[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12674-12695]
[FR Doc No: 2012-4673]

Vol. 77

Thursday,

No. 41

March 1, 2012

Part III

Environmental Protection Agency

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40 CFR Part 52

 Approval of Air Quality Implementation Plans; California; South Coast;
Attainment Plan for 1997 8-Hour Ozone Standards; Final Rule

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0622; FRL-9624-6]

Approval of Air Quality Implementation Plans; California; South
Coast; Attainment Plan for 1997 8-Hour Ozone Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving state implementation plan (SIP) revisions
submitted by California to provide for attainment of the 1997 8-hour
ozone national ambient air quality standards in the Los Angeles-South
Coast area (South Coast). These SIP revisions are the South Coast 2007
Air Quality Management Plan (South Coast 2007 AQMP) (revised 2011) and
South Coast-related portions of the 2007 State Strategy (revised 2009
and 2011). EPA is approving the base year emissions inventory;
reasonably available control measures demonstration; provisions for
transportation control strategies and transportation control measures;
the reasonable further progress (RFP) and attainment demonstrations;
the transportation conformity motor vehicle emissions budgets for all
RFP milestone years and the attainment year; contingency measures for
failure to make reasonable further progress and to attain; and Clean
Air Act section 182(e)(5) new technologies provisions and associated
commitment to adopt contingency measures. EPA is also approving
commitments to measures and reductions by the South Coast Air Quality
Management District and the California Air Resources Board.

DATES: This rule is effective on April 30, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0622 for
this action. The index to the docket is available electronically at
http://www.regulations.gov and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco, California. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
    Copies of the SIP materials are also available for inspection in
the following locations:
     California Air Resources Board, 1001 I Street, Sacramento,
CA 95812.
     South Coast Air Quality Management District, 21865 E.
Copley Drive, Diamond Bar, CA 91765.
    The SIP materials are also electronically available at http://www.aqmd.gov/aqmp/07aqmp/index.html and http://www.arb.ca.gov/planning/sip/2007sip/2007sip.htm.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.

Table of Contents

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

I. Summary of EPA's Proposed and Final Actions on the 2007 State
Implementation Plan for Attainment of the 1997 8-Hour Ozone Standards
in the South Coast Nonattainment Area

    On September 16, 2011, EPA proposed to approve California's state
implementation plan (SIP) for attaining the 1997 8-hour ozone national
ambient air quality standards (NAAQS) in the Los Angeles-South Coast
Air Basin Area (South Coast).\1\ See 76 FR 57872. California developed
this SIP to provide for expeditious attainment of the 8-hour ozone
standards in the South Coast and to meet other applicable 8-hour ozone
planning requirements in Clean Air Act (CAA) sections 172(c) and 182
and EPA's 8-hour ozone implementation rule.\2\
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    \1\ The area referred to as ``Los Angles-South Coast Air Basin''
(South Coast Air Basin or ``South Coast'') includes Orange County,
the southwestern two-thirds of Los Angeles County, southwestern San
Bernardino County, and western Riverside County. For a precise
description of the boundaries of the Los Angeles-South Coast Air
Basin, see 40 CFR 81.305.
    \2\ Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standards--Phase I; Final rule. 69 FR 23951 (April 30,
2004) and and codified at 40 CFR part 51, subpart Z (8-hour ozone
implementation rule).
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    California has made five submittals to address the CAA planning
requirements for attaining the 1997 8-hour ozone standards in the South
Coast. We refer to these submittals collectively as the ``South Coast
2007 8-hour ozone plan'' or the ``8-hour ozone plan.'' The two
principal ones are the South Coast Air Quality Management District
(SCAQMD or District) Final 2007 South Coast Air Quality Management Plan
(AQMP) (amended 2011) and the California Air Resources Board (CARB)
Final 2007 State and Federal Strategy (2007 State Strategy) (amended
2009 and 2011).\3\ Together, the South Coast 2007 AQMP and the 2007
State Strategy present a comprehensive and innovative strategy for
attaining the 1997 8-hour ozone standards in the South Coast.
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    \3\ These SIP submittals are:
    1. SCAQMD, Final 2007 Air Quality Management Plan (AQMP),
adopted on June 1, 2007 by the SCAQMD and September 27, 2007 by
CARB, submitted on November 28, 2007.
    2. CARB, Proposed State Strategy for California's 2007 State
Implementation Plan, as amended and adopted on September 27, 2007 by
CARB, submitted on November 16, 2007.
    3. CARB, Status Report on the State Strategy for California's
2007 State Implementation Plan (SIP) and Proposed Revisions to the
SIP Reflecting Implementation of the 2007 State Strategy (pages 11-
27 only), adopted on April 24, 2009 by CARB, submitted on August 12,
2009.
    4. Progress Report on Implementation of PM2.5 State
Implementation Plans (SIP) for the South Coast and San Joaquin
Valley Air Basins and Proposed SIP Revisions, adopted on April 28,
2011 by CARB, submitted with the adopting resolution and other
supporting documentation by CARB on May 18, 2011.1 See CARB Board
Resolution 11-24, April 28, 2011 and letter, James N. Goldstene,
Executive Officer, CARB, to Jared Blumenfeld, Regional
Administrator, EPA Region 9, May 18, 2011 with enclosures. Appendix
F of this SIP revision contained the SCAQMD's Revisions to the 2007
PM2.5 and Ozone State Implementation Plans for the South
Coast Air Basin and Coachella Valley (SIP Revisions), adopted on
March 4, 2011 by the SCAQMD Governing Board and approved by the CARB
Board on April 28, 2011. This SIP revision includes an update on
District rule implementation and commitments provided by SCAQMD for
the 2007 AQMP for ozone and PM2.5. This SIP revision was
included as Appendix F in CARB's 2011 Progress Report and will be
referred to as such.
    5. CARB, Proposed 8-Hour Ozone State Implementation Plan
Revisions and Technical Revisions to the PM2.5 State
Implementation Plan Transportation Conformity Budgets for the South
Coast and San Joaquin Valley Air Basins, adopted on July 21, 2011 by
CARB and submitted on July 29, 2011. (2011 Ozone SIP Revision).
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    In our September 2011 notice, EPA proposed to approve the SIP's
base year emissions inventory, reasonably available control measures
(RACM) demonstration, the reasonable further progress (RFP) and
attainment demonstrations, provisions for advanced technology/clean
fuels for boilers, provisions for transportation control strategies and
transportation control measures (TCMs), transportation conformity motor
vehicle emissions budgets (budgets) for all milestone years and the
attainment year, contingency

measures for failure to make RFP or attain, and CAA section 182(e)(5)
new technologies provisions and the associated commitment to adopt
contingency measures \4\ as meeting the applicable requirements of the
CAA. We also proposed to approve enforceable commitments by both the
District and CARB to certain measures and emissions reductions.\5\ See
76 FR 57872.
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    \4\ See letter, James Goldstene, Executive Officer, CARB, to
Jared Blumenfeld, Regional Administrator, EPA Region 9, dated
November 18, 2011.
    \5\ We also proposed in the alternative to disapprove the SIP
with respect to certain provisions in CAA section 182(d)(1)(A)for
transportation control strategies and measures sufficient to offset
any growth in emissions from growth in vehicle miles traveled or the
number of vehicle trips. In Association of Irritated Residents v.
EPA, 632 F.3d 584 (9th Cir. 2011), the U.S. Court of Appeals for the
Ninth Circuit held that, with respect to the first element, section
182(d)(1)(A) of the CAA requires States to adopt transportation
control measures and strategies whenever vehicle emissions are
projected to be higher than they would have been had vehicle miles
traveled not increased, even when aggregate vehicle emissions are
actually decreasing. EPA has filed a petition for rehearing on this
issue. Docket Nos. 09-71383 and 09-71404 (consolidated), Docket
Entry 41-1, Petition for Panel Rehearing.
    At the time of our September proposal, the Ninth Circuit had not
yet issued its mandate in the AIR case, and EPA had not adopted the
court's interpretation for the reasons set forth in the Agency's
petition for rehearing, pending a final decision by the court. We
stated in our proposal that if the court denied the Agency's
petition for rehearing and issued its mandate before EPA issued a
final rule on the South Coast 2007 8-Hour Ozone SIP, then we
anticipated that we would not be able to finalize approval of the
South Coast 2007 8-Hour Ozone SIP with respect to the first element
(i.e., offsetting emissions growth) of section 182(d)(1)(A). See 76
FR 57872, 57890. Therefore, we proposed in the alternative to
disapprove the South Coast 2007 8-Hour Ozone SIP with respect to the
first element of section 182(d)(1)(A) based on the plan's failure to
include sufficient transportation control strategies and TCM to
offset the emissions from growth in VMT. Id. The court has still not
issued its mandate; therefore, we are approving the South Coast 2007
8-Hour Ozone SIP as meeting the requirements of CAA section
182(d)(1)(A).
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    A more detailed discussion of each of California's SIP submittals
for the South Coast area, the CAA and EPA requirements applicable to
them, and our evaluation and proposed actions, can be found in the
September 16, 2011 Federal Register notice (76 FR 57872) and the
technical support document (TSD) for this final action.\6\
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    \6\ ``Final Technical Support Document and Response to Comments
for the Final Rulemaking Action on the South Coast 2007 8-hour Ozone
Plan and the South Coast Portions of the Revised 2007 State
Strategy,'' Air Division, U.S. EPA Region 9, December 2011. The TSD
can be found in the docket for this rulemaking.
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    EPA is today approving all elements of the South Coast 2007 8-hour
Ozone Plan based on our conclusion that they comply with applicable CAA
requirements and provide for expeditious attainment of the 1997 8-hour
ozone standards in the South Coast nonattainment area.

II. Summary of Public Comments Received on the Proposal and EPA
Responses

    EPA provided the public an opportunity to comment on our proposed
approval of the South Coast 2007 8-hour ozone plan for 30 days
following the proposal's September 16, 2011 publication in the Federal
Register. We received three comment letters in response to our
September 16, 2011 proposal. In the following section, we summarize our
responses to the most significant comments that we received on the
proposals. Our complete responses to comments can be found in the
``Response to Comments'' section of the TSD section III accompanying
today's rulemaking.
    The first letter came from CARB requesting that we limit the
approval of the SIP's transportation conformity motor vehicle emissions
budgets until such time the State submits and EPA finds adequate new
budgets. See letter, Douglas Ito, Chief, Air Quality and Transportation
Planning Branch; California Air Resources Board, October 17, 2011. We
address CARB's request in Section V below. We received a comment letter
from the Natural Resources Defense Council (NRDC) representing various
organizations. See letter, Adrian Martinez, Attorney, Natural Resources
Defense Council, October 17, 2011. We respond to NRDC's comments below.
We also received comments from Ian Scott, a private citizen, on our
September proposal. A copy of the comment letters can be found in the
docket for today's rule.

A. Control Strategy and Enforceable Commitments

1. Enforceable Commitments
    Comment: California Communities Against Toxics, Communities for a
Better Environment, Natural Resources Defense Council, and Physicians
for Social Responsibility--Los Angeles (commenters) assert that the
CARB and District commitments to achieve total tonnage reductions in
the South Coast 8-hour ozone plan are not enforceable. Commenters
assert that the commitments to achieve total tonnages (which they refer
to as ``global commitments'') could be interpreted as ``goals,'' rather
than ``strategies,'' and are not enforceable because they are
discretionary and open-ended. Commenters cite Bayview Hunters Point
Community Advocates v. Metropolitan Transportation Commission, 366 F.3d
692 (9th Cir. 2004) and El Comite Para El Bienstar de Earlimart v.
Warmerdam, 539 F.3d 1062, 1067 (9th Cir. 2008). Commenters assert that
enforcement of the ``global commitments'' by citizens is not possible
because neither citizens nor EPA can determine whether CARB has met the
``global commitments,'' and because CARB and the District determine
compliance with the ``global commitment'' target, thus leaving them in
a situation faced by plaintiffs in Warmerdam. Commenters assert that
the ``global commitments'' are also not enforceable because there are
no measures submitted for inclusion into the SIP to satisfy the tonnage
commitment and there are no reporting requirements for ARB and the
District, and they cite to EPA's General Preamble at 57 FR 13568 which
states, ``[a] regulatory limit is not enforceable if, for example, it
is impractical to determine compliance with the published limit.''
Finally, commenters assert that in order to enforce the ``global
commitments,'' which depend on how CARB and the District calculate
emissions reductions, the methodology that determines how emissions
reductions are calculated must also be enforceable. Commenters state
that in Warmerdam the court found neither the baseline nor methodology
enforceable and thus, the plaintiffs were not able to enforce.
    Response: Under CAA section 110(a)(2)(A), SIPs must include
enforceable emission limitations and other control measures, means or
techniques necessary to meet the requirements of the Act, as well as
timetables for compliance. Similarly, section 172(c)(6) provides that
nonattainment area SIPs must include enforceable emission limitations
and such other control measures, means or techniques ``as may be
necessary or appropriate to provide for attainment'' of the NAAQS by
the applicable attainment date.
    Control measures, including commitments in SIPs, are enforced
directly by EPA under CAA section 113, and also through CAA section
304(a), which provides for citizen suits to be brought against any
person who is alleged ``to be in violation of * * * an emission
standard or limitation. * * *'' ``Emission standard or limitation'' is
defined in subsection (f) of section 304.\7\ As observed in
Conservation Law Foundation, Inc. v. James Busey et al., 79 F.3d 1250,
1258 (1st Cir. 1996):
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    \7\ 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.
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1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).

