Approval and Promulgation of Implementation Plans: 1-Hour Ozone Extreme Area Plan for San Joaquin Valley, CA, 10420-10438 [2010-4752]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 44 (Monday, March 8, 2010)]
[Rules and Regulations]
[Pages 10420-10438]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4752]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0693; FRL-9108-4]


Approval and Promulgation of Implementation Plans: 1-Hour Ozone 
Extreme Area Plan for San Joaquin Valley, CA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving state implementation plan (SIP) revisions 
submitted by the State of California to meet the Clean Air Act (CAA) 
requirements applicable to the San Joaquin Valley, California extreme 
1-hour ozone standard nonattainment area (SJV area). EPA is approving 
the SIP revisions for the SJV area as meeting applicable CAA and EPA 
regulatory requirements for the attainment and rate-of-progress 
demonstrations and their related contingency measures, reasonably 
available control measures, and other control requirements. In 
addition, EPA is approving the SJV Air Pollution Control District's 
Rule 9310, ``School Bus Fleets.''

DATES: Effective Date: This rule is effective on April 7, 2010.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2008-0693 for 
this action. The index to the docket is available electronically at 
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne 
Street, San Francisco, California. While all documents in the docket 
are listed in the index, some information may be publicly available 
only at the hard copy location (e.g., copyrighted material), and some 
may not be publicly available in either location (e.g., CBI). To 
inspect the hard copy materials, please schedule an appointment during 
normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, EPA Region IX, (415) 
942-3957, wicher.frances@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Summary of Proposed Actions
II. Summary of Public Comments Received on the Proposals and EPA 
Responses
III. Approval Status of Rules
IV. Final Actions
V. Statutory and Executive Order Review

I. Summary of Proposed Actions

    On July 14, 2009 at 74 FR 33933, EPA proposed to approve in part 
and disapprove in part the state implementation plan (SIP) revisions

[[Page 10421]]

submitted to EPA by the State of California. California made these 
submittals to meet the Clean Air Act (CAA) requirements applicable to 
the San Joaquin Valley, California ozone nonattainment area (SJV area). 
The SJV area became subject to these requirements following its 2004 
reclassification to extreme for the 1-hour ozone national ambient air 
quality standard (1-hour ozone standard). 69 FR 20550 (April 15, 2004). 
Although we established a new 8-hour ozone standard in 1997 \1\ and 
subsequently revoked the 1-hour ozone standard in 2005, the SJV area 
continues to remain subject to certain CAA requirements for the 1-hour 
standard through the anti-backsliding provisions in EPA's rule 
implementing the 8-hour ozone standard. See 40 CFR 51.905(a)(1)(i) and 
900(f).
---------------------------------------------------------------------------

    \1\ See 62 FR 38856 (July 18, 1997). In 2008 we lowered the 8-
hour ozone standard to 0.075 ppm. See 73 FR 16436 (March 27, 2008). 
The references in this final rule to the 8-hour standard are to the 
1997 standard as codified at 40 CFR 50.10.
---------------------------------------------------------------------------

    The SIP submittals that are the subject of our July 14, 2009 
proposal are, first, the ``Extreme Ozone Attainment Demonstration 
Plan'' (2004 SIP) adopted by the San Joaquin Valley Air Pollution 
Control District (SJVAPCD or the District) in 2004 and amended in 2005. 
The 2004 SIP addresses CAA requirements for extreme 1-hour ozone areas 
including reasonably available control measures (RACM), rate-of-
progress (ROP) and attainment demonstrations, and contingency measures.
    The second SIP submittal is ``Clarifications Regarding the 2004 
Extreme Ozone Attainment Demonstration Plan'' (2008 Clarifications) 
adopted by the SJVAPCD in 2008. The 2008 Clarifications provide updates 
to the 2004 SIP related to reasonably available control technology 
(RACT) measures adopted by the SJVAPCD, the ROP demonstrations, and 
contingency measures.
    The third SIP submittal addressed in our proposal is the ``2003 
State and Federal Strategy for the California State Implementation 
Plan,'' (2003 State Strategy) adopted by the California Air Resources 
Board (ARB) in October, 2003. This strategy document, as modified by 
ARB's resolution adopting it, identifies ARB's regulatory agenda to 
reduce ozone and particulate matter in California, including specific 
commitments to reduce emissions in the SJV area. The 2004 SIP relies in 
part on the 2003 State Strategy for the reductions needed to 
demonstrate attainment and ROP for the 1-hour ozone standard in the SJV 
area.
    We refer to these three submittals collectively as the 2004 SJV 1-
hour ozone plan or 2004 1-hour ozone plan.
    EPA proposed to approve 2004 SJV 1-hour ozone plan as meeting the 
applicable CAA and EPA requirements for an attainment demonstration,\2\ 
ROP demonstrations, ROP contingency measures, RACM, clean fuel/clean 
technology for boilers, and the provision for transportation control 
measures sufficient to offset any growth in emissions from growth in 
VMT or the number of vehicle trips. We also proposed to approve a 
commitment by ARB to reduce volatile organic compounds (VOC) emissions 
in the SJV by 15 tons per day (tpd) and nitrogen oxides 
(NOX) by 20 tpd and to approve SJVAPCD's Rule 9310, School 
Bus Fleets.
---------------------------------------------------------------------------

    \2\ The proposed approval of the attainment demonstration was 
predicated in part on emission reductions from a number of State and 
District rules that we had proposed to approve in separate actions. 
We have now completed SIP approval of all these rules. See Table 1 
at the end of this preamble.
---------------------------------------------------------------------------

    In the same action, we proposed to disapprove, as failing to meet 
the requirements of section 172(c)(9), the contingency measures in the 
2004 SIP and the 2008 Clarifications that would take effect if the area 
failed to attain the 1-hour ozone standard by the applicable attainment 
date because the State had not demonstrated that its contingency 
measures provided sufficient emission reductions to meet EPA guidance.
    On August 28, 2009, ARB provided additional information showing 
that existing, creditable measures provided a sufficient level of 
emission reduction needed for attainment contingency measures. Based on 
this additional information, on October 2, 2009, we proposed to approve 
the attainment contingency measures and withdraw our proposed 
disapproval at 74 FR 50936.
    A more detailed discussion of each of the California's SIP 
submittals for the SJV area, the CAA and EPA requirements applicable to 
them, and our evaluation and proposed actions on them can be found in 
the July 14, 2009 and October 2, 2009 proposals.

