[Federal Register Volume 69, Number 102 (Wednesday, May 26, 2004)]
[Rules and Regulations]
[Pages 30006-30036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11667]



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Part II





Environmental Protection Agency





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40 CFR Part 52



Approval and Promulgation of Implementation Plans for California - San 
Joaquin Valley PM-10 Nonattainment Area; Serious Area Plan for 
Attainment of the 24-Hour and Annual PM-10 Standards; Final Rule

  Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules 
and Regulations  

[[Page 30006]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 294-0450, FRL-7663-8]


Approval and Promulgation of Implementation Plans for 
California--San Joaquin Valley PM-10 Nonattainment Area; Serious Area 
Plan for Attainment of the 24-Hour and Annual PM-10 Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of the ``2003 PM10 Plan, San 
Joaquin Valley Plan to Attain Federal Standards for Particulate Matter 
10 Microns and Smaller,'' submitted on August 19, 2003, and Amendments 
to that plan, submitted on December 30, 2003, as meeting the Clean Air 
Act (CAA or the Act) requirements applicable to the San Joaquin Valley, 
California nonattainment area for particulate matter of ten microns or 
less (PM-10)(SJV). The SJV violates the national ambient air quality 
standards (NAAQS) for PM-10 and is classified as a serious PM-10 
nonattainment area.
    As a serious PM-10 nonattainment area, the State must submit to EPA 
a plan that provides for, among other things, the implementation of 
best available control measures (BACM). In addition, because the 
serious attainment deadline, December 31, 2001, has passed, the plan 
must provide for expeditious attainment of the PM-10 NAAQS and for an 
annual reduction in PM-10 or PM-10 precursor emissions of not less than 
five percent until attainment.

DATES: Effective Date: This rule is effective on June 25, 2004.

ADDRESSES: You can inspect copies of the docket for this action at 
EPA's Region IX office during normal business hours by appointment at 
the following locations: Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901. Air and Radiation 
Docket and Information Center, U.S. Environmental Protection Agency, 
Room B-102, 1301 Constitution Avenue, NW., (Mail Code 6102T), 
Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415)972-
3959, [email protected].

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

Table of Contents

I. Summary of Proposed Actions
II. Public Comments and EPA Responses
    A. NOX/PM Strategy
    1. Ammonia
    2. VOC
    3. SOX
    B. Emission Inventory
    C. BACM Demonstration
    1. Commitments for BACM/BACT
    2. Agricultural Conservation Management Practices (Ag CMP) 
Program
    3. Ag Crop Processing Losses and Ag Products Processing Losses
    4. Plastics and Plastic Products Manufacturing Sources
    5. Cotton Gins
    6. Manufacturing and Industrial Fuel Combustion Sources
    7. Oil Drilling and Workover
    8. Residential Water Heaters
    9. Charbroiling
    10. Regulation VIII Fugitive Dust Sources
    11. Significant Sources of VOC, Ammonia and SOx
    12. Mobile Sources--Transportation Control Measures (TCMs)
    13. Mobile Sources--South Coast Fleet and Low Sulfur Diesel 
Rules
    D. Attainment Demonstration
    1. Attainment Deadline
    2. Attainment Demonstration Overestimates Emission Reductions
    3. Attainment as Expeditiously as Practicable
    E. Five Percent Demonstration
    F. RFP Demonstration
    G. Contingency Measures
    H. Full Approval with Commitments Violates the CAA
    I. Adoption of All Feasible Measures (Section 179(d)(2)) for Ag 
CMP Program
    J. Approval of Commitments for VOC Sources--Wineries
    K. Approvability of Indirect Source Mitigation Measure
    L. Windblown Dust Issues
    M. Transportation Conformity and the Trading Mechanism
    N. Other Comments
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Summary of Proposed Actions

    On February 4, 2004, (69 FR 5412), we proposed to approve the 
``2003 PM10 Plan, San Joaquin Valley Plan to Attain Federal Standards 
for Particulate Matter 10 Microns and Smaller,'' submitted on August 
19, 2003, and Amendments to that plan, submitted on December 30, 
2003,\1\ as meeting the CAA requirements applicable to the SJV for PM-
10. Specifically, we proposed to approve the following elements of the 
Plan:
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    \1\ The Amendments to the 2003 PM-10 supersede some portions of 
the 2003 PM-10 Plan and also add to it. References hereafter to the 
``SJV 2003 PM-10 Plan'' or ``the Plan'' mean the 2003 Plan submitted 
on August 19, 2003, as amended by the December 30, 2003 submittal.

 Motor vehicle budgets for transportation conformity;
 Emissions inventories for PM-10 and PM-10 precursors;
 A demonstration that reasonably available and best available 
control measures (RACM and BACM) will be expeditiously implemented for 
all significant sources of PM-10 and PM-10 precursors;
 A demonstration that attainment will be achieved as 
expeditiously as practicable;
 A demonstration that the CAA section 189(d) five percent 
requirement is met; and
 A demonstration that reasonable further progress (RFP) and 
quantitative milestones will be achieved.

    A detailed discussion of air quality planning in the SJV, the CAA 
requirements for serious nonattainment areas, and how the 2003 PM-10 
Plan complies with these requirements is provided in our proposed rule 
and the technical support document (TSD).

II. Public Comments and EPA Responses

    EPA received 19 comment letters and emails from the following 
environmental groups, industry groups, agencies and public citizens 
(some commenters provided more than one letter or email):

 Dr. David Pepper
 Gordon Jones, Tehachapi, California
 Michael E. LaSalle, Hanford, California
 Brent Newell, Stacey Wittorf, Center on Race, Poverty, & the 
Environment (CRPE) on behalf of the Association of Irritated Residents 
(collectively, CRPE)
 Art Caputi, Chairman, Wine Institute Air Quality Working Group
 D. Barton Doyle, on behalf of the California Building Industry 
Association and its Affiliate Associations located in the SJV
 Suzanne Noble, Western States Petroleum Association
 Jan Marie Ennenga, Executive Director, Manufacturers Council 
of the Central Valley
 David L. Crow, Executive Director/Air Pollution Control 
Officer, San Joaquin Valley Unified Air Pollution Control District 
(SJVUAPCD or the District)
 Patricia Taylor-Maley, Chair San Joaquin Valley TPA Director's 
Association
 Charles Swanson, San Francisco, California
 David Moralez, Davis, California
 Susan Britton, Anne Harper and Vanessa E-H Stewart, 
Earthjustice, on behalf of Medical Advocates for Healthy Air, Latino 
Issues Forum, Sierra Club and Natural Resources Defense Council 
(collectively, Earthjustice)

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 Barbara Joy, Earth Matters
 San Joaquin Valley agricultural groups: California Cotton 
Ginners and Growers Association, California Grape and Tree Fruit 
League, California Citrus Mutual, Fresno County Farm Bureau, Kings 
County Farm Bureau, Madera County Farm Bureau, Nisei Farmers League and 
Tulare Lake Resource Conservation District.

    EPA appreciates the time and effort made by the commenters in 
reviewing the proposed rule and providing comments. We have summarized 
the major comments and provided our responses below.

A. NOX/PM Strategy

    The Plan relies on an oxides of nitrogen (NOX)/PM 
strategy as the most effective and expeditious strategy for attaining 
the PM-10 standards in the SJV, based on the best available information 
at this time. The California Air Resources Board (CARB) and the 
SJVUAPCD have examined the effects of controlling ammonia, volatile 
organic compounds (VOC) and oxides of sulfur (SOx), and have determined 
that the effect of controls for ammonia is uncertain, the effect of 
additional VOC controls will not lead to PM-10 reductions throughout 
the SJV, and that the effect of SOx controls would be very limited 
because the contribution of ammonium sulfate to the particulate problem 
in the SJV is small. EPA concurs that these findings are supported by 
the current analysis of the best available data. However, the more 
extensive California Regional PM-10/PM-2.5 Air Quality Study (CRPAQS) 
field study and modeling will provide an improved basis to assess the 
relationship of precursors in forming secondary particulates.\2\ EPA 
expects that the results of the CRPAQS study will provide additional 
technical information and is approving the SJVUAPCD's commitment to re-
evaluate the 2003 PM-10 Plan with the results of CRPAQS and to submit a 
new plan to EPA by March 2006. (69 FR 5412, 5414).
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    \2\ The CRPAQS study was an extensive 14-month field study 
conducted on 2000-2001, which measured PM-10, precursors and 
meteorological parameters during episodes representative of high PM-
10 and PM-2.5 in the SJV. The domain for the study encompasses the 
entire SJV, compared to the smaller IMS 95 domain of an earlier 
field study, and the CRPAQS study captured more extensive ambient 
air and meteorological measurements than the IMS 95 field study. The 
CRPAQS modeling, discussed below, will be more extensive than the 
Urban Airshed Model-Aerosol (UAM-Aero) modeling based on IMS 95. 
Additional information regarding the CRPAQS study is available at 
http://www.arb.ca.gov/airways/ccaqs.htm.
    The goal of the CRPAQS modeling is to better understand the 
fundamental physical and chemical processes that contribute to 
elevated particulate matter concentrations. The CRPAQS modeling 
package includes evaluation of two complementary modeling 
approaches. Each model provides particular strengths that will 
support state implementation plan (SIP) modeling needs. In addition, 
use of two modeling approaches allows improved diagnosis of 
potential model errors and biases. The two modeling approaches have 
fundamentally different modeling formulations. The first type of 
modeling approach explicitly tracks particle types from individual 
source types. This method has strong advantages in understanding 
source-receptor relationships and in tracking specific source 
contributions to secondary particulate matter. However, this 
approach can be very resource and time intensive to apply. The 
second modeling approach lumps similar pollutant emissions together, 
thus reducing source tracking capabilities. The advantage of this 
approach is that it requires fewer resources to run, enabling many 
more sensitivity and control strategy evaluations to be conducted.
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    The attainment demonstration for the Plan is based on receptor 
modeling based on chemical analysis of filter samples collected during 
the CRPAQS field study. These samples include filters from days 
representing typically high PM-10 concentrations in the SJV. However, 
the photochemical grid modeling, UAM-Aero, presented in the Plan was 
based on the previous, smaller field study in the SJV, IMS 95, because 
the modeling from the CRPAQS field study was not complete at the time 
of the Plan approval. The proposed modeling analysis based on CRPAQS 
will better characterize the interaction of precursors to form 
secondary particulates, because of the more robust CRPAQS database and 
the more extensive CRPAQS modeling approach.
    Responses to comments regarding individual precursors are addressed 
below.
1. Ammonia
    Comment 1: Earthjustice comments that all available evidence 
supports that ammonium nitrate is a significant contributor to fall and 
winter PM exceedances. CRPE comments that ammonium nitrate represents a 
significant amount of the total PM-10 concentration, and represents the 
largest amount of PM-10 during the winter. CRPE comments that the Plan 
itself concedes that ammonia reacts with other precursor emission to 
form ammonium nitrate during the winter.
    Response: EPA concurs that ammonium nitrate is a significant 
contributor to violations of both the 24-hour and annual PM-10 
standards in the SJV. Ammonium nitrate, a secondary particulate, is not 
directly emitted, but formed as a product of a series of chemical 
reactions which involve ammonia (NH3), NOX, and many other 
components. EPA believes that the Plan will effectively reduce ammonium 
nitrate by controlling NOX, and that controlling ammonia in 
addition to NOX will not accelerate the attainment date for 
PM-10 in the SJV. EPA also believes that the effect of controlling 
ammonia on ammonium nitrate is less clear than the effect of 
controlling NOX at this time, for several reasons. The 
current emission inventory and control strategies for ammonia have a 
greater uncertainty than the NOX emission inventory and 
control strategies. For NOX, the control technology and 
management practices are better understood and well established. In 
addition, analysis of ambient air quality data in the SJV indicates 
that ammonia is relatively abundant throughout the SJV and, therefore, 
controlling ammonia in addition to NOX controls, will not 
effectively reduce ammonium nitrate, because it is not the limiting 
pollutant. As discussed below, the current data suggest that 
controlling ammonia may be neither an efficient nor an effective 
approach to reducing ammonium nitrate concentrations in the SJV.
    As discussed elsewhere in response to comments on the emissions 
inventory, EPA believes that the Plan's emissions inventory for ammonia 
reflects the current state of scientific knowledge. EPA also believes, 
however, that both ammonia emission factors and ammonia source surveys, 
and thus the ammonia inventory itself, have a high degree of 
uncertainty. This is because the ammonia inventory is dominated by 
emission sources--such as dairy, beef, poultry, fertilizer, and soil--
that have not been extensively sampled in the past, and that are 
inherently difficult to measure even with the most sophisticated and 
expensive techniques.\3\ This sharply contrasts with the confidence 
level associated with quantifying emissions of NOX, a gas 
which is emitted primarily by stationary and mobile source combustion 
and which can therefore be accurately measured through stack or 
tailpipe tests.
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    \3\ Surface isolation flux chambers are generally used to 
collect field samples of ammonia sources. These samples are then 
evacuated for laboratory analysis. For livestock waste, the flux 
chambers need to be stationed at representative locations to sample 
liquid and solid waste at various ages and under various exposure 
conditions. See ``Results of the Measurement of PM10 Precursor 
Compounds from Dairy Industry Livestock Waste,'' Air Toxics Limited, 
C.E. Schmidt and E. Winegar, June 1996. This report was prepared for 
the South Coast Air Quality Management District (SCAQMD), and is 
currently available at: http://www.aqmd.gov/rules/proposed/r1127/index.html.
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    For example, a calculation of net ammonia emissions from soil would 
need to measure on a seasonal basis both ammonia emissions and ammonia 
uptake considering such factors as soil

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type, climatic variables, soil moisture, vegetative coverage, etc. The 
accurate quantification of livestock emissions depends on survey data 
and emissions measurement on a seasonal basis of various animal types, 
ages, and residency times; animal and waste handling practices (such as 
types of commercial feed or range feeding, stable housing, manure 
spreading, and waste storage); climatic and soil variables, etc.\4\
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    \4\ For a discussion of these and other challenges associated 
with quantifying livestock emissions in California and the progress 
to date in addressing the issues, see: ``Air Emissions Action Plan 
for California Dairies'', a report of the Ad hoc Dairy Subcommittee 
of the San Joaquin Valley Unified Air Pollution Control District. 
(May 2003, available at: http;//www.arb.ca.gov/planning/agriculture/cafowg/dairy062503.pfd., Memo from Patrick Gaffney, ARB, entitled 
``Updating Livestock Emissions for California'' (October 1, 2003); 
and ARB's ``Interim Draft Livestock Husbandry'' emissions factors 
(October 2003), both available at: http://www.arb.ca.gov/emisinv/areasrc/drftmeth.htm. The last of these documents summarizes the 
current state of knowledge relating to livestock emissions: 
``Currently, there are not TOG [total organic gases] or ROG 
[reactive organic gases] emission factors for livestock that are 
based on recent or California specific test data. However, even in 
the absence of good quality emission factors, it is necessary to 
estimate livestock TOG and ROG emissions. In order to meet the 
regulatory requirements for livestock emission estimates, interim 
emission factors were used. These factors are quite old, have many 
shortcomings, and have very little field or laboratory data to 
support them. The current emission estimates are intended as 
placeholders to help begin identifying the gross magnitudes of 
livestock air emissions.'' (Page x.xx-2). See also a report 
commissioned by the SCAQMD: ``Literature Survey & National 
Programs--Livestock Waste Management Practices Survey & Control 
Option Assessment,'' Tetra Tech, Inc., March 2003. This SCAQMD 
report is currently available at the Web address in the previous 
footnote. Additional information on ammonia emissions from animal 
husbandry operations can be found in EPA's recently released draft 
report entitled, ``National Emissions Inventory--Ammonia Emissions 
from Animal Husbandry Operations.'' The draft report includes 
emission estimates from animal production facilities in the U.S. for 
the years 2002, 2010, 2015, 2020, and 2030. While the data updates 
past emission estimates, there are important limitations on the use 
of the data, including the limited number of emission measurements. 
The draft report can be found at--http://www.epa.gov/ttn/chief/net/2002inventory.html#animal
    While the data updates past emission estimates, there are 
important limitations on the use of the data, including the limited 
number of emission measurements. The draft report can be found at--
http://www.epa.gov/ttn/chief/net/2002inventory.html#animal.
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    These difficulties and complexities in quantifying baseline ammonia 
emissions, particularly over an area as large and diverse as the SJV, 
make it difficult to quantify the benefits of possible ammonia control 
strategies. In addition, although there are many groups now assessing 
various ammonia emission reduction approaches, there are few completed 
scientific studies of the potential effectiveness of ammonia control 
technologies and control techniques at this time, and no extended 
record documenting the actual costs and benefits of regulatory control 
programs in effect for ammonia. Moreover, the costs and benefits of 
most ammonia control approaches must be assessed on a region-specific 
basis, since the assessment would need to take into account fundamental 
differences from one area to another in terms of the affected 
industries, the availability of control options, and variations in 
critical conditions, such as soils and soil coverage, temperature, 
windspeed, and humidity.\5\
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    \5\ As part of a lengthy rule development process, the SCAQMD 
has collected information on the costs and benefits of reducing 
ammonia emissions from composting and from livestock waste within 
the South Coast (metropolitan Los Angeles area), evaluating in 
particular those control approaches reflected in the SCAQMD's Rules 
1133, 1133.1, and 1133.2 (a series of composting rules adopted on 
January 10, 2003) and in SCAQMD's proposed rule 1127 (livestock 
waste). See, for example, ``Survey Current Livestock Waste 
Management Practices in the South Coast Air Basin,'' Tetra Tech, 
Inc., January 2002; and SCAQMD ``Preliminary Draft Staff Report: 
Proposed Rule 1127--Emission Reductions from Livestock Waste,'' 
November 20, 2002. These reports are currently available at the web 
address in the footnote above. Although some of this information may 
be applicable to the SJV, much of the data is specific to the South 
Coast and would need to be replaced with SJV data during a 
rulemaking process.
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    Data analysis for the SJV indicates that the Valley is relatively 
rich in ammonia and, therefore, reductions of ammonia are not likely to 
be effective. Data analysis is based on measured concentrations of 
precursors in the ambient air. Therefore, despite the uncertainties in 
the emission inventory, data analysis can provide an understanding of 
the relationship of the concentrations of the precursors in an area, 
and the effect of control strategies of precursors will have on the 
concentration levels of ammonium nitrate. Ammonium nitrate is a 
secondary pollutant formed through the neutralization of nitric acid by 
ammonia. Based on a molar comparison of the observed ion data, the 
amount of ammonium needed if all the sulfate and nitrate were ammonium 
sulfate and ammonium nitrate can be calculated. In an area where 
ammonia concentrations are high relative to the concentrations of 
nitric acid (which is produced from NOX and VOC), reducing 
ammonia will not effectively reduce ammonium nitrate. In areas where 
the ammonia concentrations are relatively low, reducing ammonia 
concentrations will effectively reduce ammonium nitrate.
    Data analysis results from several investigators support the 
conclusion that SJV is ammonia rich. Based on the thermodynamic 
equilibrium of ammonium nitrate and sulfate formation, CARB concluded 
that there was no ambient ammonia deficiency during the IMS 95 
episode.\6\ Hence, ammonia is in excess and initial reductions in 
ammonia concentrations will not reduce ammonium nitrate. Independent 
data analysis performed by Dr. Chu at EPA concluded that ``the high 
ammonium nitrate particle concentrations observed in the winter in San 
Joaquin Valley are not limited by the available ammonia emissions.'' 
\7\ Preliminary data analysis from the CRPAQS study also indicates that 
``nitrate formation in the San Joaquin Valley Air Basin (SJVAB) is not 
likely to be limited by ammonia availability.'' \8\ The NARSTO 
assessment likewise concludes that for the San Joaquin Valley ``[t]here 
is typically an abundance of NH3 present.'' \9\
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    \6\ Plan at M-11.
    \7\ Shao-Hang Chu, Wintertime PM formation in San Joaquin 
Valley. Memorandum to Doris Lo, December 2003.
    \8\ Lurmann et al., in ``Phase Distributions and Secondary 
Formation During Winter in the San Joaquin Valley''.
    \9\ NARSTO at 10-12.
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    Although the UAM-Aero modeling presented in the plan indicates that 
ammonia reductions may result in lower concentrations of ammonium 
nitrate (secondary PM) in some areas of the SJV, because of the 
uncertainty in the ammonia inventory and the atmospheric chemistry, 
State and local air agency experts question these results. This is 
discussed in greater detail in the response to comment 9 below.
    Finally, EPA is also concerned that there is uncertainty about the 
effects of ammonia controls in areas such as SJV that have conditions 
conducive to the formation of acid fog. In such places, reductions of 
ammonia might serve to increase the exposure to a category of PM-2.5 
known as acid aerosols. Historical and present-day evidence suggests 
that acid aerosols may have both acute and chronic effects on human 
health.\10\
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    \10\ EPA has discussed its concerns with respect to exposure to 
acid aerosols in more detail in the criteria document for the new 
PM-2.5 NAAQS. See, U.S. EPA, Air Quality Criteria for Particulate 
Matter, vol. III at 12-253, April 1996 (EPA/600/P-95/0001cF).
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    These fundamental scientific and technical uncertainties regarding 
ammonia leave reasonable doubts regarding the extent to which ammonia 
reductions would contribute to PM-10 attainment in the SJV. The CRPAQS 
should resolve the question of whether ammonia and other possible 
precursors, including VOC and SOX, contribute significantly 
to PM-10 levels which exceed the standard in the SJV. In the

