[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Rules and Regulations]
[Pages 69928-69955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27620]
[[Page 69927]]
Vol. 76
Wednesday,
No. 217
November 9, 2011
Part V
Environmental Protection Agency
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40 CFR Part 52
Approval of Air Quality Implementation Plans; California; South Coast;
Attainment Plan for 1997 PM2.5 Standards; Final Rule
Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 /
Rules and Regulations
[[Page 69928]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2009-0366; FRL-9482-9]
Approval of Air Quality Implementation Plans; California; South
Coast; Attainment Plan for 1997 PM2.5 Standards
AGENCY: U.S. 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 Los Angeles-South Coast
area (South Coast). These SIP revisions are the South Coast 2007 Air
Quality Management Plan (South Coast 2007 AQMP) (revised 2011) and
South Coast-related provisions of the 2007 State Strategy (revised 2009
and 2011). EPA is approving the emissions inventory; reasonably
available control measures/reasonably available control technology
demonstration; the reasonable further progress and attainment
demonstrations 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
South Coast to April 5, 2015 and approving commitments to measures and
reductions by the South Coast Air Quality Management District and the
California Air Resources Board. Finally, we are disapproving the SIP's
contingency measures and issuing a protective finding under 40 CFR
93.120(a)(3), and we are rejecting the assignment of 10 tons per day
(tpd) of nitrogen oxide (NOX) reductions to the federal
government.
DATES: Effective Date: This rule is effective on January 9, 2012.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2009-0366 for
this action. The index to the docket is available electronically at
http://www.regulations.gov and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco, California. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
Copies of the SIP materials are also available for inspection in
the following locations:
California Air Resources Board, 1001 I Street, Sacramento,
CA 95812
South Coast Air Quality. Management District, 21865 E.
Copley Drive, Diamond Bar, CA 91765.
The SIP materials are also electronically available at http://www.aqmd.gov/aqmp/07aqmp/index.html and http://www.arb.ca.gov/planning/sip/2007sip/2007sip.htm.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 947-4192,
[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 2007 State
Implementation Plan for Attainment of the 1997 PM2.5
Standards in the South Coast Nonattainment Area
II. Summary of Public Comments Received on the Proposals and EPA
Responses
III. Approval Status of the Control Strategy Measures and
Enforceable Emissions Reduction Commitments
IV. Approval of Motor Vehicle Emissions Budgets
V. Final Actions and Clean Air Act Consequences
VI. Statutory and Executive Order Reviews
I. Summary of EPA's Proposed and Final Actions on the 2007 State
Implementation Plan for Attainment of the 1997 PM2.5
Standards in the South Coast Nonattainment Area
On July 14, 2011 (76 FR 41562), 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 Los Angeles-South Coast Air Basin
Area (South Coast).\1\ California developed this SIP to provide for
expeditious attainment of the PM2.5 standards in the South
Coast and to meet other applicable PM2.5 planning
requirements in Clean Air Act (CAA) section 172(c) and EPA's
PM2.5 implementation rule.\2\
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\1\ The area referred to as ``Los Angeles-South Coast Air
Basin'' (South Coast Air Basin or ``South Coast'') includes Orange
County, the southwestern two-thirds of Los Angeles County,
southwestern San Bernardino County, and western Riverside County.
For a precise description of the boundaries of the Los Angeles-South
Coast Air Basin, see 40 CFR 81.305.
\2\ ``The 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 these
PM2.5 SIP planning requirements for the South Coast. The two
principal ones are the South Coast Air Quality Management District
(SCAQMD or District) Final 2007 South Coast Air Quality Management Plan
(AQMP) (amended 2011) and the California Air Resources Board (CARB)
Final 2007 State and Federal Strategy (2007 State Strategy) (amended
2009 and 2011).\3\ Together, the South Coast 2007 AQMP and the 2007
State Strategy present a comprehensive and innovative strategy for
attaining the 1997 PM2.5 standards in the South Coast.
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\3\ These SIP submittals are:
1. SCAQMD, Final 2007 Air Quality Management Plan (AQMP),
adopted on June 1, 2007 by the SCAQMD and September 27, 2007 by
CARB, submitted on November 28, 2007.
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. 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.''
5. SCAQMD, Revisions to the 2007 PM2.5 and Ozone State
Implementation Plans for the South Coast Air Basin and Coachella
Valley (SIP Revisions), adopted on March 4, 2011 by the SCAQMD
Governing Board and approved by the CARB Board on April 28, 2011 and
submitted on May 19, 2011.
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, (South Coast PM2.5 SIP MVEBs
only) adopted on July 21, 2011 by CARB and submitted on July 29,
2011. (2011 Ozone SIP Revision). 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, we proposed multiple approval actions on
the South Coast 2007 AQMP. First, we proposed to approve the SIP's base
year emissions inventory, the reasonably available control measure
(RACM)/reasonably available control technology (RACT) demonstration,
the reasonable further progress (RFP) and attainment demonstrations and
associated air quality modeling, and related motor vehicle emissions
budgets (budgets).\4\
[[Page 69929]]
Second, we proposed to approve enforceable commitments by both the
District and CARB to certain measures and specific amounts of emissions
reductions. Third, we also proposed to concur with the State's
determination that NOX, sulfur oxides (SOX), and
volatile organic compounds (VOC) are, and ammonia is not, attainment
plan precursors for attainment of the 1997 PM2.5 NAAQS in
the South Coast nonattainment area. Fourth, we proposed to grant
California's request to extend the attainment date for the South Coast
PM2.5 nonattainment area to April 5, 2015. See 76 FR 41562.
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\4\ 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. In lieu of these budgets, we
proposed to approve alternative budgets that CARB had developed and
posted for public comment as part of its 2011 Ozone SIP Revision 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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We also proposed to disapprove the contingency measure provisions
of the South Coast 2007 AQMP as failing to meet the requirements of the
CAA as interpreted in EPA guidance. In addition, we noted that we were
rejecting the assignment of 10 tpd of NOX emissions to the
federal government.
A more detailed discussion of each of California's SIP submittals
for the South Coast area, the CAA and EPA requirements applicable to
them, and our evaluation and proposed actions, can be found in the July
14, 2011 Federal Register notice and the technical support document
(TSD) for this final action.\5\
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\5\ ``Final Technical Support Document and Response to Comments,
Final Rulemaking Action on the South Coast 2007 AQMP for
PM2.5 and the South Coast Portions of the Revised 2007
State Strategy,'' 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 South Coast 2007 AQMP to address attainment of the 1997
PM2.5 NAAQS. On November 22, 2010, (75 FR 71294) rule, 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 that comment period,
CARB adopted and submitted revisions to the South Coast 2007 AQMP 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. As part of our final action, EPA has considered and provided
responses to all significant comments submitted in response to both the
November 2010 and the July 2011 proposals.
EPA is today approving most elements of the South Coast 2007 AQMP
based on our conclusion that they comply with applicable CAA
requirements and provide for expeditious attainment of the 1997
PM2.5 standards in the South Coast nonattainment area. We
are also today disapproving the SIP's contingency measure provisions
because they do not provide sufficient emissions reductions. We are
continuing to work with the State and District to identify additional
control measures and programs that meet the CAA's requirements for
contingency measures consistent with EPA regulations and policy.
II. Summary of Public Comments Received on the Proposals and EPA
Responses
As part of our final action, EPA has considered and provided
responses to all significant comments submitted in response to both the
November 2010 and the July 2011 proposals.
We received eleven comment letters in response to our November 22,
2010 proposal and July 14, 2011 supplemental proposal. In the following
sections, we summarize our responses to the most significant comments
that we received on the proposals. Our full responses to all the
comments received can be found in the ``Response to Comments'' section
of the TSD accompanying today's rulemaking.
We received comments on both proposals from the Natural Resources
Defense Council (NRDC) representing various organizations.
We received letters on both proposals from Communities for a Better
Environment (CBE) representing various organizations.
We received comment letters on both proposals from the South Coast
Air Quality Management District.
We received comments from CARB on our November 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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We received comments from Kirk Marckwald, California Environmental
Associates, on behalf of the Association of American Railroads, on our
November proposal.
Michael W. Lewis, Construction Industry Air Quality Coalition
(CIAQC), on behalf of a number of its members, submitted comments on
our July amended proposal.
Lawrence J. Joseph, on behalf of the American Road and
Transportation Builders Association (ARTBA), submitted comments on our
July amended proposal.
Robin Hall, private citizen, submitted comments on our November
proposal.
A. Comments on Proposed Approval of the Emissions Inventory
Comment: NRDC comments that EPA proposes to approve the inventories
in the South Coast 2007 AQMP because they were current and accurate
``at the time the Plan was developed and submitted,'' citing 76 FR
41567. NRDC argues that such language is not in the CAA and the
addition is not a reasonable extension of Congress's intent. NRDC
argues that Congress did not mean for EPA to rely on inventory data
that EPA knew to be incorrect on the basis that the data was thought to
be accurate at the time it was submitted because Congress' goal is to
ensure the adoption and approval of SIPs that will achieve clean air.
NRDC notes that section 172(c)(3) expressly envisions that EPA may
require revisions to the inventory ``to assure that the requirements of
this part are met.'' EPA's interpretation would suggest that the only
time such revisions are needed is when it is found that the inventory
is not current or accurate as of the date it is submitted and this
would undermine any assurance that ``the requirements of [Part D] are
met.''
Response: EPA does not dispute the importance of emissions
inventories. We evaluated the emissions inventories in the 2007 AQMP 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
South Coast 2007 AQMP's base year emissions inventory was based on the
most current and accurate information available to the State and
District at the time that it was developed and submitted and
comprehensively addresses all source categories in the South Coast
area, consistent with applicable CAA requirements and EPA guidance. See
76 FR 41562 at 41566-41567 and July 2011 TSD \7\ at section II.A.; 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 South Coast 2007 AQMP for PM2.5
and the South Coast Portions of the 2007 State Strategy,'' Air
Division, U.S. EPA, Region 9, June 29, 2011, ``July 2011 TSD.''
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[[Page 69930]]
We do not agree with NRDC's suggestion that this inventory
undermines the attainment demonstration in the Plan. To the contrary,
as discussed in the proposed rule (76 FR 41562, 41567) and in section
II.B. below, we have concluded that the State's changes to its
methodologies for estimating future 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. Although significant changes to a base year inventory that
undermine the assumptions in an attainment demonstration may call for a
more comprehensive reevaluation of the modeling and other planning
analyses supporting that demonstration, we conclude based on our
technical assessment that such a comprehensive reevaluation is not
necessary in this case. 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 improvement 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.
As we stated in our proposal, since late 2007, California has
experienced an economic recession that has greatly reduced current
levels of economic activity in the State's construction and goods
movement sectors. The recession has resulted in lowered projected
future levels of activity in this sector. 2011 Progress Report,
Appendix E. As a result, projected emission levels from these
categories are now substantially lower than the levels projected for
2008 and later in the Plan as submitted in 2007. At this time,
California is addressing these recession impacts on future economic
activity through adjustments to the baseline inventories for specific
source categories. See 2011 Progress Report, Appendix E, page 2. There
are no recession-related adjustments to the 2002 base year inventory in
the South Coast 2007 AQMP. CARB also made technical changes to the
inventories for diesel trucks, buses, and certain categories of off-
road mobile source engines as part of its December 2010 rulemaking
amending the In-Use On-Road Truck and Bus Rule and the In-Use Off-Road
Engine rule.\8\ Id. The State estimates that these changes collectively
reduce the 2002 base year total inventory in the South Coast by 4
percent for NOX and 5 percent for PM2.5. See 76
FR 41562, at 41567.
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\8\ CARB revised population, regional allocation factors,
lifetime odometer assumptions, growth rates, and forecasted vehicle
age distributions for heavy duty truck and buses, and updated
equipment population, activity, load factors, and future equipment
sales for construction equipment, based on updated information. See
http://www.arb.ca.govregact/2010/truckbus10/truckbus10.htm and
http://www.arb.ca.govregact/2010/offroadlsi10/offroadlsi10.htm.
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Comment: NRDC questions EPA's calculations that estimated the
emissions changes to the 2002 base year inventory (see 76 FR 41562, at
41567), noting that EPA's calculations come from a May 18, 2011 letter
from CARB providing supplemental information. NRDC then asserts that
these numbers do not match with statements in staff reports on the
diesel rules; however, NRDC does not provide the statements or data
from the staff reports.
Response: As NRDC noted, EPA calculated the change in the 2002 base
year emission inventory based on information provided in the 2011
Progress Report Supplement, transmitted by CARB on May 18, 2011. We
took the difference between the ``SIP'' estimate and the ``Current
Estimate'' columns in Attachment 1, Table SC-2002, to the May 18 letter
and divided by the ``SIP'' estimate to calculate the percent change in
the inventories. We explain these calculations in our TSD in Section
II.A.
B. Comments on Credit for Baseline Measures
Comment: NRDC asserts that EPA's proposed rule and TSD fail to
clearly and accurately account for the measures that contribute to
specific emission reductions, such as the Federal, state, and district
rules adopted before October 2006 (``baseline measures'') that are
incorporated into the baseline inventory. NRDC argues that California
and SCAQMD must have the data related to these emission reduction
estimates, which are critical to the integrity of the Plan, and that an
EPA approval of the emissions inventories in the absence of this data
would be arbitrary and capricious. NRDC also argues that this ``gap in
data'' is made more problematic by the fact that EPA does not require
California's mobile source control measures that have received a waiver
of preemption under CAA section 209 (``waiver measures'') to be
approved into the SIP.
Response: As to the commenter's assertion about the ``gap in data''
regarding baseline measures and projected baseline inventories, we
disagree that there is any inadequacy in the emissions projections that
undermines the RACM, RFP or attainment demonstrations in the South
Coast 2007 AQMP and 2007 State Strategy. We explained in our amended
proposal (76 FR 41562 at 41566-41567) our reasons for concluding both
that the 2002 base year inventory in the South Coast 2007 AQMP 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 July
14, 2011 proposal (76 FR 41562), we explained why we believe such
credit is appropriate. See TSD at section II.F.4.a.i (pp. 97-100).
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
[[Page 69931]]
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.) The South Coast 2007 AQMP 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 and
prior to the release of MOVES made through the use of the MOBILE model.
All other states use the MOVES model in their baseline inventories
without submitting the federal motor vehicle regulations for
incorporation into their SIPs.
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.\9\
(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.
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\9\ 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 Emission Forecasting System (CEFS)
projects future emissions from stationary and area sources (in addition
to aircraft and ships) using a forecasting algorithm that applies
growth factors and control profiles to the base year inventory.\10\ 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. The South Coast 2007 AQMP describes how
the District developed the future baseline inventories in the plan,
based in part on the emissions data and baseline projections provided
by CARB and other California agencies. See generally South Coast 2007
AQMP, Appendix III. The District's projections took into account the
controls implemented under SCAQMD rules adopted as of June 2006, most
CARB regulations adopted by June 2005, and a specific set of growth
rates from the Southern California Association of Governments (SCAG)
for population, industry, and motor vehicle activity, among other
factors. See id. at 2-3. 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 TSD at section II.A; see
also ``Procedures for Preparing Emissions Projections,'' EPA Office of
Air Quality Planning and Standards, EPA-450/4-91-019, July 1991;
``Emission Projections,'' STAPPA/ALAPCO/EPA Emission Inventory
Improvement Project, Volume X, December 1999 (available at http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf).
