[Federal Register Volume 75, Number 44 (Monday, March 8, 2010)]
[Rules and Regulations]
[Pages 10420-10438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4752]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2008-0693; FRL-9108-4]
Approval and Promulgation of Implementation Plans: 1-Hour Ozone
Extreme Area Plan for San Joaquin Valley, CA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving state implementation plan (SIP) revisions
submitted by the State of California to meet the Clean Air Act (CAA)
requirements applicable to the San Joaquin Valley, California extreme
1-hour ozone standard nonattainment area (SJV area). EPA is approving
the SIP revisions for the SJV area as meeting applicable CAA and EPA
regulatory requirements for the attainment and rate-of-progress
demonstrations and their related contingency measures, reasonably
available control measures, and other control requirements. In
addition, EPA is approving the SJV Air Pollution Control District's
Rule 9310, ``School Bus Fleets.''
DATES: Effective Date: This rule is effective on April 7, 2010.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2008-0693 for
this action. The index to the docket is available electronically at
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While all documents in the docket
are listed in the index, some information may be publicly available
only at the hard copy location (e.g., copyrighted material), and some
may not be publicly available in either location (e.g., CBI). To
inspect the hard copy materials, please schedule an appointment during
normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, EPA Region IX, (415)
942-3957, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Summary of Proposed Actions
II. Summary of Public Comments Received on the Proposals and EPA
Responses
III. Approval Status of Rules
IV. Final Actions
V. Statutory and Executive Order Review
I. Summary of Proposed Actions
On July 14, 2009 at 74 FR 33933, EPA proposed to approve in part
and disapprove in part the state implementation plan (SIP) revisions
[[Page 10421]]
submitted to EPA by the State of California. California made these
submittals to meet the Clean Air Act (CAA) requirements applicable to
the San Joaquin Valley, California ozone nonattainment area (SJV area).
The SJV area became subject to these requirements following its 2004
reclassification to extreme for the 1-hour ozone national ambient air
quality standard (1-hour ozone standard). 69 FR 20550 (April 15, 2004).
Although we established a new 8-hour ozone standard in 1997 \1\ and
subsequently revoked the 1-hour ozone standard in 2005, the SJV area
continues to remain subject to certain CAA requirements for the 1-hour
standard through the anti-backsliding provisions in EPA's rule
implementing the 8-hour ozone standard. See 40 CFR 51.905(a)(1)(i) and
900(f).
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\1\ See 62 FR 38856 (July 18, 1997). In 2008 we lowered the 8-
hour ozone standard to 0.075 ppm. See 73 FR 16436 (March 27, 2008).
The references in this final rule to the 8-hour standard are to the
1997 standard as codified at 40 CFR 50.10.
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The SIP submittals that are the subject of our July 14, 2009
proposal are, first, the ``Extreme Ozone Attainment Demonstration
Plan'' (2004 SIP) adopted by the San Joaquin Valley Air Pollution
Control District (SJVAPCD or the District) in 2004 and amended in 2005.
The 2004 SIP addresses CAA requirements for extreme 1-hour ozone areas
including reasonably available control measures (RACM), rate-of-
progress (ROP) and attainment demonstrations, and contingency measures.
The second SIP submittal is ``Clarifications Regarding the 2004
Extreme Ozone Attainment Demonstration Plan'' (2008 Clarifications)
adopted by the SJVAPCD in 2008. The 2008 Clarifications provide updates
to the 2004 SIP related to reasonably available control technology
(RACT) measures adopted by the SJVAPCD, the ROP demonstrations, and
contingency measures.
The third SIP submittal addressed in our proposal is the ``2003
State and Federal Strategy for the California State Implementation
Plan,'' (2003 State Strategy) adopted by the California Air Resources
Board (ARB) in October, 2003. This strategy document, as modified by
ARB's resolution adopting it, identifies ARB's regulatory agenda to
reduce ozone and particulate matter in California, including specific
commitments to reduce emissions in the SJV area. The 2004 SIP relies in
part on the 2003 State Strategy for the reductions needed to
demonstrate attainment and ROP for the 1-hour ozone standard in the SJV
area.
We refer to these three submittals collectively as the 2004 SJV 1-
hour ozone plan or 2004 1-hour ozone plan.
EPA proposed to approve 2004 SJV 1-hour ozone plan as meeting the
applicable CAA and EPA requirements for an attainment demonstration,\2\
ROP demonstrations, ROP contingency measures, RACM, clean fuel/clean
technology for boilers, and the provision for transportation control
measures sufficient to offset any growth in emissions from growth in
VMT or the number of vehicle trips. We also proposed to approve a
commitment by ARB to reduce volatile organic compounds (VOC) emissions
in the SJV by 15 tons per day (tpd) and nitrogen oxides
(NOX) by 20 tpd and to approve SJVAPCD's Rule 9310, School
Bus Fleets.
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\2\ The proposed approval of the attainment demonstration was
predicated in part on emission reductions from a number of State and
District rules that we had proposed to approve in separate actions.
We have now completed SIP approval of all these rules. See Table 1
at the end of this preamble.
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In the same action, we proposed to disapprove, as failing to meet
the requirements of section 172(c)(9), the contingency measures in the
2004 SIP and the 2008 Clarifications that would take effect if the area
failed to attain the 1-hour ozone standard by the applicable attainment
date because the State had not demonstrated that its contingency
measures provided sufficient emission reductions to meet EPA guidance.
On August 28, 2009, ARB provided additional information showing
that existing, creditable measures provided a sufficient level of
emission reduction needed for attainment contingency measures. Based on
this additional information, on October 2, 2009, we proposed to approve
the attainment contingency measures and withdraw our proposed
disapproval at 74 FR 50936.
A more detailed discussion of each of the California's SIP
submittals for the SJV area, the CAA and EPA requirements applicable to
them, and our evaluation and proposed actions on them can be found in
the July 14, 2009 and October 2, 2009 proposals.
II. Summary of Public Comments Received on the Proposals and EPA
Responses
We received eight comment letters, listed below, in response to our
July 14, 2009 proposal and October 2, 2009 supplemental proposal.
Several of these letters were submitted in conjunction with separate
EPA proposed actions on individual SJVAPCD rules. We respond to the
comments in these letters in this final rule and TSD insofar as they
are relevant to this action and respond to the remainder in our final
rules for the individual rule actions.
We received four comment letters from the Center on Race, Poverty &
the Environment representing various organizations. We refer to these
comments collectively as from CRPE or the Center throughout this final
rule and TSD:
1. Brent Newell, CRPE, August 31, 2009, on the behalf of 14 San
Joaquin Valley environmental and community organizations and the
Natural Resource Defense Council.
2. Johannes Epke, CRPE, August 31, 2009, on behalf of the Center
and 12 San Joaquin Valley environmental and community organizations.
This comment letter was in conjunction with our proposed limited
approval/limited disapproval of SJVAPCD's Rule 4570, Confined Animal
Facilities at 74 FR 33948 (July 14, 2009).
3. Johannes Epke, CRPE, August 31, 2009, on behalf of the Center
and 11 San Joaquin Valley environmental and community organizations.
This comment letter was in conjunction with our proposed approval of
ARB's reformulated gasoline and diesel fuel regulations at 74 FR 38838
(July 27, 2009).
4. Brent Newell, Center on Race, Poverty & the Environment,
November 2, 2009, on the behalf of 14 San Joaquin Valley environmental
and community organizations and the Natural Resource Defense Council.
We received two comment letters from Earthjustice representing
various organizations. We refer to these comments collectively as from
Earthjustice throughout this final rule and TSD:
5. Paul Cort and Sarah Jackson, Earthjustice, August 31, 2009, on
behalf of Medical Advocates for Healthy Air, Fresno Metro Ministries,
and the Coalition for Clean Air (collectively, Earthjustice).
6. Paul Cort and Sarah Jackson, Earthjustice, November 2, 2009, on
behalf of Fresno Metro Ministries.
7. Seyed Sadredin, SJVAPCD, August 27, 2009.
8. James N. Goldstene, Executive Officer, ARB, August 28, 2009.
We summarize our responses to the most significant comments in this
final rule. Our full responses to all comments received can be found in
the ``Response to Comments'' section of the Technical
[[Page 10422]]
Support Document (TSD) for this rulemaking.\3\
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\3\ ``Final Technical Support Document for the Approval of the
San Joaquin Valley Extreme 1-Hour Ozone Standard Plan and San
Joaquin Portion of the 2003 State Strategy,'' December 11, 2009,
U.S. EPA, Region 9. The TSD can be found in the docket for this
rulemaking.
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A. Emissions Inventory
Comment: Earthjustice comments on the importance of emission
inventories, noting that CAA section 172(c)(3) requires 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.'' It also comments that ARB
submitted to EPA new emissions inventories for ozone precursors in the
San Joaquin Valley as part of the 2007 Ozone Plan \4\ for the 8-hour
ozone standard and that these updated inventories are ``significantly
different'' than the inventories in the 2004 SIP as a result of being
based on the State's revised on-road mobile source model, EMFAC. It
then argues that the improvements to EMFAC, and therefore, to the SJV
emissions inventory overall, make the 2007 Ozone Plan inventory the
most comprehensive, accurate, current inventory of actual emissions
from all sources affecting the Valley's air quality. It concludes that
EPA cannot approve the 2004 SIP based on inventories that are no longer
current or accurate.
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\4\ SJVAPCD, ``2007 Ozone Plan,'' April 30, 2007.
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Response: EPA does not dispute the importance of emission
inventories. We evaluated the emission inventories in the 2004 SIP to
determine if they are consistent with EPA guidance (General Preamble at
13502 \5\) and adequate to support that plan's rate-of-progress (ROP)
and attainment demonstrations. We determined that the plan's 2000 base
year emission inventory was comprehensive, accurate, and current at the
time it was submitted on November 15, 2004 and that this inventory, as
well as the 2008 and 2010 projected inventories used in the ROP and
attainment demonstrations, were prepared in a manner consistent with
EPA guidance. Accordingly, we proposed to find that these inventories
provide an appropriate basis for the ROP and attainment demonstrations
in the 2004 SIP. See 74 FR at 33940.
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\5\ The General Preamble is the ``General Preamble for
Implementation of Title I of the Clean Air Act Amendments of 1990.''
57 FR 13498 (April 16, 1992).
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ARB used its mobile source emissions model EMFAC2002 to generate
the on-road mobile source inventory in the 2004 SJV 1-hour ozone plan.
ARB released EMFAC2002 in October 2002 and EPA approved it for use in
SIPs and conformity determinations on April 1, 2003 (62 FR 15720). At
the time the 2004 SIP was being developed (2003-2004) and when it was
subsequently adopted by SJVAPCD and submitted by ARB to EPA, EMFAC2002
was the most current mobile source model available for inventory
purposes. 74 FR at 33940.
It has been EPA's consistent policy that States must use the most
current mobile source model available at the time it is developing its
SIP. See General Preamble at 13503 (requiring the use of MOBILE4.1 \6\
for November, 1992 submittal of base year inventories); Office of
Mobile Sources, EPA, ``Procedures for Emissions Inventory Preparation,
Volume IV: Mobile Source,'' June, 1992, page 5 (allowing states to use
MOBILE4.1 for the base year inventories due November 1992, but
requiring MOBILE5, then scheduled for release in December 1992, for the
ROP and attainment demonstrations due November 1993); Memorandum,
Philip A. Lorang, Director, Assessment and Modeling Division, Office of
Mobile Sources, ``Release of MOBILE5a Emission Factor Model,'' March
29, 1993 (allowing the use of MOBILE5 in updated base year inventories
but requiring the use of MOBILE5a, released March 1993, for the ROP and
attainment demonstrations due November 1993); and Memorandum, John
Seitz, Office of Air Quality Planning and Standards (OAQPS) and Margo
Oge, Office of Transportation and Air Quality, ``Policy Guidance on the
Use of MOBILE6 for SIP Development and Transportation Conformity,''
January 18, 2002 (Seitz Memo).\7\
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\6\ MOBILE is EPA's model for estimating pollution from highway
vehicles in all states except California where EMFAC is used.
\7\ In keeping with this policy, ARB and the District used the
most current version of EMFAC, EMFAC2007, to prepare the most recent
ozone plan for the Valley, the 2007 Ozone Plan. See 2007 Ozone Plan
at p. B-1. EMFAC2007 was released in November 2006 and approved by
EPA for use in SIPs in January 2008. 68 FR 3464, 3467 (January 18,
2008).
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The Seitz Memo specifically addresses the issue of how the release
of the new model, MOBILE6, would affect SIPs that were already
submitted and/or approved or SIPs that were then under development.