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

    We received eight comment letters, listed below, in response to our 
July 14, 2009 proposal and October 2, 2009 supplemental proposal. 
Several of these letters were submitted in conjunction with separate 
EPA proposed actions on individual SJVAPCD rules. We respond to the 
comments in these letters in this final rule and TSD insofar as they 
are relevant to this action and respond to the remainder in our final 
rules for the individual rule actions.
    We received four comment letters from the Center on Race, Poverty & 
the Environment representing various organizations. We refer to these 
comments collectively as from CRPE or the Center throughout this final 
rule and TSD:

    1. Brent Newell, CRPE, August 31, 2009, on the behalf of 14 San 
Joaquin Valley environmental and community organizations and the 
Natural Resource Defense Council.
    2. Johannes Epke, CRPE, August 31, 2009, on behalf of the Center 
and 12 San Joaquin Valley environmental and community organizations. 
This comment letter was in conjunction with our proposed limited 
approval/limited disapproval of SJVAPCD's Rule 4570, Confined Animal 
Facilities at 74 FR 33948 (July 14, 2009).
    3. Johannes Epke, CRPE, August 31, 2009, on behalf of the Center 
and 11 San Joaquin Valley environmental and community organizations. 
This comment letter was in conjunction with our proposed approval of 
ARB's reformulated gasoline and diesel fuel regulations at 74 FR 38838 
(July 27, 2009).
    4. Brent Newell, Center on Race, Poverty & the Environment, 
November 2, 2009, on the behalf of 14 San Joaquin Valley environmental 
and community organizations and the Natural Resource Defense Council.

    We received two comment letters from Earthjustice representing 
various organizations. We refer to these comments collectively as from 
Earthjustice throughout this final rule and TSD:

    5. Paul Cort and Sarah Jackson, Earthjustice, August 31, 2009, on 
behalf of Medical Advocates for Healthy Air, Fresno Metro Ministries, 
and the Coalition for Clean Air (collectively, Earthjustice).
    6. Paul Cort and Sarah Jackson, Earthjustice, November 2, 2009, on 
behalf of Fresno Metro Ministries.
    7. Seyed Sadredin, SJVAPCD, August 27, 2009.
    8. James N. Goldstene, Executive Officer, ARB, August 28, 2009.
    We summarize our responses to the most significant comments in this 
final rule. Our full responses to all comments received can be found in 
the ``Response to Comments'' section of the Technical

[[Page 10422]]

Support Document (TSD) for this rulemaking.\3\
---------------------------------------------------------------------------

    \3\ ``Final Technical Support Document for the Approval of the 
San Joaquin Valley Extreme 1-Hour Ozone Standard Plan and San 
Joaquin Portion of the 2003 State Strategy,'' December 11, 2009, 
U.S. EPA, Region 9. The TSD can be found in the docket for this 
rulemaking.
---------------------------------------------------------------------------

A. Emissions Inventory

    Comment: Earthjustice comments on the importance of emission 
inventories, noting that CAA section 172(c)(3) requires that 
nonattainment plans ``shall include a comprehensive, accurate, current 
inventory of actual emissions from all sources of the relevant 
pollutant or pollutants in such area.'' It also comments that ARB 
submitted to EPA new emissions inventories for ozone precursors in the 
San Joaquin Valley as part of the 2007 Ozone Plan \4\ for the 8-hour 
ozone standard and that these updated inventories are ``significantly 
different'' than the inventories in the 2004 SIP as a result of being 
based on the State's revised on-road mobile source model, EMFAC. It 
then argues that the improvements to EMFAC, and therefore, to the SJV 
emissions inventory overall, make the 2007 Ozone Plan inventory the 
most comprehensive, accurate, current inventory of actual emissions 
from all sources affecting the Valley's air quality. It concludes that 
EPA cannot approve the 2004 SIP based on inventories that are no longer 
current or accurate.
---------------------------------------------------------------------------

    \4\ SJVAPCD, ``2007 Ozone Plan,'' April 30, 2007.
---------------------------------------------------------------------------

    Response: EPA does not dispute the importance of emission 
inventories. We evaluated the emission inventories in the 2004 SIP to 
determine if they are consistent with EPA guidance (General Preamble at 
13502 \5\) and adequate to support that plan's rate-of-progress (ROP) 
and attainment demonstrations. We determined that the plan's 2000 base 
year emission inventory was comprehensive, accurate, and current at the 
time it was submitted on November 15, 2004 and that this inventory, as 
well as the 2008 and 2010 projected inventories used in the ROP and 
attainment demonstrations, were prepared in a manner consistent with 
EPA guidance. Accordingly, we proposed to find that these inventories 
provide an appropriate basis for the ROP and attainment demonstrations 
in the 2004 SIP. See 74 FR at 33940.
---------------------------------------------------------------------------

    \5\ The General Preamble is the ``General Preamble for 
Implementation of Title I of the Clean Air Act Amendments of 1990.'' 
57 FR 13498 (April 16, 1992).
---------------------------------------------------------------------------

    ARB used its mobile source emissions model EMFAC2002 to generate 
the on-road mobile source inventory in the 2004 SJV 1-hour ozone plan. 
ARB released EMFAC2002 in October 2002 and EPA approved it for use in 
SIPs and conformity determinations on April 1, 2003 (62 FR 15720). At 
the time the 2004 SIP was being developed (2003-2004) and when it was 
subsequently adopted by SJVAPCD and submitted by ARB to EPA, EMFAC2002 
was the most current mobile source model available for inventory 
purposes. 74 FR at 33940.
    It has been EPA's consistent policy that States must use the most 
current mobile source model available at the time it is developing its 
SIP. See General Preamble at 13503 (requiring the use of MOBILE4.1 \6\ 
for November, 1992 submittal of base year inventories); Office of 
Mobile Sources, EPA, ``Procedures for Emissions Inventory Preparation, 
Volume IV: Mobile Source,'' June, 1992, page 5 (allowing states to use 
MOBILE4.1 for the base year inventories due November 1992, but 
requiring MOBILE5, then scheduled for release in December 1992, for the 
ROP and attainment demonstrations due November 1993); Memorandum, 
Philip A. Lorang, Director, Assessment and Modeling Division, Office of 
Mobile Sources, ``Release of MOBILE5a Emission Factor Model,'' March 
29, 1993 (allowing the use of MOBILE5 in updated base year inventories 
but requiring the use of MOBILE5a, released March 1993, for the ROP and 
attainment demonstrations due November 1993); and Memorandum, John 
Seitz, Office of Air Quality Planning and Standards (OAQPS) and Margo 
Oge, Office of Transportation and Air Quality, ``Policy Guidance on the 
Use of MOBILE6 for SIP Development and Transportation Conformity,'' 
January 18, 2002 (Seitz Memo).\7\
---------------------------------------------------------------------------