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\10\ 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; see also South Coast 2007
AQMP, Appendix III at pp. 1-9 through 1-15 (describing the SCAQMD's
and CARB's methodologies for developing 2002 base year emissions
estimates for stationary point and area sources).
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In sum, the 2002 base year and future projected baseline
inventories in the South Coast 2007 AQMP were prepared using a
sophisticated set of CARB and SCAQMD 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 SCAG;
(2) improved methodologies for estimating emissions from specific
source categories; and (3) CARB's non-road mobile source model (the
OFFROAD model). See TSD at Section II.A (referencing, inter alia, South
Coast 2007 AQMP at Appendix III and 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
South Coast are inadequate to support the RACM, RFP, and attainment
demonstrations in the South Coast 2007 AQMP.
For all of these reasons and as discussed in our amended proposal
(76 FR 41562 at 41566-41567), we have concluded that the 2002 base year
inventory in the South Coast 2007 AQMP is a ``comprehensive, accurate,
current inventory of actual emissions from all sources of the relevant
pollutant or pollutants'' in the South Coast area, consistent with the
[[Page 69932]]
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 TSD at section II.A.
C. Comments on PM2.5 Plan Precursors
Comment: NRDC commented that our proposed rule does not adequately
explain why ammonia (NH3) is not a precursor for
PM2.5 formation.
Response: Under the PM2.5 implementation rule, ammonia
is not a PM2.5 plan precursor unless either EPA or the State
provides an appropriate technical demonstration showing that ammonia
emissions from sources in the State significantly contribute to
PM2.5 concentrations in the nonattainment area. See 40 CFR
51.1002(c)(4). Absent such a technical demonstration, the State is not
required to address ammonia in its PM2.5 attainment plan or
to evaluate sources of ammonia emissions in the State for control
measures.
Comment: Communities for a Better Environment (CBE) asserts that
methane is a reactive VOC, a smog precursor, and a potent greenhouse
gas (GHG), and that EPA should require the SCAQMD to revise its
definition of VOC in Rule 102 to remove the exemption for methane. In
support of these assertions, CBE states that: (1) A 2002 Harvard
University modeling study \11\ concludes that methane reductions could
be highly effective in reducing ambient ozone levels; (2) SCAQMD's
draft 2007 AQMP identified significantly larger amounts of Total
Organic Gases (TOG) including methane from refineries than VOC
emissions (10.1 tons per day (tpd) of TOG versus 6 tpd of VOC); (3) the
District should require control of all organic gases from oil
refineries; and (4) the District should also review its list of other
TOG compounds that are exempt from regulation. CBE contends that
regulation of methane is a reasonably available control measure that
should be required because additional VOC reductions are needed to
satisfy RACT/RACM requirements.
---------------------------------------------------------------------------
\11\ Fiore, et al, Harvard University, Linking ozone pollution
and climate change: The case for controlling methane, 2002. http://www.gfdl.noaa.gov/bibliography/related_files/amf0201.pdf.
---------------------------------------------------------------------------
Response: The SCAQMD's definition of VOC in Rule 102 is consistent
with EPA's definition of VOC in 40 CFR 51.100(s), which excludes
methane because it has been determined to have negligible photochemical
reactivity. 40 CFR 51.100(s)(1); see also 62 FR 44900 (August 25, 1997)
(final rule revising definition of VOC to exclude methane and other
compounds). EPA approved Rule 102 into the SCAQMD portion of the
California SIP on January 8, 2007. See 72 FR 656. Accordingly, pursuant
to its SIP-approved definition of VOC, SCAQMD is not required to
regulate methane as a VOC for purposes of preparing SIPs to attain the
NAAQS. To the extent that CBE intended to challenge the exclusion of
methane from EPA's regulatory definition of VOC at 40 CFR 51.100(s),
such a challenge is outside the scope of today's action on the
PM2.5 attainment plan for the South Coast area. Likewise,
CBE's assertions about the effect of methane controls on ambient ozone
levels are also outside the scope of today's action, which addresses
the State's plan for attaining the 1997 PM2.5 standards.
D. Comments on Reasonably Available Control Measures (RACM)
Demonstration
Comment: CBE states that EPA should require the SCAQMD to complete
a new RACM/RACT demonstration including assessment of all available
control measures for direct emissions of PM2.5 as well as
measures for control of secondary PM2.5 resulting from
NOX, SOX, and VOC emissions. CBE also provides a
list of potential pollution control and energy efficiency measures that
it asserts should be included ``as part of a new, broader, and complete
RACM/RACT assessment to demonstrate attainment expeditiously.''
Finally, CBE asserts that because the South Coast 2007 AQMP is several
years old, it is important to reassess and update the control measures
in the plan, especially given the SCAQMD's failure to demonstrate
attainment. CBE is also opposed to what it characterizes as EPA
proposed approval of a commitment by CARB to propose measures later, as
a lump sum.
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 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
[[Page 69933]]
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 discussed in our July 14, 2011 amended proposal, we have
evaluated the collection of reasonably available control measures that
CARB, the District, and the Southern California Association of
Governments (SCAG) have adopted and submitted with the attainment
demonstration in the South Coast 2007 AQMP and 2007 State Strategy to
meet the RACM/RACT requirement in CAA section 172(c)(1) and 40 CFR
51.1010. See 76 FR 41562 at 41568-41572 and TSD at section II.D. For
the reasons discussed in our amended proposal and as further discussed
below, we conclude that the South Coast 2007 AQMP and the 2007 State
Strategy demonstrate that the State has adopted all reasonably
available control measures (including RACT for stationary sources)
necessary to demonstrate attainment as expeditiously as practicable and
to meet any RFP requirements, as required by CAA section 172(c)(1) and
40 CFR 51.1010. Thus, we disagree with CBE's assertion that the
additional measures it has identified are required RACM under CAA
section 172(c)(1) for purposes of the 1997 PM2.5 NAAQS in
the South Coast and or that it is necessary to reassess or update the
control measures in the plan at this time. We explain more specifically
below our reasons for concluding that the additional control options
and energy efficiency measures identified by CBE are not required RACM
for purposes of attaining the 1997 PM2.5 NAAQS in the South
Coast.
Comment: CBE objects to what it characterizes as CARB's ``promise
to `propose' measures later, in a lump sum,'' and argues that this
provides the public with no assurance that attainment will be achieved.
CBE asserts that individual emission reduction targets should be
attached to each separate measure and they should be individually
required. Finally, CBE argues that ``[a]lternative control measures and
emissions trading should not be allowed, because of deficiencies in the
reliability of such programs.''
Response: We disagree with CBE's contention that it is necessary
for the State to commit to individual measures with specific emission
reduction targets for each measure. For the reasons discussed in our
proposed rule (see 76 FR 41562 at 41575-41577) and further below (see
responses to comments on ``enforceable commitments''), we conclude that
CARB and the SCAQMD have satisfied the criteria that EPA has
historically applied in approving attainment demonstrations based in
part on enforceable commitments in lieu of adopted measures. 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 South Coast by April 5, 2015.
See 76 FR 41562, at 41571 and CARB Resolution 07-28 (September 27,
2007, Attachment B, p. 3). As discussed below in our responses to
comments on ``enforceable commitments,'' the 2011 SIP revisions changed
the total amount of reductions needed from control strategy measures in
2014 to 44 tpd of VOC reductions, 129 tpd of NOX reductions,
and 41 tpd of SOX reductions (the PM2.5 remaining
commitment stayed the same at 9 tpd of directly-emitted
PM2.5). See July 2011 TSD, Table F-10. Although CARB's
commitment provides that it may adopt ``alternative'' measures (i.e.,
measures different from the potential control options identified in the
South Coast 2007 AQMP or 2007 State Strategy), ultimately the State is
obligated to achieve these specific aggregate amounts of emission
reductions through the adoption of enforceable measures no later than
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). The State's
commitments to achieve specific amounts of emission reductions by 2014
are enforceable by EPA and citizens under CAA sections 113 and 304,
respectively. We note that CARB has already adopted and submitted to
EPA either for SIP-approval or for a CAA section 209 waiver most of the
measures it had committed to adopt in the 2007 State Strategy, as
revised. See 2011 Progress Report, Appendix B, Table B-1.
It is unclear what CBE intends by stating that ``alternative
control measures and emissions trading should not be allowed'' because
of deficiencies in their reliability.
Comment: CBE asserts that the South Coast 2007 AQMP must set Best
Available Retrofit Control Technology (BARCT) standards for
NOX and other PM2.5 precursor emissions from
industrial boilers and heaters, and that it should require replacement
of old and severely inefficient equipment at oil refineries and other
large sources. CBE also asserts that the SCAQMD's Regional Clean Air
Incentives Market (RECLAIM) program does not produce the emission
reductions that are achievable from industrial boilers and heaters
because it allows sources to buy and sell credits. CBE contends that a
RACM demonstration should include evaluation of each industrial boiler
and heater, including its age, the type of fuel it uses, and its
emissions of criteria pollutants, toxics and GHGs. Additionally, CBE
claims that CARB, as part of its recent Greenhouse Gas (GHG) regulatory
process under California's Assembly Bill 32 (AB32), identified numerous
methods for increasing energy efficiency, reducing fuel use, and thus
reducing emissions of criteria pollutants and precursors as well as
GHGs statewide, and that EPA should require the SCAQMD to carry out the
same evaluation for industrial boilers and heaters in the South Coast.
CBE contends that such energy efficiency measures could also save
money. Finally, CBE asserts that Ultra-Low NOX burners are
cost-effective and must be evaluated as part of a RACM analysis for
industrial boilers and heaters.
Response: The SCAQMD had adopted two regulations to control
NOX emissions from industrial boilers, steam generators and
process heaters in the South Coast: Rule 1146.1 (for boilers with rated
heat inputs between 2 and 5 MMBtu/hour) and Rule 1146 (for boilers with
rated heat inputs above 5 MMBtu/hour, with certain exemptions). EPA has
approved both of these rules into the SIP. See 67 FR 16640 (April 8,
2002) and 60 FR 46220 (September 6, 1995). EPA recently proposed a
limited approval and limited disapproval of revisions to these rules
that further tighten the NOX emission limits in both rules.
See 76 FR 40303 (July 8, 2011).\12\ As part of that action, we
evaluated the stringency of the rules' control requirements and
proposed to conclude that the rules together require all control
measures that are reasonably available for covered boilers, steam
generators and process heaters. See id. and associated technical
support documents
[[Page 69934]]
(TSDs). We also noted that the NOX emission limits in both
rules are equivalent to California BARCT standards for these types of
boilers, steam generators and process heaters. See id. According to the
SCAQMD's staff report on Rule 1146, most boilers subject to the rule
will have to use either ultra-low NOX burners or selective
catalytic reduction (SCR) controls to meet the rule's emission limits,
depending on the size of the boiler. See Final Staff Report, Proposed
Amended Rule 1146--Emissions of Oxides of Nitrogen from Industrial,
Institutional, and Commercial Boilers, Steam Generators, and Process
Heaters, at ES-1. Boilers with rated heat inputs above 40 MMBtu/hour
located at refineries are subject to the NOX and
SOX emission caps in SCAQMD's RECLAIM program, discussed
immediately below. See email dated September 22, 2011, from Ken
Mangelsdorf (SCAQMD) to Idalia Perez (EPA Region 9), re: ``question
about refineries and RECLAIM.'' These adopted measures require all RACM
for covered industrial boilers, steam generators and process heaters in
the South Coast and provide an adequate basis for approving the RACM
demonstration in the South Coast 2007 AQMP with respect to such
emission units. We therefore disagree with CBE's assertion that the
SCAQMD is required to evaluate additional control measures for
industrial boilers and heaters as part of its RACM demonstration for
the 1997 PM2.5 standards.
---------------------------------------------------------------------------
\12\ Our proposed limited disapproval was based on specific
deficiencies in the compliance provisions in both rules. These
enforceability deficiencies do not alter our proposal to conclude
that the NOX emission limits in the rule, which are more
stringent than the SIP-approved version of the rule, represent RACT-
level controls. See TSDs at page 3. Note, however, that these
measures are not eligible for SIP credit until EPA approves rule
revisions correcting the enforceability deficiencies identified in
our proposal. We expect the State to submit, as expeditiously as
practicable, rule revisions to address these deficiencies consistent
with its enforceable emission reduction commitments. See 76 FR 41562
at 41569, Table 3.
---------------------------------------------------------------------------
We also disagree with CBE's objections to the inclusion of RECLAIM
as a RACM measure. RECLAIM is a market incentive program designed to
provide sources flexibility in complying with emissions limitations.
Cap and trade programs, like RECLAIM, can take into account emissions
control technology by limiting the size of the emissions cap. EPA
policy provides that a cap and trade program may satisfy RACT by
ensuring that the level of emission reductions resulting from
implementation of the program will be equal, in the aggregate, to those
reductions expected from the direct application of RACT on affected
sources within the nonattainment area. See 59 FR 16690 (April 7, 1994)
and ``Improving Air Quality with Economic Incentive Programs,'' EPA-
452/R-01-001 (January 2001), at Section 16.7. EPA approved the RECLAIM
program into the California SIP in June 1998 based in part on a
conclusion that the NOX emission caps in the program
satisfied the RACT requirements of CAA section 182(b)(2) and (f) for
covered NOX emission sources \13\ in the aggregate. See 61
FR 57834 (November 8, 1996) and 63 FR 32621 (June 15, 1998). In 2005
and 2010, the SCAQMD tightened the NOX and SOX
emissions caps in Rule 2002 to address California Health and Safety
Code requirements for BARCT,\14\ to require that agricultural sources
be subject to existing command-and-control regulations instead of
RECLAIM, and to satisfy a NOX reduction commitment in the
2003 AQMP. See Technical Support Document for EPA's Rulemaking for the
California SIP regarding SCAQMD RECLAIM program rules, March 27, 2006,
at pp. 5, 6 and Attachment 4. EPA approved the revisions to the
NOX and SOX emission caps in Rule 2002 on August
29, 2006 and August 12, 2011 respectively, based in part on conclusions
that the revisions continue to satisfy NOX RACT
requirements. See 71 FR 51120 (August 29, 2006) and 76 FR 50128 (August
12, 2011). Because RECLAIM achieves reductions of NOX
emissions from covered sources that are equivalent, in the aggregate,
to the reductions achieved by RACT-level controls, we conclude that it
requires all RACM for covered sources. See 76 FR at 41569, Table 3.
---------------------------------------------------------------------------
\13\ RECLAIM generally applies to facilities that emit 4 tons or
more per year of NOX or SOX in the year 1990
or subsequent years. See Rule 2001.
\14\ BARCT is defined as ``an emission limitation that is based
on the maximum degree of reduction achievable taking into account
environmental, energy, and economic impacts by each class or
category of source.'' See California Health and Safety Code, Section
40406.
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Comment: CBE asserts that emissions of criteria pollutants, toxics,
and GHGs could be reduced by requiring the SCAQMD to implement the
findings of industrial energy use audits performed under California's
AB32 program. Specifically, CBE asserts that the SCAQMD could
supplement CARB's work under AB32 by: (1) Requiring implementation of
potential energy efficiency improvements identified through audits; (2)
expanding the audit requirements to cover more industrial sources,
including certain large sources and oil refineries exempted from CARB's
program; and (3) improving the reporting requirements associated with
the audits. CBE states that industrial energy efficiency assessments
not only reduce pollution but also reduce energy costs and should be
required RACM for purposes of the PM2.5 NAAQS and other
standards. CBE contends, therefore, that EPA should require the SCAQMD
to add such auditing requirements to the South Coast 2007 AQMP in
strengthened form with emission reduction targets.