Citing CAA section 172(c)(3) and 40 CFR 51.112(a)(1), EPA stated in the
Seitz Memo that, ``while [i]n general, EPA believes that MOBILE6 should
be used in SIP development as expeditiously as possible * * * [t]he
Clean Air Act requires that SIP inventories and control measures be
based on the most current information and applicable models that are
available when a SIP is developed. As a result, the release of MOBILE6
in most areas would not require a SIP revision based on the new
model.'' The Seitz Memo further states that:
EPA believes that the Clean Air Act would not require states
that have already submitted SIPs or will submit SIPs shortly after
MOBILE6's release to revise these SIPs simply because a new motor
vehicle emissions model is now available. EPA believes that this is
supported by existing EPA policies and case law [Delaney v. EPA, 898
F.2d 687 (9th Cir. 1990)] * * *. EPA does not believe that the
State's use of MOBILE5 should be an obstacle to EPA approval for
reasonable further progress, attainment, or maintenance SIPs that
have been or will soon be submitted based on MOBILE5, assuming that
such SIPs are otherwise approvable and significant SIP work has
already occurred (e.g., attainment modeling for an attainment SIP
has already been completed with MOBILE5). It would be unreasonable
to require the States to revise these SIPs with MOBILE6 since
significant work has already occurred, and EPA intends to act on
these SIPs in a timely manner.
EPA has also consistently applied this policy in approving SIPs.
See, for example, 67 FR 30574, 30582 (May 7, 2002), approval of 1-hour
ozone standard attainment demonstration for Atlanta, Georgia and 68 FR
19106, 19118 and 19120 (April 17, 2003), approval of the Washington, DC
area's severe area 1-hour attainment demonstration. The latter action
was upheld in Sierra Club v. EPA, 356 F.3d 296 (DC Cir. 2004). In
Sierra Club at 308, the court cites the Seitz Memo and concludes that
``[t]o require states to revise completed plans every time a new model
is announced would lead to significant costs and potentially endless
delays in the approval processes. EPA's decision to reject that course,
and to accept the use of MOBILE5 in this case, was neither arbitrary
nor capricious.''
Comment: Earthjustice comments that an outdated inventory adversely
affects the 2004 1-hour ozone plan's rate of progress (ROP) and
attainment demonstrations and its demonstration related to offsetting
growth in emissions from growth in vehicle miles traveled (as required
by CAA section 182(d)(1)(A)) as well as results in the underestimation
of the emission reductions needed to satisfy the contingency measure
requirement. Earthjustice argues that EPA must reevaluate whether the
2004 SIP satisfies these CAA requirements based on the revised
inventories.
Response: As discussed above, EPA's long-established and consistent
policy does not require states to revise their already-submitted SIPs
when a new mobile source emission model is released. This policy also
means that
[[Page 10423]]
EPA will not evaluate these SIPs based on the new model. We note that
EMFAC2007 was released in November 2006 and was not approved by EPA
until January 2008 two years after the SIP was submitted. 68 FR 3464
(January 18, 2008).
In its comments, Earthjustice consistently attempts to conflate the
2004 1-hour ozone standard and 2007 8-hour ozone standard plans.
Following Earthjustice's logic would effectively result in the 1-hour
ozone plan being completely revised to become the 8-hour ozone plan.
This is because an evaluation of the effect of emissions inventory
changes on the plan could not be limited to just those changes
resulting from the move to EMFAC2007. All factors, from revised growth
projections and changes to other emissions inventory categories to the
impact of new controls, would need to be taken into account before we
could determine whether the plan is or is not approvable. In other
words, an entire new plan would need to be developed. The District and
State have already prepared a new plan that addresses the applicable 8-
hour ozone standard and that is based on EMFAC2007 as well as other
updated information. EPA will evaluate the revised inventories in
connection with its action on that plan.
Comment: CRPE comments that because the 2004 SIP includes
reductions from California mobile source rules that are subject to CAA
section 209 waivers (``waiver measures'') that occurred before 2000 as
part of the 2000 base year inventory, EPA's proposed action on the
inventory violates CAA sections 172(c)(3) and 182(a)(1) because EPA has
failed to find that the reductions from the waiver measures have
occurred, are enforceable, or are otherwise consistent with the Act,
EPA's implementing regulations, and the General Preamble.
Response: We evaluated the emission inventories in the 2004 SIP to
determine if they were consistent with EPA guidance (General Preamble
at 13502) and adequate to support that plan's ROP and attainment
demonstrations. 74 FR at 33940. Based on this evaluation, we proposed
to find that the base year inventory (and the projected baseline
inventories derived from it) provided an appropriate basis for the ROP
and attainment demonstrations in the 2004 SIP. 74 FR 33933, 33940.
We also reviewed the District and State rules that were relied on
for emissions reductions in the 2004 SIPs base year and baseline
inventories. We determined that all these rules were creditable under
the CAA and our policies. See Sections III and IV of the TSD. For the
reasons given in the proposal at 33938-33939 and discussed in our
responses to comments on waiver measures below, we believe that
California's mobile source measures are fully creditable for SIP
purposes.
As to emission reductions from waiver measures actually occurring,
we assume that sources comply with applicable emission limitations and
the agencies responsible for ensuring compliance with them are
exercising appropriate oversight, absent information to the contrary.
The commenter provides no information indicating either of these is not
happening.
B. Reasonably Available Control Measures (RACM) and Reasonably
Available Control Technology (RACT)
Comment: Earthjustice asserts that deferring action on the RACT
demonstration is illegal and arbitrary. It further asserts that EPA
cannot find that the plan as submitted will provide for attainment ``as
expeditiously as practicable'' without first demonstrating that all of
the required controls, such as RACT, will be implemented. Finally,
Earthjustice comments that EPA cannot treat RACM and RACT as discrete
requirements that can be acted on separately because the statute
clearly states that RACM includes RACT. It also comments that EPA
cannot determine that all reasonable measures are in place in the
Valley without first evaluating RACT for all SJV area sources.
Response: We described the RACM analysis in the 2004 1-hour ozone
plan in the proposal at 74 FR at 33935. We also discussed the section
182(b)(2) RACT provision in the 2004 SIP, stating that the State had
formally withdrawn it and that we had subsequently made a finding of
failure to submit the RACT demonstration for the 1-hour ozone standard
and initiated sanction and federal implementation plan (FIP) clocks
under CAA sections 179(a) and 110(c). See 74 FR at 33935 and 74 FR 3442
(January 21, 2009). Finally, we noted that California had recently
submitted the District's revised 8-hour ozone standard RACT plan
(adopted April 16, 2009) (8-hour RACT SIP), that the plan is intended
in part to correct the failure to submit finding for the 1-hour ozone
standard RACT requirement as well, and that we are currently reviewing
the revised RACT plan for action in a subsequent rulemaking. See 74 FR
at 33935.
Contrary to the commenter's assertions, we did not defer action
under CAA section 110(k) on the RACT demonstration in the 2004 SIP
because, as a result of the State's withdrawal of this component of the
plan, there was no such demonstration on which the Agency could act.
Instead, we took the appropriate action under the CAA which was, as
stated above, to make a finding of failure to submit a required plan
element which started sanctions and FIP clocks. 74 FR 3442.
For 30 years, EPA has consistently interpreted the Act's RACM
provision in section 172(c)(1) to require only those feasible measures
necessary for expeditious attainment.\8\ Under EPA's interpretation, if
an otherwise feasible measure, alone or in combination with other
measures, cannot expedite attainment then it is not considered to be
reasonably available. Thus, to show that it had implemented RACM, a
state needs to show that it considered a wide range of potential
measures and found none that were feasible for the area and that would,
alone or in combination with other feasible measures, advance
attainment. See 1999 RACM Guidance. Based on the form of the 1-hour
ozone standard and the Act's specific language on RACM, the appropriate
standard for advancing attainment is, at a minimum, one year from the
predicted attainment date in the attainment plan.\9\
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\8\ We initially stated our interpretation of the RACM
requirement in our 1979 nonattainment area plan guidance where we
indicated that if a measure which might be available for
implementation could not be implemented on a schedule that would
advance the date for attainment in the area, we would not consider
it reasonably available. See 44 FR 20372, 20375 (April 4, 1979). We
affirmed this interpretation in the 1992 General Preamble at 13560;
in Memorandum, John Seitz, Director, OAQPS, ``Guidance on the
Reasonably Available Control Measure Requirement and Attainment
Demonstration Submissions for Ozone Nonattainment Areas,'' November
30, 1999 (1999 RACM Guidance); in the 2005 8-hour implementation
rule (70 FR 71612, 71659 (November 29, 2005) and Sec. 51.912(d));
and in the 2007 PM2.5 implementation rule (72 FR 20586, 20612 (April
25, 2007) and Sec. 51.1010.
\9\ Attainment of the 1-hour standard is based on the average of
the most recent three calendar years of data: ``The [1-hour ozone]
standard is attained when the expected number of days per calendar
year with maximum hourly average concentrations above 0.12 parts per
million [ ] is equal to or less than 1.'' 40 CFR 50.9(a). Because of
this, attainment of the 1-hour ozone standard can only be advanced
by intervals of one full year. Section 172(c)(1) requires RACM
sufficient to provide for expeditious attainment; thus, what
constitutes RACM for the 1-hour ozone standard must be determined
based on what reductions are needed to advance attainment by one
year.
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We have determined that the 2004 SIP contains all reasonably
available measures needed for expeditious attainment. While any
evaluation of a RACM demonstration needs to consider the potential
effect of CAA section 182(b)(2) RACT on expeditious attainment, it does
not require that there first be an approved RACT demonstration. For
this action, we
[[Page 10424]]
evaluated the potential effect of applying RACT to those sources in the
SJV area for which we had not already approved a RACT rule. We provide
this evaluation in Section V of the TSD. This evaluation shows that
there were no outstanding RACT measures that, either individually or in
combination with other potential measures, would advance attainment of
the 1-hour ozone standard in the SJV area. See TSD Section V and 74 FR
at 33938.
We agree that SJVAPCD must adopt and implement the specific section
182 control requirements of the Act, but we do not agree that the
withdrawal of the RACT demonstration in the 2004 SIP precludes us from
approving the plan's RACM and attainment demonstrations when it has
been shown that the RACT measures would not contribute to more
expeditious attainment.
Comment: Earthjustice argues that EPA's test of whether
implementation of additional measures would advance attainment from
2010 to 2009 is arbitrary and ``absurd'' given that it believes the
area will fail to attain by 2010. It further argues that it is
``disingenuous for EPA to use this impossible test'' to justify the
missing RACT analysis and approve the plan as meeting the RACM
requirement and EPA should instead require a new plan based on current,
accurate information and a new attainment date and then evaluate
whether RACM has been met.
Response: We have not used the ``advance attainment test'' to
justify the missing RACT analysis. As stated previously, we took the
appropriate statutory course of action for dealing with the withdrawn
RACT demonstration: A finding of failure to submit and the starting of
sanctions and FIP clocks. 74 FR 3442. We also described the process
that we used to determine if the 2004 SJV 1-hour ozone plan provided
for the implementation of all RACM needed for expeditious attainment in
the proposal at 74 FR 33938. This process included evaluating the
potential impact of RACT on source categories for which we have not
previously approved a RACT rule. See TSD, Section V. We determined that
there were no outstanding measures, including potential RACT measures,
that could provide for more expeditious attainment of the 1-hour ozone
standard in the SJV area.
As we discuss below in the Attainment Demonstration section, we
disagree with the commenter that the plan does not demonstrate
attainment of the revoked 1-hour ozone standard by the 2010 attainment
date.
C. Treatment of Waiver Measures
Comment: Earthjustice and CRPE object to our proposal to grant
emissions reduction credit to California's mobile source control
measures that have received a waiver of preemption under CAA section
209 without first approving them into the SIP. Both commenters argue
that our reliance for this proposal on the general savings clause in
CAA section 193 is inappropriate for several reasons.
First, the commenters assert that CAA section 193 only saves those
``formal rules, notices, or guidance documents'' that are not
inconsistent with the CAA. They argue that both the CAA and EPA's long-
standing policies and regulations require SIPs to contain the state and
local emission limitations and control measures that are necessary for
attainment and RFP and to meet other CAA requirements. They assert that
our position on the treatment of California's waived measures is
inconsistent with this requirement. Earthjustice also argues that only
SIP approval provides for the CAA's enforcement oversight (CAA sections
179 and 304) and anti-backsliding (CAA section 110(l) and 193)
safeguards.
Second, the commenters argue that we cannot claim that our position
was ratified by Congress because section 193 saves only regulations,
standards, rules notices, orders and guidance ``promulgated or issued''
by the Administrator and we have not identified documents promulgated
or issued by EPA that establish our position here. Earthjustice further
asserts that our interpretation has not been expressed through any
affirmative statements and the only statements of relevant statutory
interpretations are contrary to our position on California's waived
measures.
Third, Earthjustice argues that there is no automatic presumption
that Congress is aware of an agency's interpretations and we have not
provided any evidence that Congress was aware of our interpretation
regarding the SIP treatment of California's mobile source control
measures. Similarly, CRPE argues that our positions that Congress must
expressly disapprove of EPA's long-standing interpretation and
Congressional silence equates to a ratification of EPA's interpretation
are incorrect.