    \6\ MOBILE is EPA's model for estimating pollution from highway 
vehicles in all states except California where EMFAC is used.
    \7\ In keeping with this policy, ARB and the District used the 
most current version of EMFAC, EMFAC2007, to prepare the most recent 
ozone plan for the Valley, the 2007 Ozone Plan. See 2007 Ozone Plan 
at p. B-1. EMFAC2007 was released in November 2006 and approved by 
EPA for use in SIPs in January 2008. 68 FR 3464, 3467 (January 18, 
2008).
---------------------------------------------------------------------------

    The Seitz Memo specifically addresses the issue of how the release 
of the new model, MOBILE6, would affect SIPs that were already 
submitted and/or approved or SIPs that were then under development. 
Citing CAA section 172(c)(3) and 40 CFR 51.112(a)(1), EPA stated in the 
Seitz Memo that, ``while [i]n general, EPA believes that MOBILE6 should 
be used in SIP development as expeditiously as possible * * * [t]he 
Clean Air Act requires that SIP inventories and control measures be 
based on the most current information and applicable models that are 
available when a SIP is developed. As a result, the release of MOBILE6 
in most areas would not require a SIP revision based on the new 
model.'' The Seitz Memo further states that:

    EPA believes that the Clean Air Act would not require states 
that have already submitted SIPs or will submit SIPs shortly after 
MOBILE6's release to revise these SIPs simply because a new motor 
vehicle emissions model is now available. EPA believes that this is 
supported by existing EPA policies and case law [Delaney v. EPA, 898 
F.2d 687 (9th Cir. 1990)] * * *. EPA does not believe that the 
State's use of MOBILE5 should be an obstacle to EPA approval for 
reasonable further progress, attainment, or maintenance SIPs that 
have been or will soon be submitted based on MOBILE5, assuming that 
such SIPs are otherwise approvable and significant SIP work has 
already occurred (e.g., attainment modeling for an attainment SIP 
has already been completed with MOBILE5). It would be unreasonable 
to require the States to revise these SIPs with MOBILE6 since 
significant work has already occurred, and EPA intends to act on 
these SIPs in a timely manner.

    EPA has also consistently applied this policy in approving SIPs. 
See, for example, 67 FR 30574, 30582 (May 7, 2002), approval of 1-hour 
ozone standard attainment demonstration for Atlanta, Georgia and 68 FR 
19106, 19118 and 19120 (April 17, 2003), approval of the Washington, DC 
area's severe area 1-hour attainment demonstration. The latter action 
was upheld in Sierra Club v. EPA, 356 F.3d 296 (DC Cir. 2004). In 
Sierra Club at 308, the court cites the Seitz Memo and concludes that 
``[t]o require states to revise completed plans every time a new model 
is announced would lead to significant costs and potentially endless 
delays in the approval processes. EPA's decision to reject that course, 
and to accept the use of MOBILE5 in this case, was neither arbitrary 
nor capricious.''
    Comment: Earthjustice comments that an outdated inventory adversely 
affects the 2004 1-hour ozone plan's rate of progress (ROP) and 
attainment demonstrations and its demonstration related to offsetting 
growth in emissions from growth in vehicle miles traveled (as required 
by CAA section 182(d)(1)(A)) as well as results in the underestimation 
of the emission reductions needed to satisfy the contingency measure 
requirement. Earthjustice argues that EPA must reevaluate whether the 
2004 SIP satisfies these CAA requirements based on the revised 
inventories.
    Response: As discussed above, EPA's long-established and consistent 
policy does not require states to revise their already-submitted SIPs 
when a new mobile source emission model is released. This policy also 
means that

[[Page 10423]]

EPA will not evaluate these SIPs based on the new model. We note that 
EMFAC2007 was released in November 2006 and was not approved by EPA 
until January 2008 two years after the SIP was submitted. 68 FR 3464 
(January 18, 2008).
    In its comments, Earthjustice consistently attempts to conflate the 
2004 1-hour ozone standard and 2007 8-hour ozone standard plans. 
Following Earthjustice's logic would effectively result in the 1-hour 
ozone plan being completely revised to become the 8-hour ozone plan. 
This is because an evaluation of the effect of emissions inventory 
changes on the plan could not be limited to just those changes 
resulting from the move to EMFAC2007. All factors, from revised growth 
projections and changes to other emissions inventory categories to the 
impact of new controls, would need to be taken into account before we 
could determine whether the plan is or is not approvable. In other 
words, an entire new plan would need to be developed. The District and 
State have already prepared a new plan that addresses the applicable 8-
hour ozone standard and that is based on EMFAC2007 as well as other 
updated information. EPA will evaluate the revised inventories in 
connection with its action on that plan.
    Comment: CRPE comments that because the 2004 SIP includes 
reductions from California mobile source rules that are subject to CAA 
section 209 waivers (``waiver measures'') that occurred before 2000 as 
part of the 2000 base year inventory, EPA's proposed action on the 
inventory violates CAA sections 172(c)(3) and 182(a)(1) because EPA has 
failed to find that the reductions from the waiver measures have 
occurred, are enforceable, or are otherwise consistent with the Act, 
EPA's implementing regulations, and the General Preamble.
    Response: We evaluated the emission inventories in the 2004 SIP to 
determine if they were consistent with EPA guidance (General Preamble 
at 13502) and adequate to support that plan's ROP and attainment 
demonstrations. 74 FR at 33940. Based on this evaluation, we proposed 
to find that the base year inventory (and the projected baseline 
inventories derived from it) provided an appropriate basis for the ROP 
and attainment demonstrations in the 2004 SIP. 74 FR 33933, 33940.
    We also reviewed the District and State rules that were relied on 
for emissions reductions in the 2004 SIPs base year and baseline 
inventories. We determined that all these rules were creditable under 
the CAA and our policies. See Sections III and IV of the TSD. For the 
reasons given in the proposal at 33938-33939 and discussed in our 
responses to comments on waiver measures below, we believe that 
California's mobile source measures are fully creditable for SIP 
purposes.
    As to emission reductions from waiver measures actually occurring, 
we assume that sources comply with applicable emission limitations and 
the agencies responsible for ensuring compliance with them are 
exercising appropriate oversight, absent information to the contrary. 
The commenter provides no information indicating either of these is not 
happening.