Response: Although we agree generally that improvements in energy
efficiency can reduce emissions of criteria and other air pollutants,
we disagree with CBE's assertion that the specific measures associated
with energy efficiency that it has identified are required RACM for
purposes of attaining the 1997 PM2.5 standards in the South
Coast. Under the PM2.5 Implementation Rule at 40 CFR
51.1010(b), ``[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.'' CBE asserts only generally that the measures it has
identified are reasonably available for implementation in the South
Coast considering technical and economic feasibility, and provides no
information to support a conclusion that these additional measures
would, individually or collectively with other reasonable measures,
advance attainment of the 1997 PM2.5 standards by at least
one year in the South Coast.
We explained in the preamble to the PM2.5 Implementation
Rule (72 FR 20586) that although States must conduct a thorough
analysis of reasonably available measures, States are not required to
analyze every conceivable measure to satisfy the RACM requirement in
CAA section 172(c)(1). 72 FR at 20612. As long as a State's analysis is
``sufficiently robust in considering potential measures to ensure
selection of all appropriate RACT and RACM, and the State provides a
reasoned justification for its analytical approach, we will consider
approving that State's RACT/RACM strategy.'' Id. As discussed in our
July 14, 2011 amended proposal, CARB, the SCAQMD, and SCAG have
conducted thorough analyses of all reasonable control measures
(including RACT \15\ for stationary sources) that are available for
implementation in the South Coast and provided reasoned justifications
for the collection of RACM that the State has adopted or committed to
adopt, based on these analyses. See 76 FR 41562 at 41568, 414572 and
TSD at section II.D; see also South Coast 2007 AQMP, Appendix VI. CBE's
comments do not change our conclusion that the State has adopted all
RACM and RACT necessary to demonstrate attainment as expeditiously as
practicable and to meet any RFP requirements, as required by
[[Page 69935]]
CAA section 172(c)(1) and 40 CFR 51.1010.
---------------------------------------------------------------------------
\15\ EPA has defined RACT as the lowest emission limitation that
a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility. 44 FR 53762 (September 17,
1979).
---------------------------------------------------------------------------
Comment: CBE asserts that SCAQMD ``must implement measures [for
additional SOX reduction] that were identified in the recent
SOX RECLAIM regulation, but not adopted.''
Response: This comment does not contain sufficient specificity for
EPA to respond.
Comment: CBE asserts that major flaring and smoking episodes occur
regularly at refineries in the region \16\ and that the SCAQMD must
require that every refinery have a flare minimization plan (FMP)
consistent with rigorous control methods achieved by two specific oil
refineries in Martinez, California and Flint Hills, Texas. CBE asserts
that FMPs are reasonably available measures that could significantly
reduce short-term emissions of particulates, SOX,
NOX, and VOC, although they probably would not significantly
affect annual emissions levels. CBE states that the SCAQMD's flare rule
requires implementation of an FMP only if emissions exceed certain
levels on an annual basis, and that the South Coast 2007 AQMP does not
adequately account for emissions from flaring events, which are
episodic. CBE asserts that EPA should require the SCAQMD to: (1) Model
the ambient PM2.5 impacts of large flaring events; (2)
revise the SCAQMD flare regulation to require that every refinery
implement an FMP consistent with those at Shell's refineries in
Martinez, California and Flint Hills, Texas; and (3) add a provision to
the SCAQMD flare regulation to prohibit all flaring (with certain
exceptions) unless it is consistent with an approved FMP, as provided
in the Bay Area Air Quality Management District (BAAQMD) Regulation 12-
12-301 (``Flare Minimization''). CBE contends that such measures are
technologically and economically feasible and therefore required RACM.
---------------------------------------------------------------------------
\16\ CBE references several sources of SCAQMD data as the basis
for its estimates of criteria pollutant emissions from these flaring
episodes.
---------------------------------------------------------------------------
Response: The SCAQMD regulates refinery flares through Rule 1118
(``Control of Emissions from Refinery Flares''), which EPA approved
into the SIP on August 28, 2007. See 72 FR 49196. Although CBE
correctly notes that Rule 1118 requires FMPs only at refineries that
exceed specific annual emissions thresholds (see Rule 1118 at
subsection (d)(3)(a) and (e)(1)), CBE appears to misunderstand several
other requirements in the rule that apply to all petroleum refineries
and that are essentially equivalent to the FMP requirements in the
BAAQMD's Rule 12-12. We agree that FMPs are reasonably available
measures and note that requirements in BAAQMD 12-12 401.1 through 401.3
are required of all petroleum refineries under SCAQMD Rule 1118
sections (c)(2) and (c)(3). For example, BAAQMD 12-12 401.4 requires a
description of prevention measures addressing specific activities that
may cause flaring. SCAQMD's Rule 1118 contains a requirement in section
(c)(2)(C) that requires refinery owners to submit to the SCAQMD
``descriptions of any equipment, processes or procedures the owner or
operators plans to install or implement to eliminate or reduce
flaring,'' including the scheduled year of installation or
implementation. This requirement is essentially equivalent to the
requirement in BAAQMD Rule 12-12 401.4. Thus, SCAQMD Rule 1118 contains
in sections (c)(2) and (c)(3) requirements that, although separate from
the requirements for ``flare minimization plans'' under section (e) of
the rule, essentially require SCAQMD facilities to submit plans to
reduce flaring events similar to those required under BAAQMD Rule 12-
12. We disagree, therefore, with CBE's assertion that the SCAQMD is
required to adopt additional control requirements for refinery flares
and conclude that Rule 1118 requires all RACM for these emission
sources in the South Coast.\17\
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\17\ We note that CBE's estimates of emissions from flaring
episodes during the 2009-2011 time period are consistent with data
provided in SCAQMD staff reports submitted to EPA, which show an
overall decline in emissions from flaring events since 2004. See,
e.g., SCAQMD 2005 Staff Report Table IV-2. Generally, it is
difficult to develop reliable estimates of emissions from flaring
events given uncertainties about the efficiency of a particular
flare event. Flares are devices which burn anything in the stream,
and the contents of the stream may not be completely combusted,
causing an unknown composition of emissions.
---------------------------------------------------------------------------
We note that SCAQMD's Board Resolution adopting the District's most
recent revisions to SCAQMD Rule 1118 directs District staff to evaluate
the feasibility of a daily emissions target and to evaluate refinements
to the annual emissions targets as warranted. See SCAQMD Board
Resolution 2005-32 (November 4, 2005). Consistent with this directive,
we encourage the District to reevaluate the control and compliance
requirements in Rule 1118 as new information about feasible controls
becomes available, and to adopt any additional control measures that
are reasonably available as expeditiously as practicable consistent
with CAA requirements.
Comment: CBE asserts that oil refineries, which contribute to power
plant emissions by using substantial amounts of electricity from the
grid, should be required to have backup power using clean/alternative
energy sources. Specifically, CBE claims that electrical grid shutdowns
cause power outages at oil refineries, which in turn cause flaring and
significant amounts of air pollution near the refineries. CBE asserts
that the SCAQMD should require oil refineries to use alternative energy
sources (in place of fossil-fuel electricity generation), such as wind
and solar energy, and that such measures should be required RACM. Based
on general information about power plant emissions obtained from PG&E,
CBE provides its own estimates of the SOX and NOX
emission reductions that could be achieved if oil refineries were to
meet some or all of their electricity demands with clean alternative
energy sources. CBE contends that the ``large air emissions caused by
fossil fuel generation at Power Plants due to oil refinery electricity
demand is worthy of phaseout requirements by the AQMD as a measure in
the AQMP.''
Response: Although we generally agree that use of alternative
(i.e., non-fossil fuel) energy sources to power oil refineries and
other large industrial operations would reduce emissions of air
pollutants, we disagree with CBE's generalized assertion that such
measures are required RACM for purposes of attaining the 1997
PM2.5 NAAQS in the South Coast. Section 172(c)(1) of the CAA
requires that States adopt measures that are ``reasonably available''
and that are necessary to demonstrate attainment as expeditiously as
practicable and to meet any RFP requirements. 40 CFR 51.1010. As
explained above, States are required to conduct a thorough analysis of
reasonably available measures but are not required to analyze every
conceivable measure to satisfy the RACM requirement in CAA section
172(c)(1). 72 FR at 20612.
As discussed in our July 14, 2011 amended proposal, CARB, the
SCAQMD, and SCAG have conducted thorough analyses of all reasonable
control measures that are available for implementation in the South
Coast and provided reasoned justifications for the collection of RACM
that the State has adopted or committed to adopt, based on these
analyses. See 76 FR 41562 at 41568-41572 and TSD at section II.D.
Electric generating stations and oil refineries in the South Coast are
subject to numerous prohibitory rules and other control measures that
regulate emissions of NOX, SOX, VOC, and
PM2.5, among other air pollutants, from various emission
points within each facility. See, e.g., 76 FR at 41570, Table 3 and
[[Page 69936]]
TSD, Appendix B (identifying, e.g., Rule 1105 for fluidized-bed coal
combustion units (FCCUs) and Rules 1146 and 1146.1 for Industrial,
Institutional, and Commercial Boilers, Steam Generators, and Process
Heaters.) Power plants in the district are also subject to RECLAIM. See
South Coast Rules 2011 and 2012. CBE has provided no information to
support its general assertion that requiring the oil refining industry
to obtain electricity (backup electricity or otherwise) from
alternative energy sources instead of from the electrical grid is a
``reasonably available'' control measure within the meaning of CAA
section 172(c)(1). These comments therefore do not change our
conclusion that the State has adopted all RACM and RACT necessary to
demonstrate attainment as expeditiously as practicable and to meet any
RFP requirements, as required by CAA section 172(c)(1) and 40 CFR
51.1010.
Comment: CBE states that the SCAQMD is in the process of developing
a regulation to control coke drum emissions and that EPA should ensure
that this rule is included in the District's RACM/RACT control
strategy. CBE also asserts that this rule has been repeatedly delayed
due to pressure from the oil industry, and that EPA should ensure that
the rulemaking occurs expeditiously. CBE asserts that refinery coking
operations are increasing due to the use of increasingly heavier crude
at oil refineries.
Response: EPA does not currently have reliable information about
the types and amounts of pollutant emissions from refinery coke drums
in the South Coast, and CBE has not provided such information to
support its assertions. Consequently we cannot conclude at this time
that any such controls would represent RACT in the South Coast. We note
that EPA Region 9 staff recently contacted SCAQMD staff to inquire
about the status of this rule and learned that the District is awaiting
information from EPA emission studies to inform the District's
assessment of the feasibility and cost-effectiveness of regulating coke
drum emissions.\18\ EPA has sent requests for information about
emissions from coking operations to several facilities in the South
Coast.\19\ Given the need for additional emission reductions in the
South Coast to attain the 1997 PM2.5 standards as well as
other standards for which the area is designated nonattainment (see 40
CFR 81.305), we encourage the SCAQMD to adopt and implement this rule
as expeditiously as practicable consistent with CAA requirements.
---------------------------------------------------------------------------
\18\ See record of phone conversation between Nicole Law and
Stanley Tong, USEPA Region 9 Air Division, and Eugene Teszler,
SCAMQD, dated September 14, 2011.
\19\ See record of phone conversation between Nicole Law, USEPA
Region 9 Air Division, and Brenda Shine, USEPA OAQPS, dated
September 20, 2011.
---------------------------------------------------------------------------
Comment: CBE states that it had proposed ``requiring 33% RPS for
all power plants within the SCAQMD'' and asserts that this is ``clearly
achievable'' since it has been adopted as State law.
Response: Assuming CBE intended to assert that the SCAQMD should
require all investor-owned utilities, electric service providers, and
community choice aggregators within the South Coast to procure 33
percent of their power from renewable sources by 2020 as currently
required by the State under California's Renewable Portfolio Standard
(RPS), and that such a measure is a required RACM under CAA section
172(c)(1) for purposes of attaining the 1997 PM2.5 NAAQS in
the South Coast, we disagree. As discussed above, section 172(c)(1) of
the CAA requires that States adopt measures that are ``reasonably
available'' and that are necessary to demonstrate attainment of the
NAAQS as expeditiously as practicable and to meet any RFP requirements.
40 CFR 51.1010. CBE has provided no information to support either an
assertion that California's 33% RPS under Senate Bill 2 is such a
measure or an assertion that some additional RPS to be implemented by
the SCAQMD within the South Coast would be such a measure.
Comment: CBE claims that the RACM analysis for locomotive emissions
in the South Coast 2007 AQMP is deficient because the SCAQMD failed to
evaluate reasonably available technologies that could reduce locomotive
and other railyard emissions. In support of this assertion, CBE
references two September 2009 public comment letters to CARB and an
August 2009 CARB document entitled ``Technical Options to Achieve
Additional Emissions and Risk Reductions from California Locomotives
and Railyards.'' Citing Association of American Railroads v. South
Coast Air Quality Management District, 622 F.3d 1094 (9th Cir. 2010),
CBE contends that the Ninth Circuit ``has indicated that the SCAQMD and
the State of California have the authority to reduce emissions from
locomotive sources through its determination that [the Interstate
Commerce Commission Termination Act of 1995] may not preempt some
measures included in a federally approved SIP.'' CBE asserts that EPA
should therefore direct California and the SCAQMD to cure this defect.
Response: We disagree. SCAQMD's RACM Demonstration (see Appendix VI
to the 2007 South Coast AQMP) does list one type of measure with the
potential to reduce locomotive and other railyard emissions (locomotive
anti-idling) as one of the measures the District evaluated as a
potential RACM/RACT measure (see Table 2 on page VI-11 of the 2007
South Coast AQMP, Appendix VI). With reference to long duration switch
yard locomotive idling measures, SCAQMD concluded that ``[I]f there are
any additional SIP emission reductions that could be accounted for
using these innovative technology, they would be addressed by CARB
during the rule development of their on-road and off-road control
measures.'' 2007 South Coast AQMP, Appendix VI, page VI-12. This is a
reasonable conclusion in light of the legal challenge to the District's
own locomotive anti-idling rules (SCAQMD Rules 3501, 3502, and 3503).
Moreover, CARB has adopted regulations for mobile cargo handling
equipment at ports and intermodal rail yards which are designed to use
best available control technologies to reduce public exposure to
NOX and PM. CARB's mobile cargo handling equipment rules are
the subject of a current authorization request to EPA. See 76 FR 5586
(February 1, 2011).
We note that, while the Ninth Circuit's opinion in the Association
of American Railroads v. South Coast Air Quality Management District
case opens the door to District regulation of locomotive idling under
Federal law by signaling the potential for harmonization between such
District rules and the Interstate Commerce Commission Termination Act
of 1995 (ICCTA) if the rules are approved into the SIP, there remains
uncertainty as to whether the District's locomotive anti-idling rules
would be within the scope of the District's state-law regulatory
authority. The Ninth Circuit did not decide that issue. 622 F.3d at
1096.