[[Page 30009]]

absence of the CRPAQS results, EPA believes that there is insufficient 
evidence to support a determination that ammonia is a significant PM-10 
precursor in the SJV. Thus, EPA is making the Agency's determination 
under CAA section 189(e) that sources of ammonia do not contribute 
significantly to PM-10 levels which exceed the standard in the SJV. If 
the CRPAQS shows that ammonia is a significant precursor, however, EPA 
will reevaluate this determination. At that point, ammonia could become 
subject to the various PM-10 and PM-10 precursor control provisions of 
the Clean Air Act, including BACM under section 189(b)(1)(B) and the 5 
percent requirement under section 189(d).
    In the proposed rule, EPA concurred with the 2003 PM-10 Plan's 
NOX/PM strategy based on the currently available information 
which includes a high degree of uncertainty regarding the ammonia 
inventory and the effects of ammonia controls. EPA agrees with the 
State and local agencies that this approach will not retard air quality 
progress in the SJV. The SJVUAPCD has made an enforceable commitment to 
submit a SIP revision by 2006 based on the CRPAQS results, including 
appropriate controls based on those results. 69 FR 5412, 5414. In the 
meantime, the area should achieve important reductions in ammonium 
nitrate PM-10 concentrations through a NOX-based strategy. 
Finally, EPA continues to believe that use of the CRPAQS has the 
potential to avoid wasteful imposition of controls that may be found to 
be not only expensive and dislocative but also unnecessary and 
ineffective in advancing PM-10 attainment in the specific circumstances 
applicable in the SJV.
    Comment 2: Earthjustice comments that if ammonia comprises 22.4% of 
the total mass of ammonium nitrate, this means that ammonia is 
contributing anywhere from 13 [mu]g/m3 to 22.4 [mu]g/m3 to total mass 
at each monitoring site.
    Response: Ammonium nitrate is a secondary particulate, a product of 
chemical reaction. Although ammonia participates in the series of 
reactions to form ammonium nitrate, it is not appropriate to determine 
the significance of the ammonia contribution to ammonium nitrate in 
isolation. The effect of ammonia emissions on the formation of ammonium 
nitrate is specific to each air basin. As presented in the response to 
comment 1 above, EPA believes that the Plan will effectively reduce the 
concentration of ammonium nitrate in the SJV by controlling 
NOX, and that controlling ammonia will not effectively 
reduce ammonium nitrate. Therefore, EPA believes that the Earthjustice 
calculation determining the ammonia contribution to ammonium nitrate 
for the purpose of determining significance is not appropriate.
    Comment 3: Earthjustice comments that more than 151,000 tons of 
ammonia are emitted from Valley sources and that ammonia must be 
regulated because EPA's guidance, CAA section 189(e) and the District's 
own data show that it is a significant contributor.
    Response: As stated above, EPA believes that the most effective way 
to reduce ammonium nitrate is by controlling NOX. As 
discussed in the above response, EPA is determining, based upon the 
best currently available information, that ammonia does not contribute 
significantly to PM-10 levels which exceed the standard in the SJV. If 
the results of CRPAQS indicate otherwise, EPA will revisit this 
determination.
    Comment 4: Earthjustice comments that the District's decision not 
to regulate PM-10 precursors other than NOX is based on 
results of sensitivity tests using the UAM-Aero to model the formation 
of secondary particles in the atmosphere. The Plan admits the data set 
was not ideal.
    Response: EPA concurs that the data set used for the UAM-Aero 
modeling was not ideal; however, it was the best available data set at 
the time of the Plan submittal and was sufficient to make the necessary 
determination. In addition, the determination of the efficacy of 
ammonia control was based on data analysis (Plan at Appendix M, M-11). 
This includes the preliminary data analysis based on the CRPAQS study, 
which captured high values of PM-10 and ammonium nitrate, and supports 
the conclusion that the SJV ammonium nitrate concentrations are not 
sensitive to reductions in ammonia. Modeling based on the more 
extensive CRPAQS field program will not be available until late 2005. 
As stated above, EPA believes that controlling NOX will 
effectively reduce ammonium nitrate. The District has made an 
enforceable commitment to reevaluate the 2003 PM-10 Plan with the 
results of CRPAQS and to submit a new plan to EPA by March 2006.
    Comment 5: Earthjustice comments that the Plan states that ``In 
rural sites where the ammonia concentrations are low, the Plan further 
admits that reductions of PM-10 almost entirely depend on ammonia 
controls.''
    Response: EPA believes that the commenter is misinterpreting the 
explanation of the graphic representation of the reduction strategies 
presented in the Plan. The Plan supports the conclusion that 
NOX reductions are the most effective strategy in rural 
areas at current levels of ammonia. The full context of the remark that 
the commenter points to is: ``The rural sites show sensitivity to only 
NOX reductions until the ammonia concentrations are very 
low. After that point the response becomes insensitive to 
NOX controls and almost entirely responsive to ammonia 
controls at higher NOX emissions.'' \11\ According to the 
information presented in Figure 6 of Appendix M-11 of the Plan, only 
after ammonia concentrations are reduced to a very low level do the 
ammonia controls become effective. Therefore, large reductions of 
ammonia would be required before ammonia reductions would become more 
effective than NOX controls in reducing ammonium nitrate. 
This is not the same thing as saying that ammonia reductions are the 
most effective or efficient means to attain the PM-10 NAAQS 
expeditiously, which is the goal of the Plan.
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    \11\ Plan at Appendix M-11.
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    Comment 6: Earthjustice comments that one of the District's 
rationales for not regulating ammonia is that ``there is too much 
uncertainty regarding the effects of ammonia controls.'' Plan at ES-16. 
This is unsupported by facts and EPA itself has commissioned studies 
documenting control efficiencies for various types of equipment 
designed to control emissions of ammonia.
    Response: EPA cannot find the same quote cited by Earthjustice at 
ES-16. On page ES-16, the Plan states that there is ``* * * uncertainty 
regarding ammonia emission controls to achieve attainment * * *,'' but 
EPA does not agree that the District is questioning the control 
efficiencies of the controls themselves on this page. As discussed 
above, however, EPA believes that there are some uncertainties 
concerning ammonia that support the District's position that it may be 
better to focus on NOX reductions at this time.
    Comment 7: Earthjustice comments that livestock waste is 
responsible for approximately 85% of ammonia emissions in the Valley. 
Sources of livestock waste must be presumed to contribute significantly 
to violations of the NAAQS because the contribution to the PM-10 impact 
in these areas is more than double EPA's standard of 5 [mu]g/m3 for the 
24-hour average at every site. In addition, Earthjustice states that 
SCAQMD Rules 1186 and 1127 reduce emissions from livestock waste and 
should be included in a BACM analysis for this source category.
    Response: As discussed in above responses, EPA has determined that

[[Page 30010]]

ammonia does not contribute significantly to PM-10 levels which exceed 
the NAAQS in the SJV. In addition, although the South Coast and SJV air 
basins each have relatively high levels of ammonium nitrate, the 
difference in the relative emission levels of precursors and the 
atmospheric conditions unique to each basin may lead to different 
optimal control strategies for each basin. EPA also notes that the 
SCAQMD does not claim ammonia reductions from Rule 1186, which is 
designed to reduce fugitive dust, and SCAQMD has not yet adopted Rule 
1127, which is currently scheduled for Board consideration in July 
2004.
    Comment 8: CRPE comments that the standard for requiring PM-10 
precursor controls is not whether precursor reductions effectively 
reduce PM-10, but rather whether the precursor itself contributes 
significantly to violations of the PM-10 NAAQS. Earthjustice comments 
that in its Addendum, EPA states that a source category ``will be 
presumed to contribute significantly to a violation of the 24-hour 
NAAQS if its PM-10 impact at the location of the expected violation 
would exceed 5 [mu]g/m3.'' Addendum at 42011. Earthjustice 
also comments that the Clean Air Act requires the regulation of major 
stationary sources of PM-10 precursors (CAA 189(e)) and that, like the 
South Coast, the SJV should take the prudent approach of regulating 
ammonia given the uncertainty.
    Response: As discussed in above responses, EPA is determining that 
ammonia does not contribute significantly to PM-10 levels which exceed 
the standard in the SJV. Although ammonium nitrate concentrations in 
the Valley are substantial, as discussed above, EPA has determined that 
NOX control is the most effective way to achieve the PM-10 
NAAQS. In addition, the commenter refers to the Addendum test for 
whether a source is presumed to be significant. That is not necessarily 
the test for whether a particular precursor is significant. Although 
the SJV and the South Coast air basins each have relatively high 
concentrations of ammonium nitrate, the meteorology and the emissions 
of each basin are different, leading to potentially different 
strategies in reducing ammonium nitrate. See responses in this section 
above and the District's ``Responses to Comments on the Draft 2003 Pm10 
Plan,'' 34.
    Comment 9: CRPE comments that the Plan states that for Bakersfield 
on January 6, 1996, reductions of NOX and ammonia are nearly 
equally effective in reducing nitrate concentrations. Earthjustice 
comments that the Plan admits that the UAM-Aero model shows that the 
``southern Valley shows a non-negligible sensitivity to ammonia 
reduction.'' CRPE comments that ammonia controls are equally effective 
as NOX controls in reducing ammonium nitrate in Fresno and 
Bakersfield.
    Response: The Plan at the section entitled ``Further Investigations 
to Assess Apparent Ammonia Limitation at Bakersfield on January 6, 
1996'' \12\ discusses the apparent disparity between the results of the 
data analysis and the modeling. Based on the thermodynamic equilibrium 
of ammonium nitrate and sulfate formation, the data analysis results 
indicate that there was no ambient ammonia deficiency at Bakersfield 
during the IMS 95 episode. The Plan indicates that ``[b]ased on 
sensitivity simulations we performed, we believe that this apparent 
ammonia limitation is due to the artificially low ammonia emissions in 
the Southern San Joaquin Valley.'' Because of the uncertainties in the 
ammonia emission inventory at this time, EPA believes that reliance on 
the ambient data analysis is more appropriate at this time. EPA expects 
that the results of the CRPAQS study will provide additional technical 
information and is approving the SJVUAPCD's commitment to re-evaluate 
the 2003 PM-10 Plan with the results of CRPAQS and to submit a new plan 
to EPA by March 2006. (69 FR 5412, 5414).
---------------------------------------------------------------------------

    \12\ Plan at Appendix M-11.
---------------------------------------------------------------------------

    Comment 10: The SJVUAPCD comments that according to the Plan, the 
preponderance of evidence indicates excess ammonia in nearly all of the 
cases, and therefore NOX-only control was determined to be 
the appropriate means to reduce ammonium nitrate. Peer-reviewed 
scientific journal articles and papers submitted to EPA as part of the 
SIP package for the PM-10 Plan support this position. The paper by 
Kumar, et al. (Analysis of Atmospheric Chemistry During 1995 Integrated 
Monitoring Study) found that of the 150 samples, 93% were ammonia rich.
    Response: For the reasons stated above in the response to comment 
1, EPA concurs with the SJVUAPCD that current evidence supports that 
NOX controls are the most effective approach to reducing 
ammonium nitrate in the SJV. EPA expects that the results of the CRPAQS 
study will provide additional technical information regarding the 
formation of ammonium nitrate in the SJV. EPA is approving the 
SJVUAPCD's commitment to re-evaluate the 2003 PM-10 Plan with the 
results of CRPAQS and to submit a new plan to EPA by March 2006.
    Comment 11: The SJVUAPCD comments that Lurmann et al., in ``Phase 
Distributions and Secondary Formation During Winter in the San Joaquin 
Valley'' noted that nitrate formation in the San Joaquin Valley Air 
Basin is not likely to be limited by ammonia availability. Although 
these results are preliminary, they are included here because they 
strongly support the peer-reviewed journal articles referenced above. 
CRPAQS data analysis is now underway, with results due in 2005.
    Response: EPA agrees that this paper represents the most current 
data analysis for the CRPAQS study, and supports the conclusion of the 
previous data analysis results that the NOX strategy is the 
most effective approach to reduce ammonium nitrate in the SJV.

2. VOC

    Comment 1: Earthjustice comments that the proposal to determine 
that VOCs ``do not significantly contribute'' to PM-10 NAAQS 
exceedances is inappropriate because it is based on the UAM-Aero 
modeling which relies on three days of data from 1996, during a period 
of unusually low PM levels.
    Response: EPA agrees that the IMS 95 database is not ideal; 
however, it was the best available data set at the time of the Plan 
submittal. The modeling presented in the Plan is based on the time 
period most representative of high PM-10 during the IMS 95 Study. 
Modeling based on the more extensive CRPAQS field program will not be 
available until late 2005. The District has made an enforceable 
commitment to reevaluate the 2003 PM-10 Plan with the results of CRPAQS 
and to submit a new plan to EPA by March 2006.
    The District's UAM-Aero modeling was used to determine the 
sensitivity of ammonium nitrate to VOC controls (whether VOC controls 
would increase or decrease the ammonium nitrate in the SJV). The 
chemical nature of the atmosphere is not likely to significantly change 
from one winter period to another and, therefore, the response of the 
atmosphere to reductions in VOC during the IMS 95 time period is likely 
to be similar to the response in different winter time periods. 
Therefore, despite the fact that the PM-10 levels were relatively low, 
the IMS 95 modeling is useful to determine the relative impact of VOC 
controls on the formation of ammonium nitrate.
    As part of the technical support for the Plan, CARB determined the 
expected response to emission reductions through modeling. The

[[Page 30011]]

sensitivity of ammonium nitrate concentrations to VOC controls is 
presented in the Plan (Appendix M, M-6). A 50% reduction of VOCs 
results in only a small reduction of ammonium nitrate concentrations 
throughout the modeling domain. Plan at Appendix M, M-10. This suggests 
that even with large reductions of VOC concentrations, the reduction of 
the concentrations of ammonium nitrate will be small.
    Comment 2: Earthjustice comments that there is evidence that VOCs 
have much to do with facilitating the rate of PM formulation in the 
Valley. To support this argument, Earthjustice refers to an analysis by 
Pun and Seigneur, (Pun and Seigneur C, Conceptual Model of Particulate 
Matter Pollution in the San Joaquin Valley. September 8, 1998 at 3-12).
    Response: EPA agrees that VOC plays a role in the formation of 
ammonium nitrate in the Valley. However, EPA believes that the control 
of VOC is not an effective method to reduce ammonium nitrate in the 
SJV. EPA has examined the analysis by Pun and Seigneur, as well as 
other material, in considering the efficacy of a VOC control strategy 
in the SJV. The Pun and Seigneur conceptual model is also based on the 
IMS 95 database, and is therefore subject to the same limitations as 
the photochemical modeling used in the Plan. In addition, Pun and 
Seigneur is based on a less sophisticated box model, and is subject to 
the limitations of a box model, compared to the more refined grid 
model, UAM-Aero, presented in the 2003 PM-10 Plan. The commenter 
overstates the conclusion of Pun and Seigneur with respect to the 
efficacy of VOC control. Although the paper states that the basin may 
be either NOX or oxidant sensitive, it does not conclude 
which of the precursors is most influential in the SJV:

    The ambient formation of HNO3 may be either NOX or 
oxidant sensitive. Although information regarding the dominant 
reaction was not available, indirect evidence from the diurnal 
profile of total nitrate (peak concentrations in the afternoon) 
seemed to indicate that the NO2 + OH reaction was an important 
nitric acid production route. Thus to understand which primary 
pollutants govern the formation of ammonium nitrate, we need to 
address the oxidation potential of the atmosphere and determine 
which pollutants (i.e., NOX or VOCS) are the most 
influential for the formation of oxidants in the system.

Although Pun and Seigneur raises the need to address the oxidation 
potential of the atmosphere and determine which pollutants are the most 
influential, it does not conclude that VOC controls are absolutely 
required in the SJV. The Plan's more refined modeling, based on the IMS 
95 study, discussed above, indicates that ammonium nitrate 
concentrations are not very sensitive to VOC control (Plan at Appendix 
M, M-6) in the SJV. In other words, VOC controls will not have as great 
an effect on PM formation. The CRPAQS study should provide an improved 
database for more definitive results regarding the effect of VOC 
controls in reducing PM-10 in the SJV.
    Comment 3: Earthjustice comments that the NARSTO report indicates 
``In the case of secondary winter PM nitrate in the SJV * * * nitrate 
formation is thought to be sensitive to VOC concentrations in many 
urban areas.'' The report opines:

    Reductions in NOX may not be the best course of 
action for reducing particulate nitrate in the possible VOC-
sensitive wintertime condition. Box model simulations indicate that 
NOX reductions may have the counterintuitive effect of 
increasing particulate nitrate formation during winter (Pun and 
Seigneur, 2001). Therefore, coordinated efforts will be required to 
formulate control strategies beneficial to both ozone and PM air 
quality.
    Response: We believe that the NARSTO report's conclusions are 
subject to several limitations. They are based on ``Sensitivity of 
Particulate Matter Nitrate Formation to Precursor Emissions in the 
California San Joaquin Valley,'' Pun and Seigneur, 2001.\13\ As 
mentioned above, this study is based on the IMS 95 field study and 
therefore is subject to the same database limitations as the UAM-Aero 
modeling included in the Plan. In addition, Pun and Seigneur, 2001 is 
based on a less sophisticated box model, and is subject to the 
limitations of a box model compared to the more refined grid model, 
UAM-Aero, presented in the 2003 PM-10 plan. Pun and Seigneur conclude:

    \13\ Pun, B. and Seigneur, C. ``Sensitivity of Particulate 
Matter Nitrate Formation to Precursor Emissions in the California 
San Joaquin Valley,'' Environ. Sci. Technol., 2001, 35, 2979-2987.

    It should be noted that the box model represents some domain-
average chemistry but cannot characterize the locally specific 
chemical regimes. Other assumptions include stagnant conditions and 
aloft carry-overs of gaseous and PM pollutants. Further work should 
extend this box model analysis to a three-dimensional modeling study 
so that transport processes can be simulated and the spatial 
variability of the response of PM to precursors can be addressed. 
However, an extensive reliable database is needed for the 
application of a 3-D model. The forthcoming California Regional PM 
---------------------------------------------------------------------------
Air Quality Study (CRPAQS) database may provide such an opportunity.

While Pun and Seigneur indicates that the San Joaquin Valley air basin 
should not be sensitive to ammonia concentrations and may be sensitive 
to VOC, each of these conclusions is subject to the limitations of the 
investigation. EPA concurs that it is important to extend this analysis 
to a three dimensional modeling study using a more extensive database. 
In the Plan, CARB has presented a more refined modeling analysis based 
on a three-dimensional model. The results of that modeling exercise 
indicate that nitrate concentrations are not very sensitive to VOC 
concentrations (Plan at Appendix M, M-6). Therefore, control of VOC 
will not be as effective as NOX control. The forthcoming 
CRPAQS database will provide a more extensive, reliable database to 
support additional modeling. EPA expects that the modeling results of 
the CRPAQS study will provide additional technical information and is 
approving the SJVUAPCD's commitment to re-evaluate the 2003 PM-10 Plan 
with the results of CRPAQS and to submit a new plan to EPA by March 
2006. 69 FR 5412, 5414.
    Comment 4: Earthjustice comments that the VOC emissions are 
probably underestimated for the SJV and that it is irresponsible of the 
Plan to not include controls for livestock waste, a significant VOC 
source, when the negative effects of VOC pollution are well-known. 
Furthermore, Earthjustice points out that the South Coast Air Quality 
Management Plan relies on VOC reductions to attain the PM-10 standard 
and that the SJV should, as the South Coast has, take the prudent 
course of action by including VOC reductions.
    Response: As discussed above, EPA has determined that for the 
purposes of section 189(b)(1)(B) and (e), VOC does not contribute 
significantly to PM-10 levels which exceed the standards in the SJV. 
While the South Coast and the SJV each have a high level of ammonium 
nitrate, the air basins are quite different in terrain, meteorology, 
and emissions. In addition, the South Coast is primarily an urban area, 
while the SJV is a mix of rural and urban areas. Differences in 
relative emissions of precursors and the atmospheric conditions unique 
to each basin lead to different optimal control strategies for each 
basin.
    Comment 5: Earthjustice comments that EPA's proposal to find that 
VOCs ``do not significantly contribute to PM-10 levels which exceed the 
standard'' may make it extremely difficult to regulate CAFOs at all 
under SB 700, which contains provisions requiring the District to show 
that either source categories of agricultural practices ``cause or 
contribute to violations of an ambient air quality standard'' before

[[Page 30012]]

issuing a permit or BACM/BACT analysis.
    Response: As discussed above, EPA has determined that VOCs do not 
significantly contribute to PM-10 levels which exceed the standard; 
however, the CRPAQS results may change this determination. In addition, 
VOC reductions may be necessary for ozone attainment, and the 
determination with respect to PM-10 does not alter that fact.
    Comment 6: One commenter (D. Moralez) inquires about whether the 
determination that VOC controls will not lead to PM-10 reductions was 
made based on stationary controls under the District's jurisdiction or 
whether other sources such as pesticides, fertilizers and insecticides 
were included. The commenter recommends including these sources in the 
evaluation.
    Response: EPA believes that all of the source categories mentioned 
by the commenter were included in the District's evaluation.
3. SOX
    Comment 1: Earthjustice comments that secondary ammonium sulfate 
can be a significant contributor to PM-10 concentrations in certain 
locations and at certain times of year, yet the Plan contains no 
controls on SOX. Pun and Seigneur at 3-14 (ammonium sulfate 
third largest component of PM-2.5 at Kern).
    Response: EPA believes that the contribution of ammonium sulfate to 
the PM-10 24-hour and annual standards is small, approximately 3-4% of 
the total mass. The Pun and Seigneur paper indicates that ammonium 
sulfate was the third largest component of PM-2.5 at the Kern Wildlife 
Range:

    Although ammonium sulfate only accounted for 6% (<3.4 [mu]g/m\3\ 
at Kern Wildlife Refuge, <3.7 [mu]g/m\3\ at Bakersfield) of the PM-
2.5 measured during IMS 95 in the San Joaquin Valley, it was the 
third largest component at the rural site of Kern Wildlife Refuge.