B. Reasonably Available Control Measures (RACM) and Reasonably 
Available Control Technology (RACT)

    Comment: Earthjustice asserts that deferring action on the RACT 
demonstration is illegal and arbitrary. It further asserts that EPA 
cannot find that the plan as submitted will provide for attainment ``as 
expeditiously as practicable'' without first demonstrating that all of 
the required controls, such as RACT, will be implemented. Finally, 
Earthjustice comments that EPA cannot treat RACM and RACT as discrete 
requirements that can be acted on separately because the statute 
clearly states that RACM includes RACT. It also comments that EPA 
cannot determine that all reasonable measures are in place in the 
Valley without first evaluating RACT for all SJV area sources.
    Response: We described the RACM analysis in the 2004 1-hour ozone 
plan in the proposal at 74 FR at 33935. We also discussed the section 
182(b)(2) RACT provision in the 2004 SIP, stating that the State had 
formally withdrawn it and that we had subsequently made a finding of 
failure to submit the RACT demonstration for the 1-hour ozone standard 
and initiated sanction and federal implementation plan (FIP) clocks 
under CAA sections 179(a) and 110(c). See 74 FR at 33935 and 74 FR 3442 
(January 21, 2009). Finally, we noted that California had recently 
submitted the District's revised 8-hour ozone standard RACT plan 
(adopted April 16, 2009) (8-hour RACT SIP), that the plan is intended 
in part to correct the failure to submit finding for the 1-hour ozone 
standard RACT requirement as well, and that we are currently reviewing 
the revised RACT plan for action in a subsequent rulemaking. See 74 FR 
at 33935.
    Contrary to the commenter's assertions, we did not defer action 
under CAA section 110(k) on the RACT demonstration in the 2004 SIP 
because, as a result of the State's withdrawal of this component of the 
plan, there was no such demonstration on which the Agency could act. 
Instead, we took the appropriate action under the CAA which was, as 
stated above, to make a finding of failure to submit a required plan 
element which started sanctions and FIP clocks. 74 FR 3442.
    For 30 years, EPA has consistently interpreted the Act's RACM 
provision in section 172(c)(1) to require only those feasible measures 
necessary for expeditious attainment.\8\ Under EPA's interpretation, if 
an otherwise feasible measure, alone or in combination with other 
measures, cannot expedite attainment then it is not considered to be 
reasonably available. Thus, to show that it had implemented RACM, a 
state needs to show that it considered a wide range of potential 
measures and found none that were feasible for the area and that would, 
alone or in combination with other feasible measures, advance 
attainment. See 1999 RACM Guidance. Based on the form of the 1-hour 
ozone standard and the Act's specific language on RACM, the appropriate 
standard for advancing attainment is, at a minimum, one year from the 
predicted attainment date in the attainment plan.\9\
---------------------------------------------------------------------------

    \8\ We initially stated our interpretation of the RACM 
requirement in our 1979 nonattainment area plan guidance where we 
indicated that if a measure which might be available for 
implementation could not be implemented on a schedule that would 
advance the date for attainment in the area, we would not consider 
it reasonably available. See 44 FR 20372, 20375 (April 4, 1979). We 
affirmed this interpretation in the 1992 General Preamble at 13560; 
in Memorandum, John Seitz, Director, OAQPS, ``Guidance on the 
Reasonably Available Control Measure Requirement and Attainment 
Demonstration Submissions for Ozone Nonattainment Areas,'' November 
30, 1999 (1999 RACM Guidance); in the 2005 8-hour implementation 
rule (70 FR 71612, 71659 (November 29, 2005) and Sec.  51.912(d)); 
and in the 2007 PM2.5 implementation rule (72 FR 20586, 20612 (April 
25, 2007) and Sec.  51.1010.
    \9\ Attainment of the 1-hour standard is based on the average of 
the most recent three calendar years of data: ``The [1-hour ozone] 
standard is attained when the expected number of days per calendar 
year with maximum hourly average concentrations above 0.12 parts per 
million [ ] is equal to or less than 1.'' 40 CFR 50.9(a). Because of 
this, attainment of the 1-hour ozone standard can only be advanced 
by intervals of one full year. Section 172(c)(1) requires RACM 
sufficient to provide for expeditious attainment; thus, what 
constitutes RACM for the 1-hour ozone standard must be determined 
based on what reductions are needed to advance attainment by one 
year.
---------------------------------------------------------------------------

    We have determined that the 2004 SIP contains all reasonably 
available measures needed for expeditious attainment. While any 
evaluation of a RACM demonstration needs to consider the potential 
effect of CAA section 182(b)(2) RACT on expeditious attainment, it does 
not require that there first be an approved RACT demonstration. For 
this action, we

[[Page 10424]]

evaluated the potential effect of applying RACT to those sources in the 
SJV area for which we had not already approved a RACT rule. We provide 
this evaluation in Section V of the TSD. This evaluation shows that 
there were no outstanding RACT measures that, either individually or in 
combination with other potential measures, would advance attainment of 
the 1-hour ozone standard in the SJV area. See TSD Section V and 74 FR 
at 33938.
    We agree that SJVAPCD must adopt and implement the specific section 
182 control requirements of the Act, but we do not agree that the 
withdrawal of the RACT demonstration in the 2004 SIP precludes us from 
approving the plan's RACM and attainment demonstrations when it has 
been shown that the RACT measures would not contribute to more 
expeditious attainment.
    Comment: Earthjustice argues that EPA's test of whether 
implementation of additional measures would advance attainment from 
2010 to 2009 is arbitrary and ``absurd'' given that it believes the 
area will fail to attain by 2010. It further argues that it is 
``disingenuous for EPA to use this impossible test'' to justify the 
missing RACT analysis and approve the plan as meeting the RACM 
requirement and EPA should instead require a new plan based on current, 
accurate information and a new attainment date and then evaluate 
whether RACM has been met.
    Response: We have not used the ``advance attainment test'' to 
justify the missing RACT analysis. As stated previously, we took the 
appropriate statutory course of action for dealing with the withdrawn 
RACT demonstration: A finding of failure to submit and the starting of 
sanctions and FIP clocks. 74 FR 3442. We also described the process 
that we used to determine if the 2004 SJV 1-hour ozone plan provided 
for the implementation of all RACM needed for expeditious attainment in 
the proposal at 74 FR 33938. This process included evaluating the 
potential impact of RACT on source categories for which we have not 
previously approved a RACT rule. See TSD, Section V. We determined that 
there were no outstanding measures, including potential RACT measures, 
that could provide for more expeditious attainment of the 1-hour ozone 
standard in the SJV area.
    As we discuss below in the Attainment Demonstration section, we 
disagree with the commenter that the plan does not demonstrate 
attainment of the revoked 1-hour ozone standard by the 2010 attainment 
date.