In addition, the documents and court case cited by CBE in support
of the idea that a number of locomotive- and railyard-related measures
may be technologically and economically feasible, as well as legally
enforceable, all post-date the development and submittal of the 2007
South Coast AQMP and 2007 State Strategy. As such, they cannot be used
to undermine the RACM demonstration for PM2.5 submitted by
California for the South Coast several years earlier. The cited
documents and court case may influence the development of control
measures for future air quality plans for the South Coast, as well as
other nonattainment areas, but they do not
[[Page 69937]]
undermine the RACM demonstration in the plan that we are approving in
relevant part today.
For the reasons set forth in the preceding paragraphs, these
comments do not change our conclusion that the State has adopted all
RACM and RACT necessary to demonstrate attainment as expeditiously as
practicable and to meet any RFP requirements for the 1997
PM2.5 standards, as required by CAA section 172(c)(1) and 40
CFR 51.1010. See 72 FR at 20612 (noting that although States must
conduct thorough analyses of reasonably available measures, States are
not required to analyze every conceivable measure to satisfy the RACM
requirement in CAA section 172(c)(1)).
Comment: NRDC asserts that the South Coast 2007 AQMP does not
satisfy the RACM requirement in CAA 172(c)(1) because it fails to
identify and require implementation of certain reasonably available
transportation control measures (TCMs) as expeditiously as practicable.
NRDC asserts that ``EPA's Transportation Conformity Rule requires that
TCMs either be listed in section 108(f) of the CAA, or reduce
transportation emissions by lowering vehicle use or improving traffic
flow.'' Specifically, NRDC asserts that in the ``illustrative list of
TCMs in CAA 108(f), the EPA has acknowledged that improvements to
bicycle paths and pedestrian walkways are RACM'' and that the South
Coast 2007 AQMD contains very few TCMs to implement such measures. As
an example, NRDC claims that little more than 11 percent of the 1996
Los Angeles Bicycle Plan's proposed bike lanes have been implemented
since its development. Finally, NRDC asserts that planning agencies
have used the TCM process to ``load the SIP with proposed highway
expansion projects that will purportedly achieve emissions reductions''
and that several of the plan's identified TCMs, such as the SR-47
diesel truck road expansion project, should not be included as TCMs
because they will not actually reduce emissions.
Response: We disagree with NRDC's contention that any of the TCMs
it has identified are required RACM for purposes of attaining the 1997
PM2.5 standards in the South Coast or that the SCAQMD failed
to adequately consider reasonably available TCMs as part of its RACM
analysis. Under 40 CFR 51.1010(b), ``[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.'' NRDC asserts only generally
that the 1996 Los Angeles Bicycle Plan is reasonably available for
implementation in the South Coast considering technical and economic
feasibility, and provides no information to support a conclusion that
this or any other potential TCM would, individually or collectively
with other reasonable measures, advance attainment of the 1997
PM2.5 standards by at least one year in the South Coast.\20\
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\20\ Appendix IV-C to the South Coast 2007 AQMP indicates that
implementation of all of the TCMs in SCAG's Transportation Strategy
(including transit and High Occupancy Vehicle (HOV) projects, in
addition to bicycle and pedestrian projects) is expected to achieve
the following total amounts of emission reductions: 0.18 tpd of
direct PM2.5, 3.48 tpd of NOX, and 1.04 tpd of
ROG (VOC). See South Coast 2007 AQMP, Appendix IV-C at Table 7.
Assuming the 1996 Los Angeles Bicycle Plan, if fully implemented,
would achieve only a fraction of these amounts of emission
reductions, it is highly unlikely that this measure would advance
attainment of the 1997 PM2.5 standard in the South Coast
by at least a year. See Table I-1 in the TSD for a summary of the
emission reductions that would achieve one year's worth of RFP (52.8
tpd of NOX, 30.8 tpd of VOC, 1.1 tpd of PM2.5
and 2.8 tpd of SOX).
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As discussed in our July 14, 2011 amended proposal, CARB, the
SCAQMD, and the Southern California Association of Governments (SCAG)
\21\ have conducted thorough analyses of all reasonable control
measures that are available for implementation in the South Coast and
provided reasoned justifications for the collection of RACM that the
State has adopted or committed to adopt, based on these analyses. See
76 FR 41562 at 41568-41572 and TSD at section II.D. With respect to
TCMs in particular, SCAG evaluated potential measures identified by
public commenters, measures adopted in other nonattainment areas, and
potential measures identified by EPA. Bicycle projects were considered
along with many other TCMs as part of the RACM analysis to determine if
they alone or in combination with other measures would advance the
attainment date. See South Coast 2007 AQMP, Appendix IV-C, p. 36-55.
Attachment A to Appendix IV-C of the South Coast 2007 AQMP contains a
list of the specific TCMs included as part of the South Coast 2007
AQMP. The 1996 LA Bicycle Plan is not a part of the approved SIP for
the South Coast. When an individual bike project has funding for right-
of-way or construction in the first two years of the Transportation
Improvement Program (TIP), it is included in TCM-1, SCAG's overall TCM
program.\22\ NRDC's comments do not change our conclusion that the
State has adopted all RACM and RACT necessary to demonstrate attainment
as expeditiously as practicable and to meet any RFP requirements for
the 1997 PM2.5 standards, as required by CAA section
172(c)(1) and 40 CFR 51.1010. See 72 FR at 20612 (noting that although
States must conduct thorough analyses of reasonably available measures,
States are not required to analyze every conceivable measure to satisfy
the RACM requirement in CAA section 172(c)(1)). SCAG included a
description of the process used to identify the potential RACM measures
considered. See South Coast 2007 AQMP, Appendix IV-C.
---------------------------------------------------------------------------
\21\ SCAG is the metropolitan planning organization (MPO)
responsible for the transportation strategy and transportation
control measures in the South Coast nonattainment area.
\22\ See record of conversation between Wienke Tax, EPA Region
9, and Jonathan Nadler, SCAG, September 19, 2011.
---------------------------------------------------------------------------
We also disagree with NRDC's characterization of EPA's
transportation conformity regulations and EPA's position with respect
to the TCMs identified in CAA section 108(f). EPA's transportation
conformity regulations in 40 CFR part 93 establish the criteria and
procedures for timely implementation of TCMs approved into a SIP,
including the specific steps and funding sources needed to fully
implement each TCM, but do not require adoption and implementation of
any particular TCM. As to CAA section 108(f), we note that following
the 1990 CAA Amendments EPA revised its previous interpretation of the
RACM requirement by eliminating the presumption that all TCMs listed in
CAA section 108(f) are RACM for all areas. See 57 FR 13598 at 13560
(April 16, 1992) (stating that ``[l]ocal circumstances relevant to the
reasonableness of any potential control measure involve practical
considerations that cannot be made through a national presumption'' and
that States should consider TCMs on an area-specific basis and
``consider groups of interacting measures, rather than individual
measures''). Thus, States are required to adopt only those TCMs
identified in CAA section 108(f) that are reasonably available for
implementation in the specific nonattainment area. Id. We note that EPA
cannot require that any measure be listed in section 108(f) of the CAA,
as only Congress is authorized to amend the CAA.
Finally, we agree that SR-47 should not be listed as a TCM. We
understand from SCAG staff that the SR-47 project (Project ID LA0D45)
was inadvertently included as a TCM in the 2007 SIP in a table labeled
``System Management--Railroad Consolidation Programs,'' on page A-12 of
Attachment A of Appendix IV-C of the South Coast 2007 AQMP. This error
has been corrected
[[Page 69938]]
and this project is no longer listed as a TCM in the 2008 RTIP.\23\
---------------------------------------------------------------------------
\23\ See electronic mail, Rongsheng Luo, SCAG, to Wienke Tax,
U.S. EPA Region 9, August 31, 2011.
---------------------------------------------------------------------------
Comment: NRDC asserts that the RACM/RACT analysis is deficient
because it fails to provide any discussion of controls for condensable
PM2.5 emissions. NRDC references 40 CFR 51.1002(c) to
support its assertion that ``[t]he transition period allowing agencies
to ignore controls on condensable emissions expired 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.'' NRDC states that EPA should advise CARB and the
District that consideration of reasonably available controls on
condensable emissions will be required in a revised RACM/RACT
submittal.
Response: EPA's PM2.5 implementation rule states that
``[a]fter January 1, 2011, for purposes of establishing emissions
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.\24\ Because the attainment, RFP
and RACM demonstrations in the South Coast 2007 AQMP and 2007 State
Strategy were adopted on June 1, 2007 and September 27, 2007,
respectively, California was not required to address condensable PM in
establishing the emissions limits contained in these demonstrations as
originally submitted, or in adopting any other PM emission limits under
40 CFRs 51.1009 and 51.1010 prior to January 1, 2011. Consistent with
these requirements, EPA has evaluated the reasonable further progress
(RFP) and reasonably available control measures (RACM) demonstrations
in the South Coast 2007 AQMP and 2007 State Strategy and concluded that
these elements of the Plan appropriately address all sources of direct
PM2.5 emissions and PM2.5 attainment plan
precursors (SO2, NOX, and VOC) in the South Coast
area. See 76 FR 41562 at 41574.\25\
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\24\ 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 CPM until January 1, 2011.
\25\ In our proposed rule, we noted that the SCAQMD has deferred
limits for condensable particulate matter (CPM) in its rules but
that this limited deferral does not affect the South Coast 2007
AQMP's RACM/RACT and expeditious attainment demonstrations. 76 FR
41562 at 41566, n. 13. 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.
---------------------------------------------------------------------------
The South Coast 2007 AQMP and 2007 State Strategy rely on several
rules regulating direct PM emissions as part of the PM2.5
control strategy (e.g., Wood Burning Fireplaces (Rule 445, adopted
March 7, 2008), Wood Stoves and Under-Fired Charbroilers (Rule 1138,
adopted November 14, 1997), and Particulate Matter (PM) Control Devices
(Rule 1155, adopted December 4, 2009)). See 2011 Progress Report,
Appendix F, Table 4. 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
condensable particulate matter (CPM), as required by 40 CFR 51.1002(c).
We note that the SIP-approved version of Rule 1138 requires testing
according to the District's Protocol, which requires measurement of
both condensable and filterable PM in accordance with SCAQMD Test
Method 5.1. See Rule 1138 paragraph (c)(1) and (g) and SCAQMD Protocol
paragraph 3.1.\26\ We also note that the SIP-approved version of Rule
1155 requires measurement of both condensable and filterable PM in
accordance with SCAQMD Test Methods 5.1, 5.2, or 5.3 as applicable. See
SCAQMD Rule 1155 paragraph (e)(6).\27\
---------------------------------------------------------------------------
\26\ 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).
\27\ See 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); SCAQMD Test Method 5.2, Determination of Particulate
Matter Emissions From Stationary Sources Using Heated Probe and
Filter, March 1989 (available at http://aqmd.gov/tao/methods/stm/stm-005-2.pdf); and SCAQMD Test Method 5.3, Determination of
Particulate Matter Emissions From Stationary Sources Using an in-
Stack Filter, October 2005 (available at http://aqmd.gov/tao/methods/stm/stm-005-3.pdf).
---------------------------------------------------------------------------
Comment. NRDC asserts that the contingency measures in the South
Coast 2007 AQMP should be included in the RACM/RACT demonstration.
Response: We disagree. For many of the same reasons that EPA is
disapproving the contingency measures identified in the South Coast
2007 AQMP, many of these measures would not be approvable elements of a
RACM/RACT demonstration and in any case are not required RACM for
purposes of the 1997 PM2.5 NAAQS in the South Coast. For
example, for CTY-01, ``Offsetting the Potential Emission Increase Due
to the Change in Natural Gas Specifications,'' the District has
provided neither cost effectiveness information nor information about
the types or amounts of pollutant reductions this measure would
achieve. Therefore, EPA cannot determine at this time whether such a
measure is reasonably available considering technical or economic
feasibility or whether it would contribute to advancing attainment of
the 1997 PM2.5 NAAQS in the South Coast. The District
characterizes the measure as an offsetting measure for potential
increases in emissions, so it is not clear CTY-01 will provide any
additional reductions of PM2.5 or PM2.5 plan
precursors. See South Coast 2007 AQMP, Appendix IV-A, page 167. The
reductions associated with CTY-02, ``Clean Air Act Emission Fees for
Major Stationary Sources,'' do not occur until after 2023, and
therefore clearly would not contribute to advancing attainment date of
the 1997 PM2.5 NAAQS. CTY-03, ``Banning Pre-Tier 3 Off-Road
Diesel Engines during High Pollution Days,'' similarly lacks
quantification of emissions reductions and cost-effectiveness data. As
we noted in our July 14, 2011 proposed rulemaking, CTY-04,
``Accelerated Implementation of CARB's Mobile Source Control
Measures,'' would require additional rulemaking at the District level
and potentially substantial and lengthy additional rulemaking at the
State level to be implemented. See 76 FR 41562, at 41579. Therefore, we
do not believe the reductions could occur in time to advance the
attainment date for the 1997 PM2.5 NAAQS. In summary, we
have concluded that the contingency measures in the South Coast 2007
AQMP are not approvable as contingency measures under CAA section
172(c)(9) and for many of the same reasons, these measures are not
required RACM for purposes of the 1997 PM2.5 NAAQS.
Moreover, NRDC provides no information to support a claim that any of
these measures would individually or collectively advance the
attainment date of the South Coast area for the 1997 PM2.5
NAAQS by at least one year. 40 CFR 51.1010.
[[Page 69939]]
E. Comments on CARB and District Control Measures
Comment: ARTBA requests that EPA designate this rulemaking as
having nationwide scope or effect pursuant to CAA section 307(b)(1)
based on its belief that certain California statewide measures include
in-use controls that are inconsistent with section 209 of the CAA and
that are adoptable by states outside not only California but also EPA
Region IX. ARTBA notes that the DC Circuit has never addressed many of
the preemption issues raised below. Accordingly, ARTBA concludes that
the section 307(b)(1) determination is necessary to ensure nationwide
uniformity in the interpretation and enforcement of these important CAA
preemption issues.
Response: CAA section 307(b)(1) generally provides that judicial
review of EPA action in approving a SIP or SIP revision may be filed
only in the U.S. Court of Appeals for the appropriate circuit. Thus,
final EPA actions on revisions to the California SIP, such as the South
Coast PM2.5 Plan, are generally subject to timely challenges
filed in the U.S. Court of Appeals for the Ninth Circuit. However,
judicial review of an EPA SIP action may be filed only in the U.S.
Court of Appeals for the District of Columbia if such action is based
on a determination of nationwide scope or effect and if, in taking such
action, the EPA finds and publishes that such action is based on such a
determination.
We do not believe that our action approving the South Coast
PM2.5 Plan as a revision to the California SIP is based on a
determination of ``nationwide scope or effect.'' ARTBA does not
identify which specific state in-use controls the association is
referring to, but we assume ARTBA is referring to CARB's in-use truck
rule and drayage truck rule, CARB's in-use nonroad equipment rule, and
CARB's rule regarding ships at port, and CARB's commercial harbor craft
rule (which are referred to in the plan as ``cleaner in-use heavy-duty
trucks,'' ``cleaner in-use off-road equipment (> 25 ph)''), ``ship
auxiliary engine cold ironing & clean technology,'' and ``clean up
existing harbor craft.''). While we recognize that the plan relies on
these state in-use controls to demonstrate attainment of the
PM2.5 NAAQS in the South Coast, the specific in-use controls
themselves are not the subject of today's action. In other words, we
are not taking action to approve the in-use controls as a part of the
action we are taking today on the plan, but anticipate final action on
the in-use controls in other final actions. Moreover, our action today
relates to only two regions within the state of California, and the
provisions reviewed are specific to California. Today's decision does
not affect any other State. Thus, our approval of the plan under CAA
section 110 is not one of ``nationwide scope or effect.''