    Thus courts have found that the citizen suit provision cannot be
used to enforce the aspirational goal of attaining the NAAQS, but can
be used to enforce specific strategies to achieve that goal including
enforceable commitments to develop future emissions controls.

    We describe CARB's and the District's commitments in the 2007 State
Strategy (revised in 2009 and 2011) and the 2007 AQMP in detail in our
proposal (76 FR 57872).\8\ The 2007 State Strategy includes commitments
to propose defined new measures and an enforceable commitment for
emissions reductions sufficient, in combination with existing measures
and the District's commitments, to attain the 1997 8-hour ozone NAAQS
in the South Coast by June 15, 2024. See CARB Resolution 07-28,
Attachment B at p. 4 and 2009 State Strategy Status Report, p. 20. For
the South Coast, the State's emissions reductions commitments, as
submitted in 2007 and revised by the 2009 State Strategy Update, are to
achieve 152 tpd of NOX and 46 tpd of VOC in the South Coast
area by 2014, and 141 tpd NOX and 54 tpd VOC in the South
Coast area by 2023. See 76 FR 57872, at 57881; 2009 State Strategy
Status Report, p. 20.
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    \8\ The 2011 Ozone SIP Revision revised the State's emissions
estimates for certain source categories and projection years and
provided additional information on the State and District's progress
to date in achieving their total emission reduction commitments. In
this action, we are approving CARB's and the SCAQMD's emission
reduction commitments as submitted in the 2007 State Strategy, as
revised by the 2009 State Strategy Update, and South Coast 2007 AQMP
because we do not have sufficient information to determine how the
2011 SIP Revision alters the State's near-term and long-term
emission reduction commitments. We note that the amount and relative
proportion of reductions from measures scheduled for long-term
adoption under section 182(e)(5), as compared to measures already
adopted or scheduled for near-term adoption, should decrease in any
future SIP update.
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    The SCAQMD's commitments as submitted in 2007 (and revised in 2011)
were to achieve 9.2 tpd NOX and 19.3 tpd VOC by 2023. See 76
FR 57872, Table 2, at 57878; see also 2011 Progress Report, Appendix F,
Tables 2 and 3, and SCAQMD Board Resolution 11-9, March 4, 2011. As
discussed above, the State's total emissions reduction commitment is
for 152 tpd of NOX and 46 tpd of VOC by 2014, and 141 tpd of
NOX and 54 tpd of VOC by 2023, which the State remains
obligated to achieve through the adoption of enforceable measures by
2023. See TSD, Table D-5; see also CARB Resolution 07-28, Attachment B
at p. 4. The language used in the Board's resolution adopting the South
Coast 2007 AQMP to describe its commitment is mandatory and unequivocal
in nature:

    Be it further resolved, that the District will develop, adopt,
submit and implement the short- and mid-term control measures as
identified in Tables 4-2A and 4-2B of the 2007 AQMP (Main Document)
as expeditiously as possible in order to meet or exceed the
commitments identified in Table 4-10 of the 2007 AQMP (Main
Document), and to substitute any other measures as necessary to make
up any emission reduction shortfall. [emphasis added]
    SCAQMD Board Resolution No. 07-9, p. 10.

Thus, CARB's commitments here are to adopt and implement measures that
will achieve specific amounts of NOX and VOC reductions by
specific years. These are not mere aspirational goals to ultimately
achieve the standards. Rather, the State and District have committed to
adopt enforceable measures that will achieve these specific amounts of
emission reductions by the RFP year of 2014 and the attainment year
(2023). See 40 CFR 51.908(d) (requiring implementation of all control
measures needed for expeditious attainment no later than the beginning
of the year prior to the attainment date) and 70 FR 71633, 71612
(November 29, 2005). All of these control measures are subject to State
and local rulemaking procedures and public participation requirements,
through which EPA and the public may track the State/District's
progress in achieving the requisite emission reductions. EPA and
citizens may enforce these commitments under CAA sections 113 and
304(a), respectively, should the State/District fail to adopt measures
that achieve the requisite amounts of emission reductions by the
specified year. We conclude that these enforceable commitments to adopt
and implement additional control measures to achieve aggregate emission
reductions on a fixed schedule are appropriate means, techniques, or
schedules for compliance under sections 110(a)(2)(A) and 172(c)(6) of
the Act.

    Commenters cite Bayview as support for their contention that the
plan's commitments are unenforceable aspirational goals. Bayview does
not, however, provide any such support. That case involved a provision
of the 1982 Bay Area 1-hour ozone SIP, known as TCM 2, which states in
pertinent part:

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

Ultimately the 15% ridership estimate was adopted by the Metropolitan
Transportation Commission (MTC), the implementing agency, as the actual
target. Plaintiffs subsequently attempted to enforce the 15% ridership
increase. The court found that the 15% ridership increase was an
unenforceable estimate or goal. In reaching that conclusion, the court
considered multiple factors, including the plain language of TCM 2
(e.g., ``[a]greeing to establish a ridership `target' is simply not the
same as promising to attain that target,'' Bayview at 698); the logic
of TCM 2, i.e., the drafters of TCM 2 were careful not to characterize
any given increase as an obligation because the TCM was contingent on a
number of factors beyond MTC's control, id. at 699; and the fact that
TCM 2 was an extension of TCM 1 that had as an enforceable strategy the
improvement of transit services, specifically through productivity
improvements in transit operators' five-year plans, id. at 701. As a
result of all of these factors, the Ninth Circuit found that TCM 2
clearly designated the productivity improvements as the only
enforceable strategy. Id. at 703.
    The commitments in the 2007 State Strategy (revised in 2009 and
2011) and South Coast 2007 AQMP are in stark contrast to the ridership
target that was deemed unenforceable in Bayview. The language in CARB's
and the District's commitments, as stated multiple times in multiple
documents, is specific; the intent of the commitments is clear; and the
strategy of adopting measures to achieve the required reductions is
completely within CARB's and the District's control. Furthermore, as
stated previously, CARB and the District

identify specific emission reductions that they will achieve, how they
could be achieved and the time by which these reductions will be
achieved, i.e., by the 2023 attainment year. See Tables 3 and 4.
    CARB's and the District's commitments here are analogous to the
terms of the contingency measures in Citizens for a Better Environment
v. Deukmejian, 731 F. Supp. 1448 (N.D. Cal. 1990), [known as CBE I],
for the transportation sector in the 1982 Bay Area 1-hour ozone SIP.
The provision states: ``If a determination is made that RFP is not
being met for the transportation sector, MTC will adopt additional TCMs
within 6 months of the determination. These TCMs will be designed to
bring the region back within the RFP line.'' The court found that
``[o]n its face, this language is both specific and mandatory.'' Id. at
1458. In CBE I, CARB and MTC argued that TCM 2 could not constitute an
enforceable strategy because the provision fails to specify exactly
what TCMs must be adopted. The court rejected this argument, finding
that ``[w]e discern no principled basis, consistent with the Clean Air
Act, for disregarding this unequivocal commitment simply because the
particulars of the contingency measures are not provided. Thus we hold
that the basic commitment to adopt and implement additional measures,
should the identified conditions occur, constitutes a specific
strategy, fully enforceable in a citizen's action, although the exact
contours of those measures are not spelled out.'' Id. at 1457. In
concluding that the transportation and stationary source contingency
provisions were enforceable, the court stated: ``Thus, while this Court
is not empowered to enforce the Plan's overall objectives [footnote
omitted; attainment of the NAAQS]--or NAAQS--directly, it can and
indeed, must, enforce specific strategies committed to in the Plan.''
Id. at 1454; see also Citizens for a Better Environment v. Metropolitan
Tranp. Comm'n, 746 F. Supp. 976, 980 (N.D. Cal. 1990) [known as CBE II]
(rejecting defendants' argument that RFP and the NAAQS are coincident
and stating that the court's enforcement of the contingency plan, an
express strategy for attaining NAAQS, is distinct from simply ordering
that NAAQS be achieved).
    As in the CBE cases, CARB and the District commit to propose or
adopt measures, which are not specifically identified, to achieve
specific tonnages of emission reductions by specified years. Thus, the
commitment to specific tonnage reductions 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 the commitment must be
clear in terms of what is required, e.g., a specified amount of
emissions reductions or the achievement of a specified amount of
progress (i.e., RFP). CARB's and the District's commitments are thus a
specific enforceable strategy rather than an unenforceable aspirational
goal.
    Commenters' reliance on El Comite (referred to as Warmerdam) to
argue that CARB's commitments are not enforceable is misplaced. In El
Comite, The plaintiffs in the district court attempted to enforce a
provision of the 1994 California 1-hour ozone SIP known as the
Pesticide Element. The Pesticide Element relied on an inventory of
pesticide VOC emissions to provide the basis to determine whether
additional regulatory measures would be needed to meet the SIP's
pesticides emissions target. To this end, the Pesticide Element
provided that ``ARB will develop a baseline inventory of estimated 1990
pesticidal VOC emissions based on 1991 pesticide use data * * *.'' El
Comite Para El Bienestar de Earlimart v. Helliker, 416 F. Supp. 2d 912,
925 (E.D. Cal. 2006). CARB subsequently employed a different
methodology that it deemed more accurate to calculate the baseline
inventory. The plaintiffs sought to enforce the commitment to use the
original methodology, claiming that the calculation of the baseline
inventory constitutes an ``emission standard or limitation.'' The
district court disagreed:

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

Id. at 928. In its opinion, the court distinguished Bayview and CBE I,
pointing out that in those cases ``the measures at issue were designed
to reduce emissions.'' Id.
    On appeal, the plaintiffs shifted their argument to claim that the
baseline inventory and the calculation methodology were necessary
elements of the overall enforceable commitment to reduce emissions in
nonattainment areas. The Ninth Circuit agreed with the district court's
conclusion that the baseline inventory was not an emission standard or
limitation and rejected plaintiffs' arguments attempting ``to transform
the baseline inventory into an enforceable emission standard or
limitation by bootstrapping it to the commitment to decide to adopt
regulations, if necessary.'' Id. at 1073.
    While commenters cite the Ninth Circuit's El Comite opinion, its
utility in analyzing the CARB and District commitments here is limited
to that court's agreement with the district court's conclusion that
neither the baseline nor the methodology qualifies as an independently
enforceable aspect of the SIP. Rather, it is the district court's
opinion, in distinguishing the commitments in CBE and Bayview, that
provides insight into the situation at issue in our action. As the
court recognized, a baseline inventory or the methodology used to
calculate it, is not a measure to reduce emissions. It instead
``identifies emission sources and then quantifies the amount of
emissions attributed to those sources.'' In contrast, as stated
previously, in the 2007 State Strategy (revised 2009 and 2011) and
South Coast 2007 AQMP, CARB and the District commit to adopt and
implement measures sufficient to achieve specified amounts of emission
reductions by a date certain. As described above, a number of courts
have found commitments substantially similar to CARB's here to be
enforceable under CAA section 304(a).
2. Baseline Measures, Baseline Inventories, and Attainment
Demonstration
    Comment: NRDC asserts that EPA's approval of the inventory in the
Plan would violate CAA sections 172(c)(3) and 182(a)(1) because the
baseline inventory includes emissions reduction credit for both
``waiver measures'' and ``non-waiver measures'' adopted before 2007
(together referred to as ``baseline measures'') that have not been
approved into the SIP. NRDC argues that EPA has not evaluated each of
these baseline measures to determine if they are creditable or
quantified the emissions reductions attributed to each of these
measures. Additionally, NRDC asserts that EPA should disapprove the
attainment demonstration because EPA has not approved mobile source
baseline measures as part of the SIP. NRDC asserts that ``[t]he total
tonnage attributed to these unsubmitted and non-SIP approved measures
in the attainment demonstration is not clear, because EPA does not
differentiate between reductions from SIP-approved measures, waiver
measures, and those

that have not received EPA approval.'' Thus, NRDC argues, ``a
significant amount of emission reductions claimed in the attainment
demonstration are not SIP creditable, a finding that EPA must make
before approving the attainment demonstration.'' NRDC references CAA
sections 110(a)(2)(A) and 172(c)(6) in support of these assertions and
argues that ``EPA has failed to find that the reductions from the
unsubmitted rules have occurred, are enforceable, or are otherwise
consistent with the Act, EPA's implementing regulations, and the
General Preamble.''
    NRDC identifies the following rules as examples of ``non-waiver''
baseline measures that have not been SIP-approved:
     Requirements to Reduce Idling Emissions from New and In-
Use Trucks (adopted October 20, 2005);
     Heavy Duty Diesel Chip Reflash (adopted March 27, 2004);
     Diesel Particulate Matter Control Measure for On-Road
Heavy-Duty Diesel-Fueled Vehicles Owned or Operated by Public Agencies
and Utilities (adopted December 8, 2005);
     Solid Waste Collection Vehicle Rule (adopted September 24,
2003);
     Fork Lifts and Other Industrial Equipment (adopted May 26,
2006).
    Response: We disagree with these assertions. We explained in our
proposal TSD (section II.A.3.) our reasons for concluding both that the
2002 base year inventory in the SIP is comprehensive, accurate, and
current as required by CAA section 182(a)(1) and that the projected
baseline inventories provide adequate bases and support for the RFP and
attainment demonstrations in the South Coast 2007 8-hour Ozone plan.\9\
---------------------------------------------------------------------------