C. Treatment of Waiver Measures

    Comment: Earthjustice and CRPE object to our proposal to grant 
emissions reduction credit to California's mobile source control 
measures that have received a waiver of preemption under CAA section 
209 without first approving them into the SIP. Both commenters argue 
that our reliance for this proposal on the general savings clause in 
CAA section 193 is inappropriate for several reasons.
    First, the commenters assert that CAA section 193 only saves those 
``formal rules, notices, or guidance documents'' that are not 
inconsistent with the CAA. They argue that both the CAA and EPA's long-
standing policies and regulations require SIPs to contain the state and 
local emission limitations and control measures that are necessary for 
attainment and RFP and to meet other CAA requirements. They assert that 
our position on the treatment of California's waived measures is 
inconsistent with this requirement. Earthjustice also argues that only 
SIP approval provides for the CAA's enforcement oversight (CAA sections 
179 and 304) and anti-backsliding (CAA section 110(l) and 193) 
safeguards.
    Second, the commenters argue that we cannot claim that our position 
was ratified by Congress because section 193 saves only regulations, 
standards, rules notices, orders and guidance ``promulgated or issued'' 
by the Administrator and we have not identified documents promulgated 
or issued by EPA that establish our position here. Earthjustice further 
asserts that our interpretation has not been expressed through any 
affirmative statements and the only statements of relevant statutory 
interpretations are contrary to our position on California's waived 
measures.
    Third, Earthjustice argues that there is no automatic presumption 
that Congress is aware of an agency's interpretations and we have not 
provided any evidence that Congress was aware of our interpretation 
regarding the SIP treatment of California's mobile source control 
measures. Similarly, CRPE argues that our positions that Congress must 
expressly disapprove of EPA's long-standing interpretation and 
Congressional silence equates to a ratification of EPA's interpretation 
are incorrect.
    Finally, Earthjustice argues EPA's position is inconsistent because 
we do require other state measures, e.g., the consumer products rules 
and fuel standards, to be submitted and approved into SIPs before their 
emission reductions can be credited.
    Response: We continue to believe that credit for emissions 
reductions from implementation of California mobile source rules that 
are subject to CAA section 209 waivers (``waiver measures'') is 
appropriate notwithstanding the fact that such rules are not approved 
as part of the California SIP. In our July 14, 2009 proposed rule, we 
explained why we believe such credit is appropriate. See pages 33938 
and 33939 of the proposed rule. Historically, EPA has granted credit 
for the waiver measures because of special Congressional recognition, 
in establishing the waiver process in the first place, of the 
pioneering California motor vehicle control program and because 
amendments to the CAA (in 1977) expanded the flexibility granted to 
California in order ``to afford California the broadest possible 
discretion in selecting the best means to protect the health of its 
citizens and the public welfare,'' (H.R. Rep. No. 294, 95th Congr., 1st 
Sess. 301-2 (1977)). In allowing California to take credit for the 
waiver measures notwithstanding the fact that the underlying rules are 
not part of the California SIP, EPA treated the waiver measures 
similarly to the Federal motor vehicle control requirements, which EPA 
has always allowed States to credit in their SIPs without submitting 
the program as a SIP revision.
    EPA's historical practice has been to give SIP credit for waiver 
measures by allowing California to include motor vehicle emissions 
estimates made by using California's EMFAC motor vehicle emissions 
factor model as part of the baseline emissions inventory. EMFAC was 
also used to prepare baseline inventory projections into the future, 
and thus the plans typically showed a decrease in motor vehicle 
emissions due to the gradual replacement of more polluting vehicles 
with vehicles manufactured to meet newer, more stringent California 
vehicle standards. The EMFAC model is based on the motor vehicle 
emissions standards for which California has received waivers from EPA 
but accounts for vehicle deterioration and many other factors. The 
motor vehicle emissions estimates themselves combine EMFAC results with 
vehicle activity estimates, among other considerations. See the 1982 
Bay Area Air Quality Plan, and the related EPA rulemakings approving 
the plan (see 48 FR 5074 (February 3, 1983) for the proposed rule and 
48 FR 57130 (December 28, 1983) for the final rule) as an example of 
how the waiver

[[Page 10425]]

measures have been treated historically by EPA in California SIP 
actions.\10\
---------------------------------------------------------------------------

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

    In our proposed rule, we indicated that we believe that section 193 
of the CAA, the general savings clause added by Congress in 1990, 
effectively ratified our long-standing practice of granting credit for 
the California waiver rules because Congress did not insert any 
language into the statute rendering EPA's treatment of California's 
motor vehicle standards inconsistent with the Act. Rather, Congress 
extended the California waiver provisions to most types of nonroad 
vehicles and engines, once again reflecting Congressional intent to 
provide California with the broadest possible discretion in selecting 
the best means to protect the health of its citizens and the public 
welfare. Requiring the waiver measures to undergo SIP review in 
addition to the statutory waiver process is not consistent with 
providing California with the broadest possible discretion as to on-
road and nonroad vehicle and engine standards, but rather, would add to 
the regulatory burden California faces in establishing and modifying 
such standards, and thus would not be consistent with Congressional 
intent. In short, we believe that Congress intended California's mobile 
source rules to undergo only one EPA review process (i.e., the waiver 
process), not two.
    EPA's waiver review and approval process is analogous to the SIP 
approval process. First, CARB adopts its emissions standards following 
notice and comment procedures at the state level, and then submits the 
rules to EPA as part of its waiver request. When EPA receives new 
waiver requests from CARB, EPA publishes a notice of opportunity for 
public hearing and comment and then publishes a decision in the Federal 
Register following the public comment period. Once again, in substance, 
the process is similar to that for SIP approval and supports the 
argument that one hurdle (the waiver process) is all Congress intended 
for California standards, not two (waiver process plus SIP approval 
process). Moreover, just as SIP revisions are not effective until 
approved by EPA, changes to CARB's rules (for which a waiver has been 
granted) are not effective until EPA grants a new waiver, unless the 
changes are ``within the scope'' of a prior waiver and no new waiver is 
needed.
    Moreover, to maintain a waiver, CARB's rules can be relaxed only to 
a level of aggregate equivalence to the Federal Motor Vehicle Control 
Program (FMVCP) [see section 209(b)(1)]. In this respect, the FMVCP 
acts as a partial backstop to California's on-road waiver measures 
(i.e., absent a waiver, the FMVCP would apply in California). Likewise, 
Federal nonroad vehicle and engine standards act as a backstop where 
there is a corresponding California nonroad waiver measure. The 
constraints of the waiver process thus serve to limit the extent to 
which CARB can relax the waiver measures for which there are 
corresponding EPA standards, and thereby serve an anti-backsliding 
function similar in substance to those established for SIP revisions in 
CAA sections 110(l) and 193. Meanwhile, the growing convergence between 
California and EPA mobile source standards diminishes the difference in 
the emissions reductions reasonably attributed to the two programs and 
strengthens the role of the Federal program in serving as an effective 
backstop to the State program. In other words, with the harmonization 
of EPA mobile source standards with the corresponding State standards, 
the Federal program is becoming essentially a full backstop to the 
California program.
    In addition, the commenters' concerns over the potential for 
relaxation by the State of the waiver measures because the underlying 
regulations are not subject to EPA review and approval as a SIP 
revision are not a practical concern for this particular plan given 
that the plan's horizon is very short term (next couple of years), and 
the on-road and nonroad vehicles that in part will determine whether 
the area attains the standard are already in operation or in dealer 
showrooms. There is no practical means for the State to relax the 
standards of vehicles already manufactured, even if the State wanted to 
relax the standards.
    As to the concerns raised by the commenters on enforceability, we 
note that CARB has as long a history of enforcement of vehicle/engine 
emissions standards as EPA, and CARB's enforcement program is equally 
as rigorous as the corresponding EPA program. The history and rigor of 
CARB's enforcement program lends assurance to California SIP revisions 
that rely on the emissions reductions from CARB's rules in the same 
manner as EPA's mobile source enforcement program lends assurance to 
other State's SIPs in their reliance on emissions reductions from the 
FMVCP.
    In summary, we disagree that our interpretation of CAA section 193 
is fundamentally flawed. EPA has historically given SIP credit for 
waiver measures in our approval of attainment demonstrations and other 
planning requirements such as reasonable further progress and 
contingency measures submitted by California. We continue to believe 
that section 193 ratifies our long-standing practice of allowing credit 
for California's waiver measures notwithstanding the fact they are not 
approved into the SIP, and correctly reflects Congressional intent to 
provide California with the broadest possible discretion in the 
development and promulgation of on-road and nonroad vehicle and engine 
standards.\11\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

