[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12652-12672]
[FR Doc No: 2012-4674]

Vol. 77

Thursday,

No. 41

March 1, 2012

Part II

Environmental Protection Agency

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40 CFR Part 52

Approval of Air Quality Implementation Plans; California; San Joaquin
Valley; 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-2011-0589; FRL-9624-5]

Approval of Air Quality Implementation Plans; California; San
Joaquin Valley; Attainment Plan for 1997 8-Hour Ozone Standards

AGENCY: U.S. 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 San Joaquin Valley
(SJV). These SIP revisions are the 2007 Ozone Plan (revised 2008 and
2011) and SJV-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 measures, provisions for advanced
technology/clean fuels for boilers, reasonable further progress (RFP)
and attainment demonstrations, transportation conformity motor vehicle
emissions budgets for all RFP milestone years and the attainment year,
contingency measures for failure to make RFP or 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 SJV Air Pollution Control
District and the California Air Resources Board.

DATES: The rule is effective April 30, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0589 for
this action. The index to the docket is available electronically at
www.regulations.gov and in hard copy at EPA Region 9, 75 Hawthorne
Street, San Francisco, California. While all documents in the docket
are listed in the index, some may be publicly available only at the
hard copy location (e.g., copyrighted material) and some may not be
publicly available at either location (e.g., CBI). To inspect the hard
copy materials, please schedule an appointment during normal business
hours with the contact listed in the FOR FURTHER INFORMATION CONTACT
section below.
    Copies of the SIP materials are also available for inspection at
the following locations:
     California Air Resources Board, 1001 I Street, Sacramento,
California 95812.
     San Joaquin Valley Air Pollution Control District, 1990 E.
Gettysburg, Fresno, California 93726.
    The SIP materials are also electronically available at: http://www.valleyair.org/Air_Quality_Plans/Ozone_Plans.htm and
www.arb.ca.gov/planning/sip/sip.htm.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Air Planning Office
(AIR-2), U.S. Environmental Protection Agency, Region 9, (415) 972-
3957<EMAIL_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 San Joaquin Valley
II. Response to Public Comments Received on the Proposal
III. Approval Status of the Control Strategy Measures and Final
Actions on the Attainment Demonstration and Enforceable Commitments
IV. Approval of the Motor Vehicle Emissions Budgets 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 San Joaquin Valley

    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 San Joaquin Valley (SJV).
See 76 FR 57846. California developed this SIP to provide for
expeditious attainment of the 1997 8-hour ozone standards in the SJV
and to meet other applicable ozone planning requirements in Clean Air
Act (CAA) sections 172(c) and 182 and EPA's 8-hour ozone implementation
rule.\1\
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    \1\ See 40 CFR part 51, subpart X and 69 FR 23951 (April 30,
2004) and 70 FR 71612 (November 29, 2005).
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    California has made five SIP submittals to address the CAA's
planning requirements for attaining the 1997 8-hour ozone standard in
the San Joaquin Valley. We refer to these submittals collectively as
the ``[SJV] 2007 8-hour Ozone SIP.'' The two principal ones are the San
Joaquin Valley Unified Air Pollution Control District's (SJVUAPCD) 2007
Ozone Plan (also Plan) and the California Air Resources Board's (CARB)
State Strategy for California's 2007 State Implementation Plan (2007
State Strategy).\2\
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    \2\ These five SIP submittals are:
    1. SJVUAPCD, 2007 Ozone Plan, adopted on April 30, 2007 by the
SJVUAPCD and on June 14, 2007 by CARB, submitted on November 16,
2007.
    2. CARB, Proposed State Strategy for California's 2007 State
Implementation Plan, 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, submitted on August 12, 2009.
(``2009 State Strategy Status Report'')
    4. SJVUAPCD, Amendments to the 2007 Ozone Plan (amending the
rulemaking schedule for Measure S-GOV-5 Organic Waste Operations)
adopted on December 18, 2008 by the SJVUAPCD, submitted on April 24,
2009.
    5. CARB, 8-Hour Ozone State Implementation Plan Revisions and
Technical Revisions to the PM2.5 State Implementation
Plan Transportation Conformity Budgets for the South Coast and San
Joaquin Valley Air Basins,'' adopted on July 21, 2011, submitted
July 29, 2011. ``2011 Ozone SIP Revisions.''
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    Together, the 2007 Ozone Plan and the 2007 State Strategy present a
comprehensive and innovative strategy for attaining the 1997 8-hour
ozone standards in the SJV.
    In our September 2011 notice, EPA proposed to approve as meeting
the applicable requirements of the CAA the SJV 2007 8-hour Ozone SIP's
base year emissions inventory, reasonably available control measures
demonstration, provisions for transportation control strategies and
measures, provisions for advanced technology/clean fuels for boilers,
reasonable further progress (RFP) and attainment demonstrations,
transportation conformity motor vehicle emissions budgets (MVEB) for
all RFP milestone years and the attainment year, contingency measures
for failure to make RFP or attain, and CAA section 182(e)(5) provisions
for new technologies and the associated commitment to adopt contingency
measures.\3\ EPA also proposed to approve commitments to measures and
reductions by the District and CARB.\4\ 76 FR 57846, 57867.
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    \3\ See letter, James Goldstene, Executive Officer, CARB, to
Jared Blumenfeld, Regional Administrator, EPA Region 9, dated
November 18, 2011.
    \4\ 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) (AIR), 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 proposed rule that if the court denied the Agency's
petition for rehearing and issued its mandate before EPA issued a
final rule on the SJV 2007 8-hour Ozone SIP, then we anticipated
that we would not be able to finalize approval of the SJV 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 57846, 57863.
Therefore, we proposed in the alternative to disapprove the SJV 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 SJV 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 SJV area, the CAA and EPA requirements applicable to them, and
our evaluation and proposed actions can be found in our September 2011
proposed rule (76 FR 57846) and the technical support document (TSD)
for this final action.\5\
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    \5\ ``Technical Support Document and Response to Comments Final
Rule on the San Joaquin Valley 2007 8-hour State Implementation
Plan,'' Air Division, U.S. EPA Region 9, September 30, 2011. The TSD
can be found in the docket for this rulemaking.
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    EPA is today approving all elements of the SJV 2007 8-hour Ozone
SIP 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 San Joaquin Valley.

II. Response to Public Comments Received on the Proposals

    EPA provided the public an opportunity to comment on its proposed
approval of the SJV 2007 8-hour ozone SIP for 30 days following the
proposed rule's September 16, 2011 publication in the Federal Register.
We received two comment letters on the proposed rule. The first letter
came from CARB who requested that we limit the approval of the SIP's
MVEB until such time as the State submits and EPA finds adequate new
budgets. We address CARB's request in Section IV below. The second
letter was submitted jointly by the Center on Race, Poverty and the
Environment; Earthjustice; and the Natural Resources Defense Council on
behalf of themselves, the Association of Irritated Residents (AIR) and
other San Joaquin Valley-based environmental and community
organizations (collectively ``AIR''). See letter Brent Newell, General
Counsel, Center on Race, Poverty & the Environment, October 17, 2011.
We respond to AIR's main comments below. The entire Response to
Comments document received can be found section III of the TSD. A copy
of the comment letters can be found in the docket for this rule.

A. Enforceable Commitments

    Comment: AIR characterizes CARB's and the District's commitments to
achieve aggregate emissions reductions in specific years as ``global
commitments'' and argues that they could be interpreted as ``goals''
unenforceable by citizens under Ninth Circuit precedent rather than
enforceable ``strategies'' to achieve those goals, citing Bayview
Hunters Point Community Advocates v. Metropolitan Transp. Comm'n, 366
F.3d 692, 701 (9th Cir. 2004) and El Comite Para El Bienstar de
Earlimart v. Warmerdam, 539 F.3d 1062, 1067 (9th Cir. 2008).
    AIR argues that the plans' global commitments are not enforceable
for two reasons. First, AIR claims that enforcement is not practical
because it is not possible for citizens or EPA to determine whether the
CARB and the District have met the global commitments. AIR argues
further that because no measures are submitted to EPA for inclusion
into the SIP citizens have no idea which measures CARB has used to
satisfy the total tonnage commitments. AIR also argues that there are
no provisions for CARB and the District to report to EPA and the public
what actions they have taken to comply with the tonnage commitments and
thus EPA and citizens are left to determine, based on information
exclusively held and maintained by CARB and the District, whether the
commitments have in fact been met.
    Second, AIR claims that because ``enforcing the global commitment
ultimately turns on how the ARB and the District calculate emissions
reductions achieved through the measures,'' CARB's and the District's
emissions reduction commitments are not enforceable unless the
methodology for calculating the reductions is also enforceable.
Otherwise, AIR argues, the manner in which CARB and the District
determine compliance with the tonnage target is left to their
discretion, and citizens and EPA would be placed in the situation held
by the plaintiffs in Warmerdam. In conclusion, AIR asserts that the CAA
``does not condone a discretionary commitment and EPA should not
approve the ARB's latest attempt to achieve a reduction target based on
discretionary actions.''
    Response: Under CAA section 110(a)(2)(A), SIPs must include
enforceable emissions limitations and other control measures, means or
techniques as necessary to meet the requirements of the Act, as well as
timetables for compliance. Similarly, section 172(c)(6) provides that
nonattainment area SIPs must include enforceable emission limitations
and such other control measures, means or techniques ``as may be
necessary or appropriate to provide for attainment'' of the NAAQS by
the applicable attainment date.
    Control measures, including commitments in SIPs, are enforced
directly by EPA under CAA section 113 and also through CAA section
304(a) which provides for citizen suits to be brought against any
person who is alleged ``to be in violation of * * * an emission
standard or limitation * * *.'' ``Emission standard or limitation'' is
defined in subsection (f) of section 304. As observed in Conservation
Law Foundation, Inc. v. James Busey et al., 79 F.3d 1250, 1258 (1st
Cir. 1996):