    \9\ For ozone nonattainment areas, a State that satisfies the
specific inventory requirements of CAA section 182(a)(1) also
satisfies the general inventory requirements of CAA section
172(c)(3). See 57 FR 13498, 13503 (April 16, 1992).
---------------------------------------------------------------------------

    Specifically, with respect to mobile source emissions, we believe
that credit for emissions reductions from implementation of California
mobile source rules that are subject to CAA section 209 waivers
(``waiver measures'') is appropriate in the attainment and RFP
demonstrations and for other SIP purposes notwithstanding the fact that
such rules are not approved as part of the California SIP. In the
proposal TSD, we explained why we believe such credit is appropriate.
See proposal TSD at section II.D.3.c.i. Historically, EPA has granted
credit for the waiver measures because of special Congressional
recognition, in establishing the waiver process in the first place, of
the pioneering California motor vehicle control program and because
amendments to the CAA (in 1977) expanded the flexibility granted to
California in order ``to afford California the broadest possible
discretion in selecting the best means to protect the health of its
citizens and the public welfare'' (H.R. Rep. No. 294, 95th Congr., 1st
Sess. 301-2 (1977)). In allowing California to take credit for the
waiver measures notwithstanding the fact that the underlying rules are
not part of the California SIP, EPA treated the waiver measures
similarly to the Federal motor vehicle control requirements, which EPA
has always allowed States to credit in their SIPs without submitting
the program as a SIP revision.
    EPA's historical practice has been to give SIP credit for motor-
vehicle-related waiver measures in attainment and RFP demonstrations
and for other SIP purposes by allowing California to include motor
vehicle emissions estimates made by using California's EMFAC (and its
predecessors) motor vehicle emissions factor model in SIP inventories.
EPA verifies the emissions reductions from motor-vehicle-related waiver
measures through review and approval of EMFAC, which is updated from
time to time by California to reflect updated methods and data, as well
as newly-established emissions standards. (Emissions reductions from
EPA's motor vehicle standards are reflected in an analogous model known
as MOVES.\10\) The South Coast 2007 8-hour ozone plan was developed
using a version of the EMFAC model referred to as EMFAC2007, which EPA
has approved for use in SIP development in California. See 73 FR 3464
(January 18, 2008). Thus, the emissions reductions that are from the
California on-road ``waiver measures'' and that are estimated through
use of EMFAC are as verifiable as the emissions reductions relied upon
by states other than California in developing their SIPs based on
estimates of motor vehicle emissions made through the use of the MOVES
model. All other states use the MOVES model (and prior to release of
MOVES, the MOBILE model) in their baseline inventories without
submitting the federal motor vehicle regulations for incorporation into
their SIPs.
---------------------------------------------------------------------------

    \10\ MOVES replaced the MOBILE model as EPA's on-road mobile
source emission estimation model for use in SIPs and conformity in
2010.
---------------------------------------------------------------------------

    Similarly, emissions reductions that are from California's waiver
measures for non-road engines and vehicles (e.g., agricultural,
construction, lawn and garden and off-road recreation equipment) are
estimated through use of CARB's OFFROAD emissions factor model.\11\
(Emissions reductions from EPA's non-road engine and vehicle standards
are reflected in an analogous model known as NONROAD). Since 1990, EPA
has treated California non-road standards for which EPA has issued
waivers in the same manner as California motor vehicle standards, i.e.,
allowing credit for standards subject to the waiver process without
requiring submittal of the standards as part of the SIP. In so doing,
EPA has treated the California non-road standards similarly to the
Federal non-road standards, which are relied upon, but not included in,
various SIPs. See generally TSD at section II.D.3.c.i.
---------------------------------------------------------------------------

    \11\ Information about CARB's emissions inventories for on-road
and non-road mobile sources, and the EMFAC and OFFROAD models used
to project changes in future inventories, is available at http://www.arb.ca.gov/msei/msei.htm.
---------------------------------------------------------------------------

    CARB's EMFAC and OFFROAD models employ complex routines that
predict vehicle fleet turnover by vehicle model years and include
control algorithms that account for all adopted regulatory actions
which, when combined with the fleet turnover algorithms, provide future
baseline projections. See 2007 State Strategy, Appendix F at 7-8. For
stationary sources, the California Emission Forecasting System (CEFS)
projects future emissions from stationary and area sources (in addition
to aircraft and ships) using a forecasting algorithm that applies
growth factors and control profiles to the base year inventory.\12\ See
id. at 7. The CEFS model integrates the projected inventories for both
stationary and mobile sources into a single database to provide a
comprehensive statewide forecast inventory, from which nonattainment
area inventories are extracted for use in establishing future baseline
planning inventories. See id. In 2011, CARB updated the baseline
emissions projections for several source categories to account for,
among other things, more recent economic forecasts and improved
methodologies for estimating emissions from the heavy duty truck and
construction source categories. See 2011 Ozone SIP Revisions, Appendix
B. These methodologies for projecting future emissions based on growth
factors and existing Federal, State, and local controls were consistent
with EPA guidance on developing projected baseline inventories. See TSD
at section

II.A; see also ``Procedures for Preparing Emissions Projections,'' EPA
Office of Air Quality Planning and Standards, EPA-450/4-91-019, July
1991; ``Emission Projections,'' STAPPA/ALAPCO/EPA Emission Inventory
Improvement Project, Volume X, December 1999 (available at http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf). In sum, the
2002 base year and future projected baseline inventories in the South
Coast 2007 8-hour Ozone plan were prepared using a complex set of CARB
methodologies to estimate and project emissions from stationary
sources, in addition to the most recent emissions factors and models
and updated activity levels for emissions associated with mobile
sources, including: (1) The latest EPA-approved California motor
vehicle emissions factor model (EMFAC2007) and the most recent motor
vehicle activity data from each of the MPOs in the South Coast area;
(2) improved methodologies for estimating emissions from specific
source categories; and (3) CARB's non-road mobile source model (the
OFFROAD model). See TSD, section II.A. (referencing, inter alia, 2007
State Strategy at Appendix F) and 2011 Ozone SIP Revision. EPA has
approved numerous California SIPs that rely on base year and projected
baseline inventories including emissions estimates derived from the
EMFAC, OFFROAD, and CEFS models. See, e.g., 65 FR 6091 (February 8,
2000) (proposed rule to approve 1-hour ozone plan for South Coast) and
65 FR 18903 (April 10, 2000) (final rule); 70 FR 43663 (July 28, 2005)
(proposed rule to approve PM-10 plan for South Coast and Coachella
Valley) and 70 FR 69081 (November 14, 2005) (final rule); 74 FR 66916
(December 17, 2009) (direct final rule to approve ozone plan for
Monterey Bay); 76 FR 41338 (July 13, 2011) (proposed rule to approve in
part and disapprove in part the PM2.5 plan for the San
Joaquin Valley) and 76 FR 69896 (November 9, 2011) (final rule); and 76
FR 41562), (July 14, 2011) (proposed rule to approve in part and
disapprove in part the PM2.5 plan for the South Coast Air
Basin) and 76 FR 69928 (November 9, 2011) (final rule). The commenter
has provided no information to support a claim that these methodologies
for developing base year inventories and projecting future emissions in
the South Coast are inadequate to support the RFP and attainment
demonstrations in the South Coast 2007 8-hour Ozone plan.
---------------------------------------------------------------------------

    \12\ Information on base year emissions from stationary point
sources is obtained primarily from the districts, while CARB and the
districts share responsibility for developing and updating
information on emissions from various area source categories. See
2007 State Strategy, Appendix F at 21.
---------------------------------------------------------------------------

    For all of these reasons and as discussed in our proposal (76 FR
57872, 57876), we conclude that the 2002 base year inventory in the
2007 8-hour Ozone plan is a ``comprehensive, accurate, current
inventory of actual emissions from all sources of the relevant
pollutant or pollutants'' in the South Coast area, consistent with the
requirements for emissions inventories in CAA section 182(a)(1), 40 CFR
51.915, and 40 CFR part 51, subpart A. In addition, we conclude that
the projected future year baseline inventories were prepared consistent
with EPA's guidance on development of emissions inventories and
attainment demonstrations and, therefore, provide an adequate basis for
the RFP and attainment demonstrations in the Plan under CAA sections
172(c)(2), 181(a)(1), and 182(c)(2). See TSD at section II.A.4.
    Finally, we disagree with NRDC's assertion that EPA has not
identified the total amount of emission reductions attributed to
baseline measures in the projected inventories. The total amounts of
emission reductions attributed to baseline measures in the South Coast
2007 8-Hour Ozone SIP, as revised in 2011, are 352 tpd of VOC and 531
tpd of NOX. See 76 FR 57872, 57885, Table 8 at line E; see
also TSD, Table D-6 at line B.
    As to the five specific baseline measures that NRDC asserts should
be SIP-approved before crediting in the RFP and attainment
demonstrations:
     Requirements To Reduce Idling Emissions from New and In-
Use Trucks (effective November 15, 2006) \13\ and Fork Lifts and Other
Industrial Equipment Rule (adopted May 26, 2006). Both of these mobile
source measures are pending EPA waiver determinations under CAA section
209(b) or section 209(e).\14\ We expect that EPA will act on these
requests for waivers of preemption or authorization under CAA section
209 in the near term, and that our final approval of the South Coast
2007 8-hour Ozone plan based in part on its reliance on the emissions
reductions associated with these rules is, therefore, reasonable and
appropriate. If, however, EPA either denies or does not issue the
State's requested waiver for any of these measures prior to the
effective date of today's action, we will take appropriate remedial
action to ensure that our action on the plan is fully supportable or to
reconsider that action.
---------------------------------------------------------------------------

    \13\ EPA is currently reviewing a request from CARB for a
determination as to whether certain requirements of these anti-
idling rules are preempted by sections 209(a) of the CAA; certain
provisions are conditions precedent pursuant to section 209(a) of
the Act; certain provisions are within-the-scope of previous waivers
and authorizations issued pursuant to sections 209(b) and 209(e) of
the Act, respectively; and at least one provision requires and
merits a full authorization pursuant to section 209(e) of the Act.
See 75 FR 43975 (July 27, 2010). CARB estimates that the operational
requirement of the anti-idling rule, which is not subject to a CAA
section 209 waiver, achieves 1.3 tpd of NOX in the South
Coast. See Memorandum, Doris Lo, Air Division, Planning Office (AIR-
2), to San Joaquin Valley PM2.5 Docket No. EPA-R09-OAR-
2010-0516 ``South Coast and San Joaquin Valley Emissions Reductions
from ARB's Operational Idling Requirements, ``September 28, 2011, in
the docket for today's action.
    \14\ See letter, James Goldstene, Executive Officer, CARB to
Stephen L. Johnson, Administrator, EPA RE: Request for Authorization
Determination Pursuant to Clean Air Act Section 209(e) for
Amendments to California's Off-Road Emissions Standards Regulation
for large Spark-Ignition (LSI) Engines and Fleet Requirement for In-
Use LSI Forklifts and Other Industrial Equipment and California
State Motor Vehicle and Nonroad Engine Pollution Control Standards;
Truck Idling Requirements; Opportunity for Public Hearing and
Request for Public Comment; Notice Of Opportunity For Public Hearing
And Comment. 75 FR 43975 (July 27, 2010)
---------------------------------------------------------------------------