With respect to nonroad vehicles and equipment, to the extent
section 209(e) is at all relevant, other states are free to adopt and
enforce California in-use emissions standards and other related
requirements, but only after EPA has authorized the California
standards under CAA section 209(e)(2)(A). See CAA section 209(e)(2)(B).
EPA is not taking action in this document under section 209(e), and
thus the potential widespread effect that concerns ARTBA will not occur
as a consequence of this rulemaking. Moreover, such State action would
be a separate action by a separate State and would be handled
separately.
With respect to on-road engines and vehicles, California and the
other states have the same authority, and are subject to the same
limitations, in establishing in-use emissions standards and other
related requirements and thus, even if EPA were to be approving
California's on-road in-use emissions standards in this rulemaking,
which it is not, the potential for nationwide effect would not occur as
a consequence of this rulemaking.
While any action taken by EPA in one rulemaking may have some
precedential effect on other actions, this does not make every action
taken by EPA an action of ``nationwide scope or effect.'' This action
applies only in California and is relevant only to a particular
California-specific PM2.5 plan. Therefore, we disagree that
today's action on the South Coast PM2.5 Plan would be of
``nationwide scope or effect.''
Comment: ARTBA asserts that the lawfulness of the California and
SCAQMD measures will hinge on litigation between ARTBA and EPA
currently under way in the Ninth Circuit, No. 11-71897, and the DC
Circuit, No. 11-1256, and ARTBA requests that EPA stay action on this
proceeding pending the resolution of ARTBA's litigation. ARTBA further
requests that, because ARTBA is litigating the nationwide standards
under which EPA will decide the important preemption issues in this
case and because EPA's decision on California measures would lead to
other states' adopting (or being compelled to adopt) California
measures as RFP for their SIPs, EPA stay consideration of nonroad rules
pending resolution of the ARTBA litigation.
Response: In settlement of a lawsuit seeking to compel EPA action
on the 2007 South Coast AQMP and related portions of the 2007 State
Strategy [Natural Resources Defense Council v. EPA, No. 2:10-cv-06029
(C.D. Cal.)], which includes the South Coast PM2.5 Plan, EPA
is subject to a consent decree deadline of September 30, 2011 to take
final action on the South Coast PM2.5 Plan, and thus, any
stay of the rulemaking beyond that date is not possible. In any event,
other than the general preemption issues that ARTBA has raised, and
that EPA has addressed in various forums, the current lawsuit cited
above by ARTBA challenges EPA's approval of the San Joaquin Valley
Unified Air Pollution Control District's (SJVUAPCD's) Rule 9510
[``Indirect Source Review (ISR'')], which turns on an interpretation of
CAA section 110(a)(5), which is not germane to EPA's action on the
South Coast PM2.5 Plan.
Comment: ARTBA states that California has adopted a novel series of
statewide measures that set emission standards and other requirements
for in-use on-road and nonroad vehicles and fleets of those vehicles.
In addition to seeking credit for these statewide measures, ARTBA notes
that SCAQMD also seeks credit for that district's local implementation
of the Surplus Off-Road Opt-In for NOX (``SOON'') program
under which large construction fleets must seek ``SOON'' funding to
acquire clean-than-required equipment, with the cost partially deferred
by government funds and that the South Coast PM2.5 Plan also
includes a contingency measure (CTY-03) that would ban pre-Tier 3 off-
road diesel engines on ``high pollution advisory'' days.
ARTBA asserts that all of these measures share the characteristic
of setting fleetwide standards for CAA-required vehicles that differ
from--and are more stringent than--the various standards and other
requirements that title II of the CAA applies to those vehicles, and
concludes that the California statewide measures that rely on in-use
controls or impose in-use fleet measures are preempted. With respect to
California's in-use controls for construction and other diesel-powered
equipment, ARTBA believes that preemption applies both for equipment
above and below the 175-horsepower threshold and that the proposed
contingency measures (CTY-03) to ban pre-Tier 3 off-road diesel engines
on ``high pollution advisory'' days is a preempted in-use standard--
particularly for equipment under 175 horsepower--for the same reasons.
Because these SIP and contingency measures are beyond California's and
[[Page 69940]]
SCAQMD's authority, ARTBA believes that CAA section 110(a)(2)(E)(i)
prohibits EPA's approving these measures as part of the SIP.
Response: In relevant part, CAA section 110(a)(2)(E) requires SIPs
to provide necessary assurances that the State will have adequate
authority under State law to carry out a SIP and is not prohibited by
any provision of Federal or State law from carrying out such SIP. As a
general matter, we agree that States must provide such assurances for
SIPs and SIP revisions. In the CARB Resolution approving the plan, the
State of California provided the necessary assurances of adequate legal
authority to implement the South Coast PM2.5 Plan. See CARB
Resolution 07-41 (September 27, 2007).
To the extent that ARTBA challenges EPA's approval of the South
Coast PM2.5 Plan based on the plan's reliance on the
emission standards and other requirements for in-use on-road measures,
such as CARB's truck rule and drayage truck rule, we expect to approve
the rules into the SIP prior to the effective date of this action, and
no comments have been received on our proposed approval of the rules
[76 FR 40652 (July 11, 2011)] that call into question the authority of
the State to enforce those rules. To the extent that ARTBA challenges
EPA's approval of the plan based on the plan's reliance on standards
and other preempted requirements for in-use nonroad vehicles, we simply
note that EPA authorizations under CAA section 209(e) bestow
enforceability on the State of California as to the emissions standards
and other requirements covered by the authorizations. We anticipate EPA
action on CARB's authorization requests for the in-use nonroad rules
upon which the plan relies prior to the effective date of today's
action.\28\ These rules are needed to support emissions reduction
credit for certain State measures, including ``cleaner in-use off-road
equipment (> 25 hp),'' ``ship auxiliary engine cold ironing & clean
technology,'' and ``clean up existing harbor craft.'' See table 5 on
page 41571 of the July 14, 2011 proposed rule. If the authorizations
are issued, there will be no prohibition under any Federal law that we
are aware of that would prevent California from enforcing the related
standards and achieving the associated emissions reductions relied upon
by the plan. If EPA denies CARB's authorization requests for the in-use
nonroad rules, or if no decision is forthcoming, 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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\28\ The notices of opportunity for public hearing and comment
on the relevant requests for authorizations were published at 73 FR
58585 (October 7, 2008), 73 FR 67509 (November 14, 2008), and 75 FR
11880 (March 12, 2010) for CARB's in-use nonroad equipment rule; at
76 FR 38153 (June 29, 2011) for CARB's in-use commercial harbor
craft rule; and at 76 FR 38155 (June 29, 2011) for CARB's at-berth
rule that is intended to reduce emissions from auxiliary diesel
engines on ocean-going marine vessels at-berth in California ports.
---------------------------------------------------------------------------
With respect to SCAQMD's SOON program, EPA notes that the District
implements the SOON program through its Rule 2449 (``Control of Oxides
of Nitrogen Emissions from Off-Road Diesel Vehicles''), adopted May 2,
2008. SCAQMD Rule 2449 has been submitted to EPA for approval into the
SIP (submittal date July 18, 2008), but EPA has not taken any action on
that submittal, nor is EPA taking action on Rule 2449 in connection
with today's action on the South Coast PM2.5 Plan. We
recognize that the South Coast PM2.5 Plan does take
emissions reduction credit for the SOON program, but EPA has not
allowed the credit in taking action on the plan, and thus the issue of
the enforceability of the associated emissions reductions is not
germane to our approval of the plan.
With respect to the contingency measure referred to as CTY-03,
which ARTBA opposes, EPA proposed to disapprove the contingency
measures, including CTY-03, see 76 FR at 41579, and is finalizing that
proposed disapproval in today's document.
Comment: ARTBA provides a lengthy discussion of the principles of
Federal preemption in the context of State regulation of emissions from
mobile sources under the Clean Air Act and its various amendments over
time. In so doing, ARTBA identifies a number of instances where ARTBA's
interpretation of the CAA and relevant case history differs from that
of EPA and offers a number of legal arguments supporting its views.
Response: Except to the extent we have discussed above, ARTBA does
not tie this discussion of preemption to the SIP action EPA is taking
today, namely, final partial approval and partial disapproval of the
South Coast PM2.5 Plan and related portions of the 2007
State Strategy. For this reason, and because EPA has addressed ARTBA's
general comments on preemption several times in earlier proceedings, we
are not addressing those general comments here.
Comment: AAR asserts that CARB's control measure known as ARB-OFRD-
02 anticipates a 90% NOX and PM reduction from the
uncontrolled baseline and projects a 4.3 tons per day (tpd) of
NOX emissions reductions in the South Coast by 2014. AAR
further asserts that, as such, ARB-OFRD-02 is not consistent with the
timeframe and emission reductions levels contained in EPA's regulations
for achieving emissions reductions from locomotive engines and
locomotive fuel.
Response: ARB-OFRD-02 is the identifier used in the 2007 South
Coast AQMP to refer to the State measure known as ``Accelerated
Introduction of Cleaner Locomotives.'' The State's measure anticipates
that EPA's ``tier 4'' locomotive standards, proposed in 2007 and
promulgated in 2008 (73 FR 25098, May 6, 2008), would likely not
provide significant additional emissions reductions of NOX
and PM from locomotives in the time necessary to contribute to
attainment of the PM2.5 NAAQS in the South Coast given an
attainment date of 2015. Thus, the control measure calls for CARB staff
``to work with the railroads to bring the cleanest locomotives into
California service'' (Revised Draft State Strategy (April 26, 2007),
page 114). As noted by AAR, the 2007 State Strategy estimates a
reduction of NOX of 4.3 tons per day (tpd) in 2014 in the
South Coast due to this measure. See page 61 of Revised Draft State
Strategy (April 26, 2007). However, the State Strategy indicates that
such estimates are for informational purposes only. CARB has not
committed to achieving the 4.3 tpd reduction specifically from this
measure but has committed to aggregate emissions reductions that would
be achieved through any combination of measures.
Since adoption of the 2007 State Strategy, CARB staff have been
working with neighborhood groups, the railroads, and other interested
stakeholders to, among other things, develop emissions reduction
targets at certain rail yards in the South Coast to which the railroads
would commit (referred to as the ``2010 Commitments''). See CARB
Resolution 10-29 (June 24, 2010). Final approvals of the 2010
Commitments are still being negotiated, and there are no plans to
submit the 2010 Commitments as a part of the SIP; thus, our proposed
approval of the attainment demonstration for PM2.5 Plan does
not rely on any emissions reductions from this control measure (see 76
FR 41562, July 14, 2011, at 41571, Table 5), nor does today's final
approval. Therefore, the difference in the timing of emissions
reductions under ARB-OFRD-02 relative to those expected under EPA's
locomotive regulations does not
[[Page 69941]]
undermine our approval of the South Coast PM2.5 Plan.
F. Comments on Enforceable Commitments
Comment: California Communities Against Toxics, Communities for a
Better Environment, Natural Resources Defense Council and Physicians
for Social Responsibility--Los Angeles (commenters) assert that the
South Coast PM2.5 Plan fails to include enforceable control
measures that meet the requirements of the CAA and that EPA cannot rely
on ``enforceable commitments'' as a substitute for adopted control
measures to ``close the shortfall in the control strategy.'' Commenters
claim that EPA's action ``breaks with its long-standing interpretation
that an attainment SIP must include currently adopted emissions
limitations and other control measures'' that achieve the needed
emissions reductions. Specifically, commenters state that CAA sections
110(a)(2)(A) and 172(c)(6) require SIPs to contain ``enforceable
emission limitations * * * as may be necessary or appropriate'' to
achieve attainment. Commenters note that CAA 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 certain date, and that this
provision provides that the conditional approval automatically becomes
a disapproval if the State fails to comply with the commitment within
one year. Commenters state that courts have rejected similar attempts
to circumvent the statute's limitations on conditional approvals and
cite 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. In further support of their assertions that EPA may
not allow States to submit ``promises to develop unspecified future
enforceable measures as a substitute for'' enforceable control
measures, the commenters reference CAA sections 107(a), 110(a)(1),
110(a)(2)(A), 110(a)(2)(C), the nonattainment plan requirements of part
D, title I of the Act, EPA regulations in 40 CFR part 51, and EPA's
General Preamble for the Implementation of Title I of the Clean Air Act
Amendments (57 FR 13498, 13567 (April 16, 1992).
Response: As pertinent to the comment, Sierra Club involved EPA's
conditional approval under section 110(k)(4) of SIPs lacking in their
entirety RACM and 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) (BCCA). 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 emission 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. section 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. section 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 commenters' 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: Commenters state that EPA has not determined whether the
commitments are in fact enforceable. Commenters state 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, commenters cite 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, commenters single 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, the commenters
reason, 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. Commenters state that the commitments in the South
Coast SIP are so vague that they cannot possibly be enforced against
the State and that there is no requirement that the State take any
specific actions. The commenters conclude that the commitments cannot
be considered
[[Page 69942]]
enforceable under Ninth Circuit case law, because they are not
strategies based on enforceable emissions standards or limitations.
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.\29\ As observed in
Conservation Law Foundation, Inc. v. James Busey et al., 79 F.3d 1250,
1258 (1st Cir. 1996):
\29\ EPA can also enforce SIP commitments pursuant to CAA
section 113.
---------------------------------------------------------------------------
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 2007 AQMP in detail in our
proposal and amended proposal (75 FR 71294 and 76 FR 41562). 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 South Coast by April 5, 2015.
For the South Coast, the State's emissions reductions commitments, as
submitted in 2007 and revised by the 2009 State Strategy Update were to
achieve 152 tpd NOX, 46 tpd VOC, 9 tpd of direct
PM2.5 and 20 tpd SOX in the South Coast area by
2014. See 76 FR 41562, at 41572; 2009 State Strategy Status Report, p.
20.\30\
---------------------------------------------------------------------------
\30\ We note that in our proposed rule at 76 FR 41562, p. 41571
we reference the 2007 State Strategy, p. 63 and CARB Resolution 07-
28, Attachment B. p. 6. Page 63 of the 2007 State Strategy was
replaced with the information in the 2009 State Strategy Status
Report.
---------------------------------------------------------------------------
The SCAQMD's commitments as submitted in 2007 (and revised in 2011)
were to achieve 10.8 tpd NOX, 10.4 tpd VOC, 2.9 tpd direct
PM2.5 and 2.9 tpd SOX by 2014. See 76 FR 41562,
Table 2, at 41569; see also 2011 Progress Report, Appendix F, Table 1,
and SCAQMD Board Resolution 11-9, March 4, 2011. As discussed above,
the 2011 SIP revisions revised the State's total emissions reduction
commitments to 129 tpd of NOX, 44 tpd of VOC, 9 tpd of
PM2.5, and 41 tpd of SOX, which the State remains
obligated to achieve through the adoption of enforceable measures by
2014. See TSD, Table F-9; see also CARB Resolution 07-28, Attachment B
at p. 4.