    Courts interpreting citizen suit jurisdiction have largely
focused on whether the particular standard or requirement plaintiffs
sought to enforce was sufficiently specific. Thus, interpreting
citizen suit jurisdiction is limited to claims ``for violations of
specific provisions of the act or specific provisions of an
applicable implementation plan,'' the Second Circuit held that suits
can be brought to enforce specific measures, strategies, or
commitments designed to ensure compliance with the NAAQS, but not to
enforce the NAAQS directly. See, e.g., Wilder, 854 F.2d at 613-14.
Courts have repeatedly applied this test as the linchpin of citizen
suit jurisdiction. See, e.g., Coalition Against Columbus Ctr. v.
City of New York, 967 F.2d 764, 769-71 (2d Cir. 1992); Cate v.
Transcontinental Gas Pipe Line Corp., 904 F. Supp. 526, 530-32 (W.D.
Va. 1995); Citizens for a Better Env't v. Deukmejian, 731 F. Supp.
1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).

    Thus courts have found that the citizen suit provision cannot be
used to enforce the aspirational goal of attaining the NAAQS, but can
be used to enforce specific strategies to achieve that goal, including
enforceable commitments to develop future emissions controls.
    We describe CARB's and the District's commitments in the 2007 State
Strategy (revised in 2009 and 2011) and the 2007 Ozone Plan in detail
in our proposed rule. See 76 FR 57846, 57851-57856 and 57857-57860. The
2007 State Strategy includes commitments to propose defined new
measures and an enforceable commitment for emissions reductions
sufficient, in combination

with existing measures, the District's commitments, and the new
technology provisions to attain the 1997 8-hour ozone NAAQS in the SJV
by June 15, 2024. See CARB Resolution 07-28, Attachment B at pp. 3 and
6 and 2009 State Strategy Status Report, p. 21. For the SJV, CARB's
emissions reductions commitments as submitted in 2007 and 2009 are to
specific reductions of NOX and VOC in 2014, 2017, 2020, and
2023 as well as additional reductions from CAA section 182(e)(5)
measures in 2023. These commitments are shown in Table 8 of the
proposed rule (76 FR 57846, 57854) and Table D-6 of the TSD.
    SJVUAPCD's commitments as submitted in 2007 are also to specific
reductions of NOX and VOC in 2008, 2011, 2012, 2014, 2017,
2020 and 2023 and are shown Table 6-1 of the 2007 Ozone Plan (as
revised in 2008). These commitments are also shown (for all years
except for 2008) on Table 3 of the proposed rule (76 FR 57846, 578524)
and Table D-2 of the TSD. The language used in the Board's resolution
adopting the 2007 8-hour Ozone Plan at page 5 to describe its
commitment is mandatory and unequivocal in nature:

    10. The District Governing Board commits to adopt and implement
the rules and measures in the 2007 Ozone Plan by the dates specified
in Chapter 6 to achieve the emissions reductions shown in Chapter 6,
and to submit these rules and measures to the ARB within one month
of adoption for transmittal to EPA as a revision to the State
Implementation Plan. If the total emissions reductions from the
adopted rules are less than those committed to in the Plan, the
District Governing Board commits to adopt, submit, and implement
substitute rules and measures that will achieve equivalent
reductions in emissions of ozone precursors in the same adoption and
implementation timeframes or in the timeframes needed to meet CAA
milestones.

SJVUAPCD Board Resolution No. 07-04-11a, p. 6. (Emphasis added).
    Thus, CARB's and the District's commitments here are to adopt and
implement measures that will achieve specific amounts of NOX
and VOC emissions 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 emissions reductions by
specified milestone years and ultimately by the attainment year (2023).
See 70 FR 71612, 71633 (November 29, 2005) and 40 CFR 51.910(a)(1) and
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). All of these control measures are subject to
State and local rulemaking procedures and public participation
requirements, through which EPA and the public may track the State/
District's progress in achieving the requisite emissions reductions.
EPA and citizens may enforce these commitments under CAA sections 113
and 304(a), respectively, should the State/District fail to adopt
measures that achieve the requisite amounts of emissions reductions by
each specified year. We conclude that these enforceable commitments to
adopt and implement additional control measures to achieve aggregate
emissions reductions on a fixed schedule are appropriate means,
techniques, or schedules for compliance under sections 110(a)(2)(A) and
172(c)(6) of the Act.
    AIR cites Bayview as support for their contention that the SIP's
commitments are unenforceable aspirational goals. Bayview does not,
however, provide any such support. That case involved a provision of
the 1982 Bay Area 1-hour ozone SIP, known as TCM 2, which states in
pertinent part:

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

    Ultimately, the 15 percent ridership estimate was adopted by the
Metropolitan Transportation Commission (MTC), the implementing agency,
as the actual target. Plaintiffs subsequently attempted to enforce the
15 percent ridership increase. The court found that the 15 percent
ridership increase was an unenforceable estimate or goal. In reaching
that conclusion, the court considered multiple factors, including the
plain language of TCM 2 (e.g., ``[a]greeing to establish a ridership
`target' is simply not the same as promising to attain that target,''
Bayview at 698); the logic of TCM 2, i.e., the drafters of TCM 2 were
careful not to characterize any given increase as an obligation because
the TCM was contingent on a number of factors beyond MTC's control, id.
at 699; and the fact that TCM 2 was an extension of TCM 1 that had as
an enforceable strategy the improvement of transit services,
specifically through productivity improvements in transit operators'
five-year plans, id. at 701. As a result of all of these factors, the
Ninth Circuit found that TCM 2 clearly designated the productivity
improvements as the only enforceable strategy. Id. at 703.
    The commitments in the 2007 State Strategy (revised in 2009 and
2011) and 2007 Ozone Plan are in stark contrast to the ridership target
that was deemed unenforceable in Bayview. The language in CARB's and
the District's commitments, as stated multiple times in multiple
documents, is specific; the intent of the commitments is clear; and the
strategy of adopting measures to achieve the required reductions is
completely within CARB's and the District's control. Furthermore, as
stated previously, CARB and the District identify specific emissions
reductions that they will achieve, how they could be achieved and the
time by which these reductions will be achieved. See 76 FR 57846, 57854
(Table 8) (listing CARB's commitments) 57852 (Table 3) (listing the
District's commitments).
    CARB's and the District's commitments here are analogous to the
terms of the contingency measures for the transportation sector in the
1982 Bay Area 1-hour ozone SIP in Citizens for a Better Environment v.
Deukmejian, 731 F.Supp. 1448 (N.D. Cal. 1990) (known as CBE I.) 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 a
specific tonnage of emissions reductions by specific years. Thus, the
commitment to a specific tonnage reduction is comparable to a
commitment to achieve RFP. Similarly, a commitment to achieve a
specific amount of emissions reductions through adoption and
implementation of unidentified measures is comparable to the
commitments to adopt unspecified TCMs and stationary source measures.
The key is that 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.
    AIR's reliance on El Comite (also referred to as Warmerdam) to
argue that CARB's commitments are not enforceable is also 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 AIR cites the Ninth Circuit's El Comite opinion, its utility
in analyzing the CARB and District commitments here is limited to that
court's agreement with the district court's conclusion that neither the
baseline nor the methodology qualifies as an independently enforceable
aspect of the SIP. Rather, it is the district court's opinion, in
distinguishing the commitments in CBE and Bayview, that provides
insight into the situation at issue in our action. As the court
recognized, a baseline inventory or the methodology used to calculate
it, is not a measure to reduce emissions. It instead ``identifies
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 SJV 2007 Ozone Plan, CARB
and the District commits to adopt and implement measures sufficient to
achieve specified amounts of emissions reductions by specified dates.
As described above, a number of courts have found commitments
substantially similar to CARB's here to be enforceable under CAA
section 304(a).