D. ARB Commitments

    Comment: Earthjustice asserts that ARB's commitments to reduce 
emissions in the SJV area by 15 tpd VOC and 20 tpd NOX by 
2010 do not satisfy the first factor in EPA's three-factor test for the 
approval of enforceable commitments. The commenter argues that the 
commitments do not meet the first factor, that commitments provide only 
a limited portion of the needed reductions, for several reasons. The 
first reason is that the commitment is not for 6.3 percent of the 
needed NOX reductions and 11.6 percent of the

[[Page 10426]]

needed VOC reductions, the numbers EPA gave in the proposal, but rather 
19.2 percent for NOX (41.1 tpd) and 37.7 percent for VOC 
(48.7 tpd) because these were the emissions reductions in commitment 
form at the time the 2004 SIP was submitted. The second reason is that 
the 11.6 percent commitment level for VOC is not minimal. The final 
reason is that the commitments now constitute 100 percent of the 
remaining emission reductions needed. The commenter concludes that 
these levels are not the limited or minimal role of commitments 
envisioned in the decision in BCCA Appeal Group v. EPA, 355 F.3d 817 
(5th Cir. 2003).
    Response: We did not propose to approve commitments of 41.1 tpd 
NOX and 48.7 tpd VOC, rather we proposed to approve and are 
taking final action to approve commitments of 20 tpd NOX and 
15 tpd VOC. Because the District has adopted and submitted and EPA has 
approved rules achieving reductions of 21.1 tpd NOX and 33.3 
tpd VOC, the portion of the original commitments relating to those 
reductions are now obsolete and approving them would serve no purpose.
    The State of Texas' enforceable commitment for the Houston/
Galveston area, the approval of which was upheld by the 5th Circuit in 
BCCA, represented 6 percent of the reductions needed for attainment in 
the area. We note that the court in BCCA did not conclude that any 
amount greater than 6 percent of the reductions needed would be 
unreasonable. We believe that the 6.3 percent reduction of 
NOX and the 11.6 percent reduction of VOC, as stated in our 
proposal, also fit within the parameters of a ``limited'' amount of the 
reductions needed for attainment and nothing in the BCCA decision 
contravenes that.
    The commenter's final point merely describes the nature of all 
emissions reductions commitments submitted in support of an attainment 
demonstration, i.e., that they are intended to fill the gap between the 
level of reductions achieved from adopted rules and the level of 
reductions needed for attainment. In other words, their purpose is to 
provide 100 percent of the remaining reductions needed for attainment.
    Comment: Earthjustice also argues that ARB's commitments to reduce 
emissions in the SJV area by 15 tpd VOC and 20 tpd NOX by 
2010 do not satisfy EPA's second factor for the approval of enforceable 
commitments, that the State is capable of meeting its commitment. It 
first notes that the Goldstene letter \12\ shows that rules adopted 
through 2007 have achieved all of the remaining NOX 
reductions needed for attainment and 3.3 tpd of the remaining 15 tpd of 
needed VOC reductions. The commenter then states, based on its review 
of the measures listed by EPA in its proposed approval as potential 
sources of VOC emission reductions (e.g., the pesticide emission limits 
adopted by the California Department of Pesticide Regulations) and 
ARB's 2009 rulemaking schedule, that there are no State measures that 
can be adopted and implemented in time to provide the remaining 11.7 
tpd in VOC reductions by 2010.
---------------------------------------------------------------------------

    \12\ Letter, James Goldstene, Executive Officer, ARB, to Laura 
Yoshii, Acting Regional Administrator, EPA, June 29, 2009 
(``Goldstene letter'').
---------------------------------------------------------------------------