Thus, CARB's commitments are clearly distinguishable from the
aspirational goals, i.e., the SIP's overall objectives, identified by
the Bayview court and cited by the commenter. CARB's commitments here
are to adopt and implement measures that will achieve specific
reductions of NOX, VOC, direct PM2.5 and
SOX emissions by 2014. These are not mere aspirational goals
to ultimately achieve the standards. Rather, the State and District
have committed to adopt enforceable measures no later than 2014 that
will achieve these specific amounts of emission 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 emission
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 emission
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
emission 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.
Commenters 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% ridership estimate was adopted by the
Metropolitan Transportation Commission (MTC), the implementing agency,
as the actual target. Plaintiffs subsequently attempted to enforce the
15% ridership increase. The court found that the 15% 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
[[Page 69943]]
South Coast 2007 AQMP 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 emission
reductions that they could achieve, how they could be achieved and the
time by which these reductions will be achieved, i.e., by 2014.
Commenters also cite 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 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.\31\ 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.
---------------------------------------------------------------------------
\31\ 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 emission
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.
---------------------------------------------------------------------------
Commenters' reliance on CBE II is misplaced. It also involves in
part the 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 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 emission 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 emission
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 a commitment must be clear
in terms of what is required, e.g., a specified amount of emission
reductions or the achievement of a specified amount of progress (i.e.,
RFP). CARB's and the District's commitments are thus clearly a specific
enforceable strategy rather than an unenforceable aspirational goal.
Commenter'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 ``CARB 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 which 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. section 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 commenters cite the Ninth Circuit's El Comite opinion, its
utility in analyzing the CARB and District commitments here is limited
to that court's agreement with the district court's conclusion that
neither the baseline nor the methodology qualifies as an independently
enforceable aspect of the SIP. Rather, it is the district court's
opinion, in distinguishing the commitments in CBE and Bayview, that
provides insight into the situation at issue in our action. As the
court recognized, a baseline inventory or the methodology used to
calculate it, is not a measure to reduce emissions. It instead
``identifies emission sources and then quantifies the amount of
emissions attributed to those sources.'' In contrast,
[[Page 69944]]
as stated previously, in the 2007 State Strategy (revised 2009 and
2011) and 2007 AQMP, CARB and the District commits to adopt and
implement measures sufficient to achieve specified emission reductions
by a date certain. As described above, a number of courts have found
commitments substantially similar to CARB's here to be enforceable
under CAA section 304(a).
Comment: Commenters state that the commitments do not satisfy EPA's
three-part test for enforceable commitments. First, commenters state
that EPA admits that the State and District have no idea at all how
they will achieve the remaining 11% of the NOX, 3% of VOC
and 8% of PM2.5. Commenters state that this is hardly a
``limited'' or minimal portion of the long-overdue reductions and cite
BCCA Appeal Group v. EPA, 355 F.3d 817, 840-41 (5th Cir. 2003)
(commitments for only six percent of the overall reductions).
Commenters state it is arbitrary and capricious for EPA to conclude
that 11% is approximately within the 10% range that EPA has
historically accepted in approving attainment demonstrations.
Commenters believe EPA's strategy trivializes the task of achieving 70
tpd of reductions over the next 3 years and believes it is even more
arbitrary given the importance of NOX reductions for
attainment.
Response: We disagree with the commenters' assertion that CARB and
the District do not know how they will achieve the remaining
NOX, VOC, and PM2.5 reductions needed for
attainment in the South Coast. As discussed in our amended proposal,
the South Coast 2007 AQMD relies principally on adopted rules approved
into the SIP or given a waiver under CAA section 209 to achieve the
emissions reductions needed to attain the 1997 PM2.5
standards in the South Coast by April 5, 2015, including baseline (pre-
2007) measures that continue to achieve emission reductions through
2014. 76 FR at 41576. The balance of the needed reductions is currently
in the form of enforceable commitments that account for 11% of the
NOX, 7% of the VOC and 8% of the PM2.5 emission
reductions needed from 2002 levels to attain.\32\ 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 n. 31. Although CARB's and the District's
enforceable commitments to additional emission 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. See id. at 41576, 41577.
---------------------------------------------------------------------------
\32\ See Table 3 of this notice.
---------------------------------------------------------------------------
We also disagree with the commenters' assertions that these
remaining amounts are not ``limited'' and that it is arbitrary and
capricious for EPA to conclude that 11% is approximately within the 10%
range that EPA has historically accepted as appropriate for enforceable
commitments in approving attainment demonstrations. The State of Texas'
enforceable commitment for the Houston/Galveston area, the approval of
which was upheld by the Fifth Circuit Court of Appeals in BCCA,
represented 6 percent of the reductions needed for attainment in the
area. We note that the court in BCCA did not conclude that any amount
greater than 6 percent of the reductions needed would be unreasonable.
We believe that the 11% of NOX, 7% of VOC and 8% of
PM2.5 reductions, as stated in our amended proposal, also
fit within the parameters of a ``limited'' amount of the reductions
needed for attainment and nothing in the BCCA decision contravenes
that. See also 76 FR 41562 at 41576, n. 34.
Finally, we disagree with the commenters' assertion that EPA's
strategy ``trivializes'' the task of achieving 70 tpd of NOX
reductions over the next three years. As explained in our amended
proposal, CARB has adopted and submitted a 2009 State Strategy Status
Report and a 2011 Progress Report, which update and revise the 2007
State Strategy. These reports show that CARB has made significant
progress in meeting its enforceable commitments for the South Coast and
several other nonattainment areas in California. Additional ongoing
programs that address locomotives, recreational boats, and other
measures have yet to be quantified but are expected to reduce
NOX and direct PM2.5 emissions in the South Coast
by 2014. See 2011 Progress Report, Appendix E, page 2. The District has
already exceeded its commitment for reducing VOC and SOX
emissions and is working to meet the commitment to reduce
NOX and directly-emitted PM2.5. See Tables 2 and
3. The District is also continuing to work to identify and adopt
additional measures that will reduce emissions. Beyond the rules
discussed above, both CARB and the District have well-funded incentive
grant programs to reduce emissions from the on- and offroad engine
fleets. Reductions from several of these programs have yet to be
quantified and/or credited in the attainment demonstration. Finally, we
note that the South Coast has experienced significant improvements in
its PM2.5 air quality in the past few years.
Given the evidence of the State's and District's efforts to date
and their continuing efforts to reduce emissions, we conclude that the
State and District are capable of meeting their enforceable commitments
to achieve the necessary reductions needed to attain the 1997
PM2.5 standards in the South Coast nonattainment area by
April 5, 2015.
Comment: For the second factor, commenters state that the State has
not shown that they are capable of achieving its reductions because
they have done little more than assert that they are committed to
meeting the requirements of federal law--but have not included any
indication of how they will meet the requirements. Commenters assert
that given the slow progress to date, it seems unlikely that the
reductions of the magnitude remaining--70.5 tpd NOX, 11 tpd
VOC and 1.3 tpd PM2.5--can be achieved without a plan more
focused and robust than the vague commitment to somehow get the needed
reductions.
Response: We disagree. As explained in our amended proposal, the
State's and District's efforts to date and their continuing efforts to
reduce emissions (discussed above and in our proposed rule), indicate
they are capable of meeting their specific enforceable commitments to
achieve the necessary reductions by 2014. 76 FR 41562 at 41568-41572
and 41575-41577 and July 2011 TSD at Sections II.D and II.F.
Comment: Finally, for the third factor, commenters state that it is
unclear with the changing landscape of many of the measures whether any
of these commitments will take place within a reasonable and
appropriate period of time. Commenters state that EPA fails to explain
how in the context of an approval in late 2011, the state and air
district will be able to complete even the requisite rulemaking
process, much less actually achieve the reductions required by 2014.
Response: Commenters assume that the only path open to the State to
fulfill its commitments is the adoption of new measures. We disagree.
The list of measures provided by CARB in the 2011 Progress Report,
Appendix B, Table B-1. represents a fraction of the rules and programs
adopted and implemented by the State. See TSD Appendix A. CARB
[[Page 69945]]
has not provided, nor has it been required to provide, an evaluation of
the effectiveness of its entire control program in reducing emissions
in the South Coast area. Given that the State has preliminarily
demonstrated, based on a limited set of measures, that all of the
needed SOX reductions, and approximately 90 percent or more
of the reductions of NOX, VOC, and PM2.5
reductions needed for attainment of the 1997 PM2.5 standards
in the South Coast have already been achieved, we believe it is
reasonable to conclude that the balance of the needed reductions will
also be achieved by 2014. See 76 FR 41562, p. 41575, Table 7 and
September 2011 TSD, Table F-10.
Comment: Commenters assert that although EPA has previously allowed
conditional approval of SIPs based on ``commitments to complete the
adoption of specific enforceable measures within a short period of
time,'' EPA has never before allowed a five-year extension of the
statutory deadline for the submission of control measures yet to be
specified by the State.
Response: EPA is not granting a five-year extension under section
110(k)(4) of the CAA. Rather, EPA is granting California's request for
an attainment date extension to April 5, 2015 under CAA section
172(a)(2)(A). We are granting this extension of the attainment date for
the reasons discussed in our amended proposal. 76 FR 41562 at 41577.
Comment: NRDC asserts that EPA is allowing the South Coast to
``adjust'' the 2014 baseline emissions inventory to account for
California's recent slowdown in economic growth. NRDC states that the
Act requires that improvements in air quality are the result of
permanent and enforceable reductions in emissions.
Response: The commenters correctly note that the 2014 baseline
emissions inventory in the South Coast 2007 AQMP have been adjusted to
account for California's recent slowdown in economic growth. As
explained in Section II.B (Emission Inventory) of the TSD, however,
CARB's revisions to the 2014 baseline inventory took into account not
only updates to the State's economic forecasts but also a variety of
other factors (out-of-state 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.
The commenters' assertion that the CAA requires improvements in air
quality to result from permanent and enforceable emissions reductions
appears to be based on an incorrect understanding of the statutory
basis for EPA's action. EPA is not determining that emission
``reductions'' related to the economic recession are ``enforceable''
measures under CAA sections 110(a)(2)(A) and 172(c)(6). 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, base year and
baseline emissions inventories provide the basis for, among other
things, the State's development of progress milestones and control
strategies for attaining the NAAQS consistent with the requirements of
CAA sections 172(c)(1) and 172(c)(2). See General Preamble at 13503-
13510 (discussing planning inventory requirements for ozone
nonattainment areas). 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 growth
projections. All projections of future emissions-generating activity,
including the projections in the South Coast 2007 AQMP as originally
submitted, are based on projections of population, employment and other
growth factors, 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 the South Coast 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 South Coast 2007 AQMP and 2007 State Strategy. 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, the commenters provides no
information to undermine the State's revised economic data or the
related changes to the projected inventories.
For these reasons and as explained in our amended proposal (76 FR
41562, at 41567), we are concluding that CARB's 2011 SIP revisions,
which updated the State's projected (``baseline'') emissions
inventories based on improved methodologies for estimating emissions
and more recent growth factors, reduced the total amount of emission
reductions needed for attainment and that the control strategy in the
South Coast 2007 AQMP and 2007 State Strategy, as revised in 2011,
demonstrates expeditious attainment of the 1997 PM2.5 NAAQS
in the South Coast.
G. Comments on Attainment Demonstration and Modeling
Comment: NRDC comments that the attainment demonstration cannot be
approved because of changes in the inventory. NRDC states that EPA's
new proposal to approve the air quality modeling in the 2007
PM2.5 Plan based on the supplemental documentation provided
by CARB does not address the fundamental problem with the modeling,
which is that the modeling fails to provide an accurate picture of
whether the region will attain. EPA even admits that ``Ideally, new
attainment demonstration modeling would be performed to evaluate the
effect of [the diesel rule updates] * * *'' 76 FR at 41,573. However,
the Clean Air Act does not allow EPA to approve inventories it knows to
be erroneous because new modeling would be too hard. EPA must analyze
how these errors in the base year inventory actually affect the
attainment demonstration. EPA attempts
[[Page 69946]]
to do this by looking at sensitivity modeling submitted by CARB, which
was meant to determine the ``relative effectiveness'' on design values
of additional reductions of NOX and PM2.5
emissions in the attainment year. EPA claims that the results of this
sensitivity modeling support its conclusion that new attainment
demonstration modeling would be unnecessary. The obvious flaw in EPA's
reasoning is that it is calculating attainment year design value
changes, to the hundredth of a percent, from attainment year design
values that it has already admitted are erroneous. EPA cannot justify
its failure to require updated attainment modeling by back-calculating
from the wrong 2014 design values to claim that the changes to the
inventory would be too small to affect the design values. Accordingly,
this approach is arbitrary and capricious.
Response: While some large emission inventory changes might indeed
necessitate new modeling, EPA does not agree that the inventory changes
were large enough to substantially affect the modeling conclusions, or
to invalidate the attainment demonstration. Ideally new modeling would
be performed when an area's emission 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
judgement call about when changes are large enough to merit new
modeling. An important criterion in making this judgement is whether
the changes would affect the conclusion that the Plan's emission
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%. (EPA Guidance
Appendix B) Small changes in the emission inventory are likely to have
a small impact on future year design values. This is not to discount
the importance of an accurate emission inventory, but rather to make
the point that relatively small changes in inventory estimates do not
necessarily invalidate a model application. EPA believes that the base
year emission decreases due to the inventory updates are small enough
to leave the overall modeling conclusions unchanged. This is a
quantitative showing that the emission updates are small enough that
they do not invalidate the attainment demonstration.
EPA does not agree with NRDC 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. EPA believes 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 based on
model sensitivity does make a number of assumptions: however, the
original modeling is basically sound in how it portrays South Coast Air
Basin's atmospheric chemistry and transport. The emission 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 hold well enough that the procedure
provides strong evidence for the attainment demonstration's validity.
For regulatory purposes, administrative necessity requires a
judgement call about whether such problems are substantial enough to
compromise regulatory decisions. Years of effort by modeling experts
from regulatory agencies and academia went into developing the SC
modeling; it underwent successful diagnostic testing; and it performs
well. EPA believes that it should not be discarded, and that it
continues to constitute an adequate basis for the attainment
demonstration.
As for the small magnitude 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 emission
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.
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 with a lot of solid work behind it. The emission
inventory update, involving small NOX changes, would also
yield relatively small design value changes. Of course, this assumes
the basic soundness of the original modeling, as discussed above.
Comment: NRDC comments that EPA should not approve the attainment
demonstration because it fails to identify and address elevated
PM2.5 concentrations in the near-highway environment. In
addition, NRDC asserts that SCAQMD's monitoring network is deficient
because none of the monitoring stations are within 300 meters of a
major freeway.
Response: The PM2.5 Implementation Rule requires that
states prepare attainment demonstrations through modeling that is
``consistent with EPA's modeling guidance,'' and the modeling guidance
explains that future air quality should be estimated at current
monitoring sites. 72 FR 20586 (April 25, 2007); SCAQMD followed EPA's
modeling guidance in developing its air quality modeling and attainment
demonstration.\33\
---------------------------------------------------------------------------
\33\ ``Guidance on the Use of Models and Other Analyses for
Demonstrating Attainment of Air Quality Goals for Ozone,
PM2.5, and Regional Haze,'' prepared by EPA's Office of
Air Quality Planning and Standards, at 15 (April 2007).
