 tpd direct PM2.5 by 2014 sufficient to provide for
attainment of the 1997 PM2.5 NAAQS as described in CARB
Resolution 07-28, Attachment B at pp. 3-6, the 2009 State Strategy
Status Report, p. 21. and given in Table 3 above.
In addition, EPA concurs with the State's determination under 40
CFR 51.1002(c) that SOX and NOX are and VOC and
ammonia are not attainment plan precursors for the attainment of the
1997 PM2.5 NAAQS in the SJV.
EPA also grants, pursuant to CAA section 172(a)(2)(A) and 40 CFR
51.1004(a), California's request to extend the attainment date for the
San Joaquin Valley PM2.5 nonattainment area to April 5,
2015.
Finally, EPA disapproves under CAA section 110(k)(3) the
contingency measures provisions of the SJV PM2.5 attainment
SIP as failing to meet the requirements of CAA section 172(c)(9) and 40
CFR 51.1012.
B. CAA Consequences of the Final Disapproval of the Contingency Measure
Provisions
EPA is committed to working with the District and CARB to resolve
the remaining issues that make the current PM2.5 attainment
SIP for the SJV not fully approvable under the CAA and the
PM2.5 implementation rule.
Under the CAA, a final disapproval of a required CAA element, such
as the contingency measures provisions in section 172(c)(9), triggers
sanction clocks under CAA section 179(b) that run from the effective
date of the final action. The first sanction, the offset sanction in
CAA section 179(b)(2), will apply in the SJV PM2.5
nonattainment area 18 months from January 9, 2012 The second sanction,
highway funding sanctions in CAA section 179(b)(1), will apply in the
area six months after the offset sanction is imposed. Neither sanction
will be imposed under the CAA if California submits and we approve
prior to the implementation of the sanctions, SIP revisions that
correct the deficiencies identified in our proposed action. In addition
to the sanctions, CAA section 110(c)(1) provides that EPA must
promulgate a federal implementation plan addressing the deficient
elements in the PM2.5 SIP for the SJV nonattainment area,
two years after January 9, 2012, the effective date of this rule if we
have not approved a SIP revision correcting the deficiencies within the
two years.
Because we are approving the RFP and attainment demonstrations and
the motor vehicle emissions budgets, we are issuing a protective
finding under 40 CFR 93.120(a)(3) to the disapproval of the contingency
measures. Without a protective finding, the final disapproval would
result in a conformity freeze, under which only projects in the first
four years of the most recent conforming Regional Transportation Plan
and Transportation Improvement Programs can proceed. During a freeze,
no new RTPs, TIPs or RTP/TIP amendments can be found to conform. See 40
CFR 93.120(a)(2). Under this protective finding, however, the final
disapproval of the contingency measures does not result in a
transportation conformity freeze in the San Joaquin PM2.5
nonattainment area.
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 and partial approvals/
partial disapprovals 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 partial approval/partial disapproval 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).
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
[[Page 69925]]
governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the partial approval/partial disapproval
action promulgated does not include a Federal mandate that may result
in estimated costs of $100 million or more to either State, local, or
tribal governments in the aggregate, or to the private sector. This
Federal action approves pre-existing requirements under State or local
law, and imposes no new requirements. Accordingly, no 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. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on January 9, 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
[[Page 69926]]
appropriate circuit by January 9, 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, Particulate matter,
Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 30, 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 paragraph (c)(356)(ii)(B),
adding and reserving paragraph (c)(391), and adding paragraphs(c)(392),
(c)(393), (c)(394), (c)(395), and (c)(396).
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(356) * * *
(i) * * *
(ii) * * *
(B) State of California Air Resources Board.
(1) Proposed State Strategy for California's 2007 State
Implementation Plan, adopted on September 27, 2007.
(2) CARB Resolution No. 07-28 with Attachments A and B, September
27, 2007. Commitment to achieve the total emissions reductions
necessary to attain the Federal standards in the SJV air basin, which
represent 2.3 tons per day (tpd) of direct PM2.5 and 17.1
tpd of nitrogen oxides by 2014 for purposes of the 1997
PM2.5 NAAQS, as described in Resolution No. 07-28 at
Attachment B, pp. 3-6, and modified by CARB Resolution No. 09-34 (April
24, 2009) adopting ``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'' and by CARB Resolution No. 11-24 (April 28, 2011) adopting
the ``Progress Report on Implementation of PM2.5 State
Implementation Plans (SIP) for the South Coast and San Joaquin Valley
Air Basins and Proposed SIP Revisions.''