B. Baseline Measures, Baseline Inventories, and Attainment
Demonstration

    Comment: AIR 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. AIR 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, AIR asserts that EPA should disapprove the
attainment demonstration because EPA has approved neither mobile source
baseline measures nor pesticide measures as part of the SIP. AIR
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, AIR 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.'' AIR 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.''
    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 SJV 2007 8-hour Ozone SIP.\6\
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    \6\ 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 General Preamble at 13503 (April 16, 1992).
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    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.a.i. Historically, EPA has granted
credit for

the waiver measures because of special Congressional recognition, in
establishing the waiver process in the first place, of the pioneering
California motor vehicle control program and because amendments to the
CAA (in 1977) expanded the flexibility granted to California in order
``to afford California the broadest possible discretion in selecting
the best means to protect the health of its citizens and the public
welfare'' (H.R. Rep. No. 294, 95th Congr., 1st Sess. 301-2 (1977)). In
allowing California to take credit for the waiver measures
notwithstanding the fact that the underlying rules are not part of the
California SIP, EPA treated the waiver measures similarly to the
Federal motor vehicle control requirements, which EPA has always
allowed States to credit in their SIPs without submitting the program
as a SIP revision.
    EPA's historical practice has been to give SIP credit for motor-
vehicle-related waiver measures 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.\7\) The SJV 2007 8-hour Ozone SIP was developed using a
version of the EMFAC model referred to as EMFAC2007, which EPA has
approved for use in SIP development in California. See 73 FR 3464
(January 18, 2008). Thus, the emissions reductions that are from the
California on-road ``waiver measures'' and that are estimated through
use of EMFAC are as verifiable as are the emissions reductions relied
upon by states other than California in developing their SIPs based on
estimates of motor vehicle emissions made through the use of the MOVES
model. All other states use the MOVES model (and prior to release of
MOVES, the MOBILE model) in their baseline inventories without
submitting the federal motor vehicle regulations for incorporation into
their SIPs.
---------------------------------------------------------------------------

    \7\ 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.\8\
(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.a.i.
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    \8\ Information about CARB's emissions inventories for on-road
and non-road mobile sources, and the EMFAC and OFFROAD models used
to project changes in future inventories, is available at http://www.arb.ca.gov/msei/msei.htm.
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    CARB's EMFAC and OFFROAD models employ complex routines that
predict vehicle fleet turnover by vehicle model years and include
control algorithms that account for all adopted regulatory actions
which, when combined with the fleet turnover algorithms, provide future
baseline projections. See 2007 State Strategy, Appendix F at 7-8. For
stationary sources, the California Emission Forecasting System (CEFS)
projects future emissions from stationary and area sources (in addition
to aircraft and ships) using a forecasting algorithm that applies
growth factors and control profiles to the base year inventory.\9\ 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).
---------------------------------------------------------------------------

    \9\ 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.
---------------------------------------------------------------------------

    In sum, the 2002 base year and future projected baseline
inventories in the SJV 2007 8-hour Ozone SIP 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 San Joaquin
Valley; (2) improved methodologies for estimating emissions from
specific source categories; and (3) CARB's non-road mobile source model
(the OFFROAD model). See TSD, section II.A. (referencing, inter alia,
2007 State Strategy at Appendix F) and 2011 Ozone SIP Revisions. 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 SJV are inadequate to support the RFP and
attainment

demonstrations in the SJV 2007 8-hour Ozone SIP.
    For all of these reasons and as discussed in our proposed rule (76
FR 57846, 57850), we conclude that the 2002 base year inventory in the
2007 8-hour Ozone SIP is a ``comprehensive, accurate, current inventory
of actual emissions from all sources of the relevant pollutant or
pollutants'' in the SJV 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 SIP under CAA sections 172(c)(2),
182(a), and 182(c)(2). See TSD at section II.A.3.
    Finally, we disagree with AIR's assertion that EPA has not
identified the total amount of emissions reductions attributed to
baseline measures in the projected inventories. The total amounts of
emissions reductions attributed to baseline measures in the 2007 8-hour
Ozone SIP, as revised in 2011, are 54.2 tpd of VOC and 338.6 tpd of
NOX. See 76 FR 57846, 57858, table 9 at line E; see also
TSD, Table F-4 at line D.
    Comment: AIR 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 SJV 2007 8-hour Ozone SIP when such a
``huge component of the control strategy'' has not been SIP-approved.
AIR also asserts that CARB has not submitted copies of its mobile
source baseline measures to EPA as part of this plan. AIR 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.
AIR 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.\10\ 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.
---------------------------------------------------------------------------

    \10\ EPA's historical practice in allowing California credit for
waiver measures notwithstanding the absence of the underlying rules
in the SIP is further documented by reference to EPA's review and
approval of a May 1979 revision to the California SIP entitled,
``Chapter 4, California Air Quality Control Strategies.'' In our
proposed approval of the 1979 revision (44 FR 60758, October 22,
1979), we describe the SIP revision as outlining California's
overall control strategy, which the State had divided into vehicular
sources and non-vehicular (stationary source) controls. As to the
former, the SIP revision discusses vehicular control measures as
including technical control measures and transportation control
measures. The former refers to the types of measures we refer to
herein as waiver measures, as well as fuel content limitations, and
a vehicle inspection and maintenance program. The 1979 SIP revision
included several appendices, including appendix 4-E, which refers to
``ARB vehicle emission controls included in title 13, California
Administrative Code, chapter 3 * * *,'' including the types of
vehicle emission standards we refer to herein as waiver measures;
however, California did not submit the related portions of the
California Administrative Code (CAC) to EPA as part of the 1979 SIP
revision submittal. With respect to the CAC, the 1979 SIP revision
states: ``The following appendices are portions of the California
Administrative Code. Persons interested in these appendices should
refer directly to the code.'' Thus, the State was clearly signaling
its intention to rely on the California motor vehicle control
program but not to submit the underlying rules to EPA as part of the
SIP. In 1980, we finalized our approval as proposed. See 45 FR 63843
(September 28, 1980).
---------------------------------------------------------------------------

    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.
    AIR 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: AIR 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, AIR 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, AIR 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. AIR 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.\11\
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    \11\ In this regard, we disagree that we are treating the waiver
measures inconsistently with other California control measures, such
as consumer products and fuels rules, for the simple reason that,
unlike the waiver measures, there is no history of past practice or
legislative history supporting treatment of other California
measures, such as consumer products rules and fuels rules, in any
manner differently than is required as a general rule under CAA
section 110(a)(2)(A), i.e., state and local measures that are relied
upon for SIP purposes must be approved into the SIP.

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C. Reasonably Available Control Measures

    Comment: AIR takes issue with EPA's policy interpretation of the
RACM requirement in CAA section 172(c)(1) that a SIP meets the RACM
requirement if it includes all reasonably available measures that
individually or in combination with other such measures can advance
attainment of the relevant standard by at least one year. The commenter
claims this interpretation is ``not based on the language of the
statute and is irrational and perverse in the context of the SIP
approval here.'' Specifically, AIR argues that because the 2007 8-hour
Ozone SIP includes a ``black box,'' under EPA's reasoning no controls
would need to be adopted as RACM because even the controls that the
District and State have identified as RACM would not advance attainment
by a year.
    In addition, AIR claims that the 2007 8-hour Ozone SIP neither
provides for attainment nor identifies the controls needed to attain,
and that it is not rational to suggest that additional, feasible
controls need not be adopted. AIR asserts that if a control is
economically and technically feasible, then it is reasonably available
and must be adopted. Finally, AIR argues that such controls could
advance attainment and that ``[a]s technology is developed, it very
well could allow for earlier attainment, especially if the Plan
minimizes the magnitude of emissions reductions put into the `black
box.' '''
    Response: Section 172(c)(1) of the Act requires that each
attainment plan ``provide for the implementation of all reasonably
available control measures as expeditiously as practicable (including
such reductions in emissions from existing sources in the area as may
be obtained through the adoption, at a minimum, of reasonably available
control technology), and shall provide for attainment of the national
primary ambient air quality standards.'' For over 30 years, EPA has
consistently interpreted this provision to require that States adopt
only those ``reasonably available'' measures necessary for expeditious
attainment and to meet RFP requirements. See 40 CFR 51.912(d) and
51.1010; 44 FR 20372 (April 4, 1979) (Part D of title I of the CAA
``does not require that all sources apply RACM if less than all RACM
will suffice for [RFP] and attainment''); General Preamble \12\ at
13560 (``where measures that might in fact be available for
implementation in the nonattainment area could not be implemented on a
schedule that would advance the date for attainment in the area, EPA
would not consider it reasonable to require implementation of such
measures'') \13\; ``Guidance on the Reasonably Available Control
Measures (RACM) Requirement and Attainment Demonstration Submissions
for Ozone Nonattainment Areas,'' November 30, 1999 (1999 Seitz Memo) (a
State may justify rejection of a measure as not ``reasonably
available'' for that area based on technological or economic grounds);
and 70 FR 71612 (November 29, 2005) at 71660, 71661 (noting that ``to
require areas to adopt and implement as RACM every control technology
or measure that obtains a small amount of emissions reductions--even if
such measure would not advance the attainment date or is not required
to meet RFP requirements--is not justified'' as it ``would be extremely
burdensome to planning agencies, would detract from the effort to
develop more reasonable and effective controls to meet the NAAQS, and
would not be necessary to meet the statutory goal of expediting
attainment''); see also preamble to PM2.5 Implementation
Rule, 72 FR 20586 at 20613, 20615 (April 25, 2007) (stating that a RACM
demonstration should ``focus on the most effective measures with the
greatest possibility for significant air quality improvements''). EPA's
interpretation of section 172(c)(1) has been upheld by several courts.
See, e.g., Sierra Club v. EPA, et al., 294 F. 3d 155--(DC Cir. 2002);
Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002).
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    \12\ The ``General Preamble for the Implementation of Title I of
the Clean Air Act Amendments of 1990,'' published at 57 FR 13498 on
April 16, 1992, describes EPA's preliminary view on how we would
interpret various SIP planning provisions in title I of the CAA as
amended in 1990, including those planning provisions applicable to
the 1-hour ozone standard. EPA continues to rely on certain guidance
in the General Preamble to implement the 8-hour ozone standard under
title I.
    \13\ EPA also believes it is not reasonable to require the
adoption of measures that are absurd, unenforceable, or
impracticable. See General Preamble at 13560; see also 55 FR 38236
(September 18, 1990) (revoking prior EPA guidance to the extent it
suggested or stated that areas with severe pollution problems must
implement every conceivable control measure including those that
would cause severe socioeconomic disruption.
---------------------------------------------------------------------------