     Diesel Particulate Matter Control Measure for On-Road
Heavy-Duty Diesel-Fueled Vehicles Owned or Operated by Public Agencies
and Utilities (adopted December 8, 2005). CARB's staff report on this
measure indicates that the projected emissions reductions from this
measures are 0.18 tpd NOX and 0.11 tpd VOC statewide in 2015
and 0.09 tpd NOX and 0.05 tpd VOC statewide in 2020. See
Staff Report: Proposed Diesel Particulate Matter Control Measure for
On-Road Heavy-Duty Diesel-Fueled Vehicles Owned or Operated by Public
Agencies and Utilities, October 2005, at pp. 56-57. South Coast has
approximately 35 percent of the statewide fleet (id.); therefore, the
de minimis amounts of emission reductions attributed to this measure in
the South Coast 2007 8-hour Ozone plan do not affect our evaluation of
its attainment and RFP demonstrations.
     Solid Waste Collection Vehicle Rule (adopted September 24,
2003). CARB's staff report on this measure indicates that the projected
emissions reductions from this measure are 2.3 tpd NOX and
0.72 tpd VOC statewide in 2015 and 0.6 tpd NOX and 0.34 tpd
VOC statewide in 2020. See Supplemental Staff Report: Proposed Diesel
Particulate Matter Control Measure for On-Road Heavy-Duty Residential
and Commercial Solid Waste Collection Vehicles, August 8, 2003, at pg.
20. South Coast has approximately 35 percent of the statewide fleet
(id.); therefore, the de minimis amounts of emission reductions
attributed to this measure in the South Coast 2007 8-hour Ozone plan do
not affect our evaluation of its attainment and RFP demonstrations.
     Heavy Duty Diesel Engine-Chip Reflash rule (adopted March
27, 2004)

(``Chip Reflash'' rule). This rule was intended to ensure expeditious
compliance with CARB's NOX emission standard for heavy-duty
diesel (HDD) engines by requiring installation of ``Low-NOX
Software.'' The Chip Reflash rule was invalidated in part by a
California State Court, and CARB repealed the related regulations in
June 2007. The emission reduction credit attributed to Chip Reflash in
CARB's baseline inventories is limited to vehicles that have been
``reflashed,'' i.e., physically installed the Low-NOX
Software,\15\ removal of which would constitute a violation of the CAA
and/or California state law. See the statutory anti-tampering laws in
CAA section 203(a)(3) and California Vehicle Code section 27156. Thus,
the NOX emissions reductions attributed to ``reflashed''
engines are enforceable under the CAA and/or California state laws.
---------------------------------------------------------------------------

    \15\ The 2007 State Strategy, Appendix A, ``Emission Inventory
Output Tables'' documents the adjustment in the baseline that CARB
made to account for Chip Reflash (or Heavy-Duty Diesel Engine
Software Upgrade). As described in appendix A, CARB staff estimates
that the overall benefits of the software upgrade regulation plus
related actions provided approximately 38 tons per day of
NOX emissions reductions statewide in year 2007. CARB
also indicates that it took into account the fact that the software
upgrade regulation had been invalidated by including no additional
emissions reductions from chip reflash other than those that had
already occurred due to compliance with the regulation (prior to
invalidation by the court), voluntary upgrade programs, ongoing
engine rebuilds, engines upgrades by manufacturers exempt from the
regulation, and interstate trucks. CARB staff confirmed that the
baseline adjustment for chip reflash in the 2007 State Strategy
reflects emission reduction credit only for engines that have been
``reflashed.'' See Memorandum, Doris Lo, Air Division, Planning
Office (AIR-2); to the San Joaquin Valley PM2.5 Docket
No. EPA-R09-OAR-2010-0516, ``SIP Credit for Heavy-Duty Diesel Engine
Low-NOX Software (``Chip Reflash'');'' September 28, 2011
in the docket for today's action.
---------------------------------------------------------------------------

    Comment: NRDC asserts that EPA has not approved any CARB mobile
source baseline measures as part of the SIP or reviewed those measures
to consider whether they achieve the reductions claimed by CARB, and
that EPA cannot approve the Plan when such a ``huge component of the
control strategy'' has not been SIP-approved. NRDC also asserts that
CARB has not submitted copies of its mobile source baseline measures to
EPA as part of this plan. NRDC also asserts that waiver measures may
not be used in attainment demonstrations because EPA makes no finding
during the waiver process that the rules achieve the reductions claimed
or that the measures are SIP creditable. NRDC also notes that these
issues are the subject of litigation in the 9th Circuit U.S. Court of
Appeals in Sierra Club v. EPA, Consolidated Case Nos. 10-71457 and 10-
71458.
    Response: We continue to believe that credit for emissions
reductions from implementation of California mobile source rules that
are subject to CAA section 209 waivers (``waiver measures'') is
appropriate notwithstanding the fact that such rules are not approved
as part of the California SIP. In our September 16, 2011 proposed rule
and the technical support document (TSD) for that proposal, we
explained why we believe such credit is appropriate. See 76 FR 57872,
at 57879-57880 and the proposal TSD, pp. 86-90. Historically, EPA has
granted credit for the waiver measures because of special Congressional
recognition, in establishing the waiver process in the first place, of
the pioneering California motor vehicle control program and because
amendments to the CAA (in 1977) expanded the flexibility granted to
California in order ``to afford California the broadest possible
discretion in selecting the best means to protect the health of its
citizens and the public welfare,'' (H.R. Rep. No. 294, 95th Congr., 1st
Sess. 301-2 (1977)). In allowing California to take credit for the
waiver measures notwithstanding the fact that the underlying rules are
not part of the California SIP, EPA treated the waiver measures
similarly to the Federal motor vehicle control requirements, which EPA
has always allowed States to credit in their SIPs without submitting
the program as a SIP revision. As we explained in the Proposal TSD (p.
87), credit for Federal measures, including those that establish on-
road and nonroad standards, notwithstanding their absence in the SIP,
is justified by reference to CAA section 110(a)(2)(A), which
establishes the following content requirements for SIPs: ``* * *
enforceable emission limitations and other control measures, means, or
techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), * * *, as may be necessary
or appropriate to meet the applicable requirements of this chapter.''
(emphasis added). Federal measures are permanent, independently
enforceable (by EPA and citizens), and quantifiable without regard to
whether they are approved into a SIP, and thus EPA has never found such
measures to be ``necessary or appropriate'' for inclusion in SIPs to
meet the applicable requirements of the Act. Section 209 of the CAA
establishes a process under which EPA allows California's waiver
measures to substitute for Federal measures, and like the Federal
measures for which they substitute, EPA has historically found, and
continues to find, based on considerations of permanence,
enforceability, and quantifiability, that such measures are not
``necessary or appropriate'' for California to include in its SIP to
meet the applicable requirements of the Act.
    First, with respect to permanence, we note that, to maintain a
waiver, CARB's on-road waiver measures can be relaxed only to a level
of aggregate equivalence to the Federal Motor Vehicle Control Program
(FMVCP). See section 209(b)(1). In this respect, the FMVCP acts as a
partial backstop to California's on-road waiver measures (i.e., absent
a waiver, the FMVCP would apply in California). Likewise, Federal
nonroad vehicle and engine standards act as a partial backstop for
corresponding California nonroad waiver measures. The constraints of
the waiver process thus serve to limit the extent to which CARB can
relax the waiver measures for which there are corresponding EPA
standards, and thereby serve an anti-backsliding function similar in
substance to those established for SIP revisions in CAA sections 110(l)
and 193. Meanwhile, the growing convergence between California and EPA
mobile source standards diminishes the difference in the emissions
reductions reasonably attributed to the two programs and strengthens
the role of the Federal program in serving as an effective backstop to
the State program. In other words, with the harmonization of EPA mobile
source standards with the corresponding State standards, the Federal
program is becoming essentially a full backstop to most parts of the
California program.
    Second, as to enforceability, we note that the waiver process
itself bestows enforceability onto California to enforce the on-road or
nonroad standards for which EPA has issued the waiver. CARB has as long
a history of enforcement of vehicle/engine emissions standards as EPA,
and CARB's enforcement program is equally as rigorous as the
corresponding EPA program. The history and rigor of CARB's enforcement
program lends assurance to California SIP revisions that rely on the
emissions reductions from CARB's rules in the same manner as EPA's
mobile source enforcement program lends assurance to other state's SIPs
in their reliance on emissions reductions from the FMVCP. While it is
true that citizens and EPA are not authorized to enforce California
waiver measures under the Clean Air Act (i.e., because they are not in
the SIP), citizens and EPA are authorized to enforce EPA standards in
the event that

vehicles operate in California without either California or EPA
certification.
    As to quantifiability, EPA's historical practice has been to give
SIP credit for motor-vehicle-related waiver measures by allowing
California to include motor vehicle emissions estimates made by using
California's EMFAC (and its predecessors) motor vehicle emissions
factor model in SIP inventories. EPA verifies the emissions reductions
from motor-vehicle-related waiver measures through review and approval
of EMFAC, which is updated from time to time by California to reflect
updated methods and data, as well as newly-established emissions
standards. (Emissions reductions from EPA's motor vehicle standards are
reflected in an analogous model known as MOVES.) The EMFAC model is
based on the motor vehicle emissions standards for which California has
received waivers from EPA but accounts for vehicle deterioration and
many other factors. The motor vehicle emissions estimates themselves
combine EMFAC results with vehicle activity estimates, among other
considerations. See the 1982 Bay Area Air Quality Plan, and the related
EPA rulemakings approving the plan (see 48 FR 5074 (February 3, 1983)
for the proposed rule and 48 FR 57130 (December 28, 1983) for the final
rule) as an example of how the waiver measures have been treated
historically by EPA in California SIP actions.\16\ The South Coast 8-
hour ozone plan was developed using a version of the EMFAC model
referred to as EMFAC2007, which EPA has approved for use in SIP
development in California. See 73 FR 3464 (January 18, 2008). Thus, the
emissions reductions that are from the California on-road ``waiver
measures'' and that are estimated through use of EMFAC are as
verifiable as are the emissions reductions relied upon by states other
than California in developing their SIPs based on estimates of motor
vehicle emissions made through the use of the MOVES model.
---------------------------------------------------------------------------

    \16\ 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).
---------------------------------------------------------------------------

    Moreover, EPA's waiver review and approval process is analogous to
the SIP approval process. First, CARB adopts its emissions standards
following notice and comment procedures at the state level, and then
submits the rules to EPA as part of its waiver request. When EPA
receives new waiver requests from CARB, EPA publishes a notice of
opportunity for public hearing and comment and then publishes a
decision in the Federal Register following the public comment period.
Once again, in substance, the process is similar to that for SIP
approval and supports the argument that one hurdle (the waiver process)
is all Congress intended for California standards, not two (waiver
process plus SIP approval process). Second, just as SIP revisions are
not effective until approved by EPA, changes to CARB's rules (for which
a waiver has been granted) are not effective until EPA grants a new
waiver, unless the changes are ``within the scope'' of a prior waiver
and no new waiver is needed. Third, both types of final actions by
EPA--i.e., final actions on California requests for waivers and final
actions on state submittals of SIPs and SIP revisions may be challenged
under section 307(b)(1) of the CAA in the appropriate United States
Court of Appeals.
    NRDC correctly notes that EPA's treatment of California waiver
measures in SIP actions is the subject of current litigation in Sierra
Club v. EPA, Consolidated Case Nos. 10-71457 and 10-71458 (9th
Circuit).
    Comment: NRDC argues that our reliance on the general savings
clause in CAA section 193 for the proposal to grant emissions reduction
credit to California's waiver measures without first having California
submit and EPA approve them into the SIP is inappropriate for two
reasons. First, NRDC argues that CAA section 193 only saves those
``formal rules, notices, or guidance documents'' promulgated before the
effective date of the 1990 amendment that are not inconsistent with the
CAA. It asserts that the plain language of the CAA requires that
California submit the control measures, rules and regulations used to
meet CAA requirements as part of the SIP and that nothing in CAA title
II or section 209 provide a basis for EPA's position. Second, NRDC
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. NRDC also argues that our
positions that Congress must expressly disapprove of EPA's long-
standing interpretation and Congressional silence equates to a
ratification of EPA's interpretation are incorrect.
    Response: In the Proposal TSD (pp. 89-90), we indicated that we
believe that section 193 of the CAA, the general savings clause added
by Congress in 1990, effectively ratified our long-standing practice of
granting credit for the California waiver rules because Congress did
not insert any language into the statute rendering EPA's treatment of
California's motor vehicle standards inconsistent with the Act. Rather,
Congress extended the California waiver provisions to most types of
nonroad vehicles and engines, once again reflecting Congressional
intent to provide California with the broadest possible discretion in
selecting the best means to protect the health of its citizens and the
public welfare. Requiring the waiver measures to undergo SIP review in
addition to the statutory waiver process is not consistent with
providing California with the broadest possible discretion as to on-
road and nonroad vehicle and engine standards, but rather, would add to
the regulatory burden California faces in establishing and modifying
such standards, and thus would not be consistent with Congressional
intent. In short, we believe that Congress intended California's mobile
source rules to undergo only one EPA review process (i.e., the waiver
process), not two.
    In summary, we disagree that our interpretation of CAA section 193
is fundamentally flawed. EPA has historically given SIP credit for
waiver measures in our approval of attainment demonstrations and other
planning requirements such as reasonable further progress and
contingency measures submitted by California. We continue to believe
that section 193 ratifies our long-standing practice of allowing credit
for California's waiver measures notwithstanding the fact they are not
approved into the SIP, and correctly reflects Congressional intent to
provide