    The relative contribution of ammonium sulfate to PM-2.5 differs 
from the contribution to PM-10. The percentage contribution of ammonium 
sulfate to PM-10 levels in the San Joaquin Valley is low, especially at 
the locations exceeding the PM-10 24-hour and annual standards. The 
Plan at Appendix N, N39-43 lists the sulfate mass determined by 
Chemical Mass Balance model, based on a chemical analysis of the 
filters on days when the PM-10 standards were exceeded. The 
contribution of the sulfate mass to the 24-hour standard ranges from 
2.7 to 7.2 [mu]g/m\3\, approximately 3.5 to 4% of the total PM-10 mass. 
The contribution of the sulfate mass to PM-10 concentrations violating 
the annual standard is 2.6 to 3.1 [mu]g/m\3\. Plan at Appendix N, N-11.
    Comment 2: Earthjustice comments that the SCAQMD regulates all PM-
10 precursors, including SOX.
    Response: The relative importance of ammonium sulfate in 
particulate matter in the South Coast Air Basin is not identical to the 
San Joaquin Valley Air Basin. The South Coast Air Basin has measured a 
maximum 24-hour sulfate concentration of 20.6 [mu]g/m\3\,\14\ 
substantially greater than the values of 2.7 to 7.2 [mu]g/m\3\ recorded 
for the SJV (see above). Because the technical analysis done for the 
SJV does not indicate that SO\2\ was a significant contributor to 
violations of the NAAQS in the SJV, it is not necessary to control 
SOX in the SJV to expeditiously attain the NAAQS.
---------------------------------------------------------------------------

    \14\ 2003 South Coast Air Quality Management Plan, page 2-21. 
http://www.aqmd.gov/aqmp/AQMD03AQMP.htm.
---------------------------------------------------------------------------

B. Emission Inventory

    Comment 1: Earthjustice comments that the emissions inventories are 
incomprehensible, that specific activity levels, emissions factors and 
models are only summarized in the Plan, and that the emissions factors 
are spread through numerous studies, memorandums and documents on a 
compact disk available only by request. Earthjustice cites EPA's TSD 
comment that the inventory ``is a massive collection of data and 
requires a great deal of time to review* * *'' but disagrees with EPA 
that the incomprehensibility is a ``minor comment.'' Earthjustice 
states that the inventories do not meet minimum data reporting 
documentation standards in EPA guidance, and thus should be returned to 
the State for modification.
    Response: The amount of data used to develop, maintain and update 
the emissions inventories for the SJV, a large and diverse area, is 
massive. The District and State have provided a detailed discussion of 
how the inventories are developed and summaries of the inventories in 
the 2003 PM-10 Plan.\15\ The reference documents, R1 and R2, are 
provided on a compact disk (CD-ROM) and include numerous spreadsheets 
with volumes of information. Providing these documents in hard copy 
would require vast amounts of paper.
---------------------------------------------------------------------------

    \15\ See Chapter 3, 2003 PM-10 Plan, Appendix B: Basin-Wide 
Summary of District's On-road Motor Vehicle Emissions Inventory; 
Appendix C: Updated Emissions Inventory Category Changes; Appendix 
D: Seasonal Emissions Inventories; Appendix J: Attainment 
Inventories; R1: Detailed Annual Emissions Inventories (CD-ROM); R2: 
Detailed Seasonal Emissions Inventories (CD-ROM).
---------------------------------------------------------------------------

    EPA believes that the information submitted to support the 
inventories is sufficient. The 2003 PM-10 Plan includes many summaries 
of the different types of inventories needed for the Plan, the compact 
disk provides the necessary documentation supporting how the 
inventories were derived, and supporting studies and memoranda 
regarding inventories are also included in the docket for this 
rulemaking. The State and District are also available to help 
interested parties find any supporting data for the inventories. While 
EPA notes the difficulty of evaluating these inventories due to the 
immense amount of information involved (see TSD, page 9) and the 
complexity of the airshed, EPA does not believe that the inventories 
are incomprehensible and need to be returned to the State. The 
summaries provided in the 2003 PM-10 Plan are very comprehensible and 
the supporting documentation on compact disk is available to any 
interested parties.
    Comment 2: Earthjustice comments that the Plan omits a number of 
critical pollution sources from the emissions inventory (i.e., 
cultivation emissions, agricultural and industrial bulk materials, 
poultry emissions, and windblown dust from orchard and vineyards). 
Earthjustice comments that the ammonia inventory is possibly 
underestimated due to using estimates (from Census of Agriculture) that 
may underestimate the number of poultry and cows. Earthjustice then 
comments that the emissions inventory lacks emissions from leaf blowers 
and general landscape and maintenance activities and that these 
emissions should be included in the Plan and not put off as ``further 
study measures.''
    Earthjustice also comments that there were numerous significant 
changes made to the inventories which are unjustified. Earthjustice 
states that drastic reductions in emissions for agricultural sources 
were made during 2002-2003 based on ``stakeholder suggestions'' rather 
than scientific evidence. Changes noted by Earthjustice include: 
agricultural land preparation emissions decreased by approximately 
20,000 tons per year of PM-10; almond shaking emissions factor (EF) 
decreased by ten times from 3.7 to 0.37; CARB's almond sweeping EF of 
13.1 pound PM-10/acre was rejected and replaced with a 3.7 EF; calf and 
heifer populations were excluded from dairy operation emissions; and 
changes were made to the internal combustion engine emissions, dropping 
it 275% from 47 tpd of NOX to 17 tpd of NOX.

[[Page 30013]]

Earthjustice also notes that EPA was ``surprised'' by the ``relatively 
low emissions estimates'' for sand and gravel and the Plan does not 
make any commitment to further address this.
    Response: As stated in the 2003 PM-10 Plan:

    Emission inventories are never considered to be entirely 
complete at one given time. * * * [I]nventories can always be 
improved with the use of better emission factors and activity data. 
The District, in cooperation with ARB, is committed to continually 
updating the emission inventory as research studies, emission factor 
updates, and other information become available. When emissions data 
change dramatically, the District is committed to revising the 
inventory and to ensuring that any impact is reflected in the 
control strategy and the attainment demonstration.

Plan at 3-4.
    EPA concurs with the above statement by the District. CAA section 
172(c)(3) requires a ``comprehensive, accurate, and current'' inventory 
of actual emissions from all sources; however EPA recognizes that 
inventories are not static, but are constantly being updated and 
renewed as new information, techniques and studies are made 
available.\16\ The State and District used the best available 
inventories at the time of plan development. If a State excludes any of 
the emission sources from its emission inventory, it must provide 
documentation on why the source(s) were excluded (PM-10 Emission 
Inventory Requirements, Final Report, September 1994, Prepared for: 
Emission Inventory Branch (MD-14), Sulfur Dioxide/Particulate Matter 
Programs Branch (MD-15), Office of Air Quality Planning and Standards, 
U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, 
page 20). CARB has provided additional information addressing why 
sources were emitted (April 21, 2004 memorandum from Sylvia Morrow and 
Patrick Gaffney to Kurt Karperos, Follow-up information on San Joaquin 
Valley PM10 Plan emission inventory issues raised in public comment 
(Morrow and Gaffney memo)) and EPA expects the inventory will be 
updated as part of the State and District's commitment to submit a new 
plan by March 2006. EPA generally relies on the State and local 
agencies to develop, maintain and update their inventories. CARB has a 
Web site with additional information on how California air districts 
create, maintain and use emissions inventories. The Web site is: http://www.arb.ca.gov/emisinv/district/districtresources.htm.
---------------------------------------------------------------------------

    \16\ Once a plan has been adopted, EPA does not generally 
require plan elements such as emissions inventories to be revisited 
and updated in response to new information. The U.S. Court of 
Appeals for the District of Columbia Circuit recently addressed a 
similar issue and affirmed EPA's position. Sierra Club v. EPA, 356 
F.3d 296 (D.C. Cir. 2004).
---------------------------------------------------------------------------

    For categories where Earthjustice is claiming that there are 
missing source category estimates, the Morrow and Gaffney memo provides 
additional discussion of how these emissions will not impact the 
attainment demonstration and how additional data may be obtained on 
these categories in the future. For categories where the emissions 
estimates have changed, generally going down, the Morrow and Gaffney 
memo provides additional discussion on what the lower estimates were 
based on and why they were used. The Morrow and Gaffney memo also 
addresses comments raised by D. Howekamp in a declaration supporting 
Earthjustice's comments. EPA has reviewed the 2003 PM-10 Plan's 
inventory and the Morrow and Gaffney memo and continues to believe that 
the Plan's inventory was the best available inventory at the time of 
Plan development and thus satisfies the CAA's requirement for a 
comprehensive, accurate, and current inventory. EPA expects that the 
District and State will include additional inventory revisions in their 
mid-course review due in March 2006.
    Comment 3: Earthjustice comments that the base year relied upon to 
determine de minimis levels is inconsistent and that different 
inventories are used in order to exempt sources. The Plastic and 
Plastic Products Manufacturing source category is provided as an 
example of a category whose de minimis determination is based on a 
different base year inventory (2003 PM-10 Plan, Table 4-8). In 
addition, they believe that federally approved control measures are 
necessary to ensure that de minimis source categories remain below the 
de minimis levels.
    Response: See section II.C.4. below.
    Comment 4: One commenter (LaSalle) states that emission estimates 
by CARB have been proven inaccurate. The commenter indicates that CARB 
estimates of dairy ROG emissions have historically been too high and 
CARB has failed to correct the problem.
    Response: As discussed above, the emission inventories are 
continually being improved and updated with new data. EPA believes that 
CARB and the District used the best available information at the time 
of plan development and understand that further refinements will be 
included in future plan submittals.

C. BACM Demonstration

1. Commitments for BACM/BACT
    Comment 1: Earthjustice comments that a large number of significant 
source categories, in addition to Ag-CMP-regulated sources, are not 
subject to adopted--or even proposed or identified--control measures. 
Until the relevant requirements are adopted--and no longer subject to 
change in the rule development process--for each of these source 
categories, EPA cannot conclusively determine that the Plan provides 
for the implementation of BACM/BACT for all significant sources of PM-
10 and PM-10 precursors. As a result, Earthjustice claims that full 
approval of the Plan is improper. Earthjustice cross-references its 
additional comments on commitments which are addressed in section II.H 
below.
    Response: Section 189(b)(1)(B) requires that serious area PM-10 
plans include ``[p]rovisions to assure that the best available control 
measures for the control of PM-10 shall be implemented no later than 4 
years after the date the area is classified (or reclassified) as a 
Serious Area.'' Nothing in this language either requires a state to 
have adopted controls in place before a SIP revision can be approved 
into its PM-10 plan or forbids the adoption of an enforceable 
commitment to meet the statute's BACM \17\ requirement.
---------------------------------------------------------------------------

    \17\ EPA has interpreted the BACM requirement in CAA section 
189(b)(1)(B) to include BACT. ``State Implementation Plans for 
Serious Areas, and Attainment Date Waivers for PM-10 Nonattainment 
Areas Generally; Addendum to General Preamble for the Implementation 
of Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998, 
42009 (August 16, 1994)(Addendum).
---------------------------------------------------------------------------

    Consistent with this statutory language, EPA has historically 
determined that an enforceable commitment to adopt and implement BACM 
in a SIP meets this statutory requirement since it constitutes a 
``provision to assure that BACM is implemented'' by a fixed deadline. 
As a result, the commenters' complaint that ``[b]y definition the plan 
fails to implement BACM/BACT for all source categories for which no 
developed control measures exist'' has no merit since the statute 
itself does not impose such a requirement. Because the statute does not 
define what is a ``provision to assure BACM is implemented,'' EPA may 
adopt an interpretation reasonably accommodated to the purpose of the 
statutory provision. Chevron U.S.A., Inc.

[[Page 30014]]

v. Natural Resources Defense Council, 467 U.S. at 842-44.\18\
---------------------------------------------------------------------------

    \18\ EPA's approach here does not represent any departure from 
prior Agency actions approving SIPs. See section II.H.
---------------------------------------------------------------------------

    In accepting enforceable commitments to meet the requirements of 
section 189(b)(1)(B), however, EPA has required states to undertake an 
analysis to ensure that the regulation ultimately adopted pursuant to 
the commitment will represent a BACM level of control. As we describe 
in our proposed rule, a state must determine the technical and economic 
feasibility of potential control measures for each of the significant 
source categories. 69 FR 5412, 5418. Thus the measure that is the 
subject of a commitment must describe generally the type and level of 
control to be adopted.
    Moreover, once the ultimate control measure is adopted and 
submitted to EPA, the Agency undertakes an additional evaluation to 
ensure that that measure meets the statute's BACM requirements. See, 
e.g., the Arizona rulemakings in which EPA initially approved as RACM 
\19\ a requirement in a state statute to adopt and implement best 
management practices for agricultural operations and subsequently 
determined that the rules adopted pursuant to the statute represented 
RACM/BACM. 64 FR 34726 (June 29, 1999); 66 FR 51869 (October 11, 2001); 
67 FR 48718 (July 25, 2002).
---------------------------------------------------------------------------

    \19\ CAA section 189(a)(1)(C) contains the same language as 
section 189(b)(1)(B) with respect to the implementation of RACM.
---------------------------------------------------------------------------

2. Agricultural Conservation Management Practices (Ag CMP) Program
    Comment 1: Earthjustice comments that the Ag CMP program exists 
only in conceptual form, accounts for a large portion of fugitive dust 
emissions in the SJV and fails to provide for BACM-level controls for 
several reasons.
    First, Earthjustice comments that the Ag CMP program requires 
growers to select only one CMP per category (e.g., categories include 
unpaved roads, land preparation, harvest, etc.) which violates the RACM 
and BACM standards. Earthjustice argues that the RACM process requires 
adoption of all RACM and a reasoned justification must be provided for 
any rejected measures. Allowing growers to select only one CMP per 
category would allow growers to avoid adopting all RACM.
    Response: As discussed in our proposed rule, the District has 
chosen to reduce emissions from agricultural sources with a program, 
i.e., the Ag CMP program, that provides more flexibility than a typical 
command and control regulation. 69 FR 5412, 5420. The District's 2003 
PM-10 Plan commits to adopt and implement a program that will achieve 
BACM level controls by a specific schedule and 33.8 tons of emissions 
reductions. The 2003 PM-10 Plan also states that:

[p]articipation in the Ag CMP program will be mandatory, but the 
growers will, by their own choosing, select measures most 
appropriate for their operation. The source categories include (1) 
unpaved roads, (2) unpaved vehicle/equipment traffic areas, (3) land 
preparation, (4) harvest, and (5) other--including windblown PM10 
from open areas, and agricultural burning * * *. Growers must select 
at least one management practice from each of the five categories. * 
* *

2003 PM-10 Plan, page 4-25.
    More than one management practice may be selected by a grower if it 
is technically and economically feasible, but a BACM level of control 
will vary from grower to grower. The plan points out that:

[e]missions from agricultural sources vary by many factors that are 
beyond the control of the grower. For example, drought conditions 
and related cuts in water deliveries can lead to increased fallow 
lands and more wind blown dust emissions. Market conditions can 
change quickly and can turn a profitable crop into a losing 
proposition. This limits the ability of growers to absorb the costs 
of controls in many cases.

Id.
    The regulatory approach selected by the District is similar to 
those adopted by the SCAQMD for the South Coast Air Basin and by the 
Arizona Department of Environmental Quality for the Phoenix (Maricopa 
County) PM-10 nonattainment area. See, e.g., discussion of the South 
Coast and Phoenix approaches at 66 FR 50252, 50268-50271 (October 2, 
2001) and 67 FR 48730 (July 25, 2002). As we have pointed out in the 
context of the Phoenix program, farming operations are inherently 
complex and highly variable and therefore PM-10 controls need to be 
tailored to individual circumstances. Moreover, there is a limited 
amount of scientific information concerning the emission reduction 
potential and cost effectiveness of the available and known control 
measures for agricultural operations. Therefore, EPA has previously 
concluded that, given this rudimentary state of knowledge, requiring 
more than one control measure cannot be technically justified and could 
cause an unnecessary burden on farmers. 66 FR 50268, 50269.
    We have also previously found that allowing sources the discretion 
to choose from a range of specified options is particularly important 
for the agricultural sector because of the variable nature of farming. 
As a technical matter, neither we nor the State is in a position to 
dictate what precise control method is appropriate for a given farm 
activity at a given time in a given locale. The decision as to which 
control method from an array of methods is appropriate is best left to 
the individual farmer. Moreover, the economic circumstances of farmers 
vary considerably. As a result, it is imperative that flexibility be 
built into any PM-10 control program for the agricultural source 
category whether that program is required to meet the RACM or BACM 
requirements of the Act. Id.
    Furthermore, a requirement that an individual source select one 
control method from a list, but allowing the source to select which is 
most appropriate for its situation, is a common and accepted practice 
for the control of dust. For example, in our PM-10 federal 
implementation plan (FIP) for Phoenix, we promulgated a RACM rule 
applicable to, among other things, unpaved parking lots, unpaved roads 
and vacant lots. The rule allows owners and operators to choose one of 
several listed control methods (pave, apply chemical stabilizers or 
apply gravel). 40 CFR 52.128(d).\20\ In programs allowing a choice of 
compliance methods, it is clearly not feasible to require a regulated 
source to provide a reasoned justification for choosing one option over 
another.
---------------------------------------------------------------------------

    \20\ See also SCAQMD Rule 403 (providing for alternative 
compliance mechanisms for the control of fugitive dust from 
earthmoving, disturbed surface areas, unpaved roads etc.). We 
approved this rule on December 9, 1998 (63 FR 67784). See also our 
approval of Maricopa County Environmental Services Department 
(MCESD) Rule 310 and Rule 310.01 as meeting the RACM/BACM 
requirements of the CAA (67 FR 48718, July 25, 2002) and EPA's 
proposed approval of Sections 90 through 94 of the fugitive dust 
regulations for Clark County as meeting those requirements (68 FR 
2954, January 22, 2003).
---------------------------------------------------------------------------

    As with the South Coast and Phoenix programs, EPA believes that the 
2003 PM-10 Plan's commitment described above, in our proposed rule and 
in the 2003 PM-10 Plan provides the flexibility necessary to allow for 
the variability in farming while still achieving a BACM level of 
control. Indeed, flexibility is more important in the SJV because of 
the far greater diversity and number of crops, acreage and soils. For 
example, in 1997, there were over 9 million acres farmed in the SJV as 
compared to approximately 700,000 acres in Maricopa County.\21\

[[Page 30015]]

Moreover, in 2002, there were 350 crops grown in California, 77 of 
which were found in large-scale commercial operations, and there were 
significant livestock and poultry operations. Six of the 10 
agricultural counties in California are in the SJV.\22\ In contrast, in 
Maricopa County in 2002, five crops (cotton, wheat, corn, alfalfa and 
hay) comprised 83.6% of the acres farmed.\23\
---------------------------------------------------------------------------

    \21\ 1997 Census of Agriculture, California Agricultural 
Statistics Service and Arizona Agricultural Statistics Service, U.S. 
Department of Agriculture (USDA).
    \22\ 2002 California Department of Food and Agriculture Resource 
Directory.
    \23\ 2002 Arizona Agricultural Statistics Service, USDA.
---------------------------------------------------------------------------

    EPA also believes that the SJV Ag CMP approach is consistent with 
CAA section 172(c)(1) requiring the implementation of all RACM. EPA has 
long provided for certain limitations on that requirement. For example, 
EPA has not required the implementation of measures that would not 
advance attainment or measures for source categories that are de 
minimis. See 57 FR 13498, 13540, 13560 (April 16, 1992). These 
limitations have been upheld by the courts. See, e.g., Ober v. Whitman, 
243 F.3d 1190 (9th Cir. 2001) and Sierra Club v. EPA, 294 F.3d 155 
(D.C. Cir. 2002). Similarly, and for the reasons discussed above, EPA 
has concluded that requiring more than one measure for the agricultural 
sector is not currently reasonably available.
    Comment 2: Earthjustice claims that the Ag CMP program does not 
meet BACM requirements since BACM is more stringent than RACM.
    Response: When a moderate area is reclassified to serious, the 
requirement to implement RACM in section 189(a)(1)(C) remains. Thus, a 
serious area PM-10 plan must also provide for the implementation of 
RACM as expeditiously as practicable to the extent that the RACM 
requirement has not been satisfied in the area's moderate area plan.
    However, we do not normally conduct a separate evaluation to 
determine if a serious area plan's measures also meet the RACM 
requirements as interpreted by us in the General Preamble at 13540. 
This is because in our serious area guidance (Addendum at 42010), we 
interpret the BACM requirement as generally subsuming the RACM 
requirement (i.e. if we determine that the measures are indeed the 
``best available,'' we have necessarily concluded that they are 
``reasonably available''). Therefore, when, as here, a control measure 
is being developed to meet both the RACM and BACM requirements, a 
separate analysis to determine if the measures represent a RACM level 
of control is not necessary. In such a case, the usual progression from 
RACM to the generally more stringent BACM does not occur. The SJV is 
not unique in this respect. In the Phoenix area we approved State 
legislation and, subsequently, a general permit rule, for the 
agricultural sector as meeting both RACM and BACM requirements. See 
discussion at 66 FR 50252, 50254-50255.
    Comment 3: Earthjustice comments that since there is no emission 
reduction target there is nothing to prevent operators from selecting 
only the least effective measure in a category when other more 
effective and feasible measures may be available. At a minimum, 
operators should be required to implement the most effective measure 
from each category to meet BACM standards.
    Response: As stated previously, the 2003 PM-10 Plan commits to 
achieve a BACM level of control by reducing PM-10 emissions for the 
overall agricultural category by 33.8 tons per year by 2010. 2003 PM-10 
Plan, 4-29. For the reasons discussed in our response to the previous 
comment, flexibility is needed in any program controlling agricultural 
sources. The Ag CMP program will require at least one measure from each 
of the five categories under the program, thus, where it's economically 
and technically feasible, more than one measure may be implemented.
    Comment 4: Earthjustice comments that exemptions found in Draft 
District Rule 4550 (i.e., agricultural operations of less than 100 
acres from the CMP program and animal feeding operations of various 
sizes) are not justified. Exemptions should be based on whether there 
is a de minimis contribution to the PM-10 problem and no demonstration 
is made as to whether or not these smaller sources can not be included. 
Comments also point out that smaller exemptions are found in other 
areas.
    Response: EPA has been working closely with the District during the 
development of Rule 4550 to ensure that the Ag CMP program will achieve 
a BACM level of control. That rule, however, is not the subject of this 
rulemaking. We will thoroughly evaluate the rule once it has been 
adopted by the District and submitted to us. Earthjustice will of 
course be able to comment on any rulemaking action EPA may take on Rule 
4550.
    EPA notes, however, that small quantity exemptions can be justified 
on an economic basis. Thus, even if sources smaller than 1 acre result 
in significant emissions, if control costs are too high, the BACM 
requirement may be deemed met with no control. Addendum at 42010. Most 
federally-enforceable prohibitory rules have some sort of analogous 
small quantity exemption. See, for example, 40 CFR 60.32b(a), 40 CFR 
63.100(b)(4); District Rule 4305.2.1.
    Comment 5: Earthjustice comments that the Ag CMP program does not 
require BACM for agricultural windblown dust. Windblown dust is one of 
the most significant contributors to PM-10 in the SJV. Under the CMP 
program, windblown dust requirements are combined with other categories 
such as agricultural burning which is already subject to existing 
District rules and Senate Bill 705. Nothing prevents an operator from 
satisfying the CMP program by only complying with the agricultural 
burning requirements. Further, there is no evaluation of the Coachella 
Valley windblown dust measures.
    Response: The District's meteorological analysis of wind speeds 
associated with PM-10 exceedances found that the exceedances largely 
occurred during periods of low winds and stagnant conditions in the 
fall and winter. 2003 PM-10 Plan, ES-10, 5-6; see also section II.L. 
below. Thus, windblown dust is not generally considered to be a 
significant contributor to PM-10 exceedances in the SJV and EPA 
believes that windblown dust measures are therefore not necessary for 
attaining the PM-10 standards.
    The District recognizes, however, that there may be specific 
localized situations that warrant windblown dust measures and has 
included them in the Ag CMP program so that growers will have the 
flexibility to use them as needed (as well as in District Regulation 
VIII).
    Comment 6: Earthjustice comments that Draft Rule 4550 fails to set 
forth criteria by which the air pollution control officer (APCO) will 
implement the Ag CMP Program. Draft Rule 4550 currently allows the APCO 
to weaken the Handbook, grant exemptions from the program, or to 
increase the number of control categories, all without public input or 
a SIP revision. Commenters believe that the CMP plans should be 
available for public review (to same degree as CAA Title V or operating 
permits are), should contain a mechanism to ensure citizens are able to 
verify that growers are participating and the CMP plans are being 
implemented, and that adjustments to rule applicability thresholds are 
subject to public review.
    Response: See our response to the previous comment. EPA is working 
with the District as it develops Rule 4550 to ensure that the Ag CMP 
program will achieve a BACM level of control. While Rule 4550 is not 
the subject of today's