    Second, we disagree with AIR's assertion that our approach to RACM
is ``irrational'' or ``perverse'' in the context of a plan that
includes a ``black box,''--i.e., an attainment demonstration that
relies to some extent on the development of new control techniques or
improvement of existing control technologies in accordance with CAA
section 182(e)(5). Congress first enacted the RACM requirement as part
of the CAA Amendments of 1977, which required SIPs for all
nonattainment areas to provide for application of all ``reasonably
available control measures,'' \14\ including RACT for all stationary
sources. See 44 FR 53761 at 53762 (September 17, 1979) (citing sections
172(b)(2) and (b)(3) of the 1977 CAA).\15\ As part of the 1990
Amendments to the CAA, Congress created specific nonattainment area
planning requirements for ozone, including section 182(e)(5) of the
Act, which allows for approval of a plan for an extreme ozone
nonattainment area that relies in part on the development of new
control techniques or improvements to existing technologies. Notably,
however, Congress did not substantively alter the RACM requirement,
although it moved the provision from section 172(b)(2) to section
172(c)(1) of the amended Act. Following the 1990 Amendments, EPA has
consistently reaffirmed its pre-existing interpretation of the RACM
requirement, i.e., that only those measures that would advance
attainment or that are needed to meet reasonable further progress
requirements are ``reasonably available'' within the meaning of section
172(c)(1). See, e.g., 57 FR 13498 at 13560 (April 16, 1992); 1999 Seitz
Memo; 40 CFR 51.912(d) and 70 FR 71612 at 71660, 71661 (November 29,
2005); see also Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002)
(concluding that section 193 of the 1990 CAA expresses Congress' intent
to preserve EPA's pre-1990 interpretation of the RACM requirement).
---------------------------------------------------------------------------

    \14\ The term ``reasonably available control measures'' is not
specifically defined in the CAA. EPA first interpreted the term in
guidance issued in 1979. See 44 FR 20,372 (April 4, 1979). That
guidance established the principle that RACM is determined based on
evaluation of a collection of control measures submitted as part of
the reasonable further progress (RFP) plan and attainment
demonstration for a particular NAAQS. See id. at 20, 375; see also
id. at 20,373 (noting that ``states often have flexibility to obtain
more or less emission reduction from any one measure, as long as a
group of measures in the plan is adequate'').
    \15\ Section 172(b) of the 1977 CAA stated, in relevant part, as
follows: ``The plan provisions required by subsection (a) of this
section [for nonattainment areas] shall-- (2) provide for the
implementation of all reasonably available control measures as
expeditiously as practicable; [and] (3) require, in the interim,
reasonable further progress * * * including such reduction in
emissions from existing sources in the area as may be obtained
through the adoption, at a minimum, of reasonably available control
technology; * * *''
---------------------------------------------------------------------------

    Thus, the CAA explicitly contemplates that, for an extreme ozone
nonattainment area, even where all RACM necessary for expeditious
attainment and RFP are implemented, additional control measures based
on

new or improved control techniques (i.e., control measures yet to be
defined) may be necessary to attain the ozone NAAQS. These new or
improved control techniques are, by definition, not reasonably
available for current implementation in the nonattainment area. AIR's
comment suggests that our approval of a plan containing only those RACM
necessary for expeditious attainment and RFP under CAA section
172(c)(1), together with new technology provisions under CAA section
182(e)(5) and other plan elements required under subpart 2 of part D,
is somehow absurd. For the reasons discussed above, however, we believe
Congress intended to allow for approval of both those reasonably
available measures that contribute to expeditious attainment and new
technology provisions as elements of a reasonable strategy for
attaining the ozone NAAQS in the SJV area. We therefore disagree with
AIR's claim that the 2007 8-hour Ozone SIP fails to provide for
attainment of the 1997 8-hour ozone standard.
    As explained in our proposed rule, the 2007 Ozone Plan includes an
enforceable commitment by the SJVUAPCD to adopt 19 control measures in
the near term, all but one of which the District has since adopted. See
2007 Ozone Plan, Table 6-1 and 76 FR 57846, 57851 (Table 2).\16\ Also
as part of the near term emissions reductions, CARB committed to bring
11 measures to its Board that would contribute emissions reductions to
the SJV and now has completed rulemaking on many of them including
requirements for in-use off-road equipment and in-use heavy duty diesel
trucks that are the first of their kind nationwide. See 76 FR 57846,
57853 (Table 5). We anticipate that these measures will accelerate
introduction of the most stringent currently available new engine and
retrofit technologies for these sources and result in almost full
deployment of these technologies by 2023.\17\ These new measures are in
addition to the many rules and regulations adopted by the District and
State prior to the development of the SJV 8-Hour Ozone SIP (baseline
measures), which collectively achieve more than 80 percent of
NOX and 47 percent of VOC reductions needed to attain the 8-
hour ozone standard. See 76 FR 57846, 87859 (Table 10); see also
Appendices A and B of TSD. Thus, contrary to the implication of AIR's
argument, this is not a situation where the area is not adopting and
implementing a variety of control measures that have been determined
reasonable for other areas. In fact, SJVUAPCD is on the cutting edge of
the type and level of controls it has required for sources in the
area.\18\
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    \16\ The one measure that the SJVUAPCD has not adopted is a
measure regulating aviation fuel storage (Control Measure S-PET-3),
which the District determined was infeasible. See SJVUAPCD, ``Final
Draft Staff Report, Revised Proposed Amendments to Rules 2020, 4621,
4622, and 4624,'' December 20, 2007, p. 2.
    \17\ The California Bureau of Automotive Repair, which
implements California's SmogCheck program, and the California
Department of Pesticides also have adopted measures as part of the
2007 State Strategy. See 2009 State Strategy Status Report, p. 4.
    \18\ Neither the District nor CARB rejected any potential RACM
based on a finding that it would not advance attainment (alone or in
combination with other potential measures), and AIR has not
identified any such measures.
---------------------------------------------------------------------------