California with the broadest possible discretion in the development and
promulgation of on-road and nonroad vehicle and engine standards.\17\
---------------------------------------------------------------------------

    \17\ 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.
---------------------------------------------------------------------------

B. Pre-Baseline Emission Reduction Credits

    Comment: NRDC comments that the 8-hour Ozone Plan allows for the
use of emissions reduction credits (ERC) from sources that have
shutdown prior to the Plan's baseline date of 2002. NRDC asserts that
these pre-baseline ERCs represent an allowance for unmitigated growth
in emissions. It argues that allowing this growth is inconsistent with
the Plan's claim that existing opportunities for controlling emissions
do not exist and therefore it is necessary to rely on future
technologies to attain the 8-hour standards and undermines EPA's
ability to demonstrate compliance with the CAA. It further argues that
EPA cannot claim that the Plan provides for expeditious attainment if
it allows this unmitigated emissions growth, and that EPA's RACM
analysis is undermined because these avoided emissions coupled with
reasonably available controls could be adequate to advance attainment
by more than a year. Finally, NRDC argues that in order to comply with
the RACM requirement of section 172(c)(1), EPA must evaluate what
additional reductions would be needed if the combined impact of these
VOC and NOX emissions were avoided.
    Response: The District accounted for the existing pre-base year
ERCs in its RFP and attainment inventories in a manner consistent with
the CAA requirements set forth in Part D and 40 CFR part 51.\18\ This
means that all emission reductions for which ERCs were granted were
modeled as being in the air.\19\ The CAA requires this demonstration in
anticipation of new sources that will utilize these ERCs as offsets in
order to obtain NSR permits.
---------------------------------------------------------------------------

    \18\ See the South Coast 2007 AQMP, Appendix III, Tables 2-8 and
Appendix III, Attachment B, Table B-8.
    \19\ See the South Coast 2007 AQMP, Appendix III, pg 2-28.
---------------------------------------------------------------------------

    Under the NSR program, all new major sources (i.e., those with a
potential to emit more than 10 tpy of VOC or NOX) and any
increase of permitted emissions of these pollutants, must install
control technologies in order to meet the most stringent emissions
limitations that have been achieved in practice by comparable sources
(that is, they must meet the lowest achievable emissions rate (LAER) as
defined in CAA section 171(3)). [South Coast Rule 1303--Requirements
(paragraph (a))] Thus, these future emissions already reflect the use
of the most stringent technologies currently available to limit
emissions. To further reduce these future emissions would require the
development of new or improved technologies, as is the case with
existing emission sources already subject to RACT. Accordingly, we do
not agree with the NRDC's assertion that allowing this emissions growth
is inconsistent with the Plan's determination that additional
opportunities for controlling emissions do not currently exist and
therefore the area must rely on development of new technologies to
attain.
    Finally, we disagree with NRDC's claims that the 8-hour Ozone Plan
cannot provide for expeditious attainment if it allows this growth in
emissions and that the RACM analysis is undermined because these
``avoided emissions coupled with reasonably available controls could be
adequate to advance attainment by more than a year.'' As stated above,
the growth in ozone precursor emissions coming from sources emitting
more than 10 tpy, will occur only after the source installs controls
that achieve the lowest achievable emission rate, which is a higher
control level than RACM. In addition, such sources with emission
increases are required to provide emission offsets at a 1 to 1.2 ratio,
meaning that for each new ton of emissions a source wishes to emit, it
must provide a 1.2 ton reduction from the South Coast 8-hour Ozone Plan
emission inventory. [South Coast Rule 1303--Requirements (paragraph
(b)(2))] Thus overall, NSR provides a backstop mechanism to ensure
attainment is provided as expeditiously as possible.

C. Rule Effectiveness in District Rules

    Comment: NRDC asserts that the SCAQMD should not assume a 100
percent rule effectiveness rate for its control measures. Citing EPA's
definition of ``rule effectiveness'' in 40 CFR 51.50 and EPA guidance
on accounting for rule effectiveness in preparing emissions estimates,
NRDC argues that ``EPA recommends an effectiveness factor of 80% for
all stationary source and non-tailpipe mobile source control measures
for future controlled scenarios'' and that the District's use of a 100
percent rule effectiveness factor is unsupported and inconsistent with
EPA guidance. NRDC claims that ``EPA's approval of this plan in light
of these unrealistic and unlawful rule effectiveness assumptions would
be arbitrary and capricious.''
    Specifically, NRDC asserts that the District's use of a 100% rule
effectiveness factor amounts to an assertion that it can ``ensure
complete and continual compliance at all sources covered by the
regulation'' and that the Plan does not meet this standard. NRDC quotes
from the 2007 AQMP, in which the District describes enforcement, source
monitoring, and compliance verification programs, to argue that the
2007 AQMP ``relies on anecdotal information to support this 100%
assumption.'' NRDC asserts that the SCAQMD's approach ignores the need
for rule effectiveness improvements when in fact a CARB audit showed
lower reported compliance rates. NRDC also states that for the gasoline
transfer and dispensing operations category (Rule 461), the SCAQMD had
correctly identified an emission-related non-compliance rate of 37% and
``adjusted the base and future year emissions estimates by 75% in this
category to reflect a 25% compliance rate.'' In support of these
assertions, NRDC references the following EPA guidance documents:
``Rule Effectiveness Guidance: Integration of Inventory, Compliance,
and Assessment Applications'' (EPA 452/R-94-001, January 1994) (``1994
RE Guidance''); ``Guidelines for Estimating and Applying Rule
Effectiveness for Ozone/CO State Implementation Plan Base Year
Inventories,'' EPA-452-R-92-010, November 1992 (``1992 RE
Guidelines''); and Memorandum from Sally Shaver, Director, Air Quality
Strategies & Standards Division, EPA, to EPA Air Division Directors,
Regions I-X, ``Ozone Nonattainment Planning: Decentralization of Rule
Effectiveness Policy, April 27, 1995 (``1995 Shaver Memo'').
    Response: We note as a threshold matter that it is not clear which
specific element of the South Coast 2007 Ozone SIP the commenter's
concerns apply to. Assuming that NRDC intended to argue that the
SCAQMD's assumption of 100 percent rule-effectiveness in its estimates
of base year and/or projected year emissions led to defects in the
emissions inventories and in the RACM, RFP or attainment demonstrations
that rely on those inventories, we disagree for the reasons provided
below.
    CAA section 182(a)(1) requires each State having an ozone
nonattainment area to submit a ``comprehensive, accurate, current
inventory of actual

emissions from all sources'' as described in CAA section 172(c)(3) and
``in accordance with guidance provided by the Administrator.'' See also
40 CFR 51.915 and part 51, subpart A. This ``base year'' emissions
inventory reflects the State's best estimates of actual emissions \20\
from all sources of the relevant pollutant(s) in the area in a recent
calendar year \21\ and provides the starting point for measuring the
area's progress toward attainment. See, e.g., CAA sections 182(c)(2)(B)
and 182(b)(1)(B); see also 70 FR 71612, 71677 (November 29, 2005)
(noting that several CAA ozone planning requirements, including
milestones that measure progress toward attainment, are ``keyed to''
the emissions inventory). After developing a base year emissions
inventory, States use modeling and other analyses to calculate
projection year (or future ``baseline'') inventories and target
emission levels, which then inform the State's development of progress
milestones and control strategies for attaining the NAAQS. See General
Preamble, 57 FR 13498 at 13507-13510.
---------------------------------------------------------------------------

    \20\ Base year emissions inventories should include both
anthropogenic and biogenic sources of ozone precursor emissions from
stationary, area, and mobile sources capable of affecting air
quality within the nonattainment area. See ``General Preamble for
Implementation of Title I of the Clean Air Act Amendments of 1990,''
57 FR 13498, 13502 (April 16, 1992) (``General Preamble''). Because
most emission sources do not monitor and report emissions
continuously, emissions inventories are by nature ``estimates of
actual releases to the atmosphere.'' 70 FR 71612, 71666 (November
29, 2005).
    \21\ For areas designated nonattainment for the 1997 8-hour
ozone standard in 2004, EPA recommended that States use 2002 as the
base year for SIP planning purposes. See Memorandum dated November
18, 2002, from Lydia Wegman, Air Quality Strategies and Standards
Division, EPA, to Regional Air Division Directors, ``2002 Base Year
Emission Inventory SIP Planning: 8-hr Ozone, PM2.5 and
Regional Haze Programs.''
---------------------------------------------------------------------------

    Rule effectiveness (``RE'') is a term that describes a method to
account for the reality that not all facilities covered by a rule are
in compliance with the rule 100% of the time. See ``Emissions Inventory
Guidance for Implementation of Ozone and Particulate Matter National
Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations,''
EPA-454/R-05-001, August 2005, Appendix B (``2005 RE Guidance'') at B-
3; see also 40 CFR 51.50 (defining ``rule effectiveness'' for purposes
of air emissions reporting requirements). Additionally, RE accounts for
the fact that control equipment does not always operate at its assumed
control efficiency. See id. EPA recommends that States consider RE as
part of the calculation of emission estimates for stationary point and
non-point (or ``area'') sources when developing base year and
projection year emissions inventories. See 2005 RE Guidance at B-1.
Rule effectiveness adjustments are generally not applied to mobile
sources because the effects of mobile source noncompliance have been
integrated into the inputs of EPA's mobile source emissions factor
models. See ``Rule Effectiveness Guidance: Integration of Inventory,
Compliance, and Assessment Applications'' (EPA 452/R-94-001, January
1994) (``1994 RE Guidance'') at 1-4 and 3-9.
    EPA policy on RE applies only to emissions estimates involving the
use of a control device or control technique and states that in some
cases, even where control devices or techniques are used, RE
adjustments may not be necessary. For example, when emissions can be
calculated by means of a direct determination, an RE adjustment is not
necessary because the emissions estimate is not contingent on the
effectiveness of controls. See ``Rule Effectiveness Guidance:
Integration of Inventory, Compliance, and Assessment Applications''
(EPA 452/R-94-001, January 1994) (``1994 RE Guidance'') See 1994 RE
guidance at 3-5; see also 2005 RE Guidance at B-3. A direct
determination is one in which emissions are calculated directly (e.g.,
based on explicit records for each type of coating and/or solvent used)
rather than from estimates of uncontrolled emissions and level of
control. See ``Guidelines for Estimating and Applying Rule
Effectiveness for Ozone/CO State Implementation Plan Base Year
Inventories,'' EPA-452/R-92-010, November 1992 (``1992 RE
Guidelines''), at 12. In addition, uncontrolled sources are not subject
to an RE adjustment, and sources with directly determined emission
estimates in the base year inventory should not have RE applied in a
projected inventory. See 1994 RE Guidance at 3-19.
    Earlier EPA guidance recommended that where a RE should apply,
States should generally use a default value of 80 percent RE. See,
e.g., ``Guidelines for Estimating and Applying Rule Effectiveness for
Ozone/CO State Implementation Plan Base Year Inventories,'' EPA-452/R-
92-010, November 1992 (``1992 RE Guidelines'') at 2. In 2005, EPA
revised its policy in recognition that RE can vary widely between
different types of industry and in different states or areas. See
generally 2005 RE Guidance; see also Memorandum from Sally Shaver,
Director, Air Quality Strategies & Standards Division, EPA, to EPA Air
Division Directors, Regions I-X, ``Ozone Nonattainment Planning:
Decentralization of Rule Effectiveness Policy, April 27, 1995 (``1995
Shaver Memo'') (providing alternatives to EPA's recommended 80 percent
default value for RE). The 2005 RE Guidance provides that instead of
assuming an across the board 80% default value for RE, States should
consider a list of the factors that are most likely to affect RE in
developing base year and projection year inventories.
    The base year inventory in the South Coast 2007 Ozone SIP is an
inventory of actual emissions estimates for year 2002. According to the
Plan, information on base year emissions from stationary point sources
in California is obtained primarily from the districts, while CARB and
the districts share responsibility for developing and updating
information on emissions from various non-point (i.e., area) source
categories. See 2007 State Strategy, Appendix F at 21; South Coast 2007
AQMP, Appendix III at pp. 1-9 through 1-15 (describing the SCAQMD's and
CARB's methodologies for developing 2002 base year emissions estimates
for stationary point and area sources). The 2002 point source emission
inventory was developed using emissions data reported by stationary
point sources subject to the 2002/2003 Annual Emissions Reporting (AER)
Program, which applies to facilities emitting at least 4 tons per year
(tpy) of VOC or NOX, among other sources. See South Coast
2007 AQMP, Appendix III at pp. 1-9. Because these emissions were based
on direct emissions data, no RE adjustments were necessary for these
emission estimates. The 2002 area source emission inventory was
developed using source-specific methodologies based on activity data,
emission factors, and other information. Id. at 1-10 through 1-15. The
SCAQMD included emissions from smaller industrial point sources
(emitting <4 tpy) not subject to the AER Program in this area source
emissions inventory. Id. at 1-9.
    The projected year inventories in the South Coast 2007 Ozone SIP
were developed based on emissions projections calculated using a CARB
model called the California Emission Forecasting System (CEFS). The
CEFS model projects future emissions from stationary point and area
sources (in addition to aircraft and ships) using a forecasting
algorithm that applies growth factors and control profiles to the base
year inventory. See 2007 State Strategy, Appendix F at 7. Mobile source
emission projections are estimated using CARB's EMFAC and OFFROAD
emission factor