---------------------------------------------------------------------------
With respect to SCAQMD's monitoring network, EPA has approved
previous Annual Monitoring Network Plans (2007-2010) submitted by the
District and determined that the PM2.5 network covered under
the Annual Monitoring Network Plan meets regulatory requirements. EPA's
monitoring rules do not require placement of PM2.5 monitors
in micro or middle scale locations.\34\ The requirements for the Annual
Monitoring Network Plan are found in 40 CFR 58.10.
---------------------------------------------------------------------------
\34\ 71 FR 61236 (October 17, 2006).
---------------------------------------------------------------------------
H. Comments on the Reasonable Further Progress Demonstration
Comment: CBE commented that the RFP demonstration is unapprovable
due to shortfalls in SO2 in 2009 and in NOX and
PM2.5 in 2012.
Response: Under the PM2.5 implementation rule, an RFP
plan must demonstrate that in each applicable milestone year, emissions
will be at a level consistent with generally linear progress in
reducing emissions between the base year and the attainment year. See
40 CFR 51.1009(d). The goal of the RFP requirements is for areas to
achieve generally linear progress toward attainment. The RFP
requirements were included in the Clean Air Act to assure steady
progress toward attaining air quality standards, as opposed to
deferring implementation of all measures until the end date by which
the standard is to be attained. 75 FR 20586, at 20633.
As we noted in our July 14, 2011 proposed rulemaking, although the
South Coast experienced a shortfall of 9 tpd for SOX in
2009, this shortfall is made up by the reductions estimated for 2012,
and the area meets its 2012 SOX milestone. We note that the
shortfall in 2012 for NOX is less than 1% of the 2002
baseline inventory, and the shortfall in PM2.5 reductions in
2012 is also about 1% of the 2002 baseline inventory, while 2012
SOX reduction
[[Page 69947]]
milestones are met and 2012 VOC reduction milestones are exceeded by 20
tpd. (TSD, p. 116) In addition, we noted that we were not evaluating
the provisions of the updated South Coast 2007 AQMP that address
contingency measures for failure to meet the 2009 RFP benchmarks.
Information available to EPA and the public shows that the South Coast
met its 2009 RFP benchmarks for 2009 for directly emitted
PM2.5, NOX, and VOC. SOX emissions are
higher than the linear benchmark but achieve the benchmark levels in
2012 due to recently adopted rules controlling emissions of
SOX. See 2011 Progress Report, Table C-2 and section II.H of
the TSD. Therefore, contingency measures for failure to meet the 2009
RFP benchmark no longer have meaning or effect under the CAA and
therefore do not require any review or action by EPA.
In addition, as noted above, the purpose of RFP contingency
measures is to provide continued progress while the SIP is being
revised to meet a missed RFP milestone. Failure to meet the 2009
benchmark would have required California to revise the South Coast 2007
AQMP to assure that the next milestone was met and that the plan still
provided for attainment. California has, in fact, prepared and
submitted a revision to the South Coast 2007 AQMP that provides for RFP
in 2012 and for attainment by 2015. (TSD, p. 122) For all of these
reasons we conclude that the South Coast 2007 AQMP provides for
generally linear progress towards attainment, consistent with the
requirements of CAA section 172(c)(2) and 40 CFR 51.1009. The State has
also submitted a SIP revision to address the missed 2009 SOX
milestone which assures that the 2012 SOX milestone will be
met (the 2011 Progress Report).
I. Comments on Contingency Measures
Comment: In their January 20, 2011 comment letter, the SCAQMD
agrees that the SIP must contain contingency measures that should be
implemented if the area fails to meet the NAAQS by the applicable
attainment date. However, the District argues that the requirement for
these measures to be fully adopted in rule form at time of plan
submittal is unrealistic.
Response: EPA understands that for some areas the CAA requirement
for contingency measures is difficult; however, the Act is clear on
these requirements. Under CAA section 172(c)(9), all PM2.5
attainment plans must include specific contingency measures to be
implemented if an area fails to meet RFP (RFP contingency measures) and
contingency measures to be implemented if an area fails to attain the
PM2.5 NAAQS by the applicable attainment date (attainment
contingency measures). These contingency measures must be fully adopted
rules or control measures that are ready to be implemented quickly
without significant additional action by the State. 40 CFR 51.1012
(``contingency measures must take effect without significant further
action by the State or EPA''); see also 57 FR 13498, at 13510-11. They
must also be measures not relied on in the plan to demonstrate RFP or
attainment and should provide SIP-creditable emissions reductions
equivalent to one year of RFP. Finally, the SIP should contain trigger
mechanisms for the contingency measures and specify a schedule for
their implementation. 72 FR 20586, p. 20642. We noted that the purpose
of RFP contingency measures is to provide continued progress while the
SIP is being revised to meet a missed RFP milestone. See 76 FR 41562,
at 41580. This timely continued progress would not be possible if
significant additional rulemaking action needed to be taken at the
District or State level before a measure could be fully adopted and
implemented. For the reasons provided in both of our proposals, we are
disapproving the proposed contingency measures in the South Coast 2007
AQMP, which include measures that are not yet fully adopted, because
they do not meet the requirements for contingency measures in CAA
section 172(c)(9) and 40 CFR 51.1012. See 76 FR 41562, at 41580.
Comment: In its August 12, 2011 comment letter, the SCAQMD
recognizes that the SIP must contain contingency measures that should
be implemented if the area fails to meet the NAAQS by the applicable
attainment date; however, they again state that they believe the
requirement to have such measures adopted at the time of plan submittal
is unrealistic. They point out that under the California Clean Air Act,
the SCAQMD is required to evaluate all feasible measures in SIP
development to achieve the maximum emissions reductions possible.
Therefore, they believe it is unreasonable to expect that there are
additional rules that would achieve one year's worth of RFP reductions
beyond what is already adopted. Nevertheless, the SCAQMD outlines a
three pronged approach to demonstrate that sufficient emissions
reductions can be identified to meet the requirement for 1-year's worth
of RFP reductions for contingency measures. The three prongs are (1)
PM2.5 air quality improvements have significantly exceeded
the RFP milestone targets by more than one year's worth of reductions,
(2) relying on continued emissions reductions beyond 2014 based on
adopted regulations for the 2007 ozone plan, and (3) quantifying excess
emissions reductions that were not originally included in the 2007
PM2.5 SIP. The District provides additional detailed
information for each of these prongs in an attachment to their
comments.
Response: EPA understands the unique air quality challenges in the
South Coast area and appreciates the District's efforts to identify
additional measures that may serve as contingency measures for purposes
of the 1997 PM2.5 NAAQS. We note, however, that contingency
measures should consist of available control measures beyond those
required to attain the standards, and may go beyond those measures
considered to be RACM for the area. See 72 FR 20586 at 20643. We commit
to work with the State and District to identify new or existing control
measures and programs not currently included in the South Coast 2007
AQMP that may satisfy the CAA section 172(c)(9) requirements for
contingency measures for purposes of the 1997 PM2.5 NAAQS.
Comment: In both their January 21, 2011 and August 15, 2011 comment
letters, NRDC supports our proposed disapproval of the contingency
measures. NRDC raises two issues related to the contingency measures.
First, it asserts that the contingency measures lack enforceability.
Second, they note that the District does not describe the criteria
regarding how the monies in the proposed ozone nonattainment fee
contingency measure will be spent, and does not provide mechanisms for
ensuring that emissions reductions are enforceable. (We address NRDC's
third comment about contingency measures in relation to RACM in our
responses to RACM comments above).
Response: In both our 2010 proposal and our 2011 amended proposal,
we proposed to disapprove the Plan's contingency measure provisions and
we are disapproving those provisions in today's action. See 75 FR
71294, 71311-71312 and 76 FR 41562, 41580. In particular, we stated the
following: The South Coast 2007 AQMP includes suggestions for several
measures that do not meet the CAA's minimum requirements (e.g., no
additional rulemaking, surplus to attainment and RFP needs). The AQMP,
however, indicates that the measures proposed by the District are not
adopted, and does not quantify the expected emissions
[[Page 69948]]
reductions in order to gauge whether they provide reductions equivalent
to one year's worth of RFP. For the reasons stated above, we are
disapproving the District's contingency measure provisions in the South
Coast 2007 AQMP for PM2.5. 76 FR 41562, at 415780 (July 14,
2011).
Regarding NRDC's second point, we agree that for CTY-02, ``Clean
Air Act Emission Fees for Major Stationary Sources,'' the District does
not describe how the monies for the CAA nonattainment fees will be
spent, nor does it provide mechanisms for ensuring that emissions
reductions are enforceable. These are among the reasons that we
provided for disapproving this contingency measure in both our November
2010 and July 2011 proposed rulemakings. We also noted that the 2007
AQMP does not identify the quantity of emissions reductions that the
District intended to use to meet the contingency measure requirement
and therefore, we are unable to determine if the proposed measures 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 the measures submitted did not currently meet the
CAA requirements for contingency measures.
III. Approval Status of the Control Strategy Measures and Enforceable
Emissions Reductions Commitments
A. Approval Status of Control Strategy Measures
We describe CARB's and the District's commitments in the 2007 State
Strategy (as revised in 2009 and 2011) and the South Coast 2007 AQMP in
detail in our amended proposal. See 76 FR 41562, at 41575-41577. As
part of its control strategy for attaining the PM2.5
standards in the South Coast, the District made specific commitments to
adopt or revise nineteen measures for SIP credit on the schedule
identified in the revised 2007 AQMP. See 2011 Progress Report, Appendix
F, Tables 2 through 5. The District has now completed its adoption
actions and EPA has approved most of the adopted rules. See Table 1
below. The rules we have not yet approved we have not credited with
emissions reductions in the attainment demonstration.
Table 1--Approval and Submittal Status of District Rules in the South
Coast 2007 AQMP
------------------------------------------------------------------------
Current SIP
District rule Adoption date approval status
------------------------------------------------------------------------
Rule 445--Woodburning fireplaces 03/07/08.......... 74 FR 27716, 6/11/
and wood stoves. 09.
Rule 461--Gasoline transfer and 03/07/08.......... 71 FR 18216, 4/11/
dispensing. 06.
Rule 1110.2--Liquid and gaseous 02/01/08.......... 74 FR 18995, 4/27/
fuels--stationary ICEs. 09.
Rule 1111--Further NOX 11/06/09.......... 75 FR 46845, 08/04/
reductions from space heaters. 10.
Rule 1127--Livestock Waste...... 08/06/04.......... Under EPA review.
Rule 1138--Restaurant Operations 2012.............. Most recent
approval: 66 FR
36170, 7/11/01.
Rule 1143--Consumer Paint 12/03/10.......... Proposed for
Thinners and Multi-Purpose approval 76 FR
Solvents. 41744, 07/15/11.
Rule 1144--Vanishing oils and 07/09/10.......... Proposed for
rust inhibitors. approval 76 FR
41744, 07/15/11.
Rule 1145--Plastic, Rubber, 12/3/04........... 75 FR 40726, 07/14/
Leather and Glass Coatings. 10.
Rule 1146--NOX from industrial, 09/05/08.......... Proposed limited
institutional, commercial approval/limited
boilers, steam gens, and disapproval 76 FR
process heaters. 40303, 7/8/11.
Rule 1146.1--NOX from small 09/05/08.......... Proposed limited
industrial, institutional, approval/limited
commercial boilers, steam gens, disapproval 76 FR
and process heaters. 40303, 7/8/11.
Rule 1147--NOX reductions from 12/05/08.......... 75 FR 46845, 08/04/
miscellaneous sources. 10.
Rule 1149--Storage Tank and 05/02/08.......... 74 FR 67821, 12/21/
Pipeline Cleaning and Degassing. 09.
Rule 2002--Further SOX 11/4/10........... 76 FR 50128, 8/12/
reductions from RECLAIM. 11.
Rule 2301--Indirect Source 2012.............. ..................
Review.
Refinery Pilot Program.......... Not yet adopted... N/A.
SOON program.................... Submitted......... Not yet acted on.
AB923 Light and medium duty No rules N/A.
vehicle high emitter program. associated with
these measures.
AB923 Light and medium duty No rules N/A.
vehicle high emitter program. associated with
these measures.
------------------------------------------------------------------------
As part of its control strategy for attaining the PM2.5
standards in the South Coast, 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.
[[Page 69949]]
Table 2--Revised 2007 State Strategy Defined Measures Schedule for Consideration and Current Status
----------------------------------------------------------------------------------------------------------------
State measures Expected action year Implementation date Current status
----------------------------------------------------------------------------------------------------------------
Defined Measures in 2007 State Strategy
----------------------------------------------------------------------------------------------------------------
Smog Check Improvements........ 2007-2009.................... 2008-2010; 2013.............. Elements approved
75 FR 38023
(July 1,
2010).\35\
Expanded Vehicle Retirement (AB 2007......................... 2009......................... Adopted by CARB,
118). June 2009; by
BAR, September
2010.
Modifications to Reformulated 2007......................... 2010......................... Approved 75 FR
Gasoline Program. 26653 (May 12,
2010).
Cleaner In-use Heavy Duty 2007, 2008, 2010............. 2011-2015.................... Proposed approval
Trucks. 76 FR 40562,
July 11, 2011.
Auxiliary Ship Cold Ironing and 2007-2008.................... 2010......................... Adopted December,
Other Clean Technologies. 2007.
Cleaner Main Ship Engines and Fuel: 2008-2011.............. Fuel: 2009-2-15.............. Proposed approval
Fuels. Engines: 2008................ Engines: 2011................ 76 FR 40562,
July 11, 2011.
Port Truck Modernization....... 2007, 2008, 2010............. 2008-2020.................... Adopted December
2007 and
December 2008.
Accelerated Introduction of 2008......................... 2012......................... Prop 1B 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.
Clean Up Existing Harbor Craft. 2007, 2010................... 2009-2018.................... Adopted November
2007, revised
June 2010.
Cleaner In-Use Off-Road 2007, 2010................... 2009......................... Waiver action
Equipment. pending.
New Emissions Standards for 2013......................... tbd.......................... Partially
Recreational Boats. adopted, July,
2008; additional
action expected
2013.
Expanded Off-Road Recreational 2013......................... tbd.......................... Partially
Vehicle Emissions Standards. adopted, July,
2008; additional
action expected
2013.
Enhanced Vapor Recovery for.... 2008......................... ............................. Adopted June,
2007.
Above Ground Storage Tanks..... ............................. 2009-2016....................
Additional Evaporative 2009......................... 2010-2012.................... Partial adoption:
Emissions Standards. September, 2008
(outboard marine
tanks).
Consumer Products Program (I & 2008, 2009, 2011............. 2010-2014.................... Approved, 74 FR
II). 57074 (November
4, 2009), 76 FR
27613 (May 12,
2011), and
proposed
approval of 2011
rule signed
September 28,
2011.
----------------------------------------------------------------------------------------------------------------
Sources: 2009 State Strategy Status Report, p. 23 (footnotes in original not included) and 2011 Progress Report,
Appendix B, Table B-1. Additional information from http://www.ca.arb.gov. Only defined measures with
PM2.5,VOC, SOX or NOX reductions in South Coast are shown here.
Generally speaking, EPA will approve a State plan that takes
emissions reduction credit for control measures only where EPA has
approved the measures 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 14, 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 South
Coast PM2.5 Plan. See 76 FR at 41562, 41575 (Table 7). Three
specific CARB rules on which the attainment demonstration relies
include the Truck Rule, Drayage Truck Rule, and Ocean-Going Vessel
(OGV) Rule. We proposed approval of all three 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 plan 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.