    Finally, we do not dispute AIR's statement that ``[a]s technology
is developed, it very well could allow for earlier attainment'' and
reduce the magnitude of emissions reductions put into the ``black
box''--i.e., attributed to the plan provisions for new and improved
technologies. At this time, however, we are not aware of currently
available technologies or control measures that would achieve emissions
reductions sufficient to advance attainment of the ozone NAAQS in the
SJV, and AIR has not identified any such measures.
    Comment: AIR disputes EPA's statement that the process and criteria
the District used to select certain measures and reject others are
consistent with EPA's RACM guidance, asserting that the District's
approach to evaluating economic feasibility is not consistent with EPA
guidance because the District rejects control options based on the
``affordability'' of controls for a particular industry. Citing, for
example, the District's ``Revised Proposed Staff Report and
Recommendations on Agricultural Burning,'' at p. 1-4 (May 20, 2010),
AIR states that the District rejects controls ``not based solely on the
cost-effectiveness of controls but based on an overly simplistic ratio
of costs to profits for the industry,'' referred to as the `` `10
percent of profits' test, to determine whether controls are
economically feasible.'' AIR also asserts that this 10-percent-of-
profits test ``has no connection to whether an industry is actually
capable of bearing the costs of control, let alone whether the control
should be considered cost-effective on a dollars per ton of emission
reduction basis.''
    In support of these assertions, AIR quotes from EPA's Supplement to
the General Preamble (57 FR 18070, 18074 (April 28, 1992)) and states
that EPA ``presumes that it is reasonable for similar sources to bear
similar costs of emission reductions'' because ``[e]conomic feasibility
rests very little on the ability of a particular source to `afford' to
reduce emissions to the level of similar sources.'' AIR further quotes
from this same document to assert that ``capital costs, annualized
costs, and cost effectiveness * * * should be determined for all
technologically feasible emissions reduction options'' and notes that
cost effectiveness is the cost per amount of emissions reduction (in
tons) per year.
    Response: We agree generally that an economic feasibility analysis
based on the use of a ``10 percent of profits'' test is not a
sufficient basis for rejecting a control option from consideration as
RACM under CAA section 172(c)(1). As AIR correctly notes, under EPA's
long-standing guidance on evaluating economic feasibility for RACM/RACT
under CAA section 172(c)(1), EPA presumes that the cost of using a
control measure is reasonable if those same costs are borne by other
comparable facilities. See, e.g., 57 FR 18070, 18074 (April 28, 1992)
and 59 FR 41998, 42009 (August 16, 1994). EPA guidance provides that
economic feasibility is largely determined by evidence that other
sources in a source category have in fact applied the control
technology in question and may also be based on cost effectiveness
(i.e., calculation of the cost per amount of emissions reduction in $/
ton). Id. However, we note that our policy merely establishes a
presumption and RACT is determined based on a source category or single
source analysis; therefore, states can present additional or other
evidence of what constitutes RACT for a source category or a single
source.
    For that reason, we disagree, with AIR's suggestion that cost
effectiveness must be the sole criterion for evaluating economic
feasibility. EPA's Supplement to the General Preamble (57 FR 18070,
April 28, 1992), which AIR quotes from, provides that a state ``may
give substantial weight to cost effectiveness in evaluating the
economic feasibility of an emissions reduction technology'' but does
not indicate that cost effectiveness is the only acceptable
criterion.\19\ See

57 FR 18070, 18074 (emphasis added). To the contrary, in numerous
guidance documents EPA has identified cost effectiveness as one of
several factors that states may consider in evaluating the economic
feasibility of an available control option. See, e.g., 57 FR at 18074
(``[t]he capital costs, annualized costs, and cost effectiveness of an
emissions reduction technology should be considered in determining its
economic feasibility'') (emphasis added); 57 FR 55620 at 55625
(November 25, 1992) (``NOX Supplement to General Preamble'')
(``comparability'' of a NOX RACT control level ``shall be
determined on the basis of several factors including, for example,
cost, cost-effectiveness, and emission reductions''); 59 FR 41998 at
42013 (August 16, 1994) (``PM-10 Addendum to General Preamble'')
(``capital costs, annualized costs, and cost effectiveness of an
emission reduction technology should be considered in determining its
economic feasibility''); and Memorandum from D. Kent Berry, EPA, Air
Quality Management Division, to Air Division Directors, EPA Regions I--
X, ``Cost-Effective Nitrogen Oxides (NOX) Reasonably
Available Control Technology (RACT)'' (``[w]hile cost effectiveness * *
* is an important consideration, it must be noted that other factors
should be integrated into a RACT analysis [such as] emissions
reductions and environmental impact * * *'').\20\
---------------------------------------------------------------------------

    \19\ In the Supplement to the General Preamble, EPA stated that
``[c]ost effectiveness provides a value for each emission reduction
option that is comparable with other options and other facilities''
but also stated that companies may provide other source-specific
information about costs for consideration in an economic feasibility
analysis:
    If a company contends that it cannot afford the technology that
appears to be RACT for that source or group of sources, the claim
should be supported with such information as impact on:
    1. Fixed and variable production cost ($/unit),
    2. Product supply and demand elasticity,
    3. Product prices (cost absorption vs cost pass-through),
    4. Expected costs incurred by competitors,
    5. Company profits, and
    6. Employment.
    57 FR 18070, 18074.
    \20\ EPA also included guidance on economic feasibility
determinations in the preamble to its 2007 PM2.5
Implementation Rule. See 72 FR 20586, 20619-20620 (April 25, 2007).
In June 2007, a petition to the EPA Administrator was filed on
behalf of several public health and environmental groups requesting,
among other things, reconsideration of elements of this economic
feasibility guidance. See Earthjustice, Petition for
Reconsideration, ``In the Matter of Final Clean Air Fine Particle
Implementation Rule,'' June 25, 2007. On April 25, 2011, EPA granted
this petition. See Letter, Lisa P. Jackson, EPA, to Paul Cort,
Earthjustice, April 25, 2011. EPA did not rely on the economic
feasibility guidance in the PM2.5 implementation rule
preamble in its review of the SJV 2007 8-hour Ozone Plan.
---------------------------------------------------------------------------

    We also disagree with AIR's suggestion that the ``affordability''
of controls for a particular industry cannot play any role as part of
an economic feasibility analysis. Although EPA has stated that
``[e]conomic feasibility rests very little on the ability of a
particular source to `afford' to reduce emissions to the level of
similar sources'' (57 FR at 18074) (emphasis added), this does not mean
that affordability on an industry-wide basis may not be considered as
part of an economic feasibility analysis, among other factors.\21\
---------------------------------------------------------------------------

    \21\ The SJVUAPCD's ``percent of profits'' evaluation considers
the economic impact of a rule or rule revision on the industries
located within SJV as a whole rather than the economic impact for
any particular source. See, for examples, the socioeconomic studies
prepared for Rule 4570 found in Appendix D of the District's Final
Staff Report, Revised Proposed Amendments to Rule 4570 (Confined
Animal Facilities), October 21, and for Rule 4311 found in Appendix
D to SJVUAPCD, Final Draft Staff Report, Revised Proposed Amendments
to Rule 4311 (``Flares''), June 18, 2009.
---------------------------------------------------------------------------

    As we explained in our SJV 2009 RACT SIP final action,\22\ the
District generally considers multiple factors in evaluating the
economic feasibility of available control options during its rule
development processes, including capital costs, annualized costs, cost-
effectiveness, and compliance costs as a percentage of profits. Given
EPA's long-standing position that states may justify rejection of a
control measure as not ``reasonably available'' based on the technical
and economic circumstances of the particular sources being regulated,
it is appropriate for the District to consider multiple factors in
evaluating the costs of potential control options to determine if they
are economically feasible for sources located within the SJV. With
respect to SJVUAPCD Rule 4103 (Open Burning), which AIR references as
an example of the District's use of a ``10 percent of profits'' test to
evaluate economic feasibility, EPA previously reviewed the District's
analyses and explained our bases for concluding that the rule requires
all control measures for open burning that are technically and
economically feasible for implementation in the SJV area. See
``Revisions to the California State Implementation Plan, San Joaquin
Valley Unified Air Pollution Control District;'' final rule, pre-
publication notice signed September 30, 2011 (Rule 4103).
---------------------------------------------------------------------------

    \22\ See ``Partial Approval and Partial Disapproval of Air
Quality Implementation Plans; California; San Joaquin Valley;
Reasonably Available Control Technology for Ozone;'' Final rule,
pre-publication notice signed December 15, 2011, Response to Comment
4 (``SJV 2009 RACT SIP final action''). The 2009 RACT SIP
is SJVUAPCD's ``Reasonably Available Control Technology (RACT)
Demonstration for Ozone State Implementation Plans (SIP), April 16,
2009, which was adopted by the SJVUAPCD on April 16, 2009 and
submitted to EPA on June 18, 2009.)
---------------------------------------------------------------------------

    Comment: AIR asserts that EPA cannot defend the cost-effectiveness
criteria used by the District because the criteria have not been
justified based on the attainment needs of the area. AIR further
asserts that ``EPA's cursory and conclusory analysis of the District's
RACM demonstration is not sufficient to comply with the requirements
and objectives of the [CAA],'' and that it not possible to make a RACM
demonstration for the SJV without explaining what is needed for
attainment and using the attainment need to justify the thresholds used
to accept or eliminate available control options. AIR cites EPA's 1992
General Preamble at 13541 in support of these assertions.
    Response: It is not clear what AIR is referring to by ``cost-
effectiveness criteria used by the District.'' We are not aware of a
specific dollar per ton threshold that the District routinely uses to
reject control options during its rule development processes and AIR
does not provide one.
    To the extent AIR intended to object to the District's use of a
``10 percent of profits'' test, rather than to any particular ``cost-
effectiveness'' criteria, we have responded to that concern above. We
note also that since the District's submittal of the 8-hour ozone plan
in 2007, EPA has SIP-approved a number of rules that the District
adopted despite cost estimates exceeding the ``10 percent of profits''
threshold for one or more industries subject to the rule, including
Rule 4311--Flares (June 18, 2009); Rule 4682--Polystyrene Foam,
Polyethylene and Polypropylene Manufacturing (September 20, 2007); and
Rule 4570--Confined Animal Facilities (October 21, 2010).\23\
---------------------------------------------------------------------------

    \23\ EPA approved Rule 4311 at 76 FR 68106 (November 3, 2011);
proposed a limited approval/limited disapproval of Rule 4682 at 76
FR 41745 (July 15, 2011); and approved Rule 4570 on December 13,
2011. See Revisions to the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District; Final rule.
Pre-publication version signed December 13, 2011.
---------------------------------------------------------------------------