(3) Executive Order S-07-002, Relating to Approval of the State
Strategy for California's State Implementation Plan (SIP) for the
Federal 8-Hour Ozone and PM2.5 Standards, November 16, 2007.
(391) [Reserved]
(392) A plan was submitted on June 30, 2008 by the Governor's
designee.
(i) [Reserved]
(ii) Additional Material.
(A) San Joaquin Valley Unified Air Pollution Control District.
(1) 2008 PM2.5 Plan, adopted on April 30, 2008.
(2) SJVUAPCD Governing Board, In the Matter of: Adopting the San
Joaquin Valley Unified Air Pollution Control District 2008
PM2.5 Plan, Resolution No. 08-04-10, April 30, 2008.
Commitments to achieve emissions reductions (including emissions
reductions of 8.97 tpd of NOX, 6.7 tpd of direct
PM2.5, and 0.92 tpd of SOx by 2014) as described in Table 6-
3a (p. 6-11), Table 6-3b (p. 6-12), and Table 6-3c (p. 6-12)
respectively of the 2008 PM2.5 Plan and commitments to adopt
and submit control measures as described in Table 6-2 (p. 6-9) of the
2008 PM2.5 Plan, as amended June 17, 2010.
(B) State of California Air Resources Board.
(1) CARB Resolution No. 08-28 with Attachment A, May 22, 2008.
(393) An amended plan was submitted on August 12, 2009 by the
Governor's designee.
(i) [Reserved]
(ii) Additional Material.
(A) State of California Air Resources Board.
(1) 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 11-17, April 24, 2009.
(2) CARB Resolution No. 09-34, April 24, 2009.
(394) An amended plan was submitted on September 15, 2010 by the
Governor's designee.
(i) [Reserved]
(ii) Additional Material.
(A) San Joaquin Valley Unified Air Pollution Control District.
(1) 2008 PM2.5 Plan Amendment to Extend the Rule 4905
Amendment Schedule, June 17, 2010.
(2) SJVUAPCD Governing Board, In the Matter of: Proposed Amendments
to the 2008 PM2.5 Plan to Extend the Rule Amendment Schedule
for Rule 4905 (Natural Gas-Fired, Fan-Type Residential Central
Furnaces), Resolution 10-06-18, June 17, 2010.
(B) State of California Air Resources Board.
(1) Executive Order S-10-003, Relating to Approval of Amendments to
the 2008 PM2.5 Plan to Extend the Rule Amendment Schedule
for Rule 4905 (Natural Gas-Fired, Fan-Type Residential Central
Furnaces), September 15, 2010.
(395) An amended plan was submitted on May 18, 2011 by the
Governor's designee.
(i) [Reserved]
(ii) Additional Material.
(A) State of California Air Resources Board.
(1) Progress Report on Implementation of PM2.5 State
Implementation Plans (SIP) for the South Coast and San Joaquin Valley
Air Basins and Proposed SIP Revisions, Release Date: March 29, 2011.
(2) CARB Resolution No. 11-24, April 28, 2011. Commitment to
propose measures as described in Appendix B of the Progress Report on
the Implementation of PM2.5 State Implementation Plans (SIP)
for the South Coast and San Joaquin Valley Air Basins and Proposed SIP
Revisions.
(3) Executive Order S-11-010, ``Approval of Revisions to the Fine
Particulate Matter State Implementation Plans for the South Coast Air
Quality Management Plans for the South Coast Air Quality Management
District and the San Joaquin Valley Air Pollution Control District,''
May 18, 2011.
(396) An amended plan was submitted on July 29, 2011 by the
Governor's designee.
(i) [Reserved]
(ii) Additional Material.
(A) State of California Air Resources Board.
(1) 8-Hour Ozone State Implementation Plan Revisions and Technical
Revisions to the PM2.5 State Implementation Plan
Transportation Conformity Budgets for the South Coast and San Joaquin
Valley Air Basins, Appendix A, page A-6, (dated June 20, 2011), adopted
July 21, 2011.
(2) CARB Resolution No. 11-22, July 21, 2011.
(3) Executive Order S-11-016, ``Approval of Revisions to the 8-Hour
Ozone State Implementation Plans for the South Coast Air Quality
Management District and the San Joaquin Valley Air Pollution Control
District,'' July 29, 2011.
[FR Doc. 2011-27232 Filed 11-8-11; 8:45 am]
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