models.\22\ See 2007 State Strategy, Appendix F at 7-8. The CEFS model
then integrates the projected inventories for both stationary and
mobile sources into a single database to provide a comprehensive
statewide forecast inventory, from which nonattainment area inventories
are extracted by the districts for use in establishing future baseline
planning inventories. See id. at 7, 8.
---------------------------------------------------------------------------

    \22\ CARB's EMFAC and OFFROAD models for estimating emissions
from on-road and non-road mobile sources employ complex routines
that predict vehicle fleet turnover by vehicle model years and
include control algorithms that account for all adopted regulatory
actions which, when combined with the fleet turnover algorithms,
provide future baseline projections. See 2007 State Strategy,
Appendix F at 7-8. Information about the EMFAC and OFFROAD models is
available at http://www.arb.ca.gov/msei/msei.htm. The most recent
EMFAC model that EPA has approved for use in SIP development in
California is EMFAC2007. See 73 FR 3464 (January 18, 2008).
---------------------------------------------------------------------------

    The South Coast 2007 AQMP describes how the District developed the
future baseline inventories \23\ in the Plan, based in part on the
emissions data and baseline projections provided by CARB and other
California agencies. See generally South Coast 2007 AQMP, Appendix III.
The District's projections took into account the controls implemented
under SCAQMD rules adopted as of June 2006, most CARB regulations
adopted by June 2005, and a specific set of growth rates from the
Southern California Association of Governments (SCAG) for population,
industry, and motor vehicle activity, among other factors. See id. at
2-3. In 2011, CARB updated the baseline emissions projections for
several source categories to account for, among other things, more
recent economic forecasts and improved methodologies for estimating
emissions from the heavy duty truck and construction source categories.
See 2011 Ozone SIP Revision at Appendix B. These methodologies for
projecting future emissions based on growth factors and existing
Federal, State, and local controls were consistent with EPA guidance on
developing projected baseline inventories. See TSD at section II.A; see
also ``Procedures for Preparing Emissions Projections,'' EPA Office of
Air Quality Planning and Standards, EPA-450/4-91-019, July 1991;
``Emission Projections,'' STAPPA/ALAPCO/EPA Emission Inventory
Improvement Project, Volume X, December 1999 (available at http://www.epa.gov/ttnchie1/eiip/techreport/volume10/x01.pdf). NRDC correctly
notes that the stationary point and the area source emissions
projections that the SCAQMD developed as inputs to these projected
future baseline inventories generally included an assumption of 100%
RE. See South Coast 2007 AQMP, Appendix IV at A-7; see also Memorandum
to File dated December 5, 2011, Wienke Tax, EPA Region 9, RE: ``SCAQMD
Emissions Estimation Methodology.'' In response to the comment, we have
further evaluated the projected baseline inventories in the Plan to
determine whether an assumption of 100% RE was appropriate and to what
extent it may have affected the control strategy. As explained below,
we believe the SCAQMD's methodologies for projecting emissions were
reasonable and that, even assuming that the District should not have
used 100% RE for certain source categories, the impact on the overall
emissions projections would have been insignificant.
---------------------------------------------------------------------------

    \23\ By ``future baseline inventories'' or ``projected baseline
inventories,'' we mean projected emissions inventories for future
years that account for, among other things, the effects of economic
growth and adopted emissions control requirements.
---------------------------------------------------------------------------

    With respect to both NOX and VOC emissions from
stationary point sources, which account for roughly 80% of the total
NOX projections for stationary sources and roughly 13% of
the total VOC projections for stationary sources, no RE adjustments
were necessary because the base year emissions estimates were developed
from reported emissions data (i.e., direct determinations). Moreover,
the SCAQMD's compliance and enforcement programs generally meet the
recommended criteria in EPA's 2005 RE Guidance for use of the highest
range of RE factors for stationary sources.\24\ For example, all
stationary point sources in the South Coast that emit or have the
potential to emit at least 10 tons per year of VOC or NOX
are subject to the District's EPA-approved title V operating permits
program in SCAQMD Regulation XXX \25\ (see SCAQMD Rule 3001), which
requires subject facilities to regularly report compliance information
to the SCAQMD. See, e.g., SCAQMD Rule 3004(a)(4)(f) (requiring semi-
annual reports) and (a)(10) (requiring annual compliance
certifications). In addition, the SCAQMD's Regional Clean Air
Incentives Market (RECLAIM) program, which generally applies to
stationary point sources that emit 4 tons or more per year of
NOX or SOX in the year 1990 or subsequent years
(see SCAQMD Rule 2001(b)), also contains stringent compliance
monitoring and reporting requirements. See, e.g., SCAQMD Rule
2012(c)(2) (requiring NOX sources to install, maintain and
operate a Continuous Emissions Monitoring System or other equivalent
monitoring device) and SCAQMD Rule 2012(c)(3) (requiring NOX
sources to install, maintain and operate a reporting device to
electronically report daily NOX emissions to the District
and to submit monthly emissions reports). Thus, even in the absence of
direct determination, these compliance requirements and programs would
adequately support the SCAQMD's use of the highest range of RE factors
(94 to 100%) in projecting emissions from stationary point sources of
VOC and NOX emissions in the South Coast area.
---------------------------------------------------------------------------

    \24\ For stationary point sources, the 2005 RE Guidance provides
that the following factors, among others, may support the use of the
highest RE range (94 to 100%) in developing emissions estimates: the
regulatory agency requires source-specific monitoring for compliance
purposes and frequent submittal of monitoring records; the agency
conducts inspections involving compliance test methods with a high
degree of accuracy, such as stack testing or other types of precise
emissions measurements; and/or the agency has authority to impose
punitive measures, including monetary fines, towards violators such
as in delegated title V operating permit programs. See 2005 RE
Guidance at B-6.
    \25\ See 68 FR 65637 (November 21, 2003) (final rule approving
revisions to SCAQMD's title V operating permits program effective
January 1, 2004).
---------------------------------------------------------------------------

    The SCAQMD's regulations for VOC area sources that were accounted
for in the projected baseline inventories (i.e., rules adopted as of
June 2006) also contain stringent recordkeeping and reporting
requirements which generally meet EPA's recommended criteria for use of
the highest range of RE factors for area sources.\26\ See, e.g., SCAQMD
Rule 109 (as amended May 2, 2003) (requiring numerous types of VOC area
sources to keep daily records of types of coatings and/or solvents
used); see also Memorandum to File dated December 9, 2011, Wienke Tax,
EPA Region 9, RE: ``SCAQMD Compliance and Enforcement Programs.'' The
SCAQMD also administers numerous compliance assistance programs,
including classroom instruction, web-based tutorials, and mailings.
See, e.g., http://www.aqmd.gov/comply/index.html, http://www.aqmd.gov/aqmd/aqmd_training.htm, and http://www.aqmd.gov/pubinfo/Publications/Advisor/2011/Nov2011Advisor.pdf, page 8). These compliance requirements
and programs generally support the SCAQMD's use of the highest range of

RE factors (86 to 100%) in projecting emissions from area sources of
VOC emissions in the South Coast area.
---------------------------------------------------------------------------

    \26\ For stationary area sources, the 2005 RE Guidance provides
that the following factors, among others, may support the use of the
highest RE range (86 to 100%) in developing emissions estimates:
Over 90% of facilities inspected in the source category are in
compliance; the regulatory agency requires sources to submit some
type of compliance certification; and/or a compliance assistance
program exists and is adequately staffed. See 2005 RE Guidance at B-
9.
---------------------------------------------------------------------------

    We expect that at least some of these VOC area sources are
uncontrolled and therefore do not require any RE adjustment.
Additionally, of those VOC area sources that are subject to controls,
we understand many are subject to compliance requirements that enable
the District to make direct determinations of emissions estimates
(e.g., through ``mass balance'' accounting of the types of coatings
and/or solvents used), which also would not require any RE adjustment.
See, e.g., SCAQMD Rule 109 (as amended May 2, 2003).
    Assuming conservatively, however, that some RE adjustments may have
been appropriate for area sources, we have evaluated the impact that
such adjustments may have had on the overall NOX and VOC
emissions projections for 2023. With respect to NOX
emissions, area sources account for about 20% of projected
NOX emissions from stationary sources and less than 3% of
the total NOX inventory for the 2023 projection year. See
South Coast 2007 AQMP, Appendix III, Attachment B at Table B-9, and
Memorandum to File, Wienke Tax, EPA Region 9 Air Planning Office, dated
December 14, 2011. Thus, even assuming conservatively that a lower RE
factor is appropriate for all area sources of NOX emissions,
the impact of such an adjustment on the future baseline NOX
emission inventory would affect less than 3% of the total projected
NOX inventory (roughly 14 tpd). Assuming that application of
an 86% \27\ rather than 100% factor would directly increase these
NOX emissions estimates by 14 percent, then the projected
2023 NOX emissions inventory would increase by less than 3
tpd. This amount is adequately covered by CARB's enforceable commitment
to achieve 141 tpd of NOX by 2023. 76 FR 57872, 57881 (Table
6). CARB's 2011 SIP Revision reduced the 2023 projected NOX
inventory by 12 tpd compared to the Plan as submitted in 2007,
indicating a surplus in NOX reductions of 12 tpd in the Plan
as revised. See letter dated August 10, 2011, from Lynn Terry, CARB, to
Deborah Jordan, EPA Region 9, with attachment (transmitting emission
inventory improvement information). Because the State's and District's
enforceable commitments have not been revised, CARB remains obligated
to achieve the total amount of emission reductions identified in its
original commitment (141 tpd). The NOX surplus of 12 tpd
included in this enforceable commitment adequately covers the potential
increase of 3 tpd due to RE adjustments.
---------------------------------------------------------------------------

    \27\ We believe an RE factor of 86%, which is the lowest factor
under ``Range 1'' for non-point (area) sources in EPA's 2005 RE
Guidance, is a reasonable assumption for these calculations given
the rigorous compliance requirements in SCAQMD's area source
regulations and the District's compliance assistance programs.
---------------------------------------------------------------------------