    We agree with AIR's position that it is not possible to make a RACM
demonstration for the 1997 8-hour ozone standard in the SJV without
explaining what is needed to attain that standard in the area. This
explanation is provided in both the 2007 Ozone Plan and EPA's proposed
approval of the Plan. See 2007 Ozone Plan, Chapter 3 (``What is Needed
To Demonstrate Attainment?'') and 76 FR 57846, 57857 (September 16,
2011). See also 2007 State Strategy, p. 33 and EPA's TSD, section II.F.
To provide the emissions reductions needed to attain, the State and
District developed a four part control strategy which is described in
the Plan. See 2007 Ozone Plan at Chapter 4 (``Strategy''), Chapter 6
(``District Regulatory Control Measures for Stationary Sources''),
Chapter 7 (``Action Plan for Reducing Emissions

with Incentive Funds''), Chapter 8 (``Innovative Strategies and
Programs''), and Chapter 9 (``Local, State, and Federal Controls'').
See also 2007 State Strategy, Chapter 3 (``ARB's 2007 SIP State
Strategy'').
    Chapter 6 of the Plan describes the process the District undertook
to identify potential stationary source control measures for adoption;
that is, to identify potential RACM within its jurisdiction.\24\ This
measure identification process resulted in the development of a
stationary source regulatory implementation schedule which lists not
only the specific control measures that the District committed to adopt
but also the schedule for their adoption and implementation and their
anticipated emissions reductions by year. See 2007 Ozone Plan, Table 6-
1, p. 6-5. It is this regulatory implementation schedule (and a similar
one developed for the subsequent SJV 2008 PM2.5 Plan) that
has in large part determined the District's rulemaking calendar over
the last few years, and the anticipated emissions reductions listed in
this implementation schedule have helped to define the needed
stringency of the individual rules. Supporting information for the
District's adopted rules shows that during the rule-development
process, the District considers its control strategies and the
emissions reductions needed for attainment that it has identified in
its plans. For example, section I.A. (``Reasons for Rule Development
and Implementation'') in the Rule 4320 SJV Staff Report \25\ discusses
both the deadline for adoption and the anticipated reductions from
these new and revised rules in the 2007 Ozone Plan and states: ``[t]his
rulemaking project is intended to satisfy the attainment goals of the
District's 2007 Ozone plan,'' ``[t]he plan calls for a total of 1.1
tons per day of NOX reductions [from large and medium
boilers] * * *, '' and ``[t]he proposed amendments * * * will seek to
obtain as much reduction of [NOX] from boilers, steam
generators, and process heaters as expeditiously [as] practicable and
technologically and economically feasible.'' \26\
---------------------------------------------------------------------------

    \24\ The detailed evaluation of each potential controls is found
in Appendix I of the 2007 Ozone Plan.
    \25\ SJVUAPCD, Final Draft Staff Report, Proposed Amendments to
Rule 4306, Proposed Amendments to Rule 4307, and Proposed New Rule
4320, October 16, 2008 (Rule 4320 SJV Staff Report).
    \26\ Most if not all District staff reports on proposed rule
adoptions or amendments include a section discussing the reasons for
rule develop and implementation. This section generally list the CAA
provisions applicable to the rule (e.g., section 182(b)(2) RACT) and
identifies whether the rulemaking project is part of the area's
ozone and/or PM2.5 control strategy and the reductions
from the rule called for in the plan.
---------------------------------------------------------------------------

    Comment: AIR states that RACM is not limited to major sources,
quoting EPA's recommendation in the General Preamble at 13541 that ``a
State's control analysis for existing stationary sources go beyond
major stationary sources and that the state require control technology
for other sources that are reasonable in light of the areas attainment
needs.'' AIR claims that an analysis of the effect of applying
additional controls to non-major sources has not been conducted and
therefore, EPA has no basis for its determination that additional
reasonable controls are not available or that such control could not
advance attainment. AIR further claims that the District's RACT
demonstration only explores controls on sources down to 10 tons per
year.
    Response: We agree that a RACM analysis should not be limited to
major sources.\27\ See General Preamble at 13541. We disagree, however,
with AIR's assertion that the District failed to evaluate controls for
non-major sources. The District's control measure evaluation
(documented in Appendices H and I of the Plan) was not limited to major
stationary sources but covered a wide variety of small stationary
sources (e.g., gasoline stations, p. I-75), area sources (e.g.,
architectural coatings, p. I-100; asphalt roofing, p. I-56; and
residential water heaters, p. I-28), indirect sources (e.g., employer
trip reduction, p. I-141) and mobile sources (e.g., school buses, p. I-
156).
---------------------------------------------------------------------------

    \27\ A major stationary source in an ozone nonattainment area
classified as extreme is any stationary facility or source of air
pollutant which directly emits or has the potential to emit 10 tons
of VOC or 10 tons of NOX per year. See CAA sections
302(j) and 182(e).
---------------------------------------------------------------------------

    Most of the District's rules currently apply to sources much
smaller than major sources. See, for example, Rule 4607--Graphic Arts
which applies to any graphic arts source that emits more that 1.2 tpy
of VOC, Rule 4308--Boilers 0.75--2 MMBtu/hr which applies to all
boilers of this size without regard to the source size; Rule 4622--
Gasoline Transfer into Motor Vehicles which applies to most retail
gasoline station; and Rule 4902--Residential Water Heaters.\28\ We also
note that of the 18 measures that the District has adopted following
its submittal of the 2007 Ozone Plan, all but two (glass melting
furnaces and brandy and wine aging) regulate non-major sources. See
2007 Ozone Plan, Table 6-1. See also, Table 1 below.
---------------------------------------------------------------------------

    \28\ We have identified only seven District prohibitory rules
(of the approximately 60 District rules that regulate NOX
and/or VOC) which apply only to units at major sources: Rule 4354--
Solid Fuel Boilers (NOX); Rule 4356--Glass Melting
Furnaces (NOX and VOC); Rule 4311--Flares
(SOX, NOX, and VOC); Rule 4610--Glass Coating
Operations (VOC); Rule 4693--Bakeries (VOC); Rule 4694--Wine
Fermentation and Storage Tanks (VOC); and Rule 4695--Brandy and Wine
Aging (VOC).
---------------------------------------------------------------------------

    As to AIR's claim that ``[t]he District's RACT demonstration only
explores controls on sources down to 10 tons per year,'' this statement
is not germane to our evaluation of the Plan's RACM demonstration under
CAA 172(c)(1). The District submitted the 2009 RACT SIP \29\ to meet
the technology-based RACT requirements for specific types of sources in
CAA section 182(b)(2) and (f). These requirements are separate from the
RACM obligation in CAA section 172(c)(1), and EPA therefore evaluated
the 2009 RACT SIP for compliance only with these specific control
technology requirements. See SJV 2009 RACT SIP final action.
---------------------------------------------------------------------------

    \29\ We assume here that AIR intended to refer to the SJV 2009
RACT SIP.
---------------------------------------------------------------------------

Evaluation of Potential To Advance Attainment
    As discussed above, under EPA's longstanding policy, a SIP meets
the RACM requirement in CAA section 172(c)(1) if it includes all
reasonably available measures that individually or in combination with
other such measures can advance attainment of the relevant standard by
one year or more. Thus to determine whether the SJV Ozone SIP meets
this statutory requirement, we evaluated whether implementation of
potential RACM (including any missing section 182 RACT controls and
those identified by AIR in its comments (see TSD, section III.C.) would
expedite attainment of the 1997 8-hour ozone standard in the SJV.
    Attainment of the 1997 8-hour ozone standard in the SJV depends on
significant reductions in NOX emissions. Air quality
modeling shows that no level of VOC reductions will bring about
attainment of the 8-hour ozone standard in the SJV absent these
NOX reductions and no reasonable level of VOC reductions
will expedite attainment absent significant NOX reductions.
See 2007 Ozone Plan, Chapter 3; see also, section II.C.3. of the TSD.
    Because VOC reductions will not advance attainment of the 1997 8-
hour ozone standard unless substantial NOX reductions are
also achieved, we have focused our evaluation on the potential RACM
that reduce NOX emissions. Specifically, we evaluated
whether additional emissions reductions from the control measures
suggested by the

commenter (e..g, requiring RACT-level controls on major source solid
fuel-fired boilers and prohibiting the use of pre-baseline emissions
reductions credits as discussed in section III.C. below) and certain
control measures not yet eligible for SIP credit, would provide
sufficient additional reductions in 2023 to attain by June 15, 2024
without reliance on the CAA section 182(e)(5) new technology
provision.\30\ We used 2023 rather than 2022 because more information
is available on projected controlled emissions levels in that year.
Fleet turnover from existing mobile source measures will provide an
additional 10 tpd in NOX emissions reductions in the SJV
between 2022 and 2023. Therefore, if we conclude that additional RACM
measures would not provide sufficient reductions in 2023 to attain, we
can also conclude that they would not provide sufficient emissions
reductions in 2022.
---------------------------------------------------------------------------