[[Page 30016]]

action, we note that the most recent draft limits the discretion of the 
APCO.
    Comment 7: Earthjustice comments that the Ag CMP Program must 
contain actual control measures. The ``Ag CMP List'' must be included 
as part of Rule 4550 in order to allow citizens to challenge the 
substantive components of the list. Because EPA concedes that the lists 
were not available for EPA review for the proposal and without the 
lists, Earthjustice believes there is no basis for EPA's conclusion 
that the Ag CMP program will achieve a BACM level of control (or even a 
RACM level). EPA justifies that the Ag CMP program's program 
description and similarity to other EPA approved programs is enough to 
satisfy BACM, but Earthjustice believes this comparison must rely on a 
comparison of actual requirements. Since there are no adopted measures 
for the Ag CMP program, Earthjustice believes EPA cannot approve the 
program as BACM. Further, Earthjustice notes that EPA's approval of 
Maricopa's best management practices (BMP) general permit rule as BACM 
was based on a rule that was adopted and already approved as RACM.
    Response: EPA believes that the Agency can approve, as meeting the 
CAA's BACM requirement, the commitment to adopt and implement the Ag 
CMP Program based on the description provided in the 2003 Plan. As 
discussed previously in section II.C.1. above, we believe that section 
189(b)(1)(B) does not require that BACM be in the form of an adopted 
rule. Moreover, the Plan, pages 4-23 to 4-29, contains a detailed 
description of the scope of the program. EPA believes that the Plan's 
commitment to implement a BACM level of control for agricultural 
sources is sufficient to satisfy the BACM requirement. EPA will 
continue to work with the District as it develops Rule 4550 to ensure 
that the Ag CMP program will achieve a BACM level of control.
    In fact, the history of the control of agricultural operations in 
Maricopa County, alluded to by the commenter, is instructive. In August 
1988, EPA promulgated a FIP for the Phoenix PM-10 moderate 
nonattainment area.\24\ Among other things, the FIP provided for the 
implementation of RACM for agricultural fields and aprons via an 
enforceable commitment to propose and finalize adoption of RACM for 
those sources in September 1999 and April 2000, respectively. In the 
preamble to the rule EPA explained that the Agency intended to convene 
a stakeholder process to develop the specific RACM that would 
ultimately be proposed for adoption and that EPA intended the RACM to 
take the form of BMPs. 63 FR 41326 (August 3, 1988). Thus, rather than 
an adopted regulation, EPA promulgated a commitment accompanied by a 
conceptual description of the program to meet the CAA's RACM 
requirements.
---------------------------------------------------------------------------

    \24\ The area was subsequently reclassified as a serious PM-10 
nonattainment area. 61 FR 21372 (May 10, 1996).
---------------------------------------------------------------------------

    In 1997, Arizona passed legislation establishing an Agricultural 
BMP Committee and directing the Committee to adopt by rule by June 10, 
2000, an agricultural general permit specifying BMPs for reducing PM-10 
from agricultural activities. The legislation also required that 
implementation of the agricultural controls begin by June 10, 2000 with 
an education program and full compliance with the rule be achieved by 
December 31, 2001. See Arizona Revised Statutes (A.R.S.) 49-457. On 
June 29, 1999, we approved the legislation as meeting the RACM 
requirements of the CAA and withdrew the FIP commitment to adopt and 
implement RACM for agricultural fields and aprons in the Maricopa area. 
64 FR 34726. While more extensive than the FIP commitment, the 
legislation approved by EPA as meeting BACM is less detailed than the 
Ag CMP Program provisions in the SJV 2003 Plan.
    While we approved the Arizona legislation as RACM, it was the 
State's intent that it also serve as BACM for agricultural sources in 
the serious area PM-10 plan. After a series of meetings during 1999 and 
2000, the Agricultural BMP Committee adopted the agricultural general 
permit rule and associated definitions, effective May 12, 2000, at 
Arizona Administrative Code (AAC) R18-2-610, ``Definitions for R18-2-
611,'' and 611, ``Agricultural PM-10 General Permit; Maricopa PM10 
Nonattainment Area'' (collectively, general permit rule). The general 
permit rule contains the BMPs that regulated sources are required to 
regulate. We approved the general permit rule as meeting the CAA 
requirement for RACM on September 10, 2001 (66 FR 34598) and for BACM 
on July 25, 2002 (67 FR 48718).
    Thus, in the Phoenix area, the development of RACM/BACM controls 
took a number of years and evolved from a simple commitment to adopt 
and implement RACM to a fully developed general permit rule with 
specific BMPs that provides for a BACM level of control. The evolution 
from a commitment through an expanded conceptual approach to the final 
rule was necessary for a number of reasons, chief among them that the 
agricultural sector had traditionally been unregulated. As such, 
extensive stakeholder input, among other things, was absolutely 
essential. In the SJV, the development of a mature regulatory program 
is necessarily following a similar path from concept to specific 
controls.
    Comment 8: One commenter (D. Moralez) inquires about the mechanism 
for including VOC controls in the Ag CMP program. Commenter also 
recommends a recordkeeping requirement for pesticides and other VOC-
containing materials applied to agricultural crops in the Ag CMP 
program.
    Response: The 2003 PM-10 Plan does not include VOC reductions from 
the Ag CMP program. The District will be developing their ozone plan in 
coming months which may address VOC emissions from pesticides.
3. Ag Crop Processing Losses and Ag Products Processing Losses
    Comment 1: Earthjustice comments that the Plan fails to implement 
BACM for agricultural crop processing losses and agricultural products 
processing losses. The Plan has identified these as significant source 
categories. As a result, it is not sufficient that the Plan merely 
states the District's unenforceable intention to update these inventory 
items.
    Response: After the close of the comment period, we discussed this 
and other comments with District staff and received copy of a March 30, 
2004 memorandum from George Heinen (SJVUAPCD) to Scott Nester 
(SJVUAPCD) regarding, ``EPA questions on 2003 PM10 Attainment 
Demonstration Plan'' (SJVUAPCD's 3/30/04 memo). As discussed in this 
memo, these categories were vestiges of past emission inventory 
practices and encompassed field activities (crop processing) and post-
harvest activities (product processing). Implementation of BACM for the 
field activities is addressed by other components of the Plan, 
including the Conservation Management Practice program and state and 
federal mobile source controls. Implementation of BACM for the post-
harvest activities, which are primarily stationary heat sources, is 
also addressed by other components of the Plan, including SJV Rule 4306 
(boilers, steam generators and process heaters), commitment C (dryers), 
and commitment I (small boilers, steam generators and process heaters). 
2003 PM-10 Plan, 4-23. The statement in the Plan regarding inventory 
improvements was not intended as a demonstration of BACM 
implementation.

[[Page 30017]]

4. Plastics and Plastic Products Manufacturing Sources
    Comment 1: Earthjustice comments that the Plan fails to implement 
BACM for plastics and plastic products manufacturing sources. The Plan 
does not demonstrate that the regulations adopted in 2000 fulfill BACM 
nor does the Plan justify that it is appropriate to use an inventory 
for a different year in evaluating emissions from this category as de 
minimis. Furthermore, the Plan does not demonstrate that emissions from 
this source category will be de minimis in future years, when emissions 
are projected to increase.
    Response: SJVUAPCD's 3/30/04 memo explains that after the Plan was 
developed, the District determined that emissions had been 
overestimated for this source category. It appears that the 1.5 tons 
per day (tpd) emission estimate was based on obsolete inventory methods 
preceding consolidation of the eight county air pollution control 
districts into the SJVUAPCD. SJVUAPCD's current emissions estimate, 
based on information for each of the specific sources within the 
category, is 0.07 tpd of PM-10. We believe that this information is 
derived from a more accurate methodology than the 1.5 tpd estimate and 
is well below the de minimis level of .9 tpd for PM-10. 2003 PM-10 
Plan, pages 4-14 to 4-15.
5. Cotton Gins
    Comment 1: Earthjustice comments that the Plan fails to implement 
BACM for cotton gins. The Plan merely describes various measures that 
could be adopted to implement BACM, and does not even clearly commit to 
specific requirements.
    Response: We agree that the description of this control measure on 
page 4-30 of the Plan does not explicitly commit to specific 
requirements for cotton gins. However, language on pages 4-22, 4-23 and 
4-30 clearly and explicitly commits to 1.5 tpd of NOX 
emission reductions from this category. SJVUACPD's 3/30/04 memo 
explains that the 1.5 tpd commitment was based on an assumption that 
high efficiency 1D-3D and 2D-2D cyclones would be required of existing 
sources. EPA's TSD noted that 1D-3D cyclones are considered BACT when 
issuing permits for new and modified sources in the SJV. BACT 
determinations associated with permits for new and modified sources are 
generally at least as stringent as BACM for existing sources because it 
is generally more cost effective to control new sources than existing 
sources. The Plan committed to adopt BACM requirements for cotton gins 
by the 4th quarter of 2004. SJVUAPCD has drafted Rule 4204 to regulate 
cotton gins, held workshops on the draft rule, and appears on schedule 
for 4th quarter 2004 adoption. The April 6, 2004 draft staff report for 
Rule 4204 includes analysis of several alternative control strategies 
(e.g., rotary drum filters, mechanical conveyors and plenum chambers) 
which further supports the conclusion that 1D-3D cyclones generally 
fulfill BACM for this source category.
6. Manufacturing and Industrial Fuel Combustion Sources
    Comment 1: Earthjustice comments that the Plan fails to implement 
BACM for manufacturing and industrial fuel combustion sources. The Plan 
merely describes generalized control concepts that could be developed, 
and does not even clearly commit to specific requirements. No basis is 
provided for EPA's conclusion that controls to be developed for 
industrial water heaters will generally establish 30 ppm NOX 
limits similar to SCAQMD Rules 1146.1 and 1146.2.
    Response: We agree that the descriptions of these control measures 
on pages 4-31, 4-43 and 4-44 of the Plan do not explicitly commit to 
specific requirements for manufacturing and industrial fuel combustion 
sources. However, the language on pages 4-22, 4-23, 4-30, 4-31 and 4-42 
to 4-44 clearly and explicitly commits to 2.2 tpd of NOX 
emission reductions from this category. SJVUAPCD's 3/30/04 memo 
explains that the 2.2 tpd commitment was based on an assumption that a 
30 ppmv standard would be applied to these sources. This memo notes 
that, ``as part of the Plan development effort, the District examined 
similar, existing standards and found the 30 ppmv limits in SCAQMD 
Rules 1146.1 and 1146.2 to be the most stringent rules, at that time.'' 
SCAQMD staff reports for these actions include analysis of several 
control measures and estimates cost effectiveness of Rule 1146.2 
requirements as high as $8,400/ton for retrofitting some units.
7. Oil Drilling and Workover
    Comment 1: Earthjustice comments that the Plan fails to implement 
BACM for oil drilling and workover sources. The Plan fails to evaluate 
lower emission limits such as those promulgated in Ventura County Rule 
74.16 and SJVUAPCD 4701 and the State has not submitted a revised 
version of SJVUAPCD Rule 2280.
    Response: The TSD associated with our proposed approval of the Plan 
explains that SJVUAPCD Rule 2280 and CARB's portable equipment 
registration program (PERP, see 13 California Code of Regulations 2450-
2466) provide BACM for this category. These rules establish numerous 
operational requirements and emission limitations for applicable 
engines. Sources may choose to register engines, including those used 
for oil drilling and workover, under either PERP or SJVUAPCD's 
analogous Rule 2280 program. Most sources register under PERP because 
it is less expensive and allows use of portable engines throughout the 
state.
    We believe that PERP does on balance provide more stringent 
requirements than Ventura County Rule 74.16 for engines used in oil 
drilling and workover. While Ventura County Rule 74.16.B.1 requires 
electrification of drilling operations, most sources have been exempted 
from this requirement under section C of the rule and few, if any, new 
wells have electrified as a result of this requirement (per telephone 
conversation between Karl Krause, Ventura County APCD, and Andrew 
Steckel). As a result, most sources subject to Ventura County Rule 
74.16 must comply with the State (adopted January 27, 2000 http://www.arb.ca.gov/regact/ciengine/ciengine.htm) and national (40 CFR 
89.112) Tier 1 NOX standard for off-road compression 
ignition engines. By comparison, the PERP program has required most 
engines to comply with Tier 1 or more stringent Tier 2 standards. In 
addition, Ventura County Rule 74.16 applies only to new well drilling, 
while PERP applies to both new wells and well workover. We note that 
comparison to SJVUAPCD Rule 4701 limits is not necessary because Rule 
4701 was not designed to control engines used for oil drilling and 
workover.
8. Residential Water Heaters
    Comment 1: Earthjustice comments that the Plan fails to implement 
BACM for residential water heaters. The Plan does not demonstrate that 
Rule 4902's 40 nanogram/joule limit fulfills BACM in light of the 10 
nanogram/joule limit in SCAQMD Rule 1121.
    Response: SJVUAPCD's 3/30/04 memo explains that there is 
significant concern that Rule 1121's technology-forcing limit of 10 
nanogram/joule may not be adequately available by the compliance 
deadlines. The memo notes that SCAQMD has received approximately $1 
million in mitigation fees from manufacturers to date for failing to 
meet Rule 1121's currently applicable 20 nanogram/joule limit, 
suggesting that this limit is also not yet adequately available. In 
addition, all

[[Page 30018]]

manufacturers have requested a delay in implementing Rule 1121's future 
effective 10 nanogram/joule limit. As discussed in the TSD for EPA's 
proposed approval of the Plan, when Rule 1121's more stringent limits 
are demonstrated to be adequately available, they may become a basis 
for future BACM determinations.
9. Charbroiling
    Comment 1: Earthjustice comments that the Plan fails to implement 
BACM for charbroiling sources. Neither the Plan nor EPA has provided a 
demonstration that SJVUAPCD Rule 4692 or SCAQMD Rule 1138 fulfills 
BACM.
    Response: In developing Rule 4692, Commercial Charbroiling, 
SJVUAPCD investigated the scope of the source category, currently 
available control technologies, emission reduction potential and cost-
effectiveness of various options.\25\ SJVUAPCD determined that 
flameless catalytic oxidizers can reduce PM-10 emissions by 83% and VOC 
emissions by 86%, with an overall cost-effectiveness of approximately 
$3,000 per ton of reduced emissions. Fiber-bed filters, thermal 
incinerators, and activated carbon adsorbers were among the other 
control technologies considered. SJVUAPCD acknowledged that some 
technologies (e.g., thermal incineration) may result in higher control 
efficiencies, but SJVUAPCD believes these technologies are not 
practical to require for every source because of the overall expense 
and cost effectiveness. SJVUAPCD estimates that implementation of Rule 
4692 will reduce PM-10 emissions by 0.11 ton/day. Based on the 
requirements contained in Rule 4692 and the detailed analyses provided 
in the associated staff report, we believe SJVUAPCD has adequately 
demonstrated implementation of BACM for commercial charbroilers.
---------------------------------------------------------------------------

    \25\ Final Staff Report for SJVUAPCD Rule 4692, March 21, 2002.
---------------------------------------------------------------------------

    The TSD associated with our proposed approval of the Plan further 
notes that SJVUAPCD used SCAQMD Rule 1138 as guidance in developing 
SJVUAPCD Rule 4692 for this category. The TSD associated with our 
proposed approval of the Plan further notes that SJVUAPCD used SCAQMD 
Rule 1138 as guidance in developing SJVUAPCD Rule 4692 for this 
category. SCAQMD Rule 1138 is considered the most effective district 
regulatory standard in effect for this source category and SJVUAPCD 
Rule 4692 is nearly identical. See SJVUAPCD's 3/21/02 staff report for 
Rule 4692.
10. Regulation VIII Fugitive Dust Sources
    Comment 1: Earthjustice states that the ``Fugitive PM-10 Management 
Plan'' (FPMP) compliance alternative in Rules 8061, 8071 and 8081 does 
not appear to have a basis for its inclusion and no other district has 
such a provision. The commenter compares Rule 8081's 20% opacity 
limits, stabilized unpaved road requirements, and concrete compliance 
options (e.g., watering) to the FPMP compliance alternative's minimum 
control efficiency requirement of 50% and its lack of a clear mandate 
to comply with 20% opacity. On this basis, the commenter states that 
the FPMP compliance alternative does not add any clear benefit to the 
rule and, in fact, could weaken it.
    Response: The FPMP's requirement that 50% control efficiency be 
achieved is equivalent to the minimum control efficiency expected from 
compliance with Rule 8081's surface stabilization requirement \26\ 
which otherwise applies. We agree that the FPMP alternative does not 
contain an explicit requirement for sources to comply with 20% opacity. 
However, it is unclear whether compliance with 20% opacity would 
necessarily increase control efficiency for unpaved roads or parking 
areas above the minimum 50% control mandated. Also, while the FPMP 
alternative does not specify control measure options from which 
applicants can choose, all FPMPs must include the control measure to be 
applied (see Rules 8011 and 8081, section 7.5.4.) along with specific 
information as to the method, frequency and intensity of the 
application. Therefore, the FPMP alternative offers the same minimum 
control efficiency (50%) and a defined method of control as would 
otherwise be achieved by compliance absent a FPMP.
---------------------------------------------------------------------------

    \26\ ``Technical Support Document for Maricopa County 
Nonattainment Area PM-10 FIP: Revision to the Phoenix FIP final rule 
for Unpaved Parking Lots, Unpaved Roads and Vacant Lots,'' January 
19, 1999, page 3.
---------------------------------------------------------------------------

    Potential benefits of FPMPs include: owners/operators expressly 
planning in advance where and when vehicle trip thresholds in the rule 
will be exceeded and the details of dust suppressant application or 
other treatment; an emphasis on preventative control as opposed to 
remedial control in response to a 20% opacity exceedance, and; a 
potential mechanism for targeted inspections by the District.
    Comment 2: Earthjustice states that the Rule 8081 FPMP 
administrative requirement allowing growers to submit plans to the 
Natural Resources Conservation Service (NRCS) instead of to the 
SJVUAPCD is not justified. The NRCS' role should be limited to 
providing technical information rather than evaluating compliance 
alternatives.
    Response: Although FPMPs do not need to be submitted to the 
District for approval, the District is responsible for developing 
guidance and criteria by which NRCS (specifically, local resource 
conservation districts or the Fresno Regional Office) would use to 
evaluate the FPMPs in order to verify their consistency with the 
District's guidance. Therefore, the NRCS' role is limited to reviewing 
the FPMPs for consistency with the District's guidance, rather than 
evaluating compliance alternatives absent criteria. Furthermore, all 
verified FPMPs are to be made available to the District and the public. 
For these reasons, in addition to the requirement for FPMPs to 
demonstrate 50% control efficiency, we believe the FPMP administrative 
requirements are sufficient to ensure enforceable controls.
    Comment 3: Earthjustice states that Maricopa's Dust Control Plan 
requirements (as contained in Maricopa County Rules 310 and 303) 
provide a more appropriate model for an acceptable FPMP.
    Response: Maricopa's Dust Control Plan requirements are specific to 
construction sites, which have multiple sources of fugitive dust. The 
FPMP provisions of Rules 8061, 8071 and 8081 only apply to unpaved 
roads and unpaved vehicle/equipment traffic areas. Therefore, we do not 
believe it is necessary for the FPMPs to be modeled after the extensive 
dust control plan requirements adopted in Maricopa County for 
construction sites.
    Comment 4: Earthjustice states that the Plan retains a threshold of 
500-3,000 average daily trips to trigger the requirement to pave 
shoulders in Rule 8061. It is unclear what a threshold with a range 
means in practice. In order to meet BACM, the Plan should either 
establish the threshold as 500 average daily trips or justify any 
higher threshold.
    Response: The format of the 500-3,000 average annual daily trip 
(AADT) threshold for existing paved roads in Rule 8061 does not 
adversely impact the rule's clarity. In practice, cities and counties 
responsible for modifying existing paved roads determine the AADT of 
the road. If the AADT is between 500 and 3,000, Rule 8061 requires a 4-
foot shoulder to be established, and if the AADT is above 3,000, Rule 
8061 requires a 8-foot

[[Page 30019]]

shoulder to be established. For purposes of meeting BACM, the rule 
clearly establishes 500 AADT as the baseline threshold above which 
paved road shoulder requirements apply. Thus, we do not agree with the 
commenter that the requirement is unclear or insufficient to meet BACM.
    Comment 5: Earthjustice states that although the Plan commits to 
remove the exemption for ``implements of husbandry'' from vehicle daily 
trip counts in Rule 8081, the 75 vehicle daily trip threshold should be 
lowered to account for higher emissions resulting from multiple 
wheelsets of implements of husbandry. The rule credits trips made by 
implements of husbandry the same as trips made by passenger vehicles 
and this may underestimate emissions from implements of husbandry.
    Response: The District's BACM analysis for Rule 8081 evaluates 
emissions from both passenger vehicles and implements of husbandry with 
multiple wheelsets, e.g., tractors and implements with 8 wheels, using 
EPA's AP-42 emissions factor equation for unpaved roads. The District 
concludes that a tractor operating between 4 and 9 miles per hour 
produces 85-88 percent of the emissions produced by a pickup truck 
traveling 15 miles per hour.\27\ This analysis supports including 
implements of husbandry in the rule's vehicle trip threshold, but not 
the commenter's assertion that implements of husbandry generate higher 
emissions than passenger vehicles and that the 75 vehicle trip 
threshold should be lowered.
---------------------------------------------------------------------------

    \27\ PM-10 Plan at Appendix G, Exhibit C ``Supplemental BACM 
Analysis'', page 27.
---------------------------------------------------------------------------