    Response: In the Goldstene letter, ARB submitted a summary of the 
emissions reductions expected from a number of adopted State rules in 
the SJV area by 2010. This summary is preliminary and is not intended 
to be a final statement of ARB's compliance with its emissions 
reductions commitments. As a preliminary analysis, it cannot be used to 
determine whether the State has not or will not meet its commitments.
    The commenter assumes that the only path now open to the State to 
fulfill its commitments is the adoption of new measures. We disagree. 
The list of measures provided by ARB in the Goldstene letter represents 
a fraction of the rules and programs adopted and implemented by the 
State. See TSD, Table 9. ARB has not provided, nor has it been required 
to provide, an evaluation of the effectiveness of its entire control 
program in reducing emissions in the SJV area. Given that the State has 
preliminarily demonstrated, based on a limited set of measures, that 
all NOX reductions and 90 percent of the VOC reductions 
needed for attainment of the revoked 1-hour standard in the SJV area 
have been achieved, we believe it is reasonable to assume that the 
balance of the reductions can also be achieved by the beginning of the 
2010 ozone season.
    Comment: Earthjustice argues that ARB's commitments to reduce 
emissions in the SJV area by 15 tpd VOC and 20 tpd NOX by 
2010 do not satisfy EPA's third and final factor for the approval of 
enforceable commitments, that the commitment is for a reasonable and 
appropriate period of time. It asserts that the State has less than a 
year to adopt and make effective controls to achieve 13.3 tpd VOC by 
2010 and it is not reasonable to assume that it will able to achieve 
these reductions.
    Response: ARB's commitments, made in 2004, are to reduce emissions 
in the SJV area by 20 tpd NOX and 15 tpd VOC within 6 years, 
i.e., by 2010. It is not, as the commenter asserts, to reduce VOC 
emissions by 13.3 tpd between 2009 and 2010. The commenter's argument 
again rests on the assumption that the only path now open to the State 
to meet its VOC commitment is to adopt new measures. As we discuss 
above, we do not believe this assumption is accurate. See also 74 FR at 
39940.
    Comment: Earthjustice comments that EPA's recitation of its three-
factor test to assess whether an enforceable commitment is approvable 
skips over the initial determination of whether the commitments are in 
fact enforceable. In this regard, Earthjustice cites Bayview Hunters 
Point Community Advocates v. Metropolitan Transportation Commission, 
366 F.3d 692 (9th Cir. 2004) and Citizens for a Better Environment v. 
Metropolitan Transportation Commission, 746 F.Supp. 746, 701 (N.D. Cal. 
1990), [known as CBE II], to support its contention that ARB's 
commitment is an unenforceable ``aspirational goal.'' In addition, 
Earthjustice singles out El Comite Para El Bienestar de Earlimart v. 
Warmerdam, 539 F.3d 1062 (9th Cir. 2008), stating that in El Comite the 
court explained that because an inventory in a SIP is not a ``standard 
or limitation'' as defined by the CAA, it was not an independently 
enforceable aspect of the SIP. Thus, Earthjustice reasons, in order to 
be enforceable, not only must a state's commitment to adopt additional 
measures to attain emission standards be specific and announced in 
plain language, but any data or rubric that will be used to determine 
when and how the state will adopt those measures must be enforceable. 
Earthjustice further claims that EPA's approval here allows for the 
same unenforceable situation that occurred in Ventura where the State 
can claim, even erroneously, that changes to the inventory can 
substitute for its commitment to reduce emissions, and EPA and the 
public would be powerless to object.
    Similarly, CRPE characterizes the 2003 State Strategy's commitments 
to achieve aggregate emission reductions by the attainment year as 
``global tonnage'' commitments that could be interpreted as goals 
unenforceable by citizens under Ninth Circuit precedent, citing 
Bayview.
    Response: Under CAA section 110(a)(2)(A), SIPs must include 
enforceable emission limitations and other control measures, means or

[[Page 10427]]

techniques necessary to meet the requirements of the Act, as well as 
timetables for compliance. Similarly, section 172(c)(6) provides that 
nonattainment area SIPs must include enforceable emission limitations 
and such other control measures, means or techniques ``as may be 
necessary or appropriate to provide for attainment'' of the NAAQS by 
the applicable attainment date.
    Control measures, including commitments in SIPs, are enforced 
through CAA section 304(a) which provides for citizen suits to be 
brought against any person who is alleged ``to be in violation of * * * 
an emission standard or limitation* * *.'' ``Emission standard or 
limitation'' is defined in subsection (f) of section 304.\13\ As 
observed in Conservation Law Foundation, Inc. v. James Busey et al., 79 
F.3d 1250, 1258 (1st Cir. 1996):
---------------------------------------------------------------------------

    \13\ EPA can also enforce SIP commitments pursuant to CAA 
section 113.

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

Thus courts have found that the citizen suit provision cannot be used 
to enforce the aspirational goal of attaining the NAAQS, but can be 
used to enforce specific strategies to achieve that goal.
    We describe ARB's commitments in the 2004 SIP and the 2003 State 
Strategy in detail in the proposal (74 FR at 33938). In short, the 
State commits to achieve 20 tpd NOX and 15 tpd VOC in the 
SJV area by the 2010 ozone season. While the State identifies possible 
control measures that it might adopt to achieve these emission 
reductions, it does not commit to adopt any specific measures. The 
language used in the 2004 SIP and the 2003 State Strategy to describe 
ARB's commitments is consistently mandatory and unequivocal in nature, 
e.g.:

    ARB commits to adopt and implement measures to achieve, at a 
minimum, 15 tpd ROG and 20 tpd NOX emission reductions in 
the San Joaquin Valley Air Basin by the 2010 ozone season. ARB will 
adopt measures to achieve these reductions between 2002-2009. ARB 
may meet this commitment by adopting one or more of the control 
measures in Table 4-3, by adopting one or more alternative control 
measures, or by implementing incentive program(s), so long as the 
aggregate emission reduction commitment is achieved.

(Emphasis added). 2004 SIP at section 4.7.3. See also ARB Staff Report 
at 29; ARB Resolution 04-29 at 5 (``The State's contribution includes * 
* * a previously approved commitment for 10 tpd new NOX 
emissions as part of the Valley 2003 particulate matter SIP, and new 
commitments for additional reductions of 15 tpd VOC and 10 tpd 
NOX from new defined State measures in the Valley in 
2010''); and 2003 State Strategy at I-16, Table I-10 (``Total Emission 
Reduction Commitment from New State Measures'' listed in the table as 
10 tpd NOX with action dates 2002-2008). Thus, ARB's 
commitments are clearly distinguishable from the aspirational goals, 
i.e., the SIP's overall objectives, identified by the Bayview court and 
cited by the commenter. ARB's commitments here are to adopt and 
implement measures that will achieve specific reductions of 
NOX and VOC emissions. As such, as will be seen below, they 
are specific strategies designed to achieve the SIP's overall 
objectives.
    Both Earthjustice and CRPE cite Bayview as support for their 
contention that ARB's commitments are unenforceable aspirational goals. 
Bayview does not, however, provide any such support. That case involved 
a provision of the 1982 Bay Area 1-hour ozone SIP, known as TCM 2, 
which states in pertinent part:

    Support post-1983 improvements identified in transit operator's 
5-year plans, after consultation with the operators adopt ridership 
increase target for 1983-1987. EMISSION REDUCTION ESTIMATES: These 
emission reduction estimates are predicated on a 15% ridership 
increase. The actual target would be determined after consultation 
with the transit operators.