Finally, Earthjustice argues EPA's position is inconsistent because
we do require other state measures, e.g., the consumer products rules
and fuel standards, to be submitted and approved into SIPs before their
emission reductions can be credited.
Response: We continue to believe that credit for emissions
reductions from implementation of California mobile source rules that
are subject to CAA section 209 waivers (``waiver measures'') is
appropriate notwithstanding the fact that such rules are not approved
as part of the California SIP. In our July 14, 2009 proposed rule, we
explained why we believe such credit is appropriate. See pages 33938
and 33939 of the proposed rule. Historically, EPA has granted credit
for the waiver measures because of special Congressional recognition,
in establishing the waiver process in the first place, of the
pioneering California motor vehicle control program and because
amendments to the CAA (in 1977) expanded the flexibility granted to
California in order ``to afford California the broadest possible
discretion in selecting the best means to protect the health of its
citizens and the public welfare,'' (H.R. Rep. No. 294, 95th Congr., 1st
Sess. 301-2 (1977)). In allowing California to take credit for the
waiver measures notwithstanding the fact that the underlying rules are
not part of the California SIP, EPA treated the waiver measures
similarly to the Federal motor vehicle control requirements, which EPA
has always allowed States to credit in their SIPs without submitting
the program as a SIP revision.
EPA's historical practice has been to give SIP credit for waiver
measures by allowing California to include motor vehicle emissions
estimates made by using California's EMFAC motor vehicle emissions
factor model as part of the baseline emissions inventory. EMFAC was
also used to prepare baseline inventory projections into the future,
and thus the plans typically showed a decrease in motor vehicle
emissions due to the gradual replacement of more polluting vehicles
with vehicles manufactured to meet newer, more stringent California
vehicle standards. The EMFAC model is based on the motor vehicle
emissions standards for which California has received waivers from EPA
but accounts for vehicle deterioration and many other factors. The
motor vehicle emissions estimates themselves combine EMFAC results with
vehicle activity estimates, among other considerations. See the 1982
Bay Area Air Quality Plan, and the related EPA rulemakings approving
the plan (see 48 FR 5074 (February 3, 1983) for the proposed rule and
48 FR 57130 (December 28, 1983) for the final rule) as an example of
how the waiver
[[Page 10425]]
measures have been treated historically by EPA in California SIP
actions.\10\
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\10\ EPA's historical practice in allowing California credit for
waiver measures notwithstanding the absence of the underlying rules
in the SIP is further documented by reference to EPA's review and
approval of a May 1979 revision to the California SIP entitled,
``Chapter 4, California Air Quality Control Strategies.'' In our
proposed approval of the 1979 revision (44 FR 60758, October 22,
1979), we describe the SIP revision as outlining California's
overall control strategy, which the State had divided into
``vehicular sources'' and ``non-vehicular (stationary source)
controls.'' As to the former, the SIP revision discusses vehicular
control measures as including ``technical control measures'' and
``transportation control measures.'' The former refers to the types
of measures we refer to herein as waiver measures, as well as fuel
content limitations, and a vehicle inspection and maintenance
program. The 1979 SIP revision included several appendices,
including appendix 4-E, which refers to ``ARB vehicle emission
controls included in title 13, California Administrative Code,
chapter 3 * * *,'' including the types of vehicle emission standards
we refer to herein as waiver measures; however, California did not
submit the related portions of the California Administrative Code
(CAC) to EPA as part of the 1979 SIP revision submittal. With
respect to the CAC, the 1979 SIP revision states: ``The following
appendices are portions of the California Administrative Code.
Persons interested in these appendices should refer directly to the
code.'' Thus, the State was clearly signaling its intention to rely
on the California motor vehicle control program but not to submit
the underlying rules to EPA as part of the SIP. In 1980, we
finalized our approval as proposed. See 45 FR 63843 (September 28,
1980).
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In our proposed rule, we indicated that we believe that section 193
of the CAA, the general savings clause added by Congress in 1990,
effectively ratified our long-standing practice of granting credit for
the California waiver rules because Congress did not insert any
language into the statute rendering EPA's treatment of California's
motor vehicle standards inconsistent with the Act. Rather, Congress
extended the California waiver provisions to most types of nonroad
vehicles and engines, once again reflecting Congressional intent to
provide California with the broadest possible discretion in selecting
the best means to protect the health of its citizens and the public
welfare. Requiring the waiver measures to undergo SIP review in
addition to the statutory waiver process is not consistent with
providing California with the broadest possible discretion as to on-
road and nonroad vehicle and engine standards, but rather, would add to
the regulatory burden California faces in establishing and modifying
such standards, and thus would not be consistent with Congressional
intent. In short, we believe that Congress intended California's mobile
source rules to undergo only one EPA review process (i.e., the waiver
process), not two.
EPA's waiver review and approval process is analogous to the SIP
approval process. First, CARB adopts its emissions standards following
notice and comment procedures at the state level, and then submits the
rules to EPA as part of its waiver request. When EPA receives new
waiver requests from CARB, EPA publishes a notice of opportunity for
public hearing and comment and then publishes a decision in the Federal
Register following the public comment period. Once again, in substance,
the process is similar to that for SIP approval and supports the
argument that one hurdle (the waiver process) is all Congress intended
for California standards, not two (waiver process plus SIP approval
process). Moreover, just as SIP revisions are not effective until
approved by EPA, changes to CARB's rules (for which a waiver has been
granted) are not effective until EPA grants a new waiver, unless the
changes are ``within the scope'' of a prior waiver and no new waiver is
needed.
Moreover, to maintain a waiver, CARB's rules can be relaxed only to
a level of aggregate equivalence to the Federal Motor Vehicle Control
Program (FMVCP) [see section 209(b)(1)]. In this respect, the FMVCP
acts as a partial backstop to California's on-road waiver measures
(i.e., absent a waiver, the FMVCP would apply in California). Likewise,
Federal nonroad vehicle and engine standards act as a backstop where
there is a corresponding California nonroad waiver measure. The
constraints of the waiver process thus serve to limit the extent to
which CARB can relax the waiver measures for which there are
corresponding EPA standards, and thereby serve an anti-backsliding
function similar in substance to those established for SIP revisions in
CAA sections 110(l) and 193. Meanwhile, the growing convergence between
California and EPA mobile source standards diminishes the difference in
the emissions reductions reasonably attributed to the two programs and
strengthens the role of the Federal program in serving as an effective
backstop to the State program. In other words, with the harmonization
of EPA mobile source standards with the corresponding State standards,
the Federal program is becoming essentially a full backstop to the
California program.
In addition, the commenters' concerns over the potential for
relaxation by the State of the waiver measures because the underlying
regulations are not subject to EPA review and approval as a SIP
revision are not a practical concern for this particular plan given
that the plan's horizon is very short term (next couple of years), and
the on-road and nonroad vehicles that in part will determine whether
the area attains the standard are already in operation or in dealer
showrooms. There is no practical means for the State to relax the
standards of vehicles already manufactured, even if the State wanted to
relax the standards.
As to the concerns raised by the commenters on enforceability, we
note that CARB has as long a history of enforcement of vehicle/engine
emissions standards as EPA, and CARB's enforcement program is equally
as rigorous as the corresponding EPA program. The history and rigor of
CARB's enforcement program lends assurance to California SIP revisions
that rely on the emissions reductions from CARB's rules in the same
manner as EPA's mobile source enforcement program lends assurance to
other State's SIPs in their reliance on emissions reductions from the
FMVCP.
In summary, we disagree that our interpretation of CAA section 193
is fundamentally flawed. EPA has historically given SIP credit for
waiver measures in our approval of attainment demonstrations and other
planning requirements such as reasonable further progress and
contingency measures submitted by California. We continue to believe
that section 193 ratifies our long-standing practice of allowing credit
for California's waiver measures notwithstanding the fact they are not
approved into the SIP, and correctly reflects Congressional intent to
provide California with the broadest possible discretion in the
development and promulgation of on-road and nonroad vehicle and engine
standards.\11\
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\11\ In this regard, we disagree that we are treating the waiver
measures inconsistently with other California control measures, such
as consumer products and fuels rules, for the simple reason that,
unlike the waiver measures, there is no history of past practice or
legislative history supporting treatment of other California
measures, such as consumer products rules and fuels rules, in any
manner differently than is required as a general rule under CAA
section 110(a)(2)(A), i.e., state and local measures that are relied
upon for SIP purposes must be approved into the SIP.
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D. ARB Commitments
Comment: Earthjustice asserts that ARB's commitments to reduce
emissions in the SJV area by 15 tpd VOC and 20 tpd NOX by
2010 do not satisfy the first factor in EPA's three-factor test for the
approval of enforceable commitments. The commenter argues that the
commitments do not meet the first factor, that commitments provide only
a limited portion of the needed reductions, for several reasons. The
first reason is that the commitment is not for 6.3 percent of the
needed NOX reductions and 11.6 percent of the
[[Page 10426]]
needed VOC reductions, the numbers EPA gave in the proposal, but rather
19.2 percent for NOX (41.1 tpd) and 37.7 percent for VOC
(48.7 tpd) because these were the emissions reductions in commitment
form at the time the 2004 SIP was submitted. The second reason is that
the 11.6 percent commitment level for VOC is not minimal. The final
reason is that the commitments now constitute 100 percent of the
remaining emission reductions needed. The commenter concludes that
these levels are not the limited or minimal role of commitments
envisioned in the decision in BCCA Appeal Group v. EPA, 355 F.3d 817
(5th Cir. 2003).
Response: We did not propose to approve commitments of 41.1 tpd
NOX and 48.7 tpd VOC, rather we proposed to approve and are
taking final action to approve commitments of 20 tpd NOX and
15 tpd VOC. Because the District has adopted and submitted and EPA has
approved rules achieving reductions of 21.1 tpd NOX and 33.3
tpd VOC, the portion of the original commitments relating to those
reductions are now obsolete and approving them would serve no purpose.
The State of Texas' enforceable commitment for the Houston/
Galveston area, the approval of which was upheld by the 5th Circuit 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 6.3 percent reduction of
NOX and the 11.6 percent reduction of VOC, as stated in our
proposal, also fit within the parameters of a ``limited'' amount of the
reductions needed for attainment and nothing in the BCCA decision
contravenes that.
The commenter's final point merely describes the nature of all
emissions reductions commitments submitted in support of an attainment
demonstration, i.e., that they are intended to fill the gap between the
level of reductions achieved from adopted rules and the level of
reductions needed for attainment. In other words, their purpose is to
provide 100 percent of the remaining reductions needed for attainment.
Comment: Earthjustice also argues that ARB's commitments to reduce
emissions in the SJV area by 15 tpd VOC and 20 tpd NOX by
2010 do not satisfy EPA's second factor for the approval of enforceable
commitments, that the State is capable of meeting its commitment. It
first notes that the Goldstene letter \12\ shows that rules adopted
through 2007 have achieved all of the remaining NOX
reductions needed for attainment and 3.3 tpd of the remaining 15 tpd of
needed VOC reductions. The commenter then states, based on its review
of the measures listed by EPA in its proposed approval as potential
sources of VOC emission reductions (e.g., the pesticide emission limits
adopted by the California Department of Pesticide Regulations) and
ARB's 2009 rulemaking schedule, that there are no State measures that
can be adopted and implemented in time to provide the remaining 11.7
tpd in VOC reductions by 2010.
---------------------------------------------------------------------------
\12\ Letter, James Goldstene, Executive Officer, ARB, to Laura
Yoshii, Acting Regional Administrator, EPA, June 29, 2009
(``Goldstene letter'').
---------------------------------------------------------------------------
Response: In the Goldstene letter, ARB submitted a summary of the
emissions reductions expected from a number of adopted State rules in
the SJV area by 2010. This summary is preliminary and is not intended
to be a final statement of ARB's compliance with its emissions
reductions commitments. As a preliminary analysis, it cannot be used to
determine whether the State has not or will not meet its commitments.
The commenter assumes that the only path now open to the State to
fulfill its commitments is the adoption of new measures. We disagree.
The list of measures provided by ARB in the Goldstene letter represents
a fraction of the rules and programs adopted and implemented by the
State. See TSD, Table 9. ARB 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 SJV area. Given that the State has
preliminarily demonstrated, based on a limited set of measures, that
all NOX reductions and 90 percent of the VOC reductions
needed for attainment of the revoked 1-hour standard in the SJV area
have been achieved, we believe it is reasonable to assume that the
balance of the reductions can also be achieved by the beginning of the
2010 ozone season.
Comment: Earthjustice argues that ARB's commitments to reduce
emissions in the SJV area by 15 tpd VOC and 20 tpd NOX by
2010 do not satisfy EPA's third and final factor for the approval of
enforceable commitments, that the commitment is for a reasonable and
appropriate period of time. It asserts that the State has less than a
year to adopt and make effective controls to achieve 13.3 tpd VOC by
2010 and it is not reasonable to assume that it will able to achieve
these reductions.