    Comment 6: Earthjustice states that the District eliminated a 
proposed commitment to require that visible emissions not travel beyond 
the property line on the basis that such disturbances would be 
``subject to the District's nuisance rule.'' The commenter indicates 
that many counties in the Valley specifically exempt agriculture from 
nuisance rules and lack a mechanism to control dust traveling beyond 
property lines. The commenter concludes that no basis exists for 
SJVUAPCD's elimination of its initial commitment to control visible 
emissions that travel beyond property lines.
    Response: EPA's proposed approval of Regulation VIII as BACM (69 FR 
5420-5421) absent a property line limitation for visible emissions was 
not based on the District's statement that sources are subject to the 
District's nuisance rule. Rather, we believe that a property line limit 
provides little to no benefit when a fugitive dust source is located 
well within the property line. Alternatively, if a source is located 
immediately adjacent to the property line (e.g., an unpaved road), it 
may be technically infeasible to comply with a property line limit 
which would essentially require that no dust be emitted. The applicable 
standard in Regulation VIII for visible fugitive dust is 20% opacity. 
Comparing the relative stringency of a property line limit to an 
opacity standard is technically difficult due to the variety of 
meteorological and other factors associated with any scenario. However, 
because the 20% opacity standard is determined at the source's origin, 
we generally consider it to be the more stringent standard given the 
speed with which visible fugitive dust particles disperse into the 
atmosphere. Therefore, we are relying on the applicability of the 20% 
opacity standard in lieu of a property line limit for purposes of 
meeting the BACM requirement.
    Comment 7: Earthjustice states that the Plan unjustifiably lacks a 
commitment to include a 100-foot dust plume limit. SCAQMD Rule 403 
includes a 100-foot limit. The commenter notes that SJVUAPCD defended 
the importance of a plume distance threshold as a measure ``of value 
for construction site managers to judge the need for additional control 
application'' \28\ and that ``a combination of opacity with plume 
distance limits (e.g., 100 yards) is the best standard to use.'' \29\ 
Notwithstanding, SJVUAPCD eliminated the proposed commitment to 
establish a 100-foot dust limit.
---------------------------------------------------------------------------

    \28\ SJVUAPCD response to April 21, 2003 EPA comments at No. 
118.
    \29\ PM-10 Plan at Appendix G, page G-28.
---------------------------------------------------------------------------

    Response: The District raises concerns as to the technical 
feasibility of compliance with a 100-foot limit, given the speed with 
which a moving vehicle or mobile construction equipment can cover a 
100-foot area.\30\ The inclusion of a 100-foot limit in SCAQMD Rule 403 
does not mean it is necessary for Regulation VIII to meet BACM, as long 
as other applicable limits combined provide adequate stringency. We 
believe the combined effect of the 20% opacity limit and control 
measure requirements in Regulation VIII are sufficient to meet BACM.
---------------------------------------------------------------------------

    \30\ PM-10 Plan at Appendix G, Exhibit C ``Supplemental BACM 
Analysis,'' page 17.
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11. Significant Sources of VOC, Ammonia and SOX
    Comment 1: Earthjustice disagrees that a BACM demonstration is not 
needed for VOC, ammonia and SOX based on the NOX/
PM strategy. They question the defensibility of the NOX/PM 
strategy and even if it is the most expeditious strategy for attaining 
the PM-10 standards, Earthjustice believes the District still retains 
the obligation to evaluate and include BACM/BACT for significant 
sources of VOC, ammonia and SOX as BACM are to be 
established generally independent of the attainment needs of an area.
    In addition, Earthjustice points out that livestock waste is the 
most significant VOC source under the District's control, that the 
South Coast Air Quality Management District is controlling VOCs and 
ammonia from this source and that the SJV's Ag CMP program only covers 
the PM-10 emissions from this source. Pesticides and fertilizers is 
also a very significant source of VOCs in the SJV, not currently 
covered by BACM requirements.
    Finally, Earthjustice points out that EPA has previously provided 
comments to the District about the lack of BACM for non-de minimis 
sources of VOCs. In particular, Earthjustice points out that EPA wrote 
``Categories that must be analyzed for BACM include coatings and 
related process solvents; other cleaning and surface coatings; waste 
burning and disposal; food and agriculture (industrial processes); 
nonmetallic minerals (this BACM analysis should consider any processing 
activity not addressed by Regulation VIII) and landfill gases.'' 
Earthjustice also points out that EPA commented that the steam enhanced 
oil well vents category had not been adequately evaluated for BACM as 
it did not contain provisions found in similar Ventura and South Coast 
rules. Since EPA previously treated these source categories as needing 
BACM, Earthjustice believes EPA has no basis on which to conclude that 
BACM demonstration are not needed at this time.
    Response: As discussed in section II.A. above, EPA is concurring 
with the SJV PM-10 Plan's NOX/PM strategy until the CRPAQS 
results become available. Since, consistent with the NOX/PM 
strategy, VOC, SOX and ammonia reductions are not necessary 
for attainment, EPA believes a BACM demonstration is not necessary at 
this time for these precursors. 69 FR 5412, 5423. If the CRPAQS results 
indicate that reduction of precursors other than NOX play a 
significant role in reducing PM-10, the District will be required to 
revise the 2003 PM-10 Plan to include BACM for those precursors and any 
additional reductions needed for expeditious attainment.

[[Page 30020]]

    In an April 23, 2003 letter to the District, EPA commented that 
certain VOC source categories needed to be evaluated for BACM; however, 
these preliminary comments were based on an initial review of the 
District's Draft PM-10 Plan dated March 25, 2003.\31\ In response to 
EPA's comments, the District included an enforceable commitment to 
revise the 2003 PM-10 Plan by March 2006 using the CRPAQS results which 
will provide the necessary technical information to clearly understand 
the role VOC, SOX and ammonia play in attaining the PM-10 
standards in the SJV. Given this enforceable commitment and the 
NOX/PM strategy, EPA believes that requiring BACM/BACT 
demonstrations for VOC, SOX and ammonia is not warranted at 
this time.
---------------------------------------------------------------------------

    \31\ Letter from Jack P. Broadbent to David L. Crow, RE: 
Preliminary Review of the Draft 2003 PM-10 Plan, April 21, 2003.
---------------------------------------------------------------------------

12. Mobile Sources--Transportation Control Measures (TCMs)
    Comment 1: Earthjustice states that the Plan fails to include a 
BACM analysis addressing any section 108(f) TCMs. The Plan's only 
reference to TCMs is its assertion that certain unspecified measures 
were analyzed by the Regional Transportation Authorities for the 
Valley's ozone ROP plan, and are incorporated by reference in the plan. 
However, because the TCMs in the ROP plan were analyzed only for RACM, 
Earthjustice believes that the TCMs are insufficient to meet BACM 
requirements. The District errs in responding to a public comment that 
a BACM analysis needs to be performed when the District states that 
EPA's Addendum does not require BACM for TCMs.
    Response: The 2003 PM-10 Plan incorporates the 2002 Ozone ROP Plan 
analyses and commitments by the 6 metropolitan planning organizations 
and 2 transportation planning agencies, representing collectively the 8 
counties, numerous transit agencies, and all of the cities in the San 
Joaquin Valley ozone nonattainment area.\32\ The commitments and 
feasibility analyses are included in Appendix E of the 2002 Ozone ROP 
Plan, which consists of approximately one thousand pages of TCM 
analyses and resolutions adopted by the local and regional governments, 
committing the governments to specific TCMs.
---------------------------------------------------------------------------

    \32\ ``The resolutions adopted by the respective entities to 
commit to implement local government control measures are included 
in the Regional Transportation Planning Agency Commitments for 
Implementation Document, April 2002. The document is available for 
public review at the central San Joaquin Valley Unified APCD office 
located in Fresno. In accordance with the Air District planning 
process for the PM-10 Plan, these commitments are incorporated by 
reference into the PM-10 Plan. The ozone measures will provide 
emission reductions for precursor gases and help to address the 
secondary particulate problem.'' PM-10 Plan, Appendix I, page 4.
---------------------------------------------------------------------------

    Although the Agency's PM10 BACM guidance does not provide an 
extensive discussion of TCMs, EPA agrees with the commenter that the 
PM10 BACM requirement applies to TCMs.\33\ CAA section 108(f) lists 16 
transportation control measures. In order to ensure that each entity 
reviewed comprehensively and consistently these measures, as well as 
subcategories of the measures, the San Joaquin Valley agencies broke 
the 16 TCMs into a matrix of 126 measures. The agencies then expanded 
the matrix by adding 14 other possible measures (labeled 17), 9 
``existing local government control measures'' (18), and 22 measures 
recommended for consideration by the public (19), for a grand total of 
171 measures. Appendix E to the 2002 Ozone ROP Plan (incorporated by 
reference in the 2003 PM-10 plan) includes for these measures the 
commitments adopted by the multitude of jurisdictions, as well as the 
entities' reasoned justifications for not adopting particular measures. 
For example, see the ``Fresno COG Summary of Commitments--2002 Severe 
Area Ozone Plan,'' displaying the commitments for the Fresno COG 
itself, Fresno County, the 15 cities in the County, and the 3 transit 
agencies relating to the matrix of candidate control measures.
---------------------------------------------------------------------------

    \33\ EPA's General Preamble includes a discussion of RACM 
provisions for TCMs: ``Local circumstances relevant to the 
reasonableness of any potential control measure involve practical 
considerations that cannot be made through a national presumption. 
Various TCM's must be locally coordinated to minimize contradictory 
results and maximize mutually supportive outcomes. Feasibility of 
TCM implementation can thus be particularly complicated, and EPA 
recognizes the importance of assessing candidate TCM's in the 
context of each particular area's situation. Finally, with respect 
to TCM's or any other control measures, EPA does not believe that 
Congress intended the RACM requirement to compel the adoption of 
measures that are absurd, unenforceable, or impracticable (see 55 FR 
38326, September 18, 1990). The EPA, therefore, concludes that it is 
inappropriate to create a presumption that all of the measures 
listed in section 108(f) are per se reasonably available for all 
nonattainment areas. All States must, at a minimum, address the 
section 108(f) measures. The EPA believes that at least some of the 
measures will be reasonably available for implementation in many 
nonattainment areas. Where a section 108(f) measure is reasonably 
available, section 172(c)(1) requires its implementation.'' 57 FR 
13560 (April 16, 1992). The TCM RACM discussion concludes with 
comments on the legislative history of the 1990 CAA Amendments and 
EPA's 1979 guidance on RACM as construed by the Court of Appeals for 
the Ninth Circuit in Delaney v. EPA, 898 F. 2d 687 (1990).
    In the 8/16/94 supplement to the General Preamble relating to 
SIPs for Serious PM-10 areas, EPA provided the following brief 
guidance on BACM for mobile sources: ``It does not currently appear 
that mobile sources, as distinct from the surfaces on which they 
travel, contribute significantly to the PM-10 air quality problem in 
a sufficient number of areas to warrant issuing national guidance on 
best available transportation control measures for PM-10 under 
section 190 of the Act. However, in those areas where mobile sources 
do contribute significantly to PM-10 violations, the State must, at 
a minimum, address the transportation control measures listed in 
section 108(f) to determine whether such measures are achievable in 
the area considering energy, environmental and economic impacts and 
other costs.'' Addendum at 42013.
---------------------------------------------------------------------------

    Appendix E includes resolutions adopted by each entity. For each of 
the hundreds of measures where implementation has already occurred or 
is programmed to occur, the resolutions describe the measure fully, 
identify the responsible agency and implementation authority, set out 
the implementation schedule, present the levels of personnel and 
funding for implementation, specify the enforcement program (if any is 
required), and describe the monitoring program.
    EPA believes that the explanations for not including specific 
measures are equally applicable for BACM as for RACM, because the 
justifications reflect each entities' careful considerations and 
conclusions that particular measures simply are infeasible for the area 
because of technical, practical, or economic reasons. See, for example, 
City of Ridgecrest table ``Control Measures Which are Not Feasible for 
Implementation''; City of Coalinga Resolution No. 2892; City of Orange 
Cove, Resolution No. 2002-12, Exhibit A--Local Government Control 
Measures That will not be Implemented; County of Fresno Resolution 
02-128; Kern Council of Governments table ``Example Local 
Government Measures.'' The reasoned justifications are based on factors 
that make a measure either inapplicable or impractical to the area, 
such as density levels, urbanized area configuration, centers of 
employment, traffic volume and flow, congestion levels, measure 
redundancy, economic issues relating to implementing agencies or public 
participation levels, potential for measures to be counter-productive 
from an emissions perspective (e.g., creation of new one-way streets), 
absence of traffic signals, no means of reasonable enforcement, etc. 
The commenter has not shown that any of the analyses and commitments 
would be different for BACM, and EPA believes that they would not in 
fact differ.
    EPA therefore believes that both the analyses performed by the San 
Joaquin Valley transportation and governmental entities and the 
commitments by the

[[Page 30021]]

entities reflect a conscientious effort to assess the viability of 
achieving reductions from implementation of each of the section 108(f) 
measures and other possible candidate measures, and to adopt and 
expeditiously implement all measures that were determined to be 
available at this time.
    EPA believes that these assessments were conducted in a thorough 
process with full public involvement. The documents were subject to 
public review and comment in 5 public workshops before adoption by the 
local governments.\34\ Before adoption, the measures and assessments 
underwent an extensive process, which is summarized in Appendix I of 
the 2003 PM-10 Plan in a document labeled ``Overview of Regional 
Transportation Planning Agency Process to Identify and Implement Best 
Available Control Measures in Support of the PM-10 Attainment Plan for 
the San Joaquin Valley'' (April 2003 RTPA BACM Submittal). This 
document sets out an 8-step process for biweekly/monthly meetings to 
review candidate measures, obtain input and feedback, share 
information, and document in a consistent fashion conclusions on 
economic and technological feasibility and program selection and 
implementation. This 8-step process was followed as the plans were 
being prepared, and the agencies are continuing the process to reassess 
the viability of additional controls as circumstances change in the 
future. Again, the public is invited to participate in the process and 
the results of the process are readily available to the public on a 
continuing basis.
---------------------------------------------------------------------------

    \34\ The San Joaquin Valley regional transportation planning 
agencies developed a Web site to provide the public with information 
on the BACM process.
---------------------------------------------------------------------------

    Finally, it should also be noted that the San Joaquin Valley 
regional transportation planning agencies reviewed the adopted measures 
and the candidate measure analyses in the 2002 Ozone ROP Plan and 
concluded that they constitute BACM for TCMs and for other types of 
measures under their jurisdiction with respect to control of secondary 
particulate matter, such as NOX. The agencies further agreed 
that they needed also to address additional BACM controls for direct 
particulate matter to supplement PM BACM. ``A key requirement for the 
PM-10 Attainment Plan is the implementation of Best Available Control 
Measures (BACM). Since the ozone measures described in the previous 
section will be used to address the secondary particulate problem, the 
control measures being pursued for the PM-10 Attainment Plan focus on 
direct particulate.'' See ``Overview of Regional Transportation 
Planning Agency Process to Identify and Implement Best Available 
Control Measures in Support of the PM-10 Attainment Plan for the San 
Joaquin Valley'' (April 2003 RTPA BACM Submittal), page 5.
    These analyses and the resulting measures are included as elements 
of the reentrained dust and street cleaning provisions of the plan 
(Regulation VIII), rather than as TCMs. EPA agrees that this is 
appropriate, since the only significant source of primary particulate 
matter associated with motor vehicles is reentrained dust from paved 
and unpaved roads, and the specific control measures to reduce those 
emissions (paving unpaved roads, stabilizing access points onto paved 
roads, curbing, sweeping, erosion clean-up, etc.) are not categorized 
as TCMs. See the definition of TCMs at 40 CFR 93.101: ``Transportation 
control measure (TCM) is any measure that is specifically identified 
and committed to in the applicable implementation plan that is either 
one of the types listed in section 108 of the CAA, or any other measure 
for the purpose of reducing emissions or concentrations of air 
pollutants from transportation sources by reducing vehicle use or 
changing traffic flow or congestion conditions.'' Measures to reduce 
primary particulate matter emissions through reductions in ``vehicle 
use or changing traffic flow or congestion conditions'' are already 
addressed in Appendix E to the 2003 Ozone ROP Plan, since these 
categories of measures relate to the ozone precursors NOX 
and VOC.
    Comment 2: Earthjustice states that the transportation agencies may 
have proposed a measure to limit vehicle idling for the ozone ROP plan, 
but the plan appears to be voluntary and clearly fails to meet BACM. 
The Plan must evaluate implementation of enforceable idling control 
measures covering all vehicles and equipment throughout the Valley.
    Response: Many of the SJV jurisdictions, as part of their TCM 
assessment, considered and rejected mandatory idling controls at the 
local level as infeasible, because of enforceability, safety, and 
public health issues. Moreover, idling controls were also being 
developed on a Statewide basis in ways that would surmount the 
feasibility concerns associated with a local program. Before the PM10 
Plan was prepared, CARB had already adopted the State's Diesel Risk 
Reduction Program (October 2000), and as part of that plan had 
scheduled expeditious adoption and implementation of Statewide idling 
control programs for diesel vehicles. Also before the PM10 Plan was 
prepared, the State had already enacted the most stringent Statewide 
idling control measure in the country, a restriction on idling in the 
vicinity of schools. CARB has now scheduled a public hearing on July 
22-23, 2004, to consider adoption of Statewide idling control 
regulations for heavy-duty diesel vehicles.\35\
---------------------------------------------------------------------------

    \35\ The CARB public notice of the proposed regulatory program 
provides the following summary of the intended regulation: ``The ARB 
staff is proposing a regulation to reduce idling emissions from new 
2007 and later model year on-road heavy-duty diesel vehicles (HDDV) 
with gross vehicle weight rating greater than 14,000 lbs. The 
proposal requires HDDVs to be equipped with an idle shutdown system 
that will shut down the engine after 5 minutes of continuous 
operation at idle. The proposal allows the use of alternative idle 
reduction devices/strategies in order to provide heating and air 
conditioning for cab comfort, engine oil heating for easy engine 
start-up in cold ambient conditions, and electric power to charge 
batteries and for on-board accessories. Such devices include, but 
are not limited to, an automatic stop-start system, on-board 
auxiliary devices such as fuel-fired heaters and auxiliary power 
units, and power inverter/chargers for use with batteries and grid 
supplied electricity. The use of these devices, in lieu of operating 
the heavy-duty engine at idle, will result in significant 
NOX reductions. Reductions in ROG, carbon monoxide and 
carbon dioxide are also expected, but to a lesser extent depending 
on the type of alternative idle reduction device/strategy used.'' 
More details on the proposed regulation, including the rule 
language, appear at: http://www.arb.ca.gov/regact/hdvidle/hdvidle.htm.
---------------------------------------------------------------------------

    One of the San Joaquin Valley agencies' primary justifications for 
rejecting adoption and implementation of local idling restrictions was 
their determination that local police enforcement programs needed for 
non-technology based restrictions on idling were simply infeasible. For 
the same reason, the proposed State program emphasizes required 
installation of tamper resistant, automatic idling control equipment, 
as opposed to an idling prohibition enforceable against vehicle 
operators. Like the commenter, CARB concluded that voluntary programs 
would be ineffective, based on evaluations of the State's limited 
success using educational programs. Unlike the commenter, CARB 
determined that idling restrictions on gasoline-fueled vehicles and 
engines should not be pursued because the hot and cold start emissions 
associated with gasoline engines could cancel out or even exceed the 
benefits from reduced idling. San Joaquin Valley entities reached the 
same conclusion.\36\ Finally,

[[Page 30022]]

CARB decided to exclude from idling restrictions all commercial and 
school buses to avoid jeopardizing public health, in view of the need 
for continuous passenger cooling and heating.
---------------------------------------------------------------------------

    \36\ See, for example, the reasoned justification adopted by the 
City of Clovis in Appendix E of the 2003 Ozone ROP Plan for not 
adopting an idling restriction: ``This measure is infeasible for the 
City of Clovis Police Department to implement at this time because 
traffic stall or congestion is almost exclusively limited to short 
term signal light cycling. It would be impracticable and unadvisable 
to turn off engines during this time. Furthermore, based on the type 
of short-term traffic delays noted above, the City does not feel 
this measure would * * * reduce emissions. Rather this measure would 
increase emissions due to the stop and start of engines, as well as 
be an issue to public health and safety.''
---------------------------------------------------------------------------

    EPA agrees with the State's reasoning and conclusions regarding the 
best approach and appropriate targets for idling restrictions. Thus, 
EPA supports both the San Joaquin Valley agencies' reasoned 
justifications for not pursuing local idling controls and CARB's 
rationale for expeditiously developing, adopting, and implementing the 
proposed Statewide heavy-duty diesel vehicle idling control program.
13. Mobile Sources--South Coast Fleet and Low Sulfur Diesel Rules
    Comment 1: Earthjustice claims that while the Plan includes a 
generalized commitment to control emissions from publicly-owned fleets, 
Regulation IX is merely in the ``initial stages of development.'' The 
Plan fails to incorporate or even evaluate the SCAQMD's fleet rules.
    Response: Following adoption of the SCAQMD's fleet rules, the 
Engine Manufacturers Association (EMA), joined by other parties, filed 
suit against the SCAQMD arguing, among other things, that such rules 
were preempted under section 209(a) of the Clean Air Act. Although the 
SCAQMD prevailed before the U.S. District Court and U.S. Court of 
Appeals for the Ninth Circuit, EMA appealed to the U.S. Supreme Court. 
EMA v. SCAQMD, Supreme Court Case Number 02-1343. On April 28, 2004, 
the U.S. Supreme Court ruled that at least certain aspects of the 
SCAQMD fleet rules appear to be preempted by CAA section 209, and 
remanded the case. Based on this decision and pending final resolution 
of other issues of authority not addressed by the decision, EPA does 
not consider local air district adoption of rules similar to the 
SCAQMD's fleet rules to be authorized or required.
    Comment 2: Earthjustice comments that the Plan should incorporate a 
rule akin to SCAQMD's rule 431.2 (low sulfur diesel). Although EPA will 
require all on-road vehicles to use low sulfur fuel by mid-2006 and 
California has proposed to adopt rules applying to off-road vehicles in 
2006, the District could achieve significant reductions immediately 
with the introduction of low sulfur diesel, which would enable new 
control technologies.
    Response: SCAQMD's rule prohibits producing or supplying greater 
than 15 ppm sulfur fuel on and after January 1, 2005, but that date 
would be extended to match a later compliance date adopted by CARB, if 
no later than June 1, 2006. Rule 431.2(c)(4). CARB has workshopped 
amendments to the State's diesel fuel regulations and issued the 15-day 
notice for the rule amendments, based on the CARB Board's authorization 
to proceed with the rule adoption, which is currently scheduled for 
July 24, 2004. On that date, CARB expects to amend the State's diesel 
regulations not only to prohibit sale/supply of greater than 15 ppm 
sulfur fuel on and after June 1, 2006, for mobile sources and 
stationary sources, but also to regulate fuel lubricity levels. 
Moreover, EPA's national 15 ppm sulfur rule goes into effect June 1, 
2006 for motor vehicles, and EPA has indicated its intention to 
finalize in the near future national low sulfur fuel restrictions for 
nonroad vehicles and engines as part of the Tier 4 nonroad standards, 
which were proposed on May 23, 2003 (68 FR 28328). Finally, it is not 
clear that local agencies (as opposed to the State) have authority to 
adopt and enforce provisions relating to motor vehicle fuel 
specifications. For these reasons, EPA does not agree that adoption by 
SJVUAPCD of a rule comparable to SCAQMD's rule 431.2 is appropriate or 
required as BACM at this time.