    With respect to VOC emissions, roughly half of the total projected
VOC summer planning inventory for 2023 is attributed to stationary
point and area sources. See South Coast 2007 AQMP, Appendix III,
Attachment B at Table B-9. Of these stationary source VOC emissions,
approximately 40% are attributed to consumer products (see id.), which
prior to 2007 were not subject to any SCAQMD VOC regulations that the
District would have accounted for in its emissions projections.\28\
Most of the remaining VOC emissions (roughly 130 tpd) are attributed to
area sources that are either uncontrolled or subject to SCAQMD
regulations, such as cleaning and surface coating operations,
architectural coating operations, and farming operations (e.g.,
fertilizer applications). See South Coast 2007 AQMP, Appendix III,
Attachment B at Table B-9. As NRDC correctly notes (and does not take
issue with), the SCAQMD made significant RE adjustments to the gasoline
transfer and dispensing source category subject to SCAQMD Rule 461
(petroleum marketing), which accounts for roughly 15% (20 tpd) of these
remaining VOC area source emissions. This leaves approximately 110 tpd
of VOC emissions attributed to area sources under the SCAQMD's
jurisdiction for which RE adjustments may have been appropriate but for
which California has not specifically provided data on whether they
were made. All together, these area sources account for approximately
20% of the total projected VOC summer planning inventory for 2023. See
South Coast 2007 AQMP, Appendix III, Attachment B at Table B-9.
---------------------------------------------------------------------------

    \28\ Consumer products in California are generally subject to
CARB's Consumer Products Regulations (CPR) in title 17, sections
94500-94575 of the California Code of Regulations (CCR). In March
2009, the SCAQMD adopted VOC content requirements for certain
consumer products not subject to CARB's CPR, but these District
regulations are not accounted for in the South Coast 2007 Ozone
SIP's emissions inventories. See SCAQMD Rule 1143.
---------------------------------------------------------------------------

    Assuming conservatively that all of these VOC emissions are from
regulated area sources for which direct determinations of emission
cannot be made, and that a lower RE factor is appropriate for the
emissions projections for all of these sources, the impact of such an
adjustment on the future baseline VOC emission inventory for 2023 would
affect only about 20% of the total projected VOC inventory (roughly 110
tpd). Further assuming that application of an 86% RE factor would
directly increase these VOC emissions estimates by 14 percent, the
projected 2023 VOC emissions inventory would increase by approximately
15.4 tpd. We note that CARB's 2011 SIP Revision reduced the 2023
projected VOC inventory by 5 tpd compared to the Plan as submitted in
2007, indicating a surplus in VOC reductions of 5 tpd in the Plan as
revised. See letter dated August 10, 2011, from Lynn Terry, CARB, to
Deborah Jordan, EPA Region 9, with attachment (transmitting emission
inventory improvement information). Because the State's and District's
enforceable commitments have not been revised, CARB remains obligated
to achieve the total amount of VOC emission reductions identified in
its original commitment (54 tpd). See 76 FR 57872, 57881 (Table 6).
Taking into account this 5 tpd surplus in CARB's VOC emission reduction
commitments, we assume the potential difference in the State's
projected VOC inventory for 2023, had the State applied an 86% RE
factor, would have been approximately 10.4 tpd or less than 2% of the
total projected VOC inventory for 2023. Given the multiple conservative
assumptions leading to this small difference in the emissions estimates
for VOC area sources, we do not believe that an RE adjustment for VOC
area sources would have altered our evaluation of the South Coast 2007
Ozone plan.
    For all of these reasons and as discussed in our proposal (76 FR
57872), we have concluded that the 2002 base year inventory in the
South Coast 2007 Ozone SIP is a ``comprehensive, accurate, current
inventory of actual emissions from all sources of the relevant
pollutant or pollutants'' in the South Coast area, consistent with the
requirements for emissions inventories in CAA section 182(a)(1), 40 CFR
51.915, and 40 CFR part 51, subpart A. In addition, we conclude that
the projected baseline inventories for 2011, 2014, 2017, 2020, and 2023
were prepared consistent with EPA's guidance on development of
emissions inventories and attainment demonstrations and, therefore,
provide an adequate basis for the RACM, RFP and attainment
demonstrations in the Plan. See TSD at section II.A. Given the
continuously-evolving nature of estimating emissions, however, we will
continue to work with CARB and the

SCAQMD to ensure that their base year and projection year SIP emissions
inventories accurately account for rule effectiveness and reflect the
best available estimates of current and future emissions.

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

    Comment: Commenters (NRDC, CCAT, DCAP, PSR-LA and CBE) state that
California's reliance on ``black box'' measures in the South Coast 2007
Ozone SIP fails to meet the requirements and intent of the Clean Air
Act by allowing the State to defer its responsibility to attain federal
standards. Commenters state that there are three problems with how the
State and District are using 182(e)(5).
    First, commenters state that it is arbitrary for EPA to approve a
``black box'' with 281 tons per day or 55% of the reductions needed,
given its lack of definition. Another commenter (private citizen) also
asserts that the SIP relies too heavily on unknown ``black box''
solutions, which the commenter claims make up 49.6% of needed
NOX reductions and 43% of combined VOC and NOX
reductions.
    Second, commenters assert that section 182(e)(5) is intended to
address new technologies that will develop over time but that in
California, ``new technologies alone will not sufficiently reduce
pollution to attain federal air quality standards.'' Citing a
description in EPA's TSD (at pg. 79) of a potential measure described
by CARB as ``prioritizing federal transportation funding to support air
quality goals,'' commenters argue that ``[t]his example clearly fails
to meet all the criteria required for Black Box use,'' and that while
``tying air quality to transportation planning'' is important for
attainment, the black box cannot be used as a basis for not requiring
implementation of ``existing'' strategies such as increased public
transit that do not require the development of new technologies.
    Finally, commenters state that the section 182(e)(5) commitments
are vague and insufficient and that EPA cannot approve the attainment
demonstration ``unless the Section 182(e)(5) measures comply with the
CAA.'' Citing both section 182(e)(5) of the Act and EPA's January 8,
1997 final rule approving the 1-hour ozone plan for several California
nonattainment areas (62 FR 1150, 1179), commenters assert that the new
technology measures must: (1) Contain sufficient definition; (2)
contain schedules for development of the new technologies; (3) contain
commitments for funding; (4) depend on development of new technologies;
and (5) include an enforceable commitment to develop and adopt
necessary contingency measures. Commenters assert that the South Coast
2007 Ozone SIP ``only attempts to comply with requirement number (5),''
that the generalized discussion in the Plan provides little assurance
of CARB's ability to develop these measures, and that approval of these
measures is therefore arbitrary and capricious.
    Response: First, we disagree with the commenters' contention that
EPA's proposed approval of the Plan is arbitrary because of the amount
of emission reductions attributed to the ``black box'' (or ``long-term
strategy''),\29\ or because they are undefined. As an initial matter,
we note that the commenters' assertions about the percentages of the
needed emission reductions attributed to the long-term strategy are not
correct.\30\ The correct percentages of the needed NOX and
VOC emission reductions attributed to the long-term strategy in the
South Coast 2007 Ozone SIP are 26 and 9 percent, respectively, as
explained further below.
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    \29\ Throughout this notice we use the terms ``long-term
strategy'' or ``new technology provisions'' interchangeably to refer
to the plan provisions that anticipate development of new or
improved control techniques under CAA section 182(e)(5), which the
commenters refer to as the ``black box.''
    \30\ It appears that the commenters overestimated the percentage
of ``black box'' emission reductions in the Plan by calculating the
amount of needed NOX and VOC reductions without taking
into account the reductions attributed to baseline measures and
emissions inventory improvements.
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    The CAA does not provide a quantitative limit on the extent to
which the attainment demonstration for an extreme ozone nonattainment
area may rely on new technology provisions under CAA section 182(e)(5).
As we explained in our proposed rule, section 182(e)(5) of the Act
authorizes EPA to approve provisions in an extreme area plan which
``anticipate development of new control techniques or improvement of
existing control technologies,'' and to approve an attainment
demonstration based on such provisions if the State demonstrates that:
(1) Such provisions are not necessary to achieve incremental reductions
required during the first 10 years after the effective date of
designation for the 1997 ozone NAAQS, and (2) the State has submitted
enforceable commitments to submit adopted contingency measures meeting
certain criteria no later than 3 years before proposed implementation
of the new technology measures. See 76 FR 57872, 57881-57883. EPA
interprets this provision to mean that the measures approved under
section 182(e)(5) may include those that anticipate future
technological developments as well as those that require complex
analyses, decision making and coordination among a number of government
agencies. See General Preamble at 13524.
    The majority of the emissions reductions in the South Coast 2007
Ozone SIP are attributed to already adopted and near-term measures. See
76 FR 57872, 57876-89. Our summary of South Coast's 8-hour ozone
attainment demonstration in the proposed rule shows that the South
Coast area needs to reduce emissions from 2002 levels by a total of 910
tpd of NOX and 461 tpd of VOC to attain the 8-hour ozone
standards by June 15, 2024. See 76 FR 57872, 57885 at Table 8.
Approximately 74% of these needed NOX reductions and 91% of
the needed VOC reductions are attributed to already adopted or near-
term measures (i.e., measures that will be adopted and implemented by
2014). See 76 FR 57872, 57886 (Table 9) and 57879-57880 (Tables 3 and
4) (identifying CARB and SCAQMD measures recently adopted or scheduled
for near-term consideration). These measures include all reasonably
available control measures and generally represent the most stringent
air pollution control requirements for stationary, area, and mobile
sources nationwide. See 76 FR 57872, 57877-57881. This leaves about 26%
of the needed NOX reductions and 9% of the needed VOC
reductions to be met through the long-term strategy under CAA section
182(e)(5).\31\ See 76 FR 57872, 57885 at Table 9.
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    \31\ For NOX, the long-term emission reductions are
241 tpd in 2023 or approximately 26 percent of 910 tons, the total
reductions needed. For VOC, the long-term emission reductions are 40
tpd in 2023 or approximately 9 percent of the 461 tons of VOC
reductions needed.
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    Given the demonstrated need for emissions reductions from new and
improved control techniques to reduce air pollution in the South Coast
area (see TSD at 79), we believe it is reasonable for the State to
attribute these amounts of emission reductions to the long-term
strategy.\32\ As we stated in