    \30\ As an extreme ozone nonattainment area, SJV's statutory
attainment date is as expeditiously as practicable but no later than
June 15, 2024. 40 CFR 51.903(a). The SIP as submitted demonstrates
that the most expeditious attainment date is June 15, 2024. See 2007
Ozone Plan, p. 11-1. In order to attain by that date, the area must
have all reductions needed for attainment in place by 2023. Thus, to
advance attainment by one year, all reductions needed for attainment
must be in place by 2022.
---------------------------------------------------------------------------

    After analyzing the maximum potential emissions reductions from
additional controls on source categories for which we have not yet
approved rules meeting RACT and measures recommended by AIR (including
eliminating the use of pre-baseline emissions reduction credits in the
area's new source review program) and comparing them against the level
of reductions needed for attainment in the SJV by June 15, 2024, we
find that even with these additional controls, the 2023 NOX
emissions level in the SJV would still be well above the level needed
for attainment. See Table C-5 in the TSD. We conclude, therefore, that
the SJV 2007 8-hour ozone SIP provides for RACM as required by CAA
section 172(c)(1).\31\
---------------------------------------------------------------------------

    \31\ This finding under CAA section 172(c)(1) does not affect
the District's separate obligation under CAA sections 182(b)(2) and
(f) and 40 CFR 51.905(a)(1)(ii) to implement RACT for all major
sources and all CTG source categories.
---------------------------------------------------------------------------

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

    Comment: AIR states that California's reliance on ``black box''
measures in the SJV 2007 8-hour Ozone SIP fails to meet the
requirements and intent of the Clean Air Act by allowing the State and
District to defer their responsibility to attain the 8-hour ozone
standards. AIR argues that there are three problems with how the State
and District are using the CAA 182(e)(5) new technology provision.
    First, AIR argues that it is arbitrary for EPA to approve a new
technology provision of 80 tons per day of NOX reductions or
59 percent of the reductions needed for attainment given its lack of
definition.
    Second, AIR asserts 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 the
Proposal TSD (at page 81) of a potential measure described by CARB as
``prioritizing federal transportation funding to support air quality
goals,'' AIR argues 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.
    Third, AIR states 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 CAA section 182(e)(5) and EPA's January 8, 1997
final rule approving the 1-hour ozone plan for several California
nonattainment areas (62 FR 1150, 1179), AIR asserts 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. AIR asserts that the SJV 2007 8-hour
Ozone SIP ``only attempts to comply with requirement number (5),'' that
the generalized discussion in the SIP 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 approval of the SIP is arbitrary because of the amount of
emissions reductions attributed to the new technology provision or
because they are undefined. As an initial matter, we note that the
commenters' assertion about the 59 percent of the emissions reductions
needed for attainment of the 1997 8-hour ozone standard in the SJV that
are attributed to the new technologies provision is not correct.\32\
The correct percentage of the needed NOX emissions
reductions attributed to the new technology provision in the SJV 2007
8-hour Ozone SIP is 12 percent as explained further below.
---------------------------------------------------------------------------

    \32\ It appears that the commenters overestimated the percentage
of emissions reductions attributed to the new technology provision
in the SIP by calculating the amount of needed reductions without
taking into account the reductions attributed to baseline measures.
The 59 percent figure represents the percent contribution of the new
technology provision to the new emissions reductions (that is, the
non-baseline emissions reductions) in the SIP. See TSD, Table F-2.
---------------------------------------------------------------------------

    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 the new technology provisions under CAA section
182(e)(5). As we explained in our proposed rule, CAA section 182(e)(5)
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 8-hour ozone standards, and (2) the State has
submitted enforceable commitments to submit adopted contingency
measures meeting certain criteria no later than three years before
proposed implementation of the new technology measures. See 76 FR
57846, 57854. EPA guidance on section 182(e)(5) states, among other
things, that the SIP should show that the long-term measure(s) cannot
be fully developed and adopted by the submittal date for the attainment
demonstration and 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 SJV 2007 8-hour
Ozone SIP are attributed to already adopted and near-term measures. See
76 FR 57846, 57850-61. Our summary of SJV's 8-hour ozone attainment
demonstration in the proposed rule shows that the area needs to reduce
emissions from 2002 levels by a total of 424 tpd of NOX and
116 tpd of VOC to attain the 1997 8-hour ozone standards by June 15,
2024. See 76 FR 57846, 57859 (Table 10) (values rounded to the ones
place). Of these needed reductions,

approximately 88 percent of the NOX reductions and all of
the VOC reductions are attributed to already adopted measures or
commitments to adopt and implement existing technologies by 2014. See
76 FR 57846, 57859 (Table 10) and 57851, 57853 (Tables 2 and 5)
(identifying CARB and District 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. This leaves just 12 percent of the needed
NOX reductions and none of the needed VOC reductions to be
met through new technologies under CAA section 182(e)(5). See 76 FR
57846, 57859 (Table 10).
    Given the demonstrated need for emissions reductions from new and
improved control techniques needed to attain the 1997 8-hour ozone
standard in the SJV, we believe it is reasonable for the State to
attribute this amount of emissions reductions to the new technology
provision. However, as we stated in our proposed rule, 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 57846, 57856. 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 existing
technology measures from the SJV 2007 8-hour Ozone SIP unless CARB or
the District make the convincing showing described above.
    Second, we disagree with AIR that CAA section 182(e)(5) allows only
for plan provisions that rely on ``new technologies'' and that the
District must adopt additional ``existing strategies'' that do not rely
on new technologies. CAA section 182(e)(5) 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.
    AIR correctly notes 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 Proposal TSD, p. 81, citing 2007 State
Strategy, pp. 55-56), but it does not describe any specific control
measure that such budgetary decisions could support and that is
reasonably available for current implementation in the SJV. Likewise,
although AIR asserts 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
standards in the SJV. CARB and the District have adopted all of the
control measures for NOX and VOC that are ``reasonably
available'' within the meaning of CAA section 172(c)(1) for current
implementation in the SJV and have submitted enforceable commitments to
adopt additional measures achieving specific amounts of emissions
reductions by specific years. See 76 FR 57846, 57850-57854. 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 SJV 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
technologies under CAA section 182(e)(5).
    Third, we disagree with AIR that the SIP's section 182(e)(5)
provisions 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 technologies under CAA section
182(e)(5). The total tonnage commitment in the SJV is for 81 tpd
NOX. See 76 FR 57846, 57854-57855 and 2009 State Strategy
Status Report, p. 21. 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 Revisions contain 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 57846, 57855, 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 James N. Goldstene, Executive Officer, California Air Resources
Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region 9,
November 18, 2011.
    In addition, as explained in our proposed rule (76 FR 57846,
57855), the SJV 2007 8-hour Ozone SIP 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 Revisions, p. A-8; see also the August
29, 2011 Goldstene letter which describes California's climate change
programs, clean car technologies, programs to accelerate hybrids and
plug-in technologies, greenhouse gas emissions reduction targets for
passenger vehicles, and the District's efforts to shift goods movement
to lower-emission alternatives and to reduce emissions caused by
electricity and natural gas consumption in residential, industrial, and
institutional settings). We note also that CARB has stated its intent
to convene annual strategy meetings with the South Coast and SJV
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 August 29, 2011 Goldstene
letter; see also 2009 State Strategy Status Report, pp. 25-27.
    Finally, AIR references 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 SJV 2007 8-hour
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 SIP.
---------------------------------------------------------------------------

    \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 SJV 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)).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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 57846 57854-57855. 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 2007 Ozone Plan 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
standard in the SJV. See 76 FR 57846, 57854-57855 and TSD, section
II.E.2.; see also, 2007 Ozone Plan, Chapters 7, 8, and 11; 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 SJV 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: AIR asserts that the SJV already violates the 1-hour ozone
standard and failed to attain that standard by November 15, 2010
(citing 76 FF 56694 (September 14, 2011)) is ``particularly'' relevant
to the approval of the new technology provisions in the 8-hour ozone
plan because, according to AIR, the District and CARB ``relied
heavily'' on new technology measures in its previous plans for the 1-
hour ozone standard and these commitments have not been met. AIR
further asserts that EPA cannot reasonably rely on the continued use of
the new technologies provision because, according to AIR, the
District's and CARB's track record for using this approach has not
resulted in the pollution reductions committed to in the SJV 2004 1-
hour attainment plan.
    Response: EPA is acting today on the SJV 2007 8-hour Ozone SIP,
which the State submitted to meet the requirements of part D, title I
of the CAA for the 1997 8-hour ozone standard. Neither the CAA's
planning requirements related to attainment of the 1-hour ozone
standard nor the State's submittals to meet the Act's requirements for
that prior standard are germane to our action on the SJV 2007 8-hour
Ozone 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 ambient air quality standard in approving extreme area plan
provisions that meet the requirements of CAA section 182(e)(5) for the
1997 8-hour ozone standard. EPA's proposed rule to determine that the
SJV failed to attain the 1-hour ozone standard by its applicable
attainment date (76 FR 56694, September 14, 2011), which commenters
reference, likewise has no bearing on our action on the SJV 2007 8-hour
Ozone SIP under CAA section 110(k).
    We disagree with AIR's assertions that the District and CARB relied
heavily on new technology measures in its previous plans for the 1-hour
ozone standards and that these commitments have not been met. The
District relied on emissions reductions from new technology measures
only in its 2004 Ozone SIP.\35\ Reductions from new technology measures
in the 2004 Ozone SIP accounted for less than 4 percent of the overall
reductions in that SIP's attainment demonstration; and the District
subsequently showed that it had

adopted sufficient measures to achieve these reductions. See 74 FR
33933, 33937 (July 14, 2009).
---------------------------------------------------------------------------