D. Attainment Demonstration

1. Attainment Deadline
    Comment 1: Earthjustice states that, under section 188(c)(2) and 
(e), serious PM-10 nonattainment areas such as the SJV may be granted 
at most one extension of their December 31, 2001 attainment deadlines 
of no more than 5 years, i.e., to no later than December 31, 2006. 
Instead, in the proposed rule, EPA states that ``because the SJV missed 
the 2001 attainment date otherwise applicable, we believe that the 
attainment date is governed by other provisions of the CAA.'' 69 FR at 
5424. This is not a reasonable basis for failing to apply section 
188(e) given the fact that EPA approved deadline extensions for other 
serious nonattainment areas, such as Clark County, Coachella Valley, 
Maricopa County, the South Coast and Phoenix, after they missed the 
2001 date and still applied section 188(e).
    Earthjustice further states that EPA cites CAA section 179(d)(3) to 
support an extension of a PM-10 nonattainment deadline for the first 
time beyond 2006 [sic]. Because the subpart 1 provision EPA cites 
applies to nonattainment areas in general as opposed to the PM-10-
specific subpart 4, EPA is not permitted to extend the attainment 
deadline for up to 10 years. If EPA's interpretation were correct, EPA 
would be permitted to endlessly extend attainment deadlines for up to 
10 year periods after each finding of nonattainment. Clearly Congress 
intended for all serious PM-10 nonattainment areas to attain by 
December 31, 2006 at the very latest. If Congress ``has directly spoken 
to the precise question at issue'' and ``the intent of Congress is 
clear, that is the end of the matter.'' Chevron at 842-843. It is a 
general principle of statutory construction that where a statute 
addresses an issue specifically in one section and more generally in 
another, the more specific provision applies.
    Response: EPA's conclusion regarding the attainment deadline 
applicable to the SJV appropriately reconciles the provisions of 
sections 188(c)(2) and (e) and 189(d). EPA agrees that, in the first 
instance, i.e., upon classification or reclassification to serious, the 
attainment deadline for such an area can be no later than December 31, 
2001 unless extended in accordance with the conditions in section 
188(e) to no later than December 31, 2006. When section 188(c)(2) and 
(e) is read in conjunction with section 189(d), however, it is clear 
that, after EPA has made a finding of failure to attain for a serious 
area, the provisions of section 189(d) apply to the subsequently 
required serious area plan.\37\ This is apparent from the plain 
language of section 189(d): ``In the case of a Serious PM-10 
nonattainment area in which the PM-10 standard is not attained by the 
applicable attainment date, the State * * * shall * * *submit within 12 
months after the applicable attainment date, plan revisions which 
provide for attainment of the PM-10 air quality standard * * *.'' 
Emphasis added. Section 189(d) clearly governs a situation in which a 
serious area has failed to meet its original attainment date of 2001 
under section 188(c)(2) (or up to 2006 under section 188(e)) and 
therefore must submit a new plan that demonstrates attainment some date 
that is beyond the earlier established deadline. Thus, the attainment 
plan to be submitted within 12 months of the

[[Page 30023]]

applicable attainment date which has been missed cannot be subject to 
the same attainment deadline as the previous plan.
---------------------------------------------------------------------------

    \37\ In the case of the serious nonattainment areas other than 
the SJV cited by the commenters, EPA had not made findings of 
failure to attain the serious area deadline. In such cases, section 
188(c)(2) and (e) continues to govern the applicable attainment 
deadline.
---------------------------------------------------------------------------

    Because, however, section 189(d) merely requires the new plan to 
``provide for attainment,'' EPA looked elsewhere in the statute to 
determine the outer bounds of that deadline. The only other provision 
of the statute that addresses planning requirements applicable to a PM-
10 nonattainment area for which EPA has made a finding of nonattainment 
is section 179(d). Thus, the Agency did not ignore subpart 4 in favor 
of subpart 1, but rather applied subpart 4 to its maximum extent before 
turning to subpart 1 to determine the applicable attainment deadline 
for the SJV under the prevailing circumstances.
    Under section 179(d)(3), the attainment deadline applicable to an 
area that misses the serious area attainment date is as soon as 
practicable, but no later than 5 years from the publication date of the 
nonattainment finding. EPA may, however, extend the attainment deadline 
to the extent it deems appropriate for a period no greater than 10 
years from the publication date, ``considering the severity of 
nonattainment and the availability and feasibility of pollution control 
measures.'' Because section 189(d), standing alone, does not establish 
a specific outer attainment deadline for areas that fail to meet their 
original or (one time) extended deadline, EPA adopted an interpretation 
reasonably accommodated to the purpose of the statutory provisions. 
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. at 
842-44. In contrast, the commenters' interpretation would write out of 
the statute entirely the language in section 189(d) that addresses 
attainment.
    Finally commenters claim that ``if EPA's interpretation were 
correct, EPA would be permitted to endlessly extend attainment 
deadlines for up to 10 year periods after each finding of 
nonattainment.'' EPA has the responsibility under CAA sections 179(d) 
and 188(b)(2) of determining within 6 months of the applicable 
attainment date whether an area has attained the standards. Once EPA 
approves a specific deadline for the SJV under section 179(d)(3), it 
becomes the applicable deadline for the purpose of such a 
determination. If the SJV fails to meet its 179(d)(3) deadline, the 
provisions of section 189(d) will once again apply. We believe that 
result is what Congress intended in these circumstances.
2. Attainment Demonstration Overestimates Emission Reductions
    Comment 1: Earthjustice believes that the emissions reductions from 
certain control measures are drastically overstated. In particular, 
they point out that many of the proposed practices listed in the Ag CMP 
are commonly acknowledged to be in widespread practice already, but 
whose reductions have not been included in the emission inventory. 
Earthjustice argues that if this is the case, then the plan's inventory 
is overstated and future reductions from the Ag CMP program to meet 
attainment and the 5% requirement will not be achieved because they are 
already in the baseline. In addition, Earthjustice points out that many 
of the emission factors have been lowered and the inventory may not 
reflect existing practices, thus, overstating future reduction 
estimates. Either way, Earthjustice believes that since many growers 
are already implementing the CMP, the current inventory and reductions 
for the attainment demonstration are not accurately portrayed.
    Response: The inventory and emissions reductions estimates found in 
the 2003 PM-10 Plan are based on the best available data at the time of 
Plan development. The District is currently developing the Ag CMP 
program's rule and a draft list of CMP is available for review. As 
stated previously, that rule is not the subject of this rulemaking and 
we will thoroughly evaluate the rule once it has been adopted by the 
District and submitted to us. We note, however, that while some of the 
CMP on the draft list may already be implemented by some farmers, this 
may only mean that these farmers are already implementing BACM. We also 
note that the latest draft of Rule 4550 contains a backstop provision 
to ensure that sufficient emission reductions are achieved by the 
agricultural sector.
3. Attainment as Expeditiously as Practicable
    Comment 1: CRPE comments that because the five percent requirement 
has not been adequately addressed and because the Ag CMP program does 
not require BACM, the Plan does not demonstrate attainment will be 
achieved as expeditiously as practicable.
    Response: Since we believe that the section 189(d) five percent 
requirement has been met and that the BACM requirement for agricultural 
sources has also been met, we continue to believe attainment is based 
on all reasonably achievable emissions reductions and is as expeditious 
as practicable. See, respectively, section II. E. and C.2.

E. Five Percent Demonstration

    Comment 1: Earthjustice and CRPE comment that the Plan fails to 
demonstrate ``* * * an annual reduction of PM-10 or PM-10 precursors of 
not less than five percent * * *'' (emphasis added) as required by CAA 
section 189(d). The commenters assert that the statute is clear in 
requiring PM-10 or PM-10 precursor emissions to be reduced by at least 
5% in each year. The commenters also point to legislative history which 
they assert precludes any interpretation of the statute that would 
allow less than 5% reduction of PM-10 or PM-10 precursors in each and 
every year until attainment. Finally, the commenters note that the SJV 
is the first area subject to the requirements of section 189(d), making 
this an important question of first impression.
    Response: EPA agrees that this is a question of first impression 
and that the application of section 189(d) to the SJV is an important 
aspect of this action. Because EPA has not previously applied the 
provision, this action represents the Agency's first experience with 
interpreting the provision in order to determine how best to implement 
the statute in light of the facts of an actual plan. As explained in 
the proposed approval of the Plan (69 FR 5412, 5430), EPA believes that 
the express statutory language allows the District to develop a plan 
that targets reductions of either direct PM-10 or PM-10 precursors in 
each year, and to alternate or vary the approach from year to year. 
This is a plain reading of the statute that gives effect to the word 
``or.'' Even if the statutory provision were ambiguous on this point, 
EPA believes that its interpretation is reasonable, given that this 
reading of the statute provides some flexibility to the state to 
determine whether it is more effective or more practicable to obtain 
reductions of direct PM-10 or PM-10 precursors from year to year, as 
the facts and circumstances dictate, so long as the state is making 
progress towards attainment of the NAAQS as expeditiously as 
practicable.
    As further explained in the proposed rule, EPA believes that the 
express statutory language of section 189(d) authorizes the Agency to 
approve a plan that achieves 5% reductions of either direct PM-10 
emissions, or 5% of the emissions of one or more precursors that EPA 
determines to be the precursor emissions appropriate for the District 
to target in order to attain the NAAQS as expeditiously as practicable. 
EPA believes that this is a literal reading of

[[Page 30024]]

the provision because the term ``precursor'' must be read in light of 
what the District establishes and EPA agrees are the chemicals that are 
the PM-10 precursors for regulatory purposes in the SJV. Even if the 
statute were ambiguous on this point, EPA believes that it is 
appropriate to interpret section 189(d) to allow for the calculation of 
the 5% reduction of precursors based upon the overall strategy of the 
plan. This approach is confirmed by the terms of section 189(e) in 
which the statute permits EPA to determine whether or not certain 
precursors from stationary sources significantly contribute to 
violations of the NAAQS, in essence distinguishing between chemicals 
that may be precursors from an academic perspective and chemicals that 
should be precursors from the regulatory perspective. Were EPA to 
require the District to obtain 5% emission reductions of chemicals that 
are not the appropriate precursor or precursors to control, that could 
result in reductions that would not expedite attainment.
    In this case, the District has designed a plan that targets 
reductions of PM-10 and NOX, because they believe that this 
strategy will be the most effective and efficient way to reach 
attainment. In order to comply with section 189(d), the District has 
therefor structured its plan to ensure that it will achieve reductions 
of either PM-10 or NOX sufficient to meet the 5% 
requirement. As explained elsewhere in more detail, EPA has evaluated 
the 2003 Plan as a whole and concurs that, based upon currently 
available information, the PM-10 and NOX reduction strategy 
will be the most effective approach to attain the PM-10 NAAQS as 
expeditiously as practicable. Accordingly, EPA believes that the 
reference in section 189(d) to 5% emission reductions of ``PM-10 
precursors'' should be interpreted to mean 5% of the precursors that 
have been determined to be effective for achieving the NAAQS, i.e., 5% 
of the type of emissions that are PM-10 precursors for regulatory 
purposes.
    For the 2003 Plan, for example, the District has argued and EPA 
agrees that it would not be an effective strategy for the District to 
obtain 5% reductions of ammonia because this degree of ammonia 
reduction would not appreciably move the SJV towards attainment given 
that most portions of the area appear to be NOX-limited so 
that reductions of ammonia would not be as effective. Similarly, the 
District has argued and EPA agrees that reductions of VOC would not be 
as useful as reductions of NOX to reduce PM formation, so 
that achieving reductions of 5% of VOC emissions would not be as 
effective. With respect to SOX, the relatively small amount 
of SOX emissions in the District compels the conclusion that 
achieving annual reductions of 5% of SOX emissions would not 
significantly affect the ambient PM-10 levels in the SJV.
    In short, given the PM-10 and NOX strategy adopted by 
the District and the supporting technical analysis and modeling they 
have provided, NOX is the regulatory ``PM-10 precursor'' in 
the SJV for purposes of section 189(d). Should this determination 
change as a result of further analysis in the CRAPQS study, the content 
of the section 189(d) requirement would also change.
    In light of these facts, EPA has concluded that it is appropriate 
to read the provisions of section 189(d) to permit the District to 
calculate the 5% reduction of PM-10 precursors based upon the overall 
strategy of the Plan, i.e., to require a 5% reduction of NOX 
in those years that the District is not obtaining a 5% reduction of PM-
10. EPA emphasizes that this approach is appropriate because the 
strategy and the technical support for the strategy indicate that 
NOX reductions are the most effective control strategy in 
the SJV, and that this conclusion might not be appropriate in other 
locations with different mixtures of emissions, sources, atmospheric 
conditions, and other plan-specific considerations.
    These commenters also take issue with the way in which EPA has read 
the statute to allow the District to take credit for early reductions 
of PM-10 or PM-10 precursors. The commenters assert that because the 
statutory language requires ``annual reductions in PM-10 or PM-10 
precursor emissions within the area of not less than 5 percent of the 
amount of such emissions as reported in the most recent inventory 
prepared for such area,'' the District must obtain ``at least'' 5% 
reduction in each year of the Plan.
    As explained in the proposed rule, EPA does not believe that the 
explicit statutory language compels this approach and that such an 
interpretation of section 189(d) might not be the best way to encourage 
early reductions to achieve the NAAQS. Although the statute does use 
the term ``annual reductions,'' the statutory language does not in fact 
use the phraseology advocated by the commenters. The provision does not 
explicitly require reductions of 5% ``in each year,'' ``in each 
individual year,'' ``in each and every year,'' or in any such terms. 
The provision instead merely requires that the District's plan must 
provide for ``annual reductions'' of not less than 5% and does not 
indicate that the plan could not allow such reductions to occur earlier 
than would otherwise be required, yet on average or when looked at as a 
whole, to have met the requirement of an annual 5% reduction. EPA notes 
that Congress did explicitly provide for required emissions reductions 
in each year in section 187(g), which is the analogous provision 
applicable to carbon monoxide (CO) nonattainment areas that fail to 
attain by the applicable attainment date. In that provision, the 
statute explicitly requires reductions of ``5 percent per year in each 
year.'' Because this was not stipulated in section 189(d), we conclude 
that we are permitted to take a different approach.
    EPA believes that a plain reading of section 189(d) does not 
preclude an approach that permits earlier reductions to count towards 
the 5% calculation for subsequent years. To the extent that the 
provision is ambiguous on this point, however, EPA believes that its 
interpretation is preferable because encouraging reductions earlier is 
more consistent with obtaining emissions reductions and achieving the 
NAAQS more quickly. EPA acknowledges that the obligation to achieve the 
NAAQS as expeditiously as practicable is a separate and simultaneous 
obligation, yet also recognizes that legitimate concerns such as the 
cost and technical feasibility of control measures might result in 
decisions to delay or limit the implementation even of BACM level 
controls. By encouraging the District's efforts to obtain reductions 
sooner through, e.g., the earliest possible implementation date 
notwithstanding resulting higher costs, EPA believes that an 
interpretation of section 189(d) to allow early reductions to count 
towards the 5% calculation for later years is consistent with the 
larger goals of the CAA.
    EPA would not, however, agree that section 189(d) would allow 
``backloading'' of emissions reductions to meet the 5% calculation 
requirement, i.e., if reductions that occur in later years were counted 
towards the 5% requirement for earlier years. While the statutory 
language of section 189(d) might also be susceptible to an 
interpretation allowing backloading of reductions, EPA believes that 
such an interpretation would be inconsistent with the goal of the 
section, which is to move an area to attainment as expeditiously as 
practicable. In addition, other provisions indicate how Congress 
addressed situations in which reduction requirement backloading might 
be appropriate. In section 182(c)(2)(B), Congress laid out a specific

[[Page 30025]]

approach for backloading of otherwise required VOC reductions. By 
contrast, were EPA to interpret section 189(d) rigidly to require at 
least 5% reductions in each year as the commenters assert is absolutely 
required, a state might feel compelled to schedule the implementation 
of controls in order to ensure that it could meet the technical 
requirement of at least 5% reductions in each and every year in order 
to avoid the legal consequences of failure to meet that requirement. 
This might result in decisions that were not optimal in terms of 
obtaining emissions reductions from as many sources as possible, as 
early as possible, thereby exalting the 5% requirement over the larger 
goals of the CAA.
    In support of their position that section 189(d) does strictly 
require 5% reductions in each and every year, the commenters quote a 
particular selection from the legislative history for the CAA in which 
the House Committee on Energy and Commerce summarized the provisions of 
H.R. 3030, and described section 189(d) as requiring a state ``to 
reduce the total tonnage of emissions of PM-10 in the area by at least 
5 percent per year in each year after submission of the plan revisions 
until attainment of the standard.'' See 1990 CAA Leg. Hist. 3021, 3292. 
Setting aside a debate about the relative weight appropriate to a 
particular piece of legislative history, EPA also believes that the 
quoted language itself does not necessarily contradict the Agency's 
interpretation of the provision with respect to giving credit for 
earlier reductions. The House Report summary merely states that the 
provision requires a new plan that will reduce emissions by at least 5% 
``per year in each year,'' but does not explicitly state that the plan 
could not provide for earlier reductions that could count toward the 
calculation for subsequent years. For the reasons stated above, EPA has 
concluded that encouragement of earlier reductions is important and 
strict adherence to an interpretation that might dissuade states from 
attaining reductions sooner is not a reasonable approach to 
interpreting the 5% requirement.
    Comment 2: Earthjustice and CRPE comment that neither of the 
District's two options for demonstrating a 5% annual reduction 
satisfies CAA section 189(d).
    Response: EPA agrees that one of the methods proposed by the 
District in the 2003 Plan is unacceptable because it would allow 
improper calculation of the 5% reduction by adding reductions of PM-10 
and reductions of NOX to reach the target percentage. Unless 
the District determined the necessary amount of annual reductions by 
adding the total tonnage of PM-10 and NOX into one sum and 
then calculating 5% of that total sum, this method would be 
mathematically incorrect. To say that 2% of 100 units of PM-10 and 3% 
of 200 units of NOX equals 5% of one or the other or both is 
simply improper; 8 units would not be 5% of 100 units, 200 units, or 
300 units. EPA contends that Congress cannot have intended application 
of the statute in a way that is inconsistent with basic mathematical 
principles, so this approach is not acceptable.\38\
---------------------------------------------------------------------------

    \38\ If the District had wanted to achieve 5% from a combination 
of PM-10 and NOX, they would have had to achieve 5% of 
each (i.e., 5 tons of PM-10 and 10 tons of NOX) or it 
might also have been appropriate to achieve 5% of the total 
emissions of PM-10 and NOX (i.e., 15 tons total from PM-
10 and NOX). This approach of calculating 5% from a 
single summed total of PM-10 and NOX may be an 
appropriate interpretation given the insertion of the word ``or'' 
into the statute, because the approach would at least comport with 
basic mathematical principles. It is unnecessary to resolve this 
latter point for purposes of today's action, however, because the 
2003 Plan did include another option for demonstrating the 5% 
calculation that EPA believes is acceptable and consistent with the 
statute.
---------------------------------------------------------------------------

    In EPA's proposed rule (69 FR 5412, 5430), the Agency recognized 
that the ``Alternative Method'' (see 2003 PM-10 Plan, Table 7-2) for 
calculating the five percent requirement ``* * * [a]chieves the 5% 
annual reduction of either PM-10 or PM-10 precursors * * * [and] 
[c]arries forward any reductions beyond 5% towards calculating the 5% 
requirement for a future year.'' As explained in the response above, 
EPA believes that the explicit language of the statute permits the 
District to target reductions of either PM-10 or PM-10 precursors in 
each year, and to vary the approach from year to year, depending upon 
whether it is more effective or more practicable to obtain reductions 
of direct PM-10 or PM-10 precursors from year to year, as the facts and 
circumstances dictate. In this approach, the District will obtain 5% 
reductions of either the total amount of NOX or the total 
amount of PM-10 in each year, or earlier. As described in more detail 
above, EPA believes that allowing the District to carry forward excess 
reductions in emissions to succeeding years is helpful because it will 
encourage earlier reductions and will provide practical flexibility 
that a strict numerical approach would not.
    Comment 3: CRPE comments that the alternative interpretation 
(``Alternative Method'') allows ``extra'' emissions achieved through 
BACM rules in 2003, 2004 and 2005 to be applied to later years in order 
to meet CAA section 189(d). CRPE believes that section 189(d) requires 
the 5% reductions to be in addition to reductions achieved from BACM 
requirements since BACM requirements were required to be implemented by 
1997. CAA section 189(b)(1)(B); 64 FR 51489 (September 23, 1999). In 
addition, CRPE comments that EPA's rationale that allowing reductions 
``* * * to be carried forward in order to encourage emissions 
reductions as quickly as possible'' should not apply to BACM 
requirements since they were due seven years ago.
    Response: The commenter is correct that the 2003 Plan uses 
reductions achieved through implementation of BACM level controls in 
order to meet the 5% requirement of section 189(d). The commenter 
asserts that this is inappropriate, given that the reductions required 
for BACM level of controls should already have occurred and that the 5% 
reduction requirement of section 189(d) should be in addition to those 
previously required reductions.
    EPA disagrees that this is the proper way to interpret section 
189(d) in this situation. Congress did not explicitly word section 
189(d) to provide that the 5% reduction may not include reductions that 
would otherwise occur as a result of the implementation of BACM level 
controls. Instead, Congress simply required that a state that misses 
the serious area attainment date must submit a plan that provides for 
progress towards attainment on a regular basis, and did not qualify 
whether these reductions should occur through the imposition of RACM, 
BACM, or indeed any specific level of control. EPA notes that in 
another provision, section 182(b)(1)(B), Congress did explicitly direct 
EPA to exclude certain emissions reductions for purposes of subsequent 
calculations. Similarly, in section 182(c)(2)(B), Congress explicitly 
directed EPA to include certain emissions reductions in subsequent 
calculations. No such explicit directive appears in section 189(d).
    EPA believes that because the provision does not explicitly require 
the 5% reductions to be over and above the reductions that could occur 
through implementation of BACM level controls, it is more appropriate 
to interpret section 189(d) literally as a requirement to implement 
controls that meet the percentage reduction requirement. Nevertheless, 
the District is still under an obligation to require BACM level 
controls to be implemented on the appropriate sources as soon as 
possible. In addition to the 5% requirement, the CAA imposes a 
continuing obligation to attain the NAAQS as expeditiously as 
practicable. Even if the statute is ambiguous with respect to whether 
the

[[Page 30026]]

5% reduction requirement is in addition to other emission reductions, 
EPA believes that its approach is the most reasonable. EPA notes that 
the analogous provision for CO nonattainment areas, section 187(g), 
explicitly provides that a state's plan must use certain measures that 
``in combination with other elements of the revised plan, shall be 
adequate to reduce the total tonnage by at least 5% per year.'' EPA 
believes that this language demonstrates that Congress contemplated 
that a state would use a mixture of measures, including previously 
required or available measures, to obtain the reductions that would 
meet the 5% reduction requirement. Although section 189(d) does not 
include this identical ``in combination with'' language, EPA believes 
that the existence of this language in the analogous provision suggests 
that its reading of the statute to allow this approach for PM-10 is a 
reasonable one.
    As a practical matter, EPA recognizes that imposition of BACM level 
controls takes time and resources and that a state must often sequence 
its efforts in order to achieve the necessary level of controls.\39\ 
For example, with respect to BACM level controls on direct PM-10 
emissions from agricultural sources, EPA agrees that the District will 
need a reasonable period of time in order to implement the Ag CMP 
program. Were EPA to adopt the commenter's approach, EPA would have to 
require the District to meet a 5% reduction requirement above and 
beyond the reductions from BACM controls on its sources, and to obtain 
those reductions well before the District's rules could reasonably 
achieve those reductions. While EPA shares the commenter's serious 
concerns that the SJV should attain the NAAQS as expeditiously as 
practicable, EPA believes that it would be unreasonable to require the 
District to obtain reductions in advance of the time that it can 
practicably do so through BACM level controls. EPA believes that the 
proper focus is on the requirements that the District implement BACM 
and that it do so in the manner and on the schedule that will provide 
for the most expeditious attainment of the NAAQS. In this context, the 
5% requirement of section 189(d) does provide an impetus for regular 
progress towards attainment, as it should. The commenter's suggestion 
that the 5% be above and beyond and before what is achievable through 
BACM level controls is not a feasible approach, and therefore EPA 
believes that it is not an appropriate way to interpret section 189(d) 
in the circumstances at hand.
---------------------------------------------------------------------------

    \39\ Within the statutory scheme, Congress implicitly recognized 
that states could not immediately implement BACM level controls. In 
section 189(b)(1)(B), the statute provides that a state plan must 
implement BACM within four years after classification or 
reclassification to serious PM-10 nonattainment. In this instance, 
of course, BACM level controls should have been implemented by 1997. 
The more general point, however, is that in developing a plan, EPA 
recognizes that it may not be possible for all controls to be 
implemented instantaneously.
---------------------------------------------------------------------------

    Comment 4: Earthjustice comments that the 2003 Plan includes 
incentive measures towards the calculation of the 5% reductions 
required by section 189(d). Because the measures are not regulatory and 
enforceable, and because the Plan indicates that funding for the 
measures has not been provided past 2005, the commenter asserts that 
the reductions in the years 2005 to 2010 are not creditable toward the 
5% demonstration.
    Response: The comment appears to refer to two measures in the SJV 
plan: Incentive Programs (IP) and Indirect Source Mitigation Program 
(ISMP). The District's commitment to specific emissions reductions from 
these measures is shown below.