Response: ARB's commitments, made in 2004, are to reduce emissions
in the SJV area by 20 tpd NOX and 15 tpd VOC within 6 years,
i.e., by 2010. It is not, as the commenter asserts, to reduce VOC
emissions by 13.3 tpd between 2009 and 2010. The commenter's argument
again rests on the assumption that the only path now open to the State
to meet its VOC commitment is to adopt new measures. As we discuss
above, we do not believe this assumption is accurate. See also 74 FR at
39940.
Comment: Earthjustice comments that EPA's recitation of its three-
factor test to assess whether an enforceable commitment is approvable
skips over the initial determination of whether the commitments are in
fact enforceable. In this regard, Earthjustice cites Bayview Hunters
Point Community Advocates v. Metropolitan Transportation Commission,
366 F.3d 692 (9th Cir. 2004) and Citizens for a Better Environment v.
Metropolitan Transportation Commission, 746 F.Supp. 746, 701 (N.D. Cal.
1990), [known as CBE II], to support its contention that ARB's
commitment is an unenforceable ``aspirational goal.'' In addition,
Earthjustice singles out El Comite Para El Bienestar de Earlimart v.
Warmerdam, 539 F.3d 1062 (9th Cir. 2008), stating that in El Comite the
court explained that because an inventory in a SIP is not a ``standard
or limitation'' as defined by the CAA, it was not an independently
enforceable aspect of the SIP. Thus, Earthjustice reasons, in order to
be enforceable, not only must a state's commitment to adopt additional
measures to attain emission standards be specific and announced in
plain language, but any data or rubric that will be used to determine
when and how the state will adopt those measures must be enforceable.
Earthjustice further claims that EPA's approval here allows for the
same unenforceable situation that occurred in Ventura where the State
can claim, even erroneously, that changes to the inventory can
substitute for its commitment to reduce emissions, and EPA and the
public would be powerless to object.
Similarly, CRPE characterizes the 2003 State Strategy's commitments
to achieve aggregate emission reductions by the attainment year as
``global tonnage'' commitments that could be interpreted as goals
unenforceable by citizens under Ninth Circuit precedent, citing
Bayview.
Response: Under CAA section 110(a)(2)(A), SIPs must include
enforceable emission limitations and other control measures, means or
[[Page 10427]]
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
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.\13\ As
observed in Conservation Law Foundation, Inc. v. James Busey et al., 79
F.3d 1250, 1258 (1st Cir. 1996):
---------------------------------------------------------------------------
\13\ 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.
We describe ARB's commitments in the 2004 SIP and the 2003 State
Strategy in detail in the proposal (74 FR at 33938). In short, the
State commits to achieve 20 tpd NOX and 15 tpd VOC in the
SJV area by the 2010 ozone season. While the State identifies possible
control measures that it might adopt to achieve these emission
reductions, it does not commit to adopt any specific measures. The
language used in the 2004 SIP and the 2003 State Strategy to describe
ARB's commitments is consistently mandatory and unequivocal in nature,
e.g.:
ARB commits to adopt and implement measures to achieve, at a
minimum, 15 tpd ROG and 20 tpd NOX emission reductions in
the San Joaquin Valley Air Basin by the 2010 ozone season. ARB will
adopt measures to achieve these reductions between 2002-2009. ARB
may meet this commitment by adopting one or more of the control
measures in Table 4-3, by adopting one or more alternative control
measures, or by implementing incentive program(s), so long as the
aggregate emission reduction commitment is achieved.
(Emphasis added). 2004 SIP at section 4.7.3. See also ARB Staff Report
at 29; ARB Resolution 04-29 at 5 (``The State's contribution includes *
* * a previously approved commitment for 10 tpd new NOX
emissions as part of the Valley 2003 particulate matter SIP, and new
commitments for additional reductions of 15 tpd VOC and 10 tpd
NOX from new defined State measures in the Valley in
2010''); and 2003 State Strategy at I-16, Table I-10 (``Total Emission
Reduction Commitment from New State Measures'' listed in the table as
10 tpd NOX with action dates 2002-2008). Thus, ARB'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. ARB's commitments here are to adopt and
implement measures that will achieve specific reductions of
NOX and VOC emissions. As such, as will be seen below, they
are specific strategies designed to achieve the SIP's overall
objectives.
Both Earthjustice and CRPE cite Bayview as support for their
contention that ARB's commitments are unenforceable aspirational goals.
Bayview does not, however, provide any such support. That case involved
a provision of the 1982 Bay Area 1-hour ozone SIP, known as TCM 2,
which states in pertinent part:
Support post-1983 improvements identified in transit operator's
5-year plans, after consultation with the operators adopt ridership
increase target for 1983-1987. EMISSION REDUCTION ESTIMATES: These
emission reduction estimates are predicated on a 15% ridership
increase. The actual target would be determined after consultation
with the transit operators.
Following a table listing these estimates, TCM 2 provided that
``[r]idership increases would come from productivity improvements * *
*.''
Ultimately the 15 percent ridership estimate was adopted by the
Metropolitan Transportation Commission (MTC), the implementing agency,
as the actual target. Plaintiffs subsequently attempted to enforce the
15 percent ridership increase. The court found that the 15 percent
ridership increase was an unenforceable estimate or goal. In reaching
that conclusion, the court considered multiple factors, including the
plain language of TCM 2 (e.g., ``[a]greeing to establish a ridership
`target' is simply not the same as promising to attain that target,''
Bayview at 698); the logic of TCM 2, i.e., the drafters of TCM 2 were
careful not to characterize any given increase as an obligation because
the TCM was contingent on a number of factors beyond MTC's control, id.
at 699; and the fact that TCM 2 was an extension of TCM 1 that had as
an enforceable strategy the improvement of transit services,
specifically through productivity improvements in transit operators'
five-year plans, id. at 701. As a result of all of these factors, the
Ninth Circuit found that TCM 2 clearly designated the productivity
improvements as the only enforceable strategy. id. at 703.
The commitments in the 2004 SIP and 2003 State Strategy are in
stark contrast to the ridership target that was deemed unenforceable in
Bayview. The language in ARB's commitments, as stated multiple times in
multiple documents, is specific and unequivocal; the intent of the
commitments is clear; and the strategy of adopting measures to achieve
the required reductions is completely within ARB's control.
Furthermore, as stated previously, ARB identifies specific emission
reductions that it will achieve and specifies that this will be done
through the adoption and implementation of measures and also specifies
the time by which these reductions will be achieved, i.e., the
beginning of the 2010 ozone season.
Earthjustice also cites CBE II at 701 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 ARB commitments are neither express
nor specific. In fact, these cases support our interpretation of ARB'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, ARB and MTC argued that TCM 2 could
not constitute an enforceable strategy because the provision fails to
specify exactly what TCMs must be adopted.
[[Page 10428]]
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.\14\ 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.
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\14\ 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.
---------------------------------------------------------------------------
Earthjustice's 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.
ARB's commitments here are analogous to the terms of the
contingency measures in the CBE cases. ARB commits 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 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). ARB's
commitments are thus clearly a specific enforceable strategy rather
than an unenforceable aspirational goal.
Earthjustice's reliance on El Comite is also misplaced. The
plaintiffs in the district court attempted to enforce a provision of
the 1994 California 1-hour ozone SIP known as the Pesticide Element.
The Pesticide Element relied on an inventory of pesticide VOC emissions
to provide the basis to determine whether additional regulatory
measures would be needed to meet the SIP's pesticides emissions target.
To this end, the Pesticide Element provided that ``ARB will develop a
baseline inventory of estimated 1990 pesticidal VOC emissions based on
1991 pesticide use data * * *.'' El Comite Para El Bienestar de
Earlimart v. Helliker, 416 F. Supp. 2d 912, 925 (E.D. Cal. 2006). ARB
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. 7604 (f)(1)-(4).
Id. at 928. In its opinion, the court distinguished Bayview and CBE I,
pointing out that in those cases ``the measures at issue were designed
to reduce emissions.'' Id.
On appeal, the plaintiffs shifted their argument to claim that the
baseline inventory and the calculation methodology were necessary
elements of the overall enforceable commitment to reduce emissions in
nonattainment areas. The Ninth Circuit agreed with the district court's
conclusion that the baseline inventory was not an emission standard or
limitation and rejected plaintiffs' arguments attempting ``to transform
the baseline inventory into an enforceable emission standard or
limitation by bootstrapping it to the commitment to decide to adopt
regulations, if necessary.'' Id. at 1073.
While Earthjustice cites the Ninth Circuit's El Comite opinion, its
utility in analyzing ARB's commitments here is limited to that court's
agreement with the district court's conclusion that neither the
baseline nor the methodology qualifies as an independently enforceable
aspect of the SIP. Rather, it is the district court's opinion, in
distinguishing the commitments in CBE and Bayview, that provides
insight into the situation at issue in our action. As the court
recognized, a baseline inventory or the methodology used to calculate
it, is not a measure to reduce emissions. It instead ``identifies
emission sources and then quantifies the amount of emissions attributed
to those sources.'' In contrast, as stated previously, in the 2004 SIP
and 2003 State Strategy, ARB 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 ARB's here to be enforceable under CAA section
304(a).
Finally, EPA is not responding to Earthjustice's comment regarding
Ventura because the comment is without sufficient specificity for us to
know to what the comment refers. Nevertheless, we note that nothing
precludes the State from submitting a SIP revision to alter the
commitments approved by EPA, just as the State may choose to submit a
revision to any provision of an approved SIP. If the State does so,
commenters would have an opportunity to object to such a revision at
the State and local levels during the notice-and-hearing processes for
SIP adoption and would again have an opportunity to raise concerns
during EPA's review process. However, unless and until such time as the
State submits and EPA approves a revision to the commitments approved
in this action, those commitments remain enforceable.
Comment: Earthjustice states that the 2004 SIP suggests that the
State ``may meet its commitment by adopting one or more of the control
measures in Table 4-3 * * * one or more alternative measures, or * * *
incentive programs, so long as the aggregate emission reduction
commitment is achieved.'' 2004 Plan at 4-55. Earthjustice claims that
these commitments are so vague that they cannot possibly be enforced
against the State; because there is no requirement that the State take
any specific actions, its commitments cannot be considered enforceable
under Ninth Circuit case law. This is because
[[Page 10429]]
they are not specific strategies based on emissions standards or
limitations.
Response: We disagree. As stated in responses to previous comments,
EPA believes that ARB's commitments to adopt and implement control
measures to achieve the specified aggregate tonnage by the beginning of
the 2010 ozone season are enforceable as an emission standard or
limitation under CAA section 304. The fact that the State may meet its
SIP obligation by adopting measures that are not specifically
identified in the SIP, or through one of several available techniques,
does not render the requirement to achieve the aggregate emission
reductions unenforceable.
Comment: Earthjustice states CAA sections 110(a) and 172(c)(6)
require SIPs to contain ``enforceable emission limitations * * * as may
be necessary or appropriate'' to achieve attainment. Earthjustice
further states that, while 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 date certain, the statute provides that the conditional
approval automatically becomes a disapproval if the state fails to
comply with the commitment within one year. Earthjustice then claims
that EPA here appears to be trying to avoid this limitation by treating
open-ended promises of the State to reduce emissions as enforceable
commitments even though the State has never specified exactly what it
commits to do. Earthjustice states that courts have rejected similar
attempts to circumvent the statute's limitations on conditional
approvals. To support this contention, Earthjustice cites Sierra Club
v. EPA, 356 F.3d 295, 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 that the state would
implement.
Response: As pertinent to the comment, Sierra Club involved EPA's
conditional approval under section 110(k)(4) of SIPs lacking in their
entirety 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 ARB's commitments here because the
Agency is not approving those commitments under section 110(k)(4). The
relevant precedent is instead 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. Sec. 7410(a)(2)(A).
``Schedules and timetables'' is broadly defined as ``a schedule of
required measures including an enforceable sequence of actions or
operations leading to compliance with an emission limitation,
prohibition or standard.'' 42 U.S.C. 7602(p). The remaining terms
are not defined by the Act. Because the statute is silent on the
issue of whether enforceable commitments are appropriate means,
techniques, or schedules for attainment, EPA's interpretation
allowing limited use of an enforceable commitment in the Houston SIP
must be upheld if reasonable.
BCCA at 839-840. The court upheld EPA's approval of the commitment,
finding that ``EPA reasonably concluded that an enforceable commitment
to adopt additional control measures on a fixed schedule was an
`appropriate' means, technique, or schedule or timetable for
compliance'' under sections 110(a)(2)(A) and 172(c)(6). Id. at 841.