    \35\ The 2004 Ozone SIP is the ``Extreme Ozone Attainment
Plan,'' adopted by the SJVUAPCD on October 8, 2004 and submitted to
EPA by CARB on November 15, 2004 and the relevant portions of the
CARB's ``2003 State and Federal Strategy for the California State
Implementation Plan'' adopted on October 23, 2003 and submitted to
EPA on January 9, 2004.
    As initially submitted, the attainment demonstration in the 2004
Ozone SIP included 5 tpd of NOX and 5 tpd of VOC
emissions reductions from new technology measures (referred to as
``long-term measures'' in 2004 Ozone SIP). See CARB, ``Staff Report,
Proposed 2004 State Implementation Plan for Ozone in the San Joaquin
Valley,'' September 28, 2004, Table E-2, p. 5. These reductions were
part of the District's emissions reductions commitments. Id.
However, prior to EPA's action on the 2004 Ozone SIP, the District
adopted and submitted rules that provided sufficient emissions
reductions to meet all its commitments including its commitments for
reductions from new technology measures. See 74 FR 33933, 33937
(July 14, 2009). As a result, EPA did not approve any element of the
2004 SIP under the CAA section 182(e)(5) new technology provision.
See 75 FR 10420, 10436-37 (March 8, 2010). The 2004 Ozone SIP also
included commitments by CARB to achieve 15 tpd of VOC and 20 tpd of
NOX emissions reductions in the SJV by 2010; likewise,
these commitments were approved as meeting the requirements of CAA
section 110(a)(2)(A) and 172(c)(6) and not CAA section 182(e)(5).
Id.
---------------------------------------------------------------------------

    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 emissions reductions will not come
from future technologies, and we do not believe it is reasonable to
require the State to reduce the amount of emissions 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).

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

    Comment: AIR asserts that EPA has also failed to assess the
adequacy of the SIP's compliance with the requirement in CAA section
182(d)(1)(A) that the SIP provide adequate enforceable control measures
``to allow total area emissions to comply with RFP and attainment
requirements.'' AIR argues that, because the area has not adopted
sufficient enforceable control measures to provide for attainment
(citing to its comments that the attainment demonstration is not
approvable because, inter alia, measures relied on in that
demonstration were not in the SIP), this provision must be met and EPA
must direct the State/District to adopt the additional measures needed
for attainment, either as TCMs to reduce motor vehicle emissions, or as
controls on other source categories so that total emissions reductions
provide for attainment.
    Response: CAA section 182(d)(1)(A) requires the State to ``submit a
revision that identifies and adopts specific enforceable transportation
control strategies and transportation control measures * * * to attain
reductions in motor vehicle emissions as necessary, in combination with
other emissions reduction requirements of [title 1, part D, subpart 2],
to comply with the requirements of [sections 182] (b)(2)(B) and
(c)(2)(B)'' and ``to consider measures specified in section 108(f) * *
* and to choose from among and implement such measures as necessary to
demonstrate attainment.''
    We have determined that the SJV 2007 8-hour Ozone SIP meets the RPF
requirements in sections 182(b)(2)(B) and (c)(2)(B) and demonstrates
attainment consistent with the subpart 2 requirements and thus also
meets the requirements of section 182(d)(1)(A) to adopt transportation
control strategies and TCMs as necessary to demonstrate RFP and
attainment. See 76 FR 57846, 57863 and TSD, section II.H.3.; see also,
TSD, section III.A.2. (responding to comments on the approvability of
the baseline emissions inventory and the attainment demonstration). The
SIP also includes documentation that the state considered the
transportation control measures listed in CAA section 108(f), evaluated
their effectiveness in contributing to expeditious attainment, and
concluded that they would not. See 2007 Ozone SIP, appendix D; 76 FR
57846, 57852 and 57863 and TSD, sections II.B.3.b. and II.H.2.
    We disagree with AIR's summary of the CAA section 182(d)(1)(A)
requirements related to RFP and attainment. This specific section does
not require that the SIP provide ``adequate enforceable control
measures `to allow total area emissions to comply with RFP and
attainment requirements' '' but rather it requires that the state adopt
enforceable transportation strategies and TCM as necessary in
combination with other emissions reduction requirement of subpart 2 to
demonstrate RFP and to implement TCMs as necessary to demonstration
attainment. Thus, if other SIP provisions provide for RFP and
attainment consistent with applicable CAA requirements (including, in
this case, the provisions of CAA section 182(e)(5)), then the state has
no obligation under section 182(d)(1)(A) to adopt transportation
control strategies and TCMs for RFP and attainment purposes.

III. Approval Status of the Control Strategy Measures and Final Actions
on the Attainment Demonstration and Enforceable Commitments

A. Approval Status of Control Strategy Measures

    As part of its control strategy for attaining the 1997 8-hour ozone
standards in the SJV, the District made specific commitments to adopt
nineteen measures on the schedule identified in the Plan. See 2007
Ozone Plan, Table 6-1 (revised December 18, 2009). The District has now
completed its actions on all measures except for one which it found to
be infeasible. See Table 1 below. As Table 1 shows, EPA has approved
all of the adopted rules except for one, which EPA is not currently
crediting with emissions reductions in the RFP or attainment
demonstration.

                          Table 1--San Joaquin Valley Air Pollution Control District 2007 Ozone Plan Specific Rule Commitments
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Adoption date
     Measure number & description       District rule --------------------------------------------------------------------------        SIP status
                                             No.                   Anticipated                             Actual
--------------------------------------------------------------------------------------------------------------------------------------------------------
S-GOV-1 Composting Biosolids.........            4565  1st Q-2007.........................  March 2007.........................  Approved: December 13,
                                                                                2011 (signature date).
S-AGR-1 Open Burning (Phase IV)......            4103  2nd Q-2010.........................  April 2010.........................  Approved: September 29,
                                                                                2011 (signature date).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    S-SOL-11 Solvents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Organic Solvents.....................            4661  ...................................  September 2007.....................  Approved: 75 FR 24406
                                                                                (May 5, 2010).
Organic Solvent Degreasing...........            4662  3rd Q-2007.........................  September 2007.....................  Approved: 74 FR 37948
                                                                                (July 30, 2009).
Organic Solvent Cleaning.............            4663                                       September 2007.....................  Approved: 74 FR 37948
                                                                                (July 30, 2009).
S-COM-5 Stationary Gas Turbines......            4703  3rd Q-2007.........................  September 2007.....................  Approved: 74 FR 53888
                                                                                (October 21, 2009).

S-IND-24 Soil Decontamination........            4651  3rd Q-2007.........................  September 2007.....................  Approved: 74 FR 52894
                                                                                (October 15, 2009).
S-IND-6 Polystyrene Foam.............            4682  3rd Q-2007.........................  September 2007.....................  Approved: 76 FR 41745
                                                                                (July 15, 2011).
S-PET-1&2 Gasoline Storage & Transfer            4623  4th Q-2007.........................  December 2007......................  Approved: 74 FR 56120
                                                 4624                                                                             (October 30, 2009).
S-PET-3 Aviation Fuel Storage........  ..............  3rd Q-2007.........................  found not feasible.................  Found infeasible.
S-COM-1 Large Boilers................            4306  3rd Q-2008.........................  October 2008.......................  Approved: 75 FR 1715
                                                 4320                                                                             (January 13, 2010) and
                                                                                76 FR 16696 (March 25,
                                                                                2011).
S-COM-2 Boilers, Steam Generators and            4307  3rd Q-2008.........................  October 2008.......................  Approved: 75 FR 1715
 Process Heaters (2 to 5 MMBtu/hr).                                                                                (January 13, 2010).
S-COM-7 Glass Melting Furnaces \1\...            4354  3rd Q-2008.........................  October 2008.......................  Approved: 76 FR 53640
                                                                                (August 29, 2011).
S-SOL-20 Graphic Arts................            4607  4th Q-2008.........................  December 2008......................  Approved: 74 FR 52894
                                                                                (October 15, 2009).
S-COM-9 Residential Water Heaters....            4902  1st Q-2009.........................  March 2009.........................  Approved: 75 FR 24408