 San Joaquin PM-10 SIP Incentive Programs and Indirect Source Mitigation
                                 Program
     [Emission Reductions of NOX in Tons per Day (Annual/Seasonal)]
------------------------------------------------------------------------
         Control measure               2005         2008         2010
------------------------------------------------------------------------
Incentive Programs...............      6.3/4.8      6.8/5.2      6.5/5.0
Indirect Source Mitigation             0.7/0.5      2.7/2.0     4.1/3.1
 Program.........................
------------------------------------------------------------------------
Source: PM-10 Plan, Tables 4-17 and 4-18.

    The IP, which has been in actual operation since 1992, consists of 
various elements, including the Heavy-Duty Engine Emission Reduction 
Incentive Program, the Reduce Motor Vehicle Emissions (REMOVE) program 
for heavy-duty engines, a recently concluded program for light- and 
medium-duty vehicles, and a Green Yard Machine Program (electric 
lawnmowers). The IP is a long-established program which is continuing, 
using various State-Federal funding sources, and the District has 
indicated that it will pursue new funding sources to achieve additional 
reductions claimed in years after 2005.\40\
---------------------------------------------------------------------------

    \40\ The Plan indicates that current funding sources include 
California's Carl Moyer Program, State transportation funds, State 
peaker power plan offset funds, Federal Congestion Mitigation and 
Air Quality Improvement Program (CMAQ), and District Department of 
Motor Vehicle (DMV) Surcharge Fees. 2003 PM-10 Plan, page 4-62. It 
should be noted that revenue from the $4 DMV registration surcharge 
fee is a permanent source of IP funding under State law.
---------------------------------------------------------------------------

    The commenter quotes the 2003 Plan's discussion of the relationship 
between current funding and the emissions reductions associated with 
the measure:

    Emission reductions projected to be achieved by completed 
projects and with currently committed funding amount to 6.1 tons per 
day of NOX by 2005. The Air District expects additional 
funding will be obtained to allow continued emission reductions in 
later years.

    As shown above, the District has committed to achieve an additional 
0.2 tpd of NOX reductions by 2010 beyond the level achieved 
in 2005 from already completed projects and presently committed 
funding.
    In the SJV, there is a long track record of District and State 
funding support for these incentive programs. Moreover, the 
quantification and documentation of obtaining of emissions reductions 
from these incentive programs are well established and fully adequate 
to validate the reductions. See, for example, the Carl Moyer Memorial 
Air Quality Standards Attainment Program Guidelines, electronically 
available at http://www.arb.ca.gov/msprog/moyer/moyer.htm.
    The Moyer program procedures have served as models for the design 
of national, state, and local credit validation systems for mobile 
source subsidy programs, and California continuously refines these 
guidelines to reflect accurately the reductions associated with the 
program subsidies. The procedures address emission reduction 
quantification issues associated with both baseline emissions and the 
amount of reductions

[[Page 30027]]

achievable from the various repower, retrofit, and replacement 
technologies and alternative fuel options, as well as issues associated 
with project life, enforceable requirements to ensure that reductions 
must continue within the nonattainment area, etc.
    EPA believes that, by approving the Plan, EPA is approving the 
District's enforceable commitments to continue to implement the long-
established programs in the IP to achieve the specified reductions. EPA 
and the public may enforce this emission reduction obligation if the 
District fails to demonstrate that the reductions have been achieved by 
the milestones. EPA therefore disagrees with the commenter that credit 
towards the section 189(d) calculation for the IP is unwarranted.
    While the IP is indeed an incentive program and relies on 
guidelines rather than rules, the ISMP is clearly intended to be 
enforced through new Rules 3180 and 9510. In the plan, the District 
commits to final implementation of the ISMP regulations in the 4th 
quarter of 2004 sufficient to achieve the projected reductions shown 
for the milestone years, similar to other regulatory measures. By 
approving the plan, EPA is approving the District's enforceable 
commitments to implement new ISMP regulations to achieve the specified 
reductions. When Rules 3180 and 9510 are submitted as SIP revisions, 
EPA will review those regulations, like the future regulations 
associated with other committal measures, to ensure that the rules meet 
applicable requirements, including federal enforceability. Thus, EPA 
disagrees with the commenter's contention that the ISMP is an 
unenforceable and non-regulatory measure, and believes that it is 
appropriate to include it in the section 189(d) calculations.
    Comment 5: Earthjustice comments that section 189(d) does not allow 
for ``running averages'' using ``banked'' credits from year to year to 
meet the annual 5% reduction requirement. Earthjustice also comments 
that the Addendum states that annual reduction requirements require 
``linear progress for quantitative milestones'' for areas which meet 
certain requirements, as the SJV does. Finally, Earthjustice states 
that CAA section 182(c)(2)(B) regarding ozone plans specifically allows 
for averaging and had Congress intended similar treatment for PM-10 
plans, it would have included such language in section 189(d).
    Response: As discussed more fully in response to the commenter 
above, EPA believes that the explicit provisions of section 189(d) do 
not preclude an approach that would encourage earlier emissions 
reductions to count towards the 5% calculation for subsequent years. 
Even if the statute were ambiguous on this point, EPA believes that an 
interpretation that encourages states to obtain the reductions earlier 
than might otherwise be required consistent with prompt adoption and 
implementation of BACM level controls and attainment of the NAAQS as 
expeditiously as practicable, is an appropriate interpretation. The 
commenter disparages the approach by referring to it as ``banking'' or 
``running averages,'' but EPA contends that such an approach is more 
consistent with the overall goals of the CAA and is more practical 
given what would otherwise be a potential disincentive to get 
reductions sooner out of concern that there might otherwise be a 
failure to get 5% reductions in a later year.
    With respect to the commenter's reference to the ``linear 
progress'' requirement of the Addendum, as discussed in section II.F. 
below, that guidance addresses linear progress with respect to the 
reasonable further progress (RFP) provisions of the CAA applicable to 
the 2003 Plan. The discussion in the guidance, however, neither 
requires linear progress for RFP nor mentions at all the 5% requirement 
of section 189(d). Furthermore, EPA believes that strict adherence to 
the concept of a perfectly straight line on a graph representing 
emissions reductions is less important than obtaining the reductions 
earlier, if possible. Given the option, EPA would prefer that a section 
189(d) plan with a ten year strategy obtain 50% PM-10 reductions in 
year one rather than a more rigid plan that provided only for a 
``linear'' reduction of 5% per year for 10 years. Unfortunately, the 
difficulties of devising rules, implementing rules, and obtaining 
emissions reductions are not usually conducive to such approaches and 
require a balancing of what is technologically, economically, and 
practicably achievable. This may not easily result in a straight line 
on a graph.
    EPA agrees with the commenter that the statutory language of 
section 182(c)(2)(B) explicitly directs EPA to allow a state to use 
early reductions to meet ``reasonable further progress'' requirements 
for VOC emission reductions. These provisions do not, however, apply to 
PM-10 and do not necessarily indicate or control how EPA should 
interpret the different language of section 189(d). The commenter takes 
the position that had Congress intended to allow any early PM-10 or PM-
10 precursor reductions to count towards the 5% requirement for later 
years, Congress would have inserted provisions similar to section 
182(c)(2)(B) into section 189(d). EPA disagrees with the basic 
assertion that EPA should not credit early reductions towards the 5% 
calculation for a number of reasons, as discussed more fully in other 
responses. In this specific context, however, EPA notes that the bulk 
of the provision relevant to VOCs is necessary to specify the 
conditions under which EPA can allow a state to reduce the percentage 
of reductions otherwise required, not how to credit early emission 
reductions to meet the percentage reduction requirement for later 
years. This fundamental difference at least suggests that EPA need not 
follow section 182(c)(2)(B) even by analogy in interpreting section 
189(d). To reiterate, EPA believes that its approach in effect ensures 
that the plan will achieve reductions of at least 5% of PM-10 or 5% of 
PM-10 precursors each year, but encourages earlier reductions rather 
than discouraging them.
    Comment 6: Earthjustice comments that because the 2003 Plan relies 
on a 1.5 to 1 ratio of NOX to PM-10 (secondary nitrate) 
reductions for some modeling purposes, EPA should require the District 
to use this ratio to determine how many tons of NOX or PM-10 
reductions are necessary to meet the section 189(d) 5% requirement. The 
commenter suggests that requiring the District to use this ratio might 
cause the District to attain the NAAQS as early as 2006, instead of its 
target date.
    Response: EPA agrees that having approved the NOX-PM-10 
ratio for some purposes, it might theoretically be appropriate to 
consider requiring the District to use the ratio throughout the Plan, 
including in the section 189(d) 5% reduction calculation. However, in 
this respect, EPA believes that the literal language of section 189(d) 
refers to a plan that will obtain reductions of ``5 percent of the 
amount of such emissions, as reported in the most recent inventory 
prepared for such area.'' The use of both the term ``amount'' and the 
reference to ``the most recent inventory'' clearly seem to refer to 
emissions in units of weight, most appropriately tons, given that this 
is the common unit of emissions inventories. The explicit language of 
section 189(d) does not refer to calculation of the required reductions 
of tons of PM-10 or PM-10 precursors by any method that would weight 
them differently or require a specific ratio between the tons of 
reduction. Unlike other provisions of the CAA which impose an explicit 
obligation to make reductions of a given pollutant in accordance with a 
set ratio; e.g., sections

[[Page 30028]]

182(a)(4), 182(b)(5), 182(c)(10), 182(d)(2), and 182(e)(1), section 
189(d) does not include such a requirement.
    The lack of explicit language directing EPA to require a state to 
make the PM-10 or PM-10 precursor reductions on a weighted or ratio 
basis is perhaps not surprising, given that Congress may well have 
recognized the inherent difficulties of specifying the proper ratio in 
all circumstances in advance in the statute. Nevertheless, had Congress 
desired EPA to make the calculations on an area by area basis, one 
would assume that the statute would expressly direct EPA to ascertain 
the proper ratio. Given that section 189(d) provides only that there 
must be a 5% reduction in the ``amount'' of the respective pollutants, 
EPA believes that the language is plain on its face that tons of PM-10 
or tons of PM-10 precursor reductions are to be weighted equally.
    Even if the language were ambiguous, EPA believes that its 
interpretation, that the statute directs the calculation of the 
percentage based upon the weight of the respective pollutants and a 1:1 
ratio, would seem to be the easiest and most straightforward reading of 
the statute and method to perform the 5% calculation. Moreover, EPA 
notes that the legislative history cited by the commenters in support 
of other arguments discussed above, explicitly refers to section 189(d) 
as requiring a plan ``to reduce the tonnage'' of emissions and makes no 
explicit mention of any ratio between PM-10 and precursors. EPA 
continues to believe that the legislative history cited by the 
commenters is not necessarily controlling as to Congressional intent 
concerning the provision, but if the legislative history is clear on 
any point, it would seem to be that the 5% calculation is to be based 
on tonnage of emissions and there is no reference to setting a ratio 
between direct PM-10 emissions and PM-10 precursors.
    Comment 7: The SJVUAPCD comments that EPA should approve both 
methods for demonstrating the 5 percent requirement. In particular, the 
District argued that adding the percentages of NOX and PM-10 
to meet the 5% requirement would be similar to the ozone rate of 
progress guidance which allows aggregation of VOC and NOX 
reductions to achieve the 3% requirement. Given that there is no EPA 
guidance on meeting section 189(d), the commenter believes the ozone 
guidance for rate of progress should apply.
    Response: As stated in the proposed rule, EPA does not believe that 
the method summarized in Table 7-1 satisfies the CAA section 189(d) 5% 
requirement because adding percentages does not achieve the necessary 
5% reductions. 69 FR 5412, 5430. To illustrate this as simply as 
possible, assuming 100 tons of PM-10 and 100 tons of NOX, 
the District believes that a 2% reduction in PM-10 and a 3% reduction 
in PM-10 precursor should be allowed. However, this approach would only 
yield 5 tons of PM-10 and NOX reductions. Since there are 
200 tons of PM-10 and NOX, EPA does not believe that one 
could argue that 5 tons is 5% of 200. Because this approach would not 
make sense from a simple mathematical perspective, EPA has concluded 
that this cannot be a proper interpretation of the provision.
    The existing guidance cited by the commenters concerning the use of 
either VOC reductions or NOX reductions to meet the rate of 
progress percentage requirements of other sections of the CAA is simply 
not controlling in light of the explicit statutory language of section 
189(d). The commenters also misread the guidance. It requires the 
calculation of reduction of NOX and VOCs to be either 3% of 
total NOX and VOCs or 3% of NOX and 3% of VOCs. 
Finally, EPA believes that it is not necessary to used the strained 
mathematical logic of the commenter's approach. As described above in 
response to other commenters, EPA does believe that the District's 
alternative method for calculation of the 5% reduction does comport 
with the statute, so EPA can properly approve the plan as meeting the 
requirements of section 189(d) requirements.

F. RFP Demonstration

    Comment 1: Earthjustice comments that an analysis of the 
incremental reductions towards attainment is not provided in the 2003 
PM-10 Plan. Earthjustice believes that the 5% demonstration does not 
satisfy the CAA section 172(c)(2) RFP and 189(c)(1) quantitative 
milestone requirements as it does not show linear progress toward the 
attainment date, which should be December 31, 2006.
    Response: The 2003 PM-10 Plan implies that the section 172(c)(2) 
RFP requirement is satisfied by meeting the 5% requirement. However, as 
discussed in EPA's proposed rule, ``* * * RFP is a separate statutory 
requirement and is to be determined relative to attainment. Thus, in 
order to satisfy the RFP requirement, there must be an analysis which 
shows that incremental reductions towards attainment are being made for 
both the 24-hour and annual standards. * * * [EPA's] evaluation of the 
attainment demonstration coupled with the expected yearly emissions 
reductions shows that RFP is being met.'' We also determined that the 
2003 Plan contains quantitative milestones which are to be achieved 
every three years until the area is redesignated to attainment. The 
reader is referred to the proposed rule for the details of our 
evaluation. 69 FR 5412, 5430-1531.
    There is nothing in the language of either section 172(c)(2) or 
189(c)(1) that requires linear progress. In fact, section 171(1) 
defines RFP as ``such annual incremental reductions in emissions * * * 
as are required by this part [D] or may reasonably be required by the 
Administrator for the purpose of ensuring attainment * * * by the 
applicable date.'' Emphasis added. Thus the statute provides EPA with 
discretion to determine what constitutes RFP in individual cases.
    In the Addendum, we explain that historically RFP has been met by 
showing annual incremental emission reductions sufficient generally to 
maintain at least linear progress towards attainment by the specified 
deadline. Addendum at 42015. We then provide several examples of when 
``[requiring linear progress reductions may be appropriate.'' Emphasis 
added. Id. The use of the word ``may'' clearly indicates that we did 
not intend to mandate linear progress in the cited circumstances. We 
further buttress this conclusion by explaining that ``EPA will 
determine whether the annual emission reductions to be achieved are 
reasonable in light of the statutory objective to ensure timely 
attainment of the PM-10 NAAQS.'' Id. at 42016.
    In the case of the SJV, we have concluded that the annual 
incremental reductions in PM-10 and NOX emissions are 
sufficient without linear progress to meet the RFP requirements of 
sections 172(c)(2) and 189(c)(1).

G. Contingency Measures

    Comment 1: Earthjustice states that EPA's proposed approval of the 
2003 PM-10 Plan omits any discussion of contingency measures required 
by section 172(c)(9) and is in violation of the CAA and the Agency's 
own policy (Addendum at 40215). The likelihood that contingency 
measures will be necessary is a virtual certainty and in fact should 
have gone into effect within 60 days of EPA's July 23, 2002 finding of 
failure to attain. EPA has never proposed full approval of a SIP for a 
serious PM-10 nonattainment area without a discussion of the adequacy 
of contingency measures contained in the plan. The District of Columbia 
Circuit Court of Appeals in Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 
2002) recently vacated an EPA decision to approve a SIP without the 
required contingency

[[Page 30029]]

measures. The commenters request that EPA address the adequacy of the 
contingency measures in the Plan in its final action and then specifies 
the ways in which they consider that the measures fail to meet the 
requirements of the Act.
    Response: EPA is not required by the CAA or Agency policy to act on 
contingency measures in a SIP at the same time that it acts on other 
elements of the plan. A SIP is not a single document that is prepared 
once and then reviewed and approved as a single action. Rather it is a 
collection of regulations, demonstrations, and other items that 
develops over time. When the State revises the plan, either to change 
an existing element or to add additional elements required by the 
statute, the revisions themselves, not the entire plan, are submitted 
to EPA. Thus, in reviewing the 2003 Plan, EPA did not have to consider 
whether the independent requirement to have contingency measures in the 
plan had been met.
    This conclusion is well supported by the language and structure of 
the Act. The basic requirements of a SIP for a nonattainment area, 
including the contingency plan requirement, are listed in section 
172(c). The introductory language, by referring to ``plan provisions'' 
and ``plan items,'' makes clear that the contingency plan provision and 
the other subsections of this provision each set forth independent 
components of the overall plan. The specific plan revisions under 
review here are independent plan requirements that are required by 
separate sections of the statute, e.g., section 189(b) and (d).
    It is true that section 172(c)(9) refers to the inclusion of 
contingency measures in ``the plan revision.'' It is ambiguous, 
however, as to what plan revision this section refers. For example, 
section 189(b) and (d) requires various revisions to be submitted to 
EPA on different schedules: for areas such as the SJV that were 
reclassified from moderate to serious under section 188(b)(1), the 
attainment demonstration is due within 4 years of reclassification and 
the BACM demonstration no later than 18 months from the 
reclassification. EPA determined that states must submit contingency 
measures for serious PM-10 areas (or otherwise demonstrate that 
adequate measures are in place) within 3 years of reclassification. 
Addendum at 42015. Thus, the contingency measures contemplated by 
section 172(c)(9) are intended to be part of a different plan revision 
from the attainment and BACM demonstrations required by section 189(b). 
The fact that these submissions were to be made at different times 
clearly demonstrates that EPA is not required to consider contingency 
measures in its approval of the 2003 Plan.
    The severability of these provisions is made even more clear by 
section 110(k)(3), which was added as part of the 1990 Amendments to 
clarify that EPA is not required to approve or disapprove a submission 
as a whole, but may separately approve and disapprove different 
portions. It makes no sense to say that Congress gave EPA this 
authority, but at the same time prohibited EPA from approving the 2003 
Plan without acting on the contingency measures in it. Because the 
statute clearly allows EPA to approve these elements of the plan 
without considering other elements such as contingency measures, that 
is the end of the question. Chevron, 467 U.S. at 842-43.
    Consistent with the above interpretation of the Act, on April 13, 
2000, EPA proposed to approve certain provisions of the serious area 
PM-10 plan for the Phoenix, Arizona nonattainment area. In the 
proposal, EPA stated that the ``plan contains contingency measures as 
required by CAA section 172(c)(9). We are not proposing action on these 
contingency measures at this time. Contingency measures are a distinct 
provision of the Clean Air Act that we may act on separately from the 
attainment requirements.'' 65 FR 19964, 19965. See also 62 FR 1150 
(January 8, 1997) and 65 FR 18903 (April, 10, 2000) (approval of 
provisions of California ozone plan revisions without acting on 
contingency measures in those revisions).
    EPA agrees with the D.C. Circuit's holding in Sierra Club, 294 F.3d 
at 164, that contingency measures are required to be included in a SIP 
for a nonattainment area. EPA does not believe, however, that the 
Agency is prohibited from approving certain elements of the 2003 Plan 
without acting on the contingency measures in the plan. As demonstrated 
above, these are independent elements of the SIP that EPA can 
separately approve or disapprove. EPA also notes that the plan at issue 
in the D.C. Circuit's decision in Sierra Club was an ozone plan subject 
to the provisions of section 182(c)(9) regarding the inclusion of 
contingency measures, while this plan is a PM-10 plan not subject to 
those provisions. Because EPA is not acting on the contingency measures 
in the 2003 Plan in this action, the Agency is not responding to the 
comments raised regarding the adequacy of those measures in the Plan. 
EPA intends to act separately on the pending contingency measures and 
will respond to all comments on those measures at that time.