Thus the court recognized that sections 110(a)(2)(A) and 172(c)(6)
provide a basis for EPA to approve enforceable commitments as distinct
from the commitments contemplated by section 110(k)(4). See also
Environmental Defense v. EPA, 369 F.3d 193, 209-210 (2nd Cir. 2004). As
a result, contrary to Earthjustice's contention, section 110(k)(4) is
not a bar to EPA's approval of ARB'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: CRPE contends that the State's aggregate tonnage
commitment is unenforceable as a practical matter. CRPE then states
that enforcement of such a global commitment to adopt unidentified
measures (e.g., State Strategy at II-A-13, 15, 16 and II-B-15, 23) to
be implemented in the Valley by 2010 is extremely difficult given the
open-ended commitment to adopt unspecified strategies. CRPE states that
citizens cannot enforce vague control measures that do not commit ARB
to any particular regulations by 2008 and citizens are left with
enforcing the global tonnage amounts after 2010.
Response: CRPE does not explain why it believes that ARB's
commitments are unenforceable. CRPE implies that it would be easier
and/or more convenient for citizens to enforce a different type of
commitment. Even assuming CRPE is correct, this does not equate to
unenforceablity. Moreover, as seen above, the commitment in TCM 2,
which the court found to be enforceable in Bayview, is directly
analogous to ARB's commitments in the 2004 SIP and 2003 State Strategy.
Thus, we do not agree that the commitments are unenforceable.
Comment: CRPE claims that all of the commitments in the 2003 State
Strategy are unenforceable because they include promises by ARB staff
to bring an unidentified measure to the ARB Board (State Strategy at
II-A-13, 15, 16 and II-B-15, 23) and there is no commitment by the
Board itself to adopt a particular strategy to achieve specific
reductions by a specific implementation date. CRPE believes that the
act of proposing a strategy to the Board is not a commitment to adopt a
strategy and, citing 74 FR at 33938, that EPA recognizes this
fundamental defect.
Response: The enforceable commitments in the 2004 SIP and the 2003
Strategy at issue here, as described above and in the proposal at
33938, do not refer to action by ARB staff to take certain measures to
the Board. Rather, as described in detail above, the enforceable
commitments at issue refer to ``ARB'' and/or ``the State'' and require
it to adopt and implement measures to achieve specific reductions in
NOX and VOC emissions by the beginning of the 2010 ozone
season. By adopting both the 2004 Plan and 2003 State Strategy, the
Board endorsed the content of these
[[Page 10430]]
documents and committed the Board to take the actions mandated in them.
Comment: Earthjustice claims that the 2004 Plan simply states that
ARB ``estimates'' that measures in the 2003 State Strategy will achieve
15 tpd VOC and 20 tpd NOX reductions, noting that the
Strategy was adopted before the Plan and therefore doesn't mention the
quantitative commitments (State Strategy at ES-12, 1-7 through 1-9, 1-
23 through 1-26). Earthjustice concludes that this estimate was clearly
wrong, as the State admits it is coming up short.
Response: The 2004 Plan at section 4.7.1 states that ``ARB staff
estimates that the near-term measures in the Statewide Strategy will
provide 15 tpd ROG and 20 tpd NOX in the San Joaquin Valley
in 2010.'' The near-term measures in the 2003 State Strategy are
reproduced as Table 4-3 in the 2004 Plan. Because the State's
enforceable commitments are to achieve, independent of any estimates in
the plan, aggregate emission reductions from one or more of the control
measures in Table 4-3, by adopting one or more alternative control
measures, or by implementing incentive programs, it was not necessary
for the State to quantify the measures in Table 4-3.
To the extent that Earthjustice in this comment intends to argue
that the 5 tpd VOC and 20 tpd NOX in ARB's commitments are
merely estimates and therefore do not constitute enforceable
obligations, we disagree for the reasons stated in our responses to
comments above.
E. Rate of Progress Demonstration
Comment: Earthjustice asserts that the method used in the 2004 SIP
to demonstrate ROP is not allowed by CAA section 182(c)(2)(B) because
the plan allows for the averaging of reductions over more than 3 years
while the CAA allows averaging over 3-year periods only. It also argues
that the State's demonstration relies on carrying forward excess
emissions reductions from previous milestone years and that this is
also inconsistent with the CAA because it again allows emissions
reductions to be averaged over longer periods than the 3-year period
expressly allowed. Finally, Earthjustice claims that without carrying
forward the excess emissions reductions from previous milestones, it
does not appear that the District has continued to make the required
reasonable further progress in reducing VOC emissions.
Response: The post-1996 ROP requirement in CAA section
182(c)(2)(B), while simple in concept, is among the most complex of the
Act's nonattainment area plan requirements to apply in practice. See,
for example, the General Preamble's discussion at 13516 on how to
calculate a post-1996 ROP target. To respond to these comments, several
points need to be understood about the ROP demonstration requirement:
1. A state demonstrates that it meets the required ROP by showing
that total emissions in its area will be at or below a target level of
emissions for a specified year.\15\ This target level of emissions,
referred to as the ROP milestone, is calculated for each of the area's
milestone dates (e.g., 1996, 1999, 2002, etc.) according to CAA
requirements and the procedures in the General Preamble. Each
successive milestone reflects the accumulated ROP from the preceding
milestone periods (e.g., 1990-1996, 1997-1999, etc.). States often
convert this target level of emissions into the emissions reductions
needed to show ROP by subtracting it from its baseline inventory for
that milestone year.
---------------------------------------------------------------------------
\15\ From the General Preamble at 13508: ``Once the 1996 target
level of emissions is calculated, States must develop whatever
control strategies are needed to meet that target. * * * The
assessment of whether an area has met the RFP requirement in 1996
will be based on whether the area is at or below the 1996 target
level of emissions and not whether the area has achieved a certain
actual reduction relative to having maintained the current control
strategy.''
---------------------------------------------------------------------------
Plotted on a graph where the x-axis is the milestone years between
1990 and an area's attainment date and the y-axis is the milestone
target level, the ROP milestones would produce a slightly concave
downward line. This line establishes the maximum level of allowable
emissions for the area to meet the ROP requirement. The CAA's
``averaged over three years'' requirement means that the total
emissions level in the area can rise above the line during that 3-year
period between milestone dates provided it is below the line by the
milestone date. An example of an ROP graph can be found at 66 FR 42480,
42843 (August 13, 2001), proposed approval of New York's 2002, 2005,
and 2007 ROP plans.
EPA has consistently treated ROP milestones as target levels of
emissions. See for example, 61 FR 10921 (March 18, 1996), proposed
approval of California's ROP and attainment plans for 7 nonattainment
areas; 62 FR 37175, 37177 (July 11, 1997), proposed approval of Texas's
15 percent ROP plans for Dallas, El Paso and Houston; 65 FR 11525,
11530 (March 3, 2000), proposed approval of Illinois' post-1996 ROP
plan for Chicago; and 70 FR 2085, 2088 (January 12, 2005), proposed
approval of the Washington, DC area's post-96 and post-99 ROP plans.
Thus, understood as an emissions level target, it is clear that so long
as a state can demonstrate that total emissions levels in its area are
below each ROP milestone, it does not need to show an actual 9 percent
emission reduction in each 3-year period. Therefore, the comment that
the manner in which California demonstrated ROP is not in compliance
with the Act is unfounded.
2. The commenter is incorrect that the CAA forbids carrying forward
of excess emissions reductions. In fact, section 182(c)(2)(C)
specifically provides that emission reductions beyond the 15 percent
required under section 182(b)(1) for the period 1990-1996 are
creditable toward the ROP requirement in section 182(c)(2): ``The
reductions creditable for the period beginning 6 years after November
15, 1996 shall include reductions that occurred before such period,
computed in accordance with [section 182(b)(1)], that exceed the 15
percent amount of reductions required under [section 182 subsection
(b)(1)]). (Emphasis added.) While this sentence refers explicitly only
to carrying forward excess reductions into the 1997-1999 period, we do
not believe that Congress intended to prohibit carrying forward of
excess emissions reductions into other ROP periods. Congress was
interested in both expediting emissions reductions and reducing the
costs of air pollution controls. The first would be served by rewarding
States for early implementation by allowing the carryover of credit and
the latter by not ignoring otherwise creditable emissions reductions
that had already occurred. See Ass'n of Irritated Residents v. EPA, 423
F.3d 989, 996 (In the context of allowing credit for past emission
reductions under CAA section 189(d) for PM-10 plans: ``[b]y allowing
such crediting, the EPA provides a material incentive for implementing
the most effective measures as quickly as possible.'').
3. States are allowed to substitute NOX reductions for
VOC reductions in any post-1996 ROP demonstration (see CAA section
182(c)(2)(C)) and may use NOX reductions exclusively for
post-1996 ROP demonstrations. See 70 FR 25688, 25697 (May 13, 2005);
approval of the Washington, DC area's 1-hour ozone attainment
demonstration; and 68 FR 7476, 7486 (February 14, 2003), approval of
Rhode Island's 1-hour ozone attainment demonstration. SJV has an
approved 15 percent ROP demonstration and thus has already met its
minimum VOC ROP obligation. See 62 FR at 1172. It may, therefore, rely
exclusively on NOX reductions to meet its 2008 and 2010 ROP
requirements
[[Page 10431]]
and the commenter's contention that the District has not met its
required VOC ROP requirement is baseless.
Comment: CRPE argues that the CAA requires that states only take
credit for reductions from SIP-approved measures in ROP demonstrations,
citing CAA section 182(b)(1)(D). CRPE also argues that EPA's
longstanding interpretation of the ROP provision also limits credit to
SIP-approved measures, citing our proposed approval of the ROP
demonstration in the 1999 amendment to the 1997 1-hour ozone standard
plan for the South Coast Air Basin (SCAB) (65 FR 6091, 6098 (February
8, 2000)) which cites the General Preamble at 13517.
Response: CAA section 182(b)(1)(C) does not limit emissions
reductions creditable in ROP demonstrations to just those reductions
from SIP-approved rules, it also allows credit from rules promulgated
by the Administrator (e.g., FMVCP), and CAA title V federal operating
permits. Neither federal measures nor title V permits are in the SIP.
EPA has approved numerous ROP demonstrations that rely on
reductions from Federal measures. See, for example, 61 FR 11735 (March
22, 1996), approval of Wisconsin's 15 percent ROP plan and contingency
measures; 66 FR 586 (January 3, 2001) approval of the Washington, DC
area's attainment and post-96 ROP plans; and 66 FR 54143 (October 26,
2001), approval of Pennsylvania's post-96 ROP plan for the Philadelphia
area. As discussed in the proposal, we have historically treated
California's waiver measures similarly to the Federal motor vehicle
control requirements. 74 FR at 33939.
In the February 2000 proposed rule cited by the commenter, EPA
proposed to approve the ROP demonstration for the SCAB. This
demonstration relied explicitly on reductions from SIP-approved
District rules and SIP-approved commitments from the District and
State; therefore, we limited our description of the ROP requirement to
those ROP provisions that were applicable to our action. By doing so,
we did not rewrite the Act or the General Preamble to limit creditable
reductions in ROP demonstrations to SIP-approved measures only. We note
that although the ROP demonstration in the South Coast plan relied
explicitly only on reductions from SIP-approved rules and commitments,
it relied implicitly on ARB's adopted and implemented mobile source
program, reductions from which are incorporated into the South Coast
plan's baseline inventory, to generate the majority of emissions
reductions needed for ROP.
F. Attainment Demonstration
Comment: Earthjustice comments that SJV will not attain the 1-hour
ozone standard by 2010 because there have been too many exceedances of
the standard in 2008 and 2009 and that these exceedances show that the
attainment demonstration is not working and is not approvable. It also
comments that EPA has made clear that attainment by the deadline
requires that the three years leading up to that deadline must be
clean. In support of its position, the commenter cites EPA's PM2.5
implementation rule at 40 CFR Sec. 51.1000; the preamble to the
PM2.5 implementation rule at 72 FR 20586, 20600 (April 25,
2007); and EPA's ``Response to Comments Document, Finalizing Approval
of the PM-10 State Implementation Plan for the Clark County Serious PM-
10 Nonattainment Area Annual and 24-Hour PM-10 Standards'' at page 41
(April 23, 2004).
Response: Consistent with the CAA and EPA regulations and policy,
the 2004 SJV 1-hour ozone plan demonstrates that the emissions
reductions needed to prevent future violations of the 1-hour ozone
standard would be in place by the beginning of the 2010 ozone season
rather than by the beginning of the 2008 ozone season. See 2004 SIP, p.
5-5.
The three cites in the commenter's letter are all to descriptions
of attainment determinations. The determination of attainment required
by CAA section 181(b)(2), which is made by reviewing ambient air
quality monitoring data after the attainment date, is distinctly
different from the demonstration of attainment required by CAA section
182(c)(2), which is based on projections of future air quality levels
and submitted before the attainment date. For the 1-hour ozone
standard, an attainment determination is based on monitored air quality
levels in the three years preceding the attainment date. General
Preamble at 13506. In acting on the 2004 SJV 1-hour ozone plan under
CAA section 110(k), we are not making an attainment determination.