our proposed rule, however, we expect the amount and relative
proportion of reductions from measures scheduled for long-term adoption
under section 182(e)(5) should decrease in any future SIP update, and
EPA will not approve any future SIP revisions with an increase in the
182(e)(5) reductions for 2023 without a convincing showing that the
technologies relied upon in the near-term rules are infeasible or
ineffective in achieving emissions reductions in the near-term. See 76
FR 57872, 57883. Moreover, to the extent new modeling performed in any
subsequent SIP revision demonstrates that there is an increase in the
year 2023 carrying capacity for VOC and NOX, this change may
not be used to decrease the amount of emissions reductions scheduled to
be achieved by any near-term measure from the South Coast 2007 Ozone
SIP unless CARB or the SCAQMD make the convincing showing described
above.
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    \32\ During development of the 2007 State Strategy, CARB staff
analyzed whether current NOX technologies for mobile
sources are clean enough to provide all the emission reductions
needed for ozone attainment in the South Coast and San Joaquin
Valley. ARB included in this analysis the phasing in of the cleanest
new technology standards from 2007-2017 that ARB and U.S. EPA have
already adopted for diesel engines: 0.2 g/bhp-hr on-road truck
standards in 2010, full offroad Tier 4 standards in 2014, and the
recent U.S. EPA-proposed low-NOX standards for locomotive
engines starting in 2017. The totals of remaining emissions after
full clean-up of the legacy diesel fleets in the South Coast air
basin still exceed the NOX carrying capacity by 133 tpd.
See 2007 State Strategy, p. 54.
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    Second, we disagree with the commenters' suggestion that CAA
section 182(e)(5) allows only for plan provisions that rely on ``new
technologies'' and that this necessarily means the District must adopt
additional ``existing strategies'' that do not rely on new
technologies. Section 182(e)(5) of the Act allows for approval of
extreme area plan provisions that ``anticipate development of new
control techniques or improvement of existing control technologies,''
which EPA interprets to include ``those that may anticipate future
technological developments as well as those that may require complex
analyses and decision making and coordination among a number of
government agencies.'' See 57 FR 13498, 13524. Thus, in addition to
plan provisions that rely on ``new technologies,'' section 182(e)(5)
contemplates provisions that are as of yet undefined because they
require, for example, time for State and local agencies to evaluate
complex technical information and to seek public participation in their
regulatory processes.
    The commenters correctly note that EPA's TSD identified
``prioritiz[ation of] federal transportation funding to support air
quality goals'' among a number of potential long-term strategies that
CARB had identified for further consideration (see TSD at 79, citing
2007 State Strategy, pp. 55-56), but they do not describe any specific
control measure that such budgetary decisions could support and that is
reasonably available for current implementation in the South Coast
area. Likewise, although the commenters assert generally that
``increased transit'' and other ``existing strategies'' should be
required as control measures because these do not require the
development of new technologies, they have not identified any
particular control measure that the State should be obligated to
include in its plan for attaining the 1997 8-hour ozone NAAQS.
    CARB and the SCAQMD have adopted all of the control measures for
NOX and VOC that are reasonably available for current
implementation in the South Coast area and have submitted enforceable
commitments to adopt additional measures achieving specific amounts of
emission reductions by specific years. See 76 FR 57872, 57877-57881 and
57886. These measures are not sufficient, however, to achieve the
significant amounts of NOX and VOC reductions necessary to
attain the 1997 8-hour ozone NAAQS in the South Coast by June 15, 2024.
Absent new information about additional control measures that are cost-
effective and technically feasible for current implementation in the
area, we believe it is reasonable to allow the State and District time
to develop additional control measures based on new or improved control
techniques under CAA section 182(e)(5).
    Third, we disagree with commenters that the section 182(e)(5)
commitments are vague and insufficient. As discussed in our proposed
rule, CARB has submitted enforceable commitments to achieve specific
amounts of NOX and VOC reductions by 2023 through the
development of new or improved control techniques under CAA section
182(e)(5). The total tonnage commitment in the South Coast is for 241
tpd NOX and 40 tpd VOC. See 76 FR 57872, 57881-57882 and
2009 State Strategy Status Report, p. 20. With respect to the
requirement for contingency measures in CAA section 182(e)(5)(B), we
explained in our proposed rule that CARB's 2011 Ozone SIP Revision
contains the State's enforceable commitment ``to develop, adopt, and
submit contingency measures by 2020 if advanced technology measures do
not achieve planned reductions'' (76 FR 57872, 57882, referencing CARB
Resolution 11-22, July 21, 2011), and in a letter dated November 18,
2011 to EPA Region 9, CARB confirmed that EPA's understanding of this
enforceable commitment is correct. See letter dated November 18, 2011,
from James N. Goldstene, Executive Officer, California Air Resources
Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region 9.
    In addition, as explained in our proposed rule (76 FR at 57882),
the South Coast 2007 Plan identifies numerous potential measures
currently under consideration as part of the long-term strategy, and
CARB has committed to submit a SIP revision by 2020 that will identify
the additional strategies and implementing agencies needed to achieve
the needed reductions by the beginning of the 2023 ozone season. See
2011 Ozone SIP Revision, p. A-8; see also letter dated August 29, 2011
from James N. Goldstene, Executive Officer, California Air Resources
Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA, Region 9
(describing California's climate change programs, clean car
technologies, programs to accelerate hybrids and plug-in technologies,
greenhouse gas emission reduction targets for passenger vehicles, and
SCAQMD's efforts to transition to broad use of zero- and near-zero
emission technologies for freight transportation and passenger vehicles
and to increase energy efficiency in buildings). We note also that CARB
has stated its intent to convene annual strategy meetings with the
Districts and EPA to discuss progress in the development of its new
technology measures, and to secure resources for continuing research
and development of new technologies. See letter dated August 29, 2011,
from James N. Goldstene, Executive Officer, California Air Resources
Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region 9;
see also 2009 State Strategy Status Report, pp. 25-27.
    Finally, commenters reference CAA section 182(e)(5) and EPA's final
rule approving an ozone SIP previously submitted by California (62 FR
1150, 1179) \33\ in support of its assertion that the long-term
strategy must satisfy five ``requirements,'' of which, commenters
contend, the South Coast 2007 Ozone SIP addresses only one. We disagree
with this characterization of both the requirements of CAA section
182(e)(5) and the provisions in the South Coast 2007 Ozone SIP.
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    \33\ We note that although this final action included EPA's
approval of new technology provisions under CAA section 182(e)(5) as
part of California's SIP for the 1-hour ozone NAAQS in the South
Coast area, this prior rulemaking action is not germane to today's
action on the South Coast 2007 Ozone SIP. We assume that the
commenters intended to refer, instead, to the source of the five
criteria that EPA has recommended for consideration in evaluating
new technology provisions under CAA 182(e)(5), which is the General
Preamble (57 FR 13498, 13524 (April 16, 1992)).
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    As explained above and in our proposed rule, EPA interprets the Act
to allow EPA to approve the State's

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

    \34\ EPA's General Preamble states that in order to rely on
``new technology provisions'' under CAA section 182(e)(5), a SIP
must satisfy the following criteria: (1) Identify all measures,
including the long-term measure(s) for which additional time would
be needed for development and adoption; (2) show that the long-term
measure(s) cannot be fully developed and adopted by the submittal
date for the attainment demonstration and contain a schedule
outlining the steps leading to final development and adoption of the
measure(s); (3) contain commitments from those agencies that would
be involved in developing and implementing the schedule for the
measure; (4) contain a commitment to develop and submit contingency
measures (in addition to those otherwise required for the area) that
could be implemented if the measure is not developed or if it fails
to achieve the anticipated reductions; and (5) not rely on the new
technology measures to meet any emissions reductions requirements
within the first 10 years after enactment. See 57 FR 13498, 13524
(April 16, 1992). We note that this language is non-binding guidance
although it is phrased in mandatory terms.
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    As also explained in the proposed rule, CARB and the District have
demonstrated a clear need for additional time to fully develop and
adopt the long-term measures under consideration and have met the
statutory requirements for approval of such conceptual measures under
CAA section 182(e)(5). See 76 57872 57881-57883. The General Preamble
at 13524 recommends that a SIP relying on new technology provisions
under CAA section 182(e)(5) identify all of the specific long-term
measures the State intends to adopt, contain a schedule outlining the
specific steps leading to final development and adoption, and contain
commitments from the agencies that would be involved in developing and
implementing these measures, in addition to satisfying the statutory
criteria. However, as discussed in our proposed rule and above, both
the 2007 State Strategy and the South Coast 2007 AQMP provide lists of
the types of technologies and measures that they are pursuing to
achieve the emissions reductions needed for attainment of the 8-hour
ozone standards in the South Coast. See 76 FR 57872, 57882-57853 and
TSD, section II.C.2.d; see also, 2007 AQMP, Chapters 4 and 7; 2007
State Strategy, pp. 54-57; 2009 State Strategy Update, p. 25; and 2011
Ozone Plan Update, Appendix A. The State has also committed to share
the results of its efforts with the public through Board meetings,
workshops and other means. See 2009 State Strategy Update, p. 25; see
also, letter, James Goldstene, Executive Officer, CARB, to Jared
Blumenfeld, Regional Administrator, EPA Region 9, August 29, 2011.
Finally, the State has committed to work to secure resources for
continuing research and development and to develop schedules for moving
from research to implementation. Id. We find that the State and
District have adequately addressed the policy criteria in the General
Preamble given the significant emissions reductions needed to attain
the 1997 8-hour ozone NAAQS in the South Coast and the type of sources
(i.e., mobile sources) for which technology must be developed, tested,
and deployed in order to achieve these reductions. EPA commits to do
its share to support the needed research and development activities of
CARB and the District.
    Comment: Commenters state that the South Coast will exceed the 1-
hour ozone standards by 30% in 2010 and that this is relevant because
the South Coast's 1-hour ozone plan relied heavily on ``black box''
measures. Commenters argue that the South Coast area failed to meet the
1-hour standards ``because the commitments to develop and implement
Black Box measures never fully came to fruition'' (citing EPA's
September 14, 2011 proposal to determine that the South Coast area
failed to attain the 1-hour ozone standards by the applicable
attainment date (76 FR 56694)) and that EPA cannot reasonably rely on
the continued use of the ``black box'' because the District and CARB's
track record using this approach has not delivered the pollution
reductions that were promised in prior plans. Commenters state that EPA
must direct CARB to ``extract from the black box'' needed reductions
they know will not come from future technologies, reduce the overall
size of the black box to a reasonable level and better define where the
remaining black box reductions are expected to come from.
    Response: EPA is acting today on the South Coast 2007 Ozone SIP,
which the State submitted to meet the requirements of part D, title I
of the CAA for the 1997 8-hour ozone standards. Neither the CAA's
planning requirements related to attainment of the 1-hour ozone
standards nor the State's submittals to meet the Act's requirements for
that prior standards are germane to our action on the South Coast 2007
SIP under CAA section 110(k). Additionally, nothing in section
182(e)(5) of the CAA or our implementing regulations requires EPA to
take into account the success or failure of a prior plan for a
different NAAQS in approving extreme area plan provisions that meet the
requirements of CAA section 182(e)(5) for the 1997 8-hour ozone
standards. EPA's proposed rule to determine that the South Coast area
failed to attain the 1-hour ozone standards by its applicable
attainment date (76 FR 56694, September 14, 2011), which commenters
reference, likewise has no bearing on our action on the South Coast
2007 Ozone SIP under CAA section 110(k).
    Moreover, we disagree with commenters' contention that the South
Coast area failed to meet the 1-hour ozone standards ``because the
commitments to develop and implement Black Box measures never fully
came to fruition.'' The failure of an area to attain a NAAQS by the
applicable attainment date does not mean that the State has failed to
achieve the emissions reductions anticipated in the SIP, whether under
CAA section 182(e)(5) or otherwise. The control strategy (including the
``black box'') that EPA previously approved for the South Coast area
(62 FR 1150) was developed long before the attainment date using the
best scientific information available at the time, including estimates
of the area's carrying capacity using photochemical grid modeling and
other technical tools and assumptions. This control strategy, however,
has proven insufficient to attain the 1-hour ozone standards by the
applicable attainment date of November 15, 2010, due to imperfect
estimates as to the carrying capacity of the South Coast air basin with
respect to the 1-hour ozone standards and other imperfections in the
tools and assumptions upon which the prior plans were based. A State
may fully implement all measures that are predicted as necessary to
attain a particular NAAQS and still fail to attain that NAAQS.
    Finally, we disagree with commenters' argument that EPA must direct
CARB to ``extract from the black box needed reductions they know will
not come from future technologies, reduce the overall size of the black
box to a reasonable level and better define where the remaining black
box reductions are expected to come from.'' It is not possible at this
point in time to know that certain emission reductions will not come
from future technologies, and we do not believe it is reasonable to
require the State to reduce the

amount of emission reductions attributed to the long-term strategy by
either implementing measures or incremental reductions beyond those
otherwise mandated by the Act or developing measures based on control
techniques not yet identified or commercially available for
implementation in the area. As explained above, the State has met the
statutory criteria for approval of its long-term strategy under CAA
section 182(e)(5).
    Comment: Commenters state that the commitment by CARB to submit a
revision to EPA by 2020 provides little assurance that the black box
strategies will work. Citing Association of Irritated Residents (AIR)
v. EPA, 632 F.3d 584, 592 n.2 (9th Cir. 2011) (discussing the triennial
review process in California law and the triennial inventory
requirement under the federal Clean Air Act), commenters state that
delaying a revision until 2020 and not requiring more frequent updates
is arbitrary and capricious because both California law and the CAA
contain requirements for updating clean air plans more frequently than
every nine or ten years. Commenters also argue that delaying submittal
of an update until 2020 is arbitrary and capricious because this is too
late to allow time to remedy any problems that may need CARB
regulations, transportation infrastructure and other technology
developments that will require more than three years to develop.
    Response: As discussed in our proposed approval, CARB has committed
to achieve all of the emission reductions attributed to the section
182(e)(5) conceptual new technology measures by the attainment year
(2023) and has satisfied the section 182(e)(5) criteria for approval of
its new technology provisions by demonstrating that the measures are
not relied on for RFP and committing to submit adopted contingency
measures by 2020 to be implemented should the anticipated reductions
from new or improved technologies not occur. In addition, as discussed
above, CARB has stated its intent to continue the State's ambitious
clean technology development programs and has committed to public
outreach as well as annual meetings to update EPA on its progress.
Although we recognize the commenters' concerns about the absence of any
specific milestones or updates prior to 2020, the Act does not mandate
that the SIP include specific enforceable actions during this period.
    The triennial review process cited in AIR is a California state law
requirement applicable to air quality plans developed pursuant to the
California Clean Air Act to meet California's ambient air quality
standards. See California Health and Safety Code Section 40924(b) and
40925(a). The CAA triennial inventory requirement cited in that
decision is an emissions inventory requirement in CAA section
182(a)(3), which requires States with ozone nonattainment areas to
submit revised inventories every three years until redesignation to
attainment. See also 40 CFR part 51, subpart A. Neither the triennial
review requirement under the California CAA nor the periodic inventory
requirement under the Federal CAA applies to our evaluation of new
technology provisions under CAA section 182(e)(5).

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

    Comment: NRDC asserts that EPA has also failed to assess the