---------------------------------------------------------------------------
\35\ 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. See CARB Progress Report Supplement,
Attachment 5.
---------------------------------------------------------------------------
We are nonetheless allowing the plan's attainment demonstration,
and our final approval of it, to rely on the emissions reductions from
the three CARB rules for the following reasons:
All three rules have been adopted by CARB and submitted to
EPA as a revision to the California SIP,\36\ and the adopted versions
are essentially the same as those for which EPA proposed approval;
---------------------------------------------------------------------------
\36\ The Truck Rule and Drayage Truck Rules were included in a
SIP submittal dated September 21, 2011, and the OGV Rule was
included in a SIP submittal also dated September 21, 2011. We have
placed both of these SIP submittals in the docket for this
rulemaking.
---------------------------------------------------------------------------
The comments that we have received on our proposed
approval of the three CARB rules (truck rule, drayage truck rule, and
ocean-going vessel 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 a 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; \37\
---------------------------------------------------------------------------
\37\ See letters 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 and the OGV Rule 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. CARB has already submitted
the OGV Rule to OAL. Under California law, OAL must take action
within 30 working days.
---------------------------------------------------------------------------
[[Page 69950]]
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
completed in the near term and that, as a result, continued reliance by
the plan, 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.
B. Enforceable Emissions Reduction Commitments
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. 3-5 and 2009
State Strategy Status Report, pp. 20-21.
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 South
Coast by revising the total reductions needed from District and State
control strategy measures to 44 tpd for VOC, 129 tpd for
NOX, and 41 tpd for SOX (the remaining reductions
needed for direct PM2.5 remained the same at 9 tpd). See
Table 3 below and July 2011 TSD, Table F-10.
We are approving the South Coast 2007 AQMP for attainment of the
1997 PM2.5 standards 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 the State's total emission reduction
commitment such that the State is now obligated to achieve 129 tpd of
NOX, 44 tpd of VOC, 41 tpd of SOX, and
9 tpd of PM2.5 reductions and reductions by 2014 through
enforceable control measures to provide for attainment of the 1997
PM2.5 NAAQS in the South Coast. See Table 3 below. The
commitment numbers in this table do not include reductions from
measures adopted by CARB and the District and approved or waived by EPA
following submittal of the South Coast AQMP in 2007.
Table 3--2014 Emissions Reductions Commitments for the South Coast PM2.5 Nonattainment Area
[Tons per average annual day in 2014]
----------------------------------------------------------------------------------------------------------------
NOX VOC Direct PM2.5 SOX
----------------------------------------------------------------------------------------------------------------
A................... Adjusted 2014 baseline 589 518 95 61
emissions level \1\.
B................... 2014 attainment target 460 474 86 20
level \2\.
C................... Reductions needed from 129 44 9 41
control strategy
measures (A-B).
D................... District commitments 10.8 10.4 2.9 2.9
\3\.
E................... CARB commitments (C-D) 118.2 33.6 6.1 38.1
----------------------------------------------------------------------------------------------------------------
\1\ From TSD, Table F-9.
\2\ See 76 FR 41562, 41573, fn 27.
\3\ See 2011 Progress Report, Appendix F, Table 1.
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. We are approving the
attainment demonstration in the South Coast 2007 AQMP to address the
1997 PM2.5 standards, based in part on these enforceable
commitments. See 76 FR 41562, at 41577.
Table 4--Reductions Needed for Attainment Remaining as Commitments Based on SIP-Creditable Measures
[Tons per average annual day in 2014]
----------------------------------------------------------------------------------------------------------------
NOX VOC Direct PM2.5 SOX
----------------------------------------------------------------------------------------------------------------
A..................... Total reductions needed 633 370 13 33
from baseline and
control strategy
measures and other
adjustments to the
baseline to attain.
B..................... Reductions from baseline 504 326 4 -8
measures and
adjustments to baseline.
C..................... Total reductions from 59 20 8 41
approved measures.
D..................... Total reductions 70 25 1 0
remaining as
commitments (A-B-C).
E..................... Percent of total 11 7 8 0
reductions needed
remaining as
commitments.
----------------------------------------------------------------------------------------------------------------
As shown in Table 4, the majority of the emissions reductions that
the State projects are needed for attainment of the 1997
PM2.5 NAAQS in the South Coast by 2015 come from baseline
reductions. These baseline reductions reflect numerous adopted District
and State control measures which generally have been approved by EPA
either through the SIP process or the CAA section 209 waiver process,
in addition to the effect of the recent economic recession on
[[Page 69951]]
projected future inventories. See 2011 Progress Report, Appendix E and
Appendices A and B of the TSD. The remaining reductions needed for
attainment are to be achieved through the District's and CARB's
commitments to reduce emissions in the South Coast. These aggregate
commitments are shown in Line C of Table 3.\38\ Since the submittal of
the 2007 AQMP and 2007 State Strategy, the District and CARB have
adopted additional measures that can be credited toward their aggregate
emissions reduction commitments. The State's remaining enforceable
commitments are shown in line E of Table 3.
---------------------------------------------------------------------------
\38\ Enforceable control measures adopted and submitted by CARB
or the District and approved or waived by EPA may be credited
towards this aggregate commitment.
---------------------------------------------------------------------------
As we noted in our July 14, 2011 proposal, we cannot credit
District rules that have not been adopted, submitted to EPA, and
approved (see footnote a to Table 3, 76 FR 41562, at 41570) or certain
on-road or nonroad measures that have been given a waiver under CAA
section 209. In our July 14, 2011 proposal, we presented a table with
the State's remaining enforceable commitments (see 76 FR 41562, at
41575 (Table 7) of 70 tpd (11%) for NOX, 11 tpd (3%) for
VOC, 1 tpd (8%) for direct PM2.5, and 0 tpd (0%) for
SOX. Today, we are slightly modifying our estimate of the
State's remaining enforceable commitments for VOC. On July 15, 2011, we
published a direct final rule to approve South Coast Rules 1143
(Consumer Paint Thinners and Multi-Purpose Solvents) and 1144
(Metalworking Fluids and Direct-Contact Lubricants). See 76 FR 41744.
We received adverse comments on this action with respect to Rules 1143
and 1144, and thus withdrew the direct final rule (see 76 FR 54384,
September 1, 2011). We are responding to comments received on the
parallel proposal but have not yet finalized that action, and therefore
are adding those reductions to the State's remaining enforceable
commitment for VOC. The effect of this action is to slightly increase
the State's remaining enforceable commitment for VOC from 11 tpd to
24.5 tpd, an increase from 4% to 7%, and is reflected in Table 4 above.
This remaining commitment is still within the range of 10% for
enforceable commitments that we have historically accepted in approving
attainment demonstrations.
IV. Approval of Motor Vehicle Emissions Budgets
We noted in our July 14, 2011 proposal that CARB had posted
technical revisions to the motor vehicle emissions budgets on June 20,
2011 (see 76 FR 41562, at 41581 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 the
Assembly Bill (AB) 923 program (South Coast's light and medium duty
high emitter program). In our July 14, 2011 proposal, we proposed to
approve these revised updated budgets contingent on our receiving the
SIP submittal from CARB with the revised updated budgets before our
final action on the South Coast 2007 AQMP addressing the 1997
PM2.5 standards. These revised updated 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
posted these budgets (as posted by CARB on June 20, 2011) 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 on these budgets (see
the TSD, Section J). We also discuss the basis for our approval of the
budgets in the TSD, Section J. We identify the budgets that we are
approving today in Table 5 below.
EPA is also approving the trading mechanism in the State's
submittal for use in transportation conformity analyses by SCAG 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 10 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 area's
metropolitan planning organization, the Southern California Association
of Governments (SCAG) 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
emission changes, recession impacts and reductions from control
measures), CARB will need to provide SCAG with emission reductions
associated with the control measures incorporated into the budgets for
the appropriate analysis years in future conformity determinations so
that they can include these reductions 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 ton
(e.g. 11 tpd).
Table 5--Summary of Updated PM2.5 and PM2.5 Precursor Motor Vehicle Emissions Budgets for the South Coast PM2.5 Nonattainment Area
[Tons per annual average day]
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 2014
-----------------------------------------------------------------------------------------------------
Directly Directly
VOC NOX emitted PM2.5 VOC NOX emitted PM2.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Coast Air Basin............................. 154 326 37 132 290 35
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 69952]]
V. Final Actions and CAA Consequences of the Final Disapproval of the
Contingency Measure Provisions
A. Final Actions
For the reasons discussed in our July 14, 2011 proposal, EPA
approves, with the exception of the contingency measure provisions,
California's SIP for attaining the 1997 PM2.5 NAAQS in the
South Coast nonattainment area, and grants the State's request for an
extension of the attainment date to April 5, 2015. California's
PM2.5 attainment SIP for the South Coast nonattainment area
is composed of the relevant portions of the South Coast 2007 AQMP as
revised in 2011 and the South Coast-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 standards in
the South Coast nonattainment area.
Specifically, EPA approves under CAA section 110(k)(3) the
following elements of the South Coast PM2.5 attainment SIP:
1. The 2002 base year emissions inventory 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
sections 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 supporting air quality modeling
as meeting the requirements of CAA section 172(c)(1) and(6) and 40 CFR
51.1007;
5. The 2012 RFP and 2014 attainment year motor vehicle emissions
budgets, as submitted by CARB on July 29, 2011, because they are
derived from the approvable RFP and attainment demonstrations and meet
the requirements of CAA section 176(c) and 40 CFR part 93, subpart A;
and CARB's trading mechanism to be used in transportation conformity
analyses as allowed under 40 CFR 93.124;
6. SCAQMD's commitments to the adoption and implementation schedule
for specific control measures and to achieve specific aggregate
emissions reductions of direct PM2.5, NOX, VOC,
and SOX listed in Tables 1 through 5 in Appendix F of the
2011 Progress Report to the extent that these commitments have not yet
been fulfilled,; 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 emission reductions of NOX, VOC, direct
PM2.5 and SOX by 2014 sufficient to provide for
attainment of the 1997 PM2.5 NAAQS as described in CARB
Resolution 07-28, Attachment B at p. 3-5, the 2009 State Strategy
Status Report, p. 21, and in Table 3 above.
In addition, EPA concurs with the State's determination under 40
CFR 51.1002(c) that NOX, SOX, and VOC are
attainment plan precursors and that ammonia is not an attainment plan
precursor for attainment of the 1997 PM2.5 NAAQS in the
South Coast nonattainment area.
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
South Coast PM2.5 nonattainment area to April 5, 2015.
Finally, EPA disapproves under CAA section 110(k)(3) the
contingency measure provisions in the South Coast 2007 AQMP as failing
to meet the requirements of CAA section 172(c)(9) and 40 CFR 51.1012.
We also reject the assignment of 10 tpd of NOX to the
federal government.
B. CAA Consequences of the Final Disapproval of the Contingency Measure
Provisions
EPA is committed to working with the District, CARB and SCAG to
resolve the remaining issues with the SIP that make the current
PM2.5 attainment SIP for the South Coast nonattainment area
not fully approvable under the CAA and the PM2.5
implementation rule. However, because we are finalizing the disapproval
of the contingency measure provisions in the South Coast 2007 AQMP, the
offset sanction in CAA section 179(b)(2) will apply in the South Coast
PM2.5 nonattainment area 18 months after the effective date
of today's final disapproval. The 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
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 South Coast 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 emission 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, final disapproval would result
in a conformity freeze under which only projects in the first four
years of the most recent conforming RTP and TIP 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 a protective finding, however,
final disapproval of the contingency measures will not result in a
transportation conformity freeze in the South Coast 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
[[Page 69953]]
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 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.
[[Page 69954]]
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2). This rule will be effective on 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 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
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Oxides of nitrogen, Particulate
matter, Reporting and recordkeeping requirements, Volatile organic
compounds.
Dated: September 30, 2011.
Jared Blumenfeld,
Regional Administrator, Region 9.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52 [AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraphs (c)(397), (c)(398),
(c)(399), (c)(400), and (c)(401) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(397) A plan was submitted on November 16, 2007 by the
Governor's designee.
(i) [Reserved]
(ii) Additional Material.
(A) 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 South Coast air basin,
which represent 6.1 tons per day (tpd) of direct PM2.5, 38.1
tpd of SOX, 33.6 tpd of VOC and 118.2 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. 3-5, and modified by CARB
Resolution No. 09-34 (April 24, 2009) adopting the ``Status Report on
the State Strategy for California's 2007 State Implementation Plan
(SIP) and Proposed Revision to the SIP reflecting Implementation of the
2007 State Strategy,'' and by CARB Resolution 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.
(398) A plan was submitted on November 28, 2007 by the Governor's
designee.
(i) [Reserved]
(ii) Additional Material.
(A) South Coast Air Quality Management District.
(1) Final South Coast 2007 Air Quality Management Plan, adopted on
June 1, 2007.
(2) SCAQMD Governing Board Resolution 07-9, ``A Resolution of the
Governing Board of the South Coast Air Quality Management District
certifying the final Program Environmental Impact Report for the 2007
Air Quality Management Plan, adopting the Final 2007 Air Quality
Management Plan (AQMP), to be referred to after adoption as the Final
2007 AQMP, and to fulfill USEPA Requirements for the use of emissions
reductions form the Carl Moyer Program in the State Implementation
Plan,'' June 1, 2007. Commitments to achieve emissions reductions
(including emissions reductions of 2.9 tons per day (tpd) of direct
PM2.5, 2.9 tpd of SOX, 10.4 tpd of VOC and 10.8
tpd of nitrogen oxides by 2014) as described by SCAQMD Governing Board
Resolution No. 07-9, p. 10, June 1, 2007, and modified by SCAQMD
Governing Board Resolution 11-9, p. 3, March 4, 2011, and commitments
to adopt and submit control measures as described in Table 4-2A of the
Final 2007 AQMP, as amended March 4, 2011.
(B) State of California Air Resources Board.
(1) CARB Resolution No. 07-41, September 27, 2007.
(399) 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, Appendices B and C. Release
Date: March 29, 2011.
(2) CARB Resolution No. 11-24, April 28, 2011.
(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.
(400) An amended plan was submitted on May 19, 2011 by the
Governor's designee.
(i) [Reserved]
(ii) Additional Material.
(A) South Coast Air Quality Management District.
(1) Revisions to the 2007 PM2.5 and Ozone State
Implementation Plan for South Coast Air Basin and Coachella Valley (SIP
Revisions), adopted on March 4, 2011.
(2) SCAQMD Governing Board Resolution 11-9, ``A Resolution of the
South Coast Air Quality Management District Governing Board (AQMD)
certifying the Addendum to Final Program Environmental Impact Report
(PEIR) for the 2007 Air Quality Management Plan, (AQMP), for a revision
to the Final 2007 AQMP, to be referred to after adoption as the
Revision to the Final 2007 AQMP,'' March 4, 2011.
(B) State of California Air Resources Board.
[[Page 69955]]
(1) 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 the PM2.5 State Implementation Plans
(SIP) for the South Coast and San Joaquin Valley Air Basins and
Proposed SIP Revisions.''
(401) 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-5 (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 and Technical Revisions to the
PM2.5 State Implementation Plan Transportation Conformity
Budgets for the South Coast San Joaquin Valley Air Basin,'' July 21,
2011.
[FR Doc. 2011-27620 Filed 11-8-11; 8:45 am]
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