An attainment demonstration is based on air quality modeling
showing that projected emissions in the attainment year will be at or
below the level needed to prevent violations of the relevant ambient
air quality standard. For ozone, the attainment year is defined as the
calendar year that includes the last full ozone season prior to the
statutory attainment date. 40 CFR 51.900(g). More simply, ozone
attainment demonstrations show that the air quality will be at or below
the level of the standard no later than the beginning of the ozone
season immediately prior to the attainment date. EPA has never
interpreted the Act to require that the demonstration show that air
quality levels will be at or below the level of the standard for each
of the three ozone seasons prior to the attainment date.
Following this interpretation, the 2004 SIP does not demonstrate
that there would be no violations of the revoked 1-hour ozone standard
in 2008 or 2009. Rather it demonstrates that clean air would begin with
the 2010 ozone season. Because we are still months away from the start
of the 2010 ozone season and air quality trends show decreasing number
of days over the standard, we believe it is premature to say the 2004
1-hour ozone plan will not result in attainment by the SJV area's
ultimate applicable attainment date.
Our policy on attainment demonstrations is consistent with the
ozone attainment provisions in subpart 2 of title 1, part D of the CAA.
The program Congress crafted here for ozone attainment does not require
that all measures needed to attain the standard be implemented three
years prior to the area's attainment date. For example, moderate areas
were required by section 182(b)(1) to provide for VOC emissions
reductions of 15 percent reduction by November 15, 1996 which was also
the attainment date for these areas. For areas classified serious and
above, CAA section 182(c)(2)(B) requires that ROP of 3 percent per year
averaged over 3 years ``until the attainment date'' (a total of 9
percent reduction in emissions in the 3 years leading up to an area's
attainment date). EPA does not believe that Congress intended these
mandatory reductions to be in excess of what is needed to attain.
This position is also consistent with the attainment date extension
provisions in CAA section 181(a)(5). Under this section, an area that
does not have three-years of data meeting the ozone standard by its
attainment date but has complied with all requirements and commitments
pertaining to the area in the applicable implementation plan and has no
more than one exceedance of the standard in the attainment year, may
receive a one-year extension of its attainment date. Assuming these
conditions are again met the following year, the area may receive an
additional one-year extension. If the area has no more than one
exceedance in this final extension year, then it will have three years
of data indicating that it has attained the ozone standard.
EPA has consistently taken this position in guidance and in our
[[Page 10432]]
approval of 1-hour ozone attainment demonstrations. Our ozone modeling
guidance, which was issued less than a year after the 1990 Amendments
were enacted, requires States to model the ozone season before the
attainment date and not the third ozone season before the attainment
date. See Chapter 6 ``Attainment Demonstrations,'' Guideline for
Regulatory Application of the Urban Air Shed Model (July 1991, OAQPS,
EPA).
The ozone attainment demonstrations that EPA has approved since the
CAA Amendments of 1990 have been based on this modeling guidance and
demonstrate attainment only for the attainment year. See, for example,
61 FR 10921 (March 18, 1996) and 62 FR 1150 (January 8, 1997), proposed
and final approval of California's attainment plans for 7 nonattainment
areas; 66 FR 54143 (October 25, 2001), approval of Pennsylvania's 1-
hour ozone attainment plan for the Philadelphia area; and 67 FR 30574
(May 7, 2002), approval of Georgia's 1-hour ozone attainment plan for
Atlanta.
G. Contingency Measures
Comment: Earthjustice states that the purpose of contingency
measures following an area's failure to attain is to provide extra
emissions reductions that are needed to attain. It then asserts that
EPA's approach of allowing areas to credit emissions reductions from
measures that are already in place that are not needed for attainment
is arbitrary and illegal because, if the area does fail to attain, the
reductions from these measures are not surplus and more are needed. It
argues further that EPA's policy allows plans to be approved without
the ``safety net that Congress envisioned,'' so that when the SJV area
fails to attain in 2010 there is nothing in the plan that can take
immediate effect without further action by the State or the District to
address such a failure.
Response: We did not propose to credit ``extra'' or ``surplus''
reductions in the attainment demonstration as contingency measures in
our proposed approval of the attainment contingency provisions in the
2004 SJV 1-hour ozone plan.\16\ In our July 14, 2009 proposal and again
in our October 2, 2009 supplementary proposal, we made it clear that
there were no excess emissions reductions from adopted measures in the
attainment demonstration. See 74 FR at 33944 and 74 FR 50936, 50937.
Nevertheless, the commenter seems to believe that the reductions the
State credits as its attainment contingency measures will already be in
place by the SJV area's attainment year, 2010, and thus will already be
contributing to reduced ozone levels in that year. This is not the case
here.
---------------------------------------------------------------------------
\16\ By ``surplus'' and ``extra'' emissions reductions, the
commenter is referring to emissions reductions that are realized in
the attainment year that are more than the emissions reductions
needed to demonstrate attainment. We refer to these additional
reductions as ``excess reductions in the attainment demonstration.''
---------------------------------------------------------------------------
The measures relied on for attainment contingency measures in the
2004 SJV 1-hour ozone plan are existing State and federal on- and off-
road new engine standards.\17\ Emissions reductions from these types of
measures accumulate as the engine fleet turns over, resulting in
increasing benefits over time. All of the reductions from these
measures that are used by the State to show compliance with the
attainment contingency measures requirement occur in 2011, the year
after the SJV area's attainment date. It is this additional benefit,
i.e., an additional 15.7 tpd NOX and 8.6 tpd VOC in
reductions beyond the reductions from these measures in 2010, to be
realized in the SJV area in 2011, that the State uses to meet the
contingency measures requirement. 74 FR 50936, 50938 (Table 1). Thus
these reductions will not be reflected in 2010 ambient air quality
levels but will provide air quality benefits in 2011. In this respect,
the emission reductions from the State and federal on- and off-road new
engine standards that serve as contingency measures in the SJV area are
virtually identical in operation to the type of contingency measure
that the commenter appears to advocate, e.g., a control measure adopted
by the State or District that would remain unimplemented, and thus
yielding no emission reductions until triggered by a failure of the
area to attain the standard.
---------------------------------------------------------------------------
\17\ EPA has long allowed states to use already implemented
measures to meet the CAA sections 172(c)(9) and 182(c)(9)
contingency measures requirement, provided that the reductions from
these measures were not also relied on for attainment and/or ROP,
i.e., in excess to the attainment demonstration or ROP. See 62 FR
15844 (April 3, 1997); 62 FR 66279 (December 18, 1997); 66 FR 30811
(June 8, 2001); 66 FR 586 and 66 FR 634 (January 3, 2001). In these
rulemakings, however, unlike the situation here, the reductions used
for contingency measures were realized in the attainment year, i.e.,
they were excess reductions in the attainment demonstration, and
continued without increasing into following years.
---------------------------------------------------------------------------
In LEAN v. EPA, 382 F.3d 575 (5th Cir. 2004), the court upheld
EPA's approval of contingency measures that relied on reductions that
occurred one year prior to the Baton Rouge area's failure to attain but
that continued on an annual basis thereafter and were, among other
things, surplus. Id. at 583. In other words, as the court framed it,
``the effects continue to manifest an effect after the plan fails.''
Id. The court found that ``[t]he setting aside of a continuing, surplus
emissions reduction fits neatly within the CAA's requirement that a
necessary element of a contingency measure is that it must `take effect
without further action by the State or [EPA]' '' Id. at 584. In LEAN,
in contrast to the situation here, the air quality benefits from the
contingency measures occurred prior to a potential plan failure and the
emission reductions from these measures did not increase thereafter,
but continued at the same rate. Thus the contingency measures in the
2004 SJV 1-hour ozone plan, to a greater extent than in LEAN, fulfill
the purpose of such measures ``to provide a cushion while the plan is
being revised to meet the missed milestone.'' 72 FR 20586, 20642.
Comment: Earthjustice notes that EPA's proposal to approve the
updated contingency measure demonstration rests on crediting emissions
reductions from State programs that are not enforceable components of
the plan. It asserts that the CAA requires that all State and local
control measures relied upon to satisfy the planning requirements of
the Act be included in the implementation plan, citing the language in
CAA sections 172(c)(9) and 182(c)(9) and that it is not sufficient to
simply identify measures because they could be revised or revoked
without EPA approval under section 110(l), or would be unenforceable
under the CAA if the State were to decide not to implement them.
Response: In this particular case, all measures credited as
contingency measures are State and federal on- or off-road mobile
source controls adopted prior to September 2002. These controls include
waiver measures which EPA believes may be used to meet the CAA's
contingency measures requirement. In our response to comments on the
treatment of waiver measures above, we address at length our view that
such measures can be relied on to meet the CAA's planning requirements
without being approved by EPA into the SIP. We also address in that
section the commenter's concerns regarding enforceability and
antibacksliding.
We note further that since the State has been implementing these
emission standards since 2002, the likelihood that the State will, at
this late date, suddenly decide to stop implementing them is
negligible. Moreover, engines complying with these standards are
already being sold and therefore the technology required to meet them
has been demonstrated, making it even less likely that the State would
stop implementing
[[Page 10433]]
them. However, in the unlikely event that the State should relax or
revoke a measure that is relied on for contingency, EPA has mechanisms
other than section 110(l) to assure adequate contingency measures,
including finding the SIP inadequate under section 110(k)(5).
We note also that since 2002, in part to fulfill its emissions
reductions commitment, the State has adopted other control measures
that reduce emissions from on- and off-road vehicles which are not
considered in calculating the post-2010 emissions reductions for
contingency measures. See Goldstene letter. We also note that the State
and District have submitted the 2007 8-hour ozone plan that includes
additional post-2010 emissions reductions.
Comment: Earthjustice claims that our proposal on the appropriate
treatment of emissions reductions from waiver measures makes no mention
of contingency measures or the specific statutory language in sections
172(c)(9) or 182(c)(9) which provide that ``[s]uch measures shall be
included in the plan revision * * *.'' It then asserts that the
extension of our policy on waiver measures to contingency measures
ignores the plain language of sections 172(c)(9) and 182(c)(9) and that
EPA has not shown that it has allowed the use of measures that are not
in the SIP for contingency measures. Finally, the commenter states that
EPA cannot claim that Congress in the 1990 Amendments ratified the
practice of allowing waiver measures as contingency measures because
EPA has never before adopted it.
Response: Our discussion in the proposal regarding the SIP
crediting of emissions reductions from waiver measures does not address
the SIP purposes for which these reductions would be used. Our
discussion presumed that waiver measures could be credited for any SIP
purpose for which similar federal measures can be used: ``EPA treated
[the waiver] rules 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.'' 74 FR at
33939. While there was no explicit statutory requirement for
contingency measures prior to the 1990 CAA Amendments, there is no
reason to believe that Congress would make a distinction between
measures creditable in attainment and ROP demonstrations and those
creditable for contingency measures.
EPA has long allowed States to use federal measures as contingency
measures. See 62 FR 15844, 15847 (April 3, 1997), approval of Indiana's
15 percent ROP plan for the Chicago-Gary-Lake County 1-hour ozone
nonattainment area; 62 FR 66279 (December 18, 1997), approval of
Illinois' 15 percent ROP plans for the Chicago-Gary-Lake County 1-hour
ozone nonattainment area and East St. Louis 1-hour ozone nonattainment
area; 66 FR 30811 (June 8, 2001), approval of Rhode Island's post-96
ROP plan; 55 FR 33996, 33999 (June 26, 2001), approval of St. Louis's
1-hour ozone attainment plan; 66 FR 40802, 40824 (August 3, 2001)
finalized at 66 FR 56944 (November 13, 2001), approval of Indiana's
attainment and ROP demonstrations and related contingency measures for
the Chicago-Gary-Lake County 1-hour ozone nonattainment area; 66 FR
56904, 56905 (November 13, 2001) approval of Illinois's attainment and
ROP demonstrations and related contingency measures for the Chicago-
Gary-Lake County 1-hour ozone nonattainment area.
H. VMT Offset Requirement
Comments: CRPE alleges that the 2004 SIP fails to include
transportation control measures (TCM) as required by CAA section
182(d)(1)(A), asserting that the plain language, legislative history,
and the structure of the CAA require TCMs when vehicle miles traveled
(VMT) increase in a region. In support of its position, the Center
quotes a statement from the legislative history of the 1990 CAA
Amendments: ``[t]he baseline for determining whether there has been
growth in emissions due to increased VMT is the level of vehicle
emissions that would occur if VMT held constant in the area.'' 2 S.
Comm. on Environment & Public Works, 103rd Cong., A Legislative History
of the Clean Air Act Amendments of 1990 (Comm. Print 1993) at 3266
(H.R. Rep. No. 101-490 (1990)).
Response: CAA section 182(d)(1)(A) requires a state to submit a SIP
revision, for severe and extreme nonattainment areas such as the SJV
area, that identifies and adopts specific enforceable transportation
control strategies and TCMs to offset any growth in emissions from
growth in VMT or numbers of vehicle trips in such areas. Since the
statutory language plainly requires that growth in emissions be offset,
we interpret this provision to require TCMs only when there is growth
in emissions due to growth in VMT or vehicle trips and not when there
is simply growth in VMT or vehicle trips without a consequential growth
in emissions. Because the 2004 1-hour ozone plan shows that through the
attainment year there will be no increase in motor vehicle emissions
caused by increased VMT or numbers of vehicle trips, the statutory duty
to adopt and submit TCMs to offset emissions growth has not been
triggered. See 2008 Clarifications, page 9, (Table 3) and 74 FR at
33945 (Table 6).