Following a table listing these estimates, TCM 2 provided that 
``[r]idership increases would come from productivity improvements * * 
*.''
    Ultimately the 15 percent ridership estimate was adopted by the 
Metropolitan Transportation Commission (MTC), the implementing agency, 
as the actual target. Plaintiffs subsequently attempted to enforce the 
15 percent ridership increase. The court found that the 15 percent 
ridership increase was an unenforceable estimate or goal. In reaching 
that conclusion, the court considered multiple factors, including the 
plain language of TCM 2 (e.g., ``[a]greeing to establish a ridership 
`target' is simply not the same as promising to attain that target,'' 
Bayview at 698); the logic of TCM 2, i.e., the drafters of TCM 2 were 
careful not to characterize any given increase as an obligation because 
the TCM was contingent on a number of factors beyond MTC's control, id. 
at 699; and the fact that TCM 2 was an extension of TCM 1 that had as 
an enforceable strategy the improvement of transit services, 
specifically through productivity improvements in transit operators' 
five-year plans, id. at 701. As a result of all of these factors, the 
Ninth Circuit found that TCM 2 clearly designated the productivity 
improvements as the only enforceable strategy. id. at 703.
    The commitments in the 2004 SIP and 2003 State Strategy are in 
stark contrast to the ridership target that was deemed unenforceable in 
Bayview. The language in ARB's commitments, as stated multiple times in 
multiple documents, is specific and unequivocal; the intent of the 
commitments is clear; and the strategy of adopting measures to achieve 
the required reductions is completely within ARB's control. 
Furthermore, as stated previously, ARB identifies specific emission 
reductions that it will achieve and specifies that this will be done 
through the adoption and implementation of measures and also specifies 
the time by which these reductions will be achieved, i.e., the 
beginning of the 2010 ozone season.
    Earthjustice also cites CBE II at 701 for the proposition that 
courts can only enforce ``express'' or ``specific'' strategies. 
However, as discussed below, there is nothing in the CBE cases that 
supports the commenter's view that ARB commitments are neither express 
nor specific. In fact, these cases support our interpretation of ARB's 
commitments.
    Citizens for a Better Environment v. Deukmejian, 731 F.Supp.1448 
(N.D. Cal. 1990), known as CBE I, concerned in part contingency 
measures for the transportation sector in the 1982 Bay Area 1-hour 
ozone SIP. The provision states: ``If a determination is made that RFP 
is not being met for the transportation sector, MTC will adopt 
additional TCMs within 6 months of the determination. These TCMs will 
be designed to bring the region back within the RFP line.'' The court 
found that ``[o]n its face, this language is both specific and 
mandatory.'' Id. at 1458. In CBE I, ARB and MTC argued that TCM 2 could 
not constitute an enforceable strategy because the provision fails to 
specify exactly what TCMs must be adopted.

[[Page 10428]]

The court rejected this argument, finding that ``[w]e discern no 
principled basis, consistent with the Clean Air Act, for disregarding 
this unequivocal commitment simply because the particulars of the 
contingency measures are not provided. Thus we hold that that the basic 
commitment to adopt and implement additional measures, should the 
identified conditions occur, constitutes a specific strategy, fully 
enforceable in a citizens action, although the exact contours of those 
measures are not spelled out.'' Id. at 1457.\14\ In concluding that the 
transportation and stationary source contingency provisions were 
enforceable, the court stated: ``Thus, while this Court is not 
empowered to enforce the Plan's overall objectives [footnote omitted; 
attainment of the NAAQS]--or NAAQS--directly, it can and indeed, must, 
enforce specific strategies committed to in the Plan.'' Id. at 1454.
---------------------------------------------------------------------------

    \14\ In this passage, the court was referring specifically to 
the stationary source contingency measures in the Bay Area plan 
which contained a commitment to adopt such measures if emission 
targets were not met. The Plan identified a number of potential 
stationary sources but did not commit to any particular one. In 
discussing the transportation contingency measures, the court 
applied this same reasoning. Id. at 1456-1457.
---------------------------------------------------------------------------

    Earthjustice's reliance on CBE II is misplaced. It also involves in 
part the contingency measures in the 1982 Bay Area Plan. In CBE II, 
defendants argued that RFP and the NAAQS are coincident because, had 
the plan's projections been accurate, then achieving RFP would have 
resulted in attainment of the NAAQS. The court rejected this argument, 
stating that:

    the Court would be enforcing the contingency plan, an express 
strategy for attaining NAAQS. Although enforcement of this strategy 
might possibly result in attainment, it is distinct from simply 
ordering that NAAQS be achieved without anchoring that order on any 
specified strategy. Plainly, the fact that a specified strategy 
might be successful and lead to attainment does not render that 
strategy unenforceable.

(Emphasis in original). CBE II at 980.

    ARB's commitments here are analogous to the terms of the 
contingency measures in the CBE cases. ARB commits to adopt measures, 
which are not specifically identified, to achieve a specific tonnage of 
emission reductions. Thus, the commitment to a specific tonnage 
reduction is comparable to a commitment to achieve RFP. Similarly, a 
commitment to achieve a specific amount of emission reductions through 
adoption and implementation of unidentified measures is comparable to 
the commitments to adopt unspecified TCMs and stationary source 
measures. The key is that commitment must be clear in terms of what is 
required, e.g., a specified amount of emission reductions or the 
achievement of a specified amount of progress (i.e., RFP). ARB's 
commitments are thus clearly a specific enforceable strategy rather 
than an unenforceable aspirational goal.
    Earthjustice's reliance on El Comite is also misplaced. The 
plaintiffs in the district court attempted to enforce a provision of 
the 1994 California 1-hour ozone SIP known as the Pesticide Element. 
The Pesticide Element relied on an inventory of pesticide VOC emissions 
to provide the basis to determine whether additional regulatory 
measures would be needed to meet the SIP's pesticides emissions target. 
To this end, the Pesticide Element provided that ``ARB will develop a 
baseline inventory of estimated 1990 pesticidal VOC emissions based on 
1991 pesticide use data * * *.'' El Comite Para El Bienestar de 
Earlimart v. Helliker, 416 F. Supp. 2d 912, 925 (E.D. Cal. 2006). ARB 
subsequently employed a different methodology which it deemed more 
accurate to calculate the baseline inventory. The plaintiffs sought to 
enforce the commitment to use the original methodology, claiming that 
the calculation of the baseline inventory constitutes an ``emission 
standard or limitation.'' The district court disagreed:

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

Id. at 928. In its opinion, the court distinguished Bayview and CBE I, 
pointing out that in those cases ``the measures at issue were designed 
to reduce emissions.'' Id.
    On appeal, the plaintiffs shifted their argument to claim that the 
baseline inventory and the calculation methodology were necessary 
elements of the overall enforceable commitment to reduce emissions in 
nonattainment areas. The Ninth Circuit agreed with the district court's 
conclusion that the baseline inventory was not an emission standard or 
limitation and rejected plaintiffs' arguments attempting ``to transform 
the baseline inventory into an enforceable emission standard or 
limitation by bootstrapping it to the commitment to decide to adopt 
regulations, if necessary.'' Id. at 1073.
    While Earthjustice cites the Ninth Circuit's El Comite opinion, its 
utility in analyzing ARB's commitments here is limited to that court's 
agreement with the district court's conclusion that neither the 
baseline nor the methodology qualifies as an independently enforceable 
aspect of the SIP. Rather, it is the district court's opinion, in 
distinguishing the commitments in CBE and Bayview, that provides 
insight into the situation at issue in our action. As the court 
recognized, a baseline inventory or the methodology used to calculate 
it, is not a measure