We discuss CAA section 182(d)(1)(A), as well as the excerpt from
the legislative history of the 1990 CAA Amendments cited by the
commenter, in the General Preamble at 13522-13523.
We have consistently applied this interpretation in our previous
approvals of SIPs implementing the provision. See, for example, 60 FR
48896 (September 21, 1995) approval of Illinois' vehicle miles traveled
plan for the Chicago area; 62 FR 23410 (Apr. 30, 1997) and 62 FR 35100
(Jun. 30, 1997), proposed and final approval of New Jersey's 15 percent
ROP plan and other provisions for the New York-New Jersey-Connecticut
ozone nonattainment area; 66 FR 23849 (May 10, 2001), approval of New
York's attainment demonstration and related provisions for the New
York-New Jersey-Connecticut ozone nonattainment area; 66 FR 57247
(November 14, 2001), approval of the VMT offset plan for the Houston-
Galveston ozone nonattainment area; 70 FR 25688 (May 13, 2005),
approval of the Washington, DC area's 1-hour attainment demonstration
and related provisions; 70 FR 34358 (June 14, 2005), approval of
Atlanta's VMT plan; and 74 FR 10176, 10179 (March 10, 2009), approval/
disapproval of the 2004 1-hour ozone plan for the South Coast
(California) Air Basin.
Comments: CRPE asserts that VMT has increased within the San
Joaquin Valley and that vehicle emissions are higher than they would be
if VMT held constant in the area, so EPA's failure to require TCMs
violates the Act.
Response: For the reasons discussed in response to the previous
comment, we believe that section 182(d)(1)(A) only requires the offset
of any growth in emissions due to VMT growth and not the offset of any
growth in VMT in the absence of consequential growth of motor vehicle
emissions. Consistent with our guidance in the General Preamble, the
2004 1-hour ozone plan demonstrates that there is no year-to-year
growth in motor vehicle emissions due to VMT growth over the life of
the plan. See 2008 Clarifications, p. 9. Therefore, no additional TCMs
are required, and EPA may approve the 2004 SIP as meeting the CAA
section 182(d)(1)(A). See discussion at 74 FR at 33944.
[[Page 10434]]
H. Clean Fuels/Technology for Boilers
Comment: Earthjustice notes EPA's statements that the District's
two rules governing gas- and liquid-fired boilers, Rules 4306 and 4307,
require advanced NOX controls and have been approved as RACT
and that the District's rule covering solid-fuel-fired boilers, Rule
4352, also requires advanced NOX control. It then asserts
that EPA has no rational basis for these claims and EPA has not
identified what kinds of advanced controls are in place at sources
covered by these rules. The commenter included several permits for
solid-fuel boilers that operate in the SJV, asserting that permits do
not require catalytic control technology or comparably effective
methods to reduce NOX emissions.
Response: Section 182(e)(3) of the Act requires that SIPs for
extreme ozone nonattainment areas contain provisions requiring that
each new, modified, and existing electric utility and industrial and
commercial boiler that emits more than 25 tpy of NOX either:
(1) Burn as its primary fuel a clean fuel (natural gas, methanol, or
ethanol, or a comparably low-polluting fuel), or (2) use advanced
control technology (such as catalytic control technology) or other
comparably effective control ``catalytic control technology'' was
intended generally to refer to selective catalytic reduction (SCR).
SJVAPCD Rule 4306--Boilers, Steam Generators and Process Heaters--
Phase 3; Rule 4307--Boilers, Steam Generators, and Process Heaters--2.0
MMBtu/hr To 5.0 MMBtu/hr; and Rule 4309--Boilers, Steam Generators, and
Process Heaters--0.075 MMBtu/hr To 2.0 MMBtu/hr apply to gas- and
liquid-fueled boilers. Because of the fuel-input rate limits (5.0
MMBtu/hr and 2.0 MMBTU/hr) in Rules 4307 and 4308, as approved in the
SIP, boilers subject to these rules are too small to be subject to CAA
section 182(e)(3) (i.e., these boilers do not emit greater than 25 tpy
of NOX). We discussed in the proposal that boilers subject
to Rule 4306 could only comply with the limits in that rule through the
use of advanced control technologies. See 74 FR at 33945. SJVAPCD Rule
4352--Solid Fuel Fired Boilers, Steam Generators, and Process Heater
(amended May 18, 2006) applies to boilers that burn a variety of solid
fuels. We discuss Rule 4352 further below.
The State submitted the 2004 SIP on November 15, 2004. As of that
date, the last full year of inventory data available to the District to
determine if boilers in the SJV area met the section 182(e)(3)
requirement was 2003. Inventory data available from ARB's emissions
inventory database (http://www.arb.ca.gov/ei/emissiondata.htm) show
that, in 2003, all boilers that emitted 25 tpy NOX were
either fired on natural gas or solid fuel. This list is provided in the
TSD.
SJVAPCD Rule 4352--Solid Fuel Fired Boilers, Steam Generators, and
Process Heater (amended May 18, 2006) applies to commercial and
industrial boilers (in addition to other types of emission units) at
facilities that potentially emit 10 tpy or more of NOX,
which includes all boilers at such facilities that emit more than 25
tpy of NOX. All of the NOX emission limits in the
current rule effectively require operation of Selective Noncatalytic
Reduction (SNCR) control systems. As discussed below, we believe SNCR
is ``comparably effective'' to SCR for the affected sources, and thus
fulfills CAA section 182(e)(3) requirements for these affected sources.
SNCR also appears to achieve NOX emissions reductions
comparable to combustion of clean fuels at these types of boilers.\18\
---------------------------------------------------------------------------
\18\ We proposed to approve Rule 4352 as meeting the CAA section
182(b)(1) RACT requirement on May 30, 2007 at 72 FR 29901.
Concurrent with this May 30, 2007 proposal, we also approved Rule
4352 in a direct final action. See 72 FR 29887. Because we received
adverse comments on this direct final action, we withdrew it on July
30, 2007 (72 FR 41450). On December 9, 2009 we reproposed to approve
Rule 4352 into the SIP but to disapprove the District's
demonstration that the rule met the RACT requirement. See 74 FR
65042.
---------------------------------------------------------------------------
According to information in EPA's RACT/BACT/LAER Clearinghouse
(http://cfpub.epa.gov/rblc/htm/bl02.cfm), recent Prevention of
Significant Deterioration (PSD) permits contain emission limits for
coal-fired boilers ranging from 0.067 lbs/million Btu (MMBtu) (for
large coal-fired boilers with SCR and low-NOX burner
technology) to 0.1 lbs/MMBtu (for medium-sized coal-fired boilers with
SNCR). These limits reflect Best Available Control Technology (BACT)
determinations under the PSD program. See RACT/BACT/LAER Clearinghouse.
According to the 1994 ACT for industrial/commercial/institutional
boilers (Table 2-6), wood-fired watertube boilers with SCR can achieve
NOX emissions of 0.22 lb/MMBtu. The 1994 ACT does not
contain emission levels for wood-fired fluid bed combustion boilers
with SCR but states that this type of unit with SNCR can achieve
NOX emission limits ranging from 0.03 to 0.20 lb/MMBtu.
Our review of these emission ranges indicates that although
emission rates can vary according to fuel type and boiler size,
generally SNCR controls are comparably effective to SCR for boilers
firing wood (biomass), municipal solid waste, and many other types of
solid fuels. As a general matter, SNCR is also comparably effective to
SCR control for circulating fluidized bed coal-fired boilers of less
than 50 MW electric generation capacity. For coal-fired boilers, we
have focused our review on circulating fluidized bed boilers of less
than 50 MW electric generation capacity because all existing coal-fired
boilers in the SJV are of this type and below this size. See SJVAPCD,
``District Permitted Solid Fuel Boilers,'' found in the docket for this
rulemaking. The emission levels achieved by SNCR control systems are
also generally comparable to the uncontrolled NOX emissions
from boilers firing clean fuels such as natural gas, which may range
from 0.07 to 0.45 lb/MMBtu (Table 2-2 in the 1994 ACT for ICI boilers).
SNCR control systems consistently achieve up to 80 percent
NOX emissions reductions and are compatible with almost all
solid fuel-fired boiler operations, while other controls may in some
cases be sensitive to catalyst poisoning and other technical
constraints.
As to boilers that emit above 25 tpy of NOX, we note
that, as a practical matter, only existing boilers in the SJV are
likely to be constrained by the NOX emission limits in Rule
4352, as all new boilers that potentially emit above 25 tpy and all
major modifications at existing boilers will also be subject to the
more stringent control technology requirements of the Nonattainment New
Source Review (NSR) or PSD permit programs. The requirements of Rule
4352 are generally applicable to this source category and do not
supplant any more stringent control requirements that apply on a case-
by-case basis under the NSR or PSD permit programs.
Additionally, according to a list of permitted facilities in the
SJV provided by the District, all permitted units subject to Rule 4352
are equipped with SNCR. This list may be found in the docket for this
rule. The permits attached by the commenter all state that the units
involved have ammonia injection, another name for SNCR.
K. Other Comments
Comment: CRPE provided extensive comments on the alleged
unenforceability of the pesticide element in the 2003 State Strategy
and argued that EPA should disapprove it.
Response: CRPE's comments on the pesticide element are not germane
to the action we are taking here and we will not address their
specifics. EPA proposed no action on the pesticide element in the 2003
State Strategy as part of its action on the 2004 SJV 1-hour ozone plan.
As we noted in the proposal
[[Page 10435]]
and acknowledged by the commenter, the plan does not rely on emissions
reductions from the pesticide element to demonstrate attainment or ROP.
See 74 FR at 39936, ftn. 7.
Comment: CRPE comments that EPA should not allow emissions
reduction credit for SJVAPCD Rule 4570 because we have proposed to
disapprove the rule for not meeting the CAA's requirement for RACT.
Response: On July 14, 2009, EPA proposed a limited approval/limited
disapproval of Rule 4570, Confined Animal Facilities. First we proposed
to approve the rule into the California SIP under CAA section 110(k) as
a SIP strengthening. Second, we proposed to disapprove the District's
demonstration that the rule meets the RACT provisions of CAA section
182(b)(2). See 74 FR 33948. The limited approval means that the rule is
an enforceable part of the SIP. The limited disapproval requires the
District to provide additional documentation and/or rule revisions to
assure that the rule is RACT in order to avoid the imposition of
sanctions under CAA section 179 and the promulgation of a FIP under CAA
section 110(c). We are finalizing our action on Rule 4570 concurrent
with this action on the SJV 1-hour ozone plan. Because Rule 4570 is now
approved into the SIP, emissions reductions from it can be credited in
the plan's attainment and ROP demonstrations and for other CAA
requirements.
Comment: CRPE comments that allowing emissions reduction credit for
compliance with menu option A.1 in Rule 4570 (feed according to
National Research Council (NRC) Guidelines) for dairy, beef feedlot,
and other cattle facilities is arbitrary and capricious and an abuse of
discretion because these reductions are already reflected in the
baseline emissions factor used to calculate total emissions from
dairies and other cattle related operations. It then claims that if the
10 percent emissions reduction credit for option A.1. was eliminated,
then emissions reductions from Rule 4570 would drop from 7,563 tons per
year (21 tons per day) to 5,632 tons per year (15.5 tons per day). The
Center included a number of documents in support of its comments on the
emissions reductions.
Response: In the 2004 SIP, reductions from the Rule 4570 are
estimated to be 17.7 tpd or 28 percent of the baseline inventory for
confined animal facilities. See 2008 Clarifications at 7 and 74 FR at
33937 (Table 2). In determining the emissions reductions from the rule,
SJVAPCD conservatively estimated that compliance with menu option A.1.
would reduce emissions by 10 percent over the baseline.
The District initially adopted Rule 4570 in June 2006 after
conducting public workshops and providing a public review and comment
period on both the draft rule and its estimate of the Rule's potential
emissions reductions. See Final Draft Staff Report for Rule 4570, p.
50.\19\ During this public process, the Center submitted comments
similar to the ones it makes here. In response to these comments, the
District noted that its emissions reductions estimate was based on a
number of research studies showing that changes in animals' diets would
result in VOC emissions reductions and that the 10 percent reduction it
was using was at the low end of the range of effectiveness seen in this
research. It also noted that the information available in the studies
used to establish the baseline emission factor were not conclusive on
whether the animals in those studies were fed according to the NRC
guidelines and thus the baseline did not necessarily include reductions
associated with a NRC diet. See Final Draft Staff Report for Rule 4570,
Appendix A, p. 12.
---------------------------------------------------------------------------
\19\ SJVAPCD, ``Final Draft Staff Report Proposed Rule 4570
(Confined Animal Facilities),'' June 15, 2006.
---------------------------------------------------------------------------
The District based its estimated emissions reductions for Rule 4570
on a careful consideration of the information then available and used
conservative (i.e., low) estimates of the potential emissions
reductions. We have reviewed the District's analysis and find it
reasonable. Final Draft Staff Report for Rule 4570, p. 24. More
specifically, we do not believe that it overestimates the reductions
from menu option A.1. as alleged by the commenter.
We note that the Center raised this specific issue in State court
litigation on Rule 4570. The courts found for the District on this
issue. See Association of Irritated Residents v. SJVAPCD (2008), 168
Cal. App. 4th 535, 553-554.
Comment: CRPE argues that Rule 4570 codifies existing practices
and, therefore, will not generate emissions reductions. Citing the
District's Staff Report for Rule 4570, it claims that the District
admits that many of the control measures are currently being
implemented and that the District defends its rule as an anti-
backsliding measure that will ensure that current voluntary practices
are not abandoned. CRPE then asserts that the approach that the
District has taken violates the statutory requirement that rules must
reduce emissions.
Response: The District believes and we concur that Rule 4570 will
generate significant emission reductions. Simply because a practice is
an existing industry practice does not mean that every facility uses it
or uses it consistently.
The commenter does not cite the provision in the CAA that it
believes requires, as condition of approval, that SIP rules must reduce
emissions. EPA finds nothing in the CAA that requires that rules
approved into the SIP by EPA result in direct and quantifiable emission
reductions. We frequently approve rules and rule revisions that merely
clarify existing requirements and are not expected to reduce emissions
demonstratively.
A similar argument was raised in response to our 2005 proposal to
approve SJVAPCD Rule 4550, Conservation Management Practices (CMP) for
agricultural sources of PM-10. The commenter in that instance claimed
that the emission reductions estimated to be achieved by the rule were
inaccurate and inflated because the estimate double-counted emission
reductions already being achieved from practices already in common use
by growers. In our response to this argument we stated that ``it was
understood that some agricultural sites may have been employing
practices not required by regulation at that time, and that these
existing practices may not have been accounted for in the emission
inventory. Rule 4550 makes these practices mandatory and federally
enforceable, allowing the District to take credit for the emission
reductions * * *.'' 71 FR 7683 (February 14, 2006)
Comment: CRPE claims that the District guessed or applied a default
emissions reduction estimate to come up with a 36 percent reduction of
VOC emissions from dairy operations for Rule 4570. It then asserts that
approval of the rule with ``fictitious'' reductions based on commonly-
used industry practices would be arbitrary and capricious because the
majority of controls have no factual support whatsoever.
Response: The District used the best information available at the
time it adopted Rule 4570 and applied that information reasonably to
determine the emissions reductions estimates for the rule. See Rule
4570 Staff Report, p. 22. As noted above, simply because a practice is
commonly used in an industry does not mean that it is used by every
facility or used consistently by every facility in that industry. We
note that the Center also raised this specific issue in State court
litigation on Rule 4570. The courts found for the District
[[Page 10436]]
on this issue. See Association of Irritated Residents v. SJVAPCD
(2008), 168 Cal. App. 4th 535, 553-554.
III. Approval Status of Rules
The demonstration of attainment in the 2004 SIP and 2008
Clarifications relied on emission reductions from a number of District
and State rules. EPA has now taken final action to approve each of
these rules into the California 1-hour ozone SIP as shown in Table 1
below for the District rules and discussed below for the State rules.
Table 1--Approval Status of San Joaquin Valley Air Pollution Control District Rules Relied on in the 1-Hour
Ozone Standard Attainment Demonstration
----------------------------------------------------------------------------------------------------------------
NOX controls
-----------------------------------------------------------------------------------------------------------------
Achieved
Rule , description and commitment ID emission
from 2004 SIP reductions Approval cite/date
(2010-tpd)
----------------------------------------------------------------------------------------------------------------
9310 Fleet School buses (C).................. 0.6 NFR signed 12/11/2009.
4307 Small Boilers (2-5 MMBTU) (E)........... 5.1 72 FR 29887 (5/30/07).
4702 Stat. IC engines (H).................... 16.8 73 FR 1819 (1/10/08).
4309 Commercial Dryers (I)................... 0.7 72 FR 29887 (5/30/07).
4308 Water Heaters 0.075 (N)................. 0.8 72 FR 29887 (5/30/07).
4103 Open Burning (Q)........................ 1.7 74 FR 57907(11/10/09).
4703 Sta. Gas Turbines (S)................... 1.9 74 FR 53888 (10/21/09).
----------------
NOX Totals............................... 27.6 .................................................
----------------------------------------------------------------------------------------------------------------
VOC controls
-----------------------------------------------------------------------------------------------------------------
Achieved
emission
Rule and description reductions Approval cite/date
(2010-tpd)
----------------------------------------------------------------------------------------------------------------
4409 Oil & Gas Fug. (A)...................... 5.1 71 FR 14653 (3/23/06).
4455 Ref. & Chem. Fug. (B)................... 0.3 71 FR 14653 (3/23/06).
4612 Automotive Coating (incorporates Rule 1.0 Final signed 12/3/09.
4602)(K).
4570 CAFO Rule (L)........................... 17.7 NFR signed 12/11/09.
4662 Org. Solvent Degreasing (M)............. .............. 74 FR 37948 (7/30/09).
.............. 74 FR 37948 (7/30/09).
4663 Org. Sol. Cleaning (M).................. .............. Final signed 12/3/09.
4603 Metal Parts/Products (M)................ .............. Final signed 12/3/09.
4604 Can and Coil Coating (M)................ .............. Final signed 12/11/09.
4605 Aerospace Coating (M)................... .............. 74 FR 52894 (10/15/09).
4606 Wood Products Coating (M)............... .............. 74 FR 52894 (10/15/09).
4607 Graphic Arts (M)........................ .............. Final signed 12/3/09.
4612 Automotive Coating (M).................. 3.1 74 FR 52894 (10/15/09).
4653 Adhesives (M)........................... .............. Final signed 12/11/09.
4684 Polyester Resin Operations (M).
4401 Steam-Enhanced Oil-well (O)............. 0.3 Final signed 12/11/09.
4651 Soil Decontamination (P)................ 0.0 74 FR 33397 (7/13/09).
4103 Open Burning (Q)........................ 3.9 74 FR 57907 (11/10/09).
4621 & 4624 Gasoline storage & trans. (T & U) 1.9 74 FR 33397 (7/13/09).
----------------
VOC Totals............................... 33.3 .................................................
----------------------------------------------------------------------------------------------------------------
The ROP and attainment demonstrations in the 2004 SIP and 2008
Clarifications also relied in part on ARB's consumer product
regulations (final approval published at 74 FR 57074 (November 4,
2009)), ARB's reformulated gasoline and diesel fuel regulations (final
approval signed December 11, 2009), and State's SmogCheck vehicle
inspection and maintenance program (final approval signed December 11,
2009).
IV. Final Actions
For the reasons given in our proposed approvals at 74 FR 33933 and
74 FR 50936, EPA is taking the following actions.
1. EPA is approving pursuant to CAA section 110(k)(3), the
following elements of the 2004 SIP and the 2008 Clarifications:
a. The rate of progress demonstration as meeting the requirements
of CAA sections 172(c)(2) and 182(c)(2) and 40 CFR 51.905(a)(1)(i) and
51.900(f)(4);
b. the rate-of-progress contingency measures as meeting the
requirements of CAA section 172(c)(9) and 182(c)(9);
c. the attainment demonstration as meeting the requirements of
182(c)(2)(A) and 181(a) and 40 CFR 51.905(a)(1)(ii); and
d. the attainment contingency measures as meeting the requirements
of CAA section 172(c)(9);
2. EPA is finding pursuant to CAA section 110(k)(3) that the 2004
SIP and the 2008 Clarifications meet the requirements of:
a. CAA section 182(e)(3) and 40 CFR 51.905(a)(1)(i) and
51.900(f)(7) for clean fuel/clean technology for boilers; and
b. CAA section 182(d)(1)(A) and 40 CFR 51.905(a)(1)(i) and
51.900(f)(11) for TCMs sufficient to offset any growth in emissions
from growth in VMT or the number of vehicle trips.
3. EPA is approving pursuant to CAA section 110(k)(3) section 4.7
in the 2004 SIP and the provisions of the 2003 State
[[Page 10437]]
Strategy and ARB Board Resolution 04-29 that relate to aggregate
emission reductions in the San Joaquin Valley Air Basin as meeting the
requirements of CAA sections 110(a)(2)(A) and 172(c)(6).
4. EPA is approving pursuant to CAA section 110(k)(3), the 2004
SIP, the 2003 State Strategy and the 2008 Clarifications as meeting the
RACM (exclusive of RACT) requirements of CAA section 172(c) and 40 CFR
51.905(a)(1)(ii).
5. EPA is approving pursuant to CAA section 110(k)(3), SJVAPCD Rule
9310 School Bus Fleets (adopted September 21, 2006) into the San
Joaquin Valley portion of the California SIP.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law and plans as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 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 action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 7, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: December 11, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraphs (c)(317)(i)(B),
(c)(339)(i)(B), (c)(339)(ii)(C), (c)(348)(i)(A)(2), (c)(369), (c)(370),
and (c)(371) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(317) * * *
(i) * * *
(B) State of California Air Resources Board.
(1) Executive Order G-125-304 ``Adoption and Submittal of New State
Commitments for the San Joaquin Valley'' with Appendix A. Commitment to
achieve additional emissions reductions in the San Joaquin Valley Air
Basin of 10 tons per day (tpd) of nitrogen oxides and 0.5 tpd of direct
PM10 by 2010 as given on page 4 of Executive Order G-125-304, executed
August 19, 2003, and on page 5 of Appendix A (``State of California Air
Resources Board, Resolution No. 03-14, June 26, 2003'') to E.O. G-125-
304.
* * * * *
(339) * * *
(i) * * *
(B) State of California Air Resources Board.
(1) ``Revised Proposed 2003 State and Federal Strategy for the
California State Implementation Plan,'' (release date August 25, 2003),
section I.D.2. ``2003 San Joaquin Valley Particulate Matter State
Implementation Plan'' (pp. I-23 through I-25) which was adopted without
revision to section I.D.2. on October 23, 2003 by ARB Resolution No.
03-22.
(ii) * * *
(C) State of California Air Resources Board.
(1) ``Revised Proposed 2003 State and Federal Strategy for the
California State Implementation Plan,'' (release date August 25, 2003)
as revised by ARB Resolution No. 03-22 (October 23, 2003) excluding for
section I.D.2.
(2) ARB Resolution No. 03-22 (October 23, 2003).
* * * * *
[[Page 10438]]
(348) * * *
(i) * * *
(A) * * *
(2) Rule 9310, ``School Bus Fleets,'' adopted on September 21,
2006.
* * * * *
(369) New and amended plans were submitted on November 15, 2004 by
the Governor's designee.
(i) Incorporation by reference.
(A) State of California Air Resources Board.
(1) ARB Resolution No. 04-29. Commitment to achieve additional
emission reductions in the San Joaquin Valley Air Basin of 10 tons per
day (tpd) of nitrogen oxides and 15 tpd of volatile organic compounds
by 2010 as described on page 5 of Resolution No. 04-29 October 28, 2004
and page 29 of ``Staff Report, Proposed 2004 State Implementation Plan
for Ozone in the San Joaquin Valley, release date September 28, 2004.''
(ii) Additional Material.
(A) San Joaquin Valley Air Pollution Control District.
(1) Extreme Ozone Attainment Demonstration Plan, as adopted by the
SJVAPCD on October 8, 2004 and by the California Air Resource Board on
October 28, 2005.
(370) An amended plan was submitted on March 6, 2006 by the
Governor's designee.
(i) [Reserved]
(ii) Additional Material.
(A) San Joaquin Valley Air Pollution Control District.
(1) Amendments to the 2004 Extreme Ozone Attainment Demonstration
Plan adopted by the SJVAPCD on October 20, 2005 and by CARB on March 3,
2006.
(B) State of California Air Resources Board.
(1) Executive Order G-126-336, dated March 3, 2005 (year is
correctly 2006).
(371) An amended plan was submitted on September 8, 2008 by the
Governor's designee.
(i) [Reserved]
(ii) Additional Material.
(A) San Joaquin Valley Air Pollution Control District.
(1) ``Clarifications Regarding the 2004 Extreme Ozone Attainment
Demonstration Plan for the Revoked Federal 1-hr Ozone Standard''
adopted by the SJVAPCD on August 31, 2008 and by CARB on September 5,
2008.
(B) State of California Air Resources Board.
(1) Executive Order S-08-012, ``Approval and Submittal of
Amendments to the 2004 San Joaquin Valley 1-hour Ozone Attainment
Plan,'' dated September 5, 2008.
[FR Doc. 2010-4752 Filed 3-5-10; 8:45 am]
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