H. Full Approval With Commitments Violates the CAA

    Comment 1: Earthjustice comments that the Plan must contain actual, 
adopted control measures to attain the PM-10 standard. The only 
enforceable commitments allowed by the Act are those pursuant to CAA 
section 110(k)(4), conditional approvals, which require a commitment by 
the state to adopt specific enforceable measures within one year of the 
approval.
    Response: Our proposed rule provides in detail EPA's rationale for 
accepting the enforceable commitments found in the 2003 PM-10 Plan (69 
FR 5412, 5427-5429). In short, EPA believes, consistent with past 
practice, that the CAA allows for the approval of enforceable 
commitments under CAA section 110(k)(3) that are limited in scope where 
circumstances exist that warrant the use of such commitments in place 
of adopted measures. See 69 FR 5412, footnotes 28 and 29. The U.S. 
Court of Appeals for the Fifth Circuit recently upheld EPA's 
interpretation and specifically found that nothing in the CAA or in the 
legislative history supports the theory that section 110(k)(4) (added 
in the 1990 Amendments to the statute) was intended to supplant the 
Agency's use of enforceable commitments under sections 110(a)(2)(A) and 
172(c)(6). The court further found that, in the 1990 Amendments to the 
CAA, Congress in fact expanded EPA's authority under section 
110(a)(2)(A). In this respect, the court concluded that because that 
section ``is silent on the issue of whether an enforceable commitment 
is an `appropriate' `means' or `technique' to reach attainment, EPA's 
interpretation must be upheld if the court finds it a permissible 
construction of the statute.'' The court proceeded to do so. BCCA 
Appeal Group et al. v. U.S.E.P.A. et al., 348 F.3d 93, 115 (5th Cir. 
2003). In addition, see section II.C.1. above.
    Comment 2: Earthjustice comments that EPA does not use consistent 
methods for calculating the percentage of commitments for 
NOX and PM-10. Furthermore, EPA needs to evaluate the 
percentage of commitments used to specifically satisfy the 5% 
requirement.
    Response: EPA estimates that the NOX enforceable 
commitments make up approximately 15-16% of the overall reductions 
since 1999 needed for attainment of the annual and 24-hour

[[Page 30030]]

PM-10 standards (69 FR 5412, 5428). For PM-10, EPA estimates that the 
enforceable commitments make up approximately 72% and 92% of the 
reductions needed to attain the annual and 24-hour standards, 
respectively, in the attainment year, 2010 (69 FR 5412, 5428-5429).
    EPA believes that the calculation of the reductions in the Plan 
attributable to enforceable commitments should include the historical 
and ongoing reductions from already adopted programs. This approach 
(which Earthjustice calls the ``net emissions reductions'' method) is 
used in estimating the NOX reductions where the enforceable 
commitment reductions in 2010 are compared to the change in overall 
NOX emissions since 1999 which include reductions from 
already adopted programs (i.e., state and federal mobile source and 
district stationary source rules).\41\
---------------------------------------------------------------------------

    \41\ The overall change in NOX emissions since 1999 
also includes emissions from growth. Thus, EPA believes this 
approach may provide a higher percentage estimate of enforceable 
commitments since the additional reductions necessary to offset any 
growth are not included in the percentage calculation.
---------------------------------------------------------------------------

    For the PM-10 enforceable commitments evaluation, however, EPA uses 
a different approach. This is because ``[t]he PM-10 inventories do not 
have the same steady decline exhibited by the NOX 
inventories due to the need to further refine the backcasted 
inventories for PM-10.'' 69 FR 5412, 5428; see also 2003 PM-10 Plan, p. 
4-8 to 4-9.\42\ Since using the NOX approach does not 
provide a comparison of the 2010 PM-10 enforceable commitment 
reductions to the reductions from already adopted programs since 1999, 
EPA believes that a better approach in evaluating the PM-10 enforceable 
commitments reductions is to compare them to the total reductions 
needed in the attainment year (which Earthjustice calls the ``annual 
emissions reductions'' method).
---------------------------------------------------------------------------

    \42\ According to the 2003 PM-10 Plan, ``[o]ne reason for the 
apparent increase in growth in PM10 in the mid-1990s is that a 
significant new emissions inventory category, prescribed burning, 
totaling approximately 23 tons per day, was added to the emissions 
inventory in the late 1990s and was not back cast into prior year 
inventories. With that correction, the PM10 inventory will show a 
small decline during that period. * * *'' Id.
---------------------------------------------------------------------------

    The purpose of the percentage calculations for the NOX 
and PM-10 enforceable commitments is to estimate the portion of the 
2003 PM-10 Plan attributable to enforceable commitments. EPA believes 
the two approaches above do just that and does not believe that a 
consistent approach must be used. For this reason, EPA does not believe 
that the percentage of enforceable commitments must be evaluated for 
separate CAA requirements such as the 5% requirement and reasonable 
further progress demonstrations.
    Comment 3: Earthjustice comments that the ``three-factor test'' 
used to determine the acceptability of the commitments is not 
consistent with the Act. The fact that district court decisions have 
made State commitments enforceable does not mean that EPA can approve 
commitment-based plans, especially since there is nothing in the Act 
that allows it. Furthermore, even if the three-factor test is allowed, 
the factors are not met.
    Response: EPA does not rely on district court decisions holding 
commitments enforceable as the basis for the Agency's approval of plans 
containing commitments. As discussed above and in our proposed rule, 
the Fifth Circuit Court of Appeals in BCCA Appeal Group recently upheld 
EPA's interpretation of CAA sections 110(a)(2)(A) and 172(c)(6) and the 
Agency's use and application of the three factor test in approving 
enforceable commitments in the Houston-Galveston ozone SIP. 69 FR 5412, 
5427, footnote 30. In addition, as discussed below, EPA believes the 
three factors have been met.
    Comment 4: Earthjustice comments that the first factor, that the 
commitments address a ``limited portion'' of the Plan, is not satisfied 
by the Plan and that the percentage of commitments calculated by EPA is 
extremely high. The 15-16% of commitments for NOX reductions 
and 72-92% of commitments for PM-10 reductions are clearly not a 
limited portion of the Plan. Earthjustice points out that the Maricopa 
County, Arizona PM-10 plan had a limited portion of commitments which 
involved improvements to already adopted rules and improving testing 
and enforcement, and all of the BACM measures had been previously 
approved by EPA. The Clark County, Nevada plan's commitments were for 
incremental reductions above an already adopted baseline with 
substantial immediate reductions. These commitment percentages far 
exceed the 6% found to be reasonable by the Fifth Circuit Court [in 
BCCA Appeal Group] for the Houston SIP.
    Response: The enforceable commitment component in the SJV plan is 
higher than for other areas such as Maricopa and Clark Counties; 
however, we believe that the percentages must be evaluated on a case-
by-case basis since each area's circumstances are different. For 
example, as noted in the proposed rule:

* * * a significant portion * * * of the needed reductions come from 
the Ag CMP Program which controls agricultural fugitive dust 
sources, a previously unregulated category. * * * measures for 
agricultural sources must be determined on a case-by-case basis. The 
Ag CMP Program is an effort that is well under way as the District 
has worked diligently with stakeholders * * * to develop the best 
available measures for the SJV. An enforceable commitment is 
necessary at this time in order to allow the additional time 
required to further assess the dust measures that the District will 
establish for agricultural sources. * * *

69 FR 5412, 5428-5429.
    In contrast, Clark County did not need to include any significant 
agricultural controls in its plan, and neither Clark County nor 
Maricopa County needed to evaluate and prepare control strategies for 
secondary PM, while at the same time developing primary PM controls. 
Indeed, with the possible exception of the South Coast area, no area in 
the country has had to undertake the complexity of the control measure 
development task facing the SJV, with its remarkably diverse primary 
and secondary PM problem, the dominant place of agricultural controls 
in its attainment strategy, and the magnitude of its emissions 
reductions target. See also, section II.C.3., response to comment 7. 
Given the prevailing conditions in the SJV, EPA believes that the 
percentage of commitments in the Plan is acceptable.
    Moreover, the majority of the SJV's PM-10 commitments have adoption 
and implementation dates in 2004. EPA noted in the proposal that 
``[g]iven the difficulties in controlling direct PM-10 in the SJV and 
the near term adoption and implementation dates, EPA believes the PM-10 
reductions coming from enforceable commitments is acceptable.'' EPA 
continues to believe that the percentage of enforceable commitments for 
PM-10 is acceptable given these circumstances.
    Comment 5: Earthjustice comments that the second factor, that the 
State and District are capable of fulfilling their commitment, is also 
not satisfied by the plan. Earthjustice does not understand how ongoing 
development, past records of accomplishment and a promise to fulfill 
the reduction commitments show that they are capable of fulfilling 
their commitments. Instead, Earthjustice notes the District's history 
of failures and believes there is no basis for EPA to conclude that the 
District will fulfill the Plan's commitments.
    Response: EPA disagrees and believes that ongoing development, past 
record

[[Page 30031]]

of accomplishments and a promise (i.e., enforceable commitment) to 
fulfill the reduction commitments do indicate that the District and 
State are capable of fulfilling their commitments. As discussed in our 
proposed rule (69 FR 5412, 5429), examples of ongoing development 
include the Ag CMP Program, Regulation VIII revisions and the State's 
mobile source measures. All of these programs are well on their way 
towards adoption and implementation. In addition, the State's long 
history of success in adopting new and challenging mobile source 
controls is a good indication that they will be capable of meeting 
their enforceable commitments. Finally, in the event that the Plan's 
category-specific enforceable commitments cannot be met, the District 
has also committed to ``* * * adopt, submit and implement substitute 
rules and measures that will achieve equivalent reductions in the same 
adoption and implementation timeframes.'' SJVUAPCD Governing Board, 
Resolution No. 03-06-07, 10, June 19, 2003. The commitments in 
the 2003 Plan are for requirements and reductions that the District and 
State are capable of meeting and are enforceable by EPA and the public.
    Comment 6: Finally, Earthjustice comments that the third factor, 
that the commitments are for a reasonable and appropriate period of 
time, is not satisfied by the Plan. For many categories the 
implementation dates extend beyond 2004 and even as far as 2020 for 
residential space heating. Furthermore, implementation dates beyond 
2004 are unreasonable in light of the past delay (e.g., BACM should 
have been implemented by 1997) and severity of the Valley's 
nonattainment problem. Finally, Earthjustice notes that Maricopa 
County's SIP commitments all had deadlines of less than one year after 
their approval and that the District has already slipped on the Ag CMP 
program deadlines.
    Response: EPA continues to believe that overall the commitments are 
for a reasonable and appropriate period of time, especially given the 
circumstances in the SJV (see response to comment 4 in this 
subsection). Tables 4-15 and 4-16 (2003 PM-10 Plan, 4-52) \43\ 
summarize the reductions and final implementation dates coming from the 
PM-10 commitments. Table 4-15 shows that the majority of the emissions 
reductions coming from commitments, approximately 56.5 tpd, have final 
implementation dates by 2004. Approximately 9.9 tpd of the committed 
emissions reductions will occur after 2004 from Cotton Gins, Regulation 
VIII unpaved road measure, the Indirect Source Mitigation Program and 
the State and Federal Measures. Table 4-16 shows that approximately 
63.5 tpd have final implementation dates by 2004 and approximately 10.2 
tpd of the reductions will occur after 2004. Tables 4-17 and 4-18 
summarize the reductions and final implementation dates coming from the 
NOX commitments. For NOX, the portion of 
reductions coming from commitments with implementation dates beyond 
2004 is much higher (i.e., approximately 34.3 tpd for the annual 
inventory and 34.0 tpd for the seasonal inventory); however, many of 
the NOX reductions relied upon by the 2003 PM-10 Plan are 
from already adopted measures which will yield substantial reductions.
---------------------------------------------------------------------------

    \43\ Tables 4-15 and 4-16 represent the estimated emissions 
reductions from commitments for the annual and seasonal inventories, 
respectively. The annual inventory is representative of the annual 
PM-10 standard and the seasonal inventory is representative of the 
24-hour PM-10 standard.
---------------------------------------------------------------------------

    As noted by Earthjustice, the residential space heating commitment 
has a final implementation date of 2020, modeled after the Bay Area Air 
Quality Management District's program (2003 PM-10 Plan at 4-46); 
however, the Plan only relies on 0.1 tpd of reductions from this 
category which will be achieved in 2010.
    Finally, as discussed above in response to comment 4 in this 
subsection, the nonattainment situation in the SJV is much more complex 
than for most other areas, such as Maricopa County, and EPA believes 
that a case-by-case evaluation of the needs for each area is warranted 
in determining whether commitments should be accepted. In this regard, 
we note that the Ag CMP program is extensive and complicated and 
believe that the District is working diligently to ensure that the 
program meets the 2004 implementation deadline in their commitment.
    Comment 7: CRPE comments that EPA's decision to stop the Regulation 
VIII sanctions and FIP clocks based on a PM-10 Plan with commitments 
violates the CAA sections 110(c) and 179(a).
    Response: As discussed above, EPA believes the enforceable 
commitments in the 2003 PM-10 Plan are approvable for overall plan 
purposes as well as for other nonattainment area requirements, such as 
RACM and BACM. On February 26, 2003, EPA finalized a conditional 
approval of Regulation VIII for RACM purposes and simultaneously 
finalized a limited approval and limited disapproval of Regulation VIII 
for BACM purposes (68 FR 8830). The conditional approval required 
SJVUAPCD to provide to EPA a RACM demonstration within a year of the 
final action. The BACM limited disapproval identified as deficiencies 
SJVUAPCD's failure to submit a BACM demonstration for Regulation VIII 
or to make appropriate upgrades to Regulation VIII to ensure that it 
meets BACM requirements. Failure to meet the condition of the 
conditional approval or address the deficiencies identified in the 
limited disapproval would have FIP and sanctions consequences under CAA 
sections 110(c) and 179(a). However, as previously discussed, SJVUAPCD 
met the condition of the conditional approval and addressed the BACM 
deficiencies by including in the 2003 PM-10 Plan adequate RACM/BACM 
demonstrations and commitments to upgrade Regulation VIII. See EPA's 
TSD for the 2003 PM-10 Plan, January 27, 2004, pages 14-45). Therefore, 
this final action appropriately stops all FIP and sanctions clock 
implications of EPA's February 26, 2003 and earlier actions regarding 
Regulation VIII.\44\
---------------------------------------------------------------------------

    \44\ In a separate action raising different issues, certain 
organizations have filed an appeal with the Ninth Circuit Court of 
Appeals challenging EPA's February 23, 2003 action on Regulation 
VIII, See Latino Issues Forum et al. v. U.S. EPA, appeal docketed, 
No. 03-70987; Associations of Irritated Residents v. U.S. EPA, 
appeal docketed, No. 03-71696 (9th Cir. March 4, 2003).
---------------------------------------------------------------------------

I. Adoption of All Feasible Measures (Section 179(d)(2)) for Ag CMP 
Program

    Comment 1: CRPE comments that the proposed approval does not 
address CAA section 179(d)(2) which states that a SIP revision ``* * 
*shall include such additional measures as the Administrator may 
reasonably prescribe, including all measures that can be feasibly 
implemented in the area in light of technological achievability, costs, 
and any nonair quality and other air quality-related health and 
environmental impacts.'' CRPE comments that the CMP concept allows 
agricultural sources to select at least one practice from each category 
and that this conflicts with the requirement for all feasible measures 
as stated by section 179(d)(2).
    Response: CRPE misinterprets CAA section 179(d)(2) which provides, 
among other things, that SIP revisions triggered by a failure to attain 
under section 179(d)(1) ``* * *shall include additional measures as the 
Administrator may reasonably prescribe, * * *'' Emphasis added. It is 
clear from the plain language of this provision, i.e., the use of the 
word ``may'' rather than ``shall,'' that Congress intended the 
Administrator's action here to be permissive rather than mandatory. 
Under this provision,

[[Page 30032]]

therefore, EPA has the option to mandate specific additional feasible 
measures beyond those measures otherwise required in nonattainment 
areas. EPA is not, however, required to prescribe such measures.
    The 2003 Plan does, however, need to address the requirements of 
section 189(b)(1)(B) that BACM be applied to all significant sources 
such as agricultural sources covered by the CMP program. We have 
determined that the CMP program will expeditiously achieve a BACM level 
of control. We have also concluded that the Plan provides for 
attainment of the PM-10 standards as expeditiously as practicable. 
Therefore we did not believe it necessary to require additional 
measures pursuant to section 179(d)(2). Thus, since the provision of 
section 179(d)(2) cited by the commenters is discretionary and since 
EPA has not chosen to prescribe any additional SIP measures under it, 
neither the 2003 PM-10 Plan nor EPA's proposed rule was required to 
address it.

J. Approval of Commitments for VOC Sources--Wineries

    Comment 1: The Wine Institute and the Manufacturers Council of the 
Central Valley comment that a great deal of work has been done in 
evaluating VOC emissions from wine fermentation. Commenters state that 
past work has indicated that winery controls were technically feasible, 
but not cost effective. Commenters provided data that indicate winery 
emissions are overestimated and state that the District has failed to 
include this information. Commenters ask EPA to remove this source 
category from the PM-10 Plan prior to EPA approval.
    Response: Under the Act, states have primary responsibility for 
regulating air quality within their borders. Under CAA section 
110(k)(3), EPA has an obligation to act on State submittals. While we 
do not believe a rule for wineries is required for purposes of 
satisfying the section 182(b)(1)(B) BACM requirement,\45\ we do believe 
that such a rule will strengthen the SJV's SIP, especially since VOC 
reductions are needed for ozone attainment. Thus, EPA is approving the 
commitment under sections 301(a) and 110(k)(3) as strengthening the 
SIP.
---------------------------------------------------------------------------

    \45\ See above comments and responses in section II.A.2. and 
C.11.
---------------------------------------------------------------------------

K. Approvability of Indirect Source Mitigation Measure

    Comment 1: The California Building Industry Association (CBIA) and 
its Affiliate Associations located in the SJV comment that the Indirect 
Source Mitigation Program does not meet CAA criteria requiring control 
measures to provide quantifiable, surplus, enforceable, permanent, and 
adequately supported reductions in air emissions. Thus, CBIA recommends 
that the measure should not be approved.
    Response: See section II.E., response to comment 4.

L. Windblown Dust Issues

    Comment 1: A commenter (C. Swanson) cites an excerpt from the PM-10 
Plan, Appendix G, Table G-15 ``BACM Comparative Analysis for ``On-Field 
Activities'' concerning the BACM justification discussion associated 
with the ``Other'' category of the District's proposed Ag CMP:

    The SJV does not have a windblown dust problem to anywhere near 
the extent of the other nonattainment areas. The SJV has some of the 
lowest average wind speeds in the country. No wind related 
exceedances have been recorded in the basin during the last three 
years. Wind speeds are highest during the spring when PM-10 levels 
are at their lowest. The majority of the fugitive dust emissions are 
generated from earth disturbing activities. Certain soil types and 
crops are more prone to windblown dust problems. The ``Other'' 
category will give the farmers with the potential to experience wind 
blown dust emissions the flexibility to address this issue with a 
CMP.

The commenter states that this excerpt provides a synopsis of the PM-10 
Plan's characterizations of airflow in the valley and how it relates to 
the regulation of agricultural land use. The commenter believes the 
Plan's characterizations do not adequately portray the conditions in 
the entire valley and may not lead to proper regulatory actions. The 
commenter states that his study of the conditions of one dust storm on 
June 20, 2002 in Northwest Kern County contradicts the statements in 
the excerpt and that wind events on this side of the valley appear to 
have an episodic component related to a regular summer cycle of heating 
and cooling in the SJV.
    Response: Below we respond to the commenter's specific comments on 
the statements cited from the Plan. In general, however, the 
information in Appendix G, Table G-15 reflects monitored PM-10 
exceedances and the District's analysis of meteorological data on 
exceedance days. In contrast, the data provided by the commenter is not 
sufficient to support the conclusions made with regard to regulatory 
actions, given that wind speed data alone does not provide evidence of 
PM-10 concentrations.
    Comment 2: C. Swanson disagrees with the Plan's assessment that the 
San Joaquin Valley Air Basin does not have a windblown dust problem to 
anywhere near the extent of the other [PM-10] nonattainment areas. 
Examination of Caltrans data for the southern San Joaquin Valley 
reveals that in the year 2002, Caltrans posted signs warning of low 
visibility due to windblown dust during all months of the year. Some 
locations had warnings posted four different times during the year.
    Response: Caltrans windblown dust postings are based on field 
observations by Caltrans employees, as opposed to measured PM-10 
concentrations. They do not reveal whether exceedances of the PM-10 
standards occurred at the locations of the postings. Therefore, neither 
the District nor EPA can rely on them for purposes of identifying PM-10 
exceedances. The Caltrans-reported events generally do not correlate 
with days on which PM-10 monitors exceeded the PM-10 standards.\46\ 
This means that the Caltrans-reported events are not being recorded by 
the monitors and are therefore spatially limited. The District's 
monitors have detected some high hourly rates downwind for a few of the 
events, but not for substantial enough periods that the 24-hour PM-10 
standard is exceeded.\47\
---------------------------------------------------------------------------

    \46\Letter from James Sweet, SJVUAPCO, to Doris Lo, EPA Region 
9, April 15, 2004, page 2 (4/15/04 letter).
    \47\4/15/04 letter, page 2.
---------------------------------------------------------------------------

    Comment 3: C. Swanson disputes the following statement in the PM-10 
plan: ``The SJVAB has some of the lowest average wind speeds in the 
country. No wind related exceedances have been recorded in the basin 
during the last three years.'' Commenter states that while large areas 
in the center of the valley have very low average wind speeds, large 
areas around the periphery of the basin can be subject to periods of 
high wind velocity and windblown dust. The current siting of monitoring 
stations does not capture the air flow patterns on the western side of 
the valley in Kern County and therefore cannot be used to represent 
conditions in Western Kern County.
    Response: The ambient monitoring network for the SJV operated by 
the District and CARB was designed to meet the requirements of EPA 
regulations at 40 CFR part 58. Monitoring for representative air flow 
patterns is not one of the criteria used to design a criteria pollutant 
monitoring network. The SJV 2003 PM-10 Plan did utilize meteorological 
data from the District's ambient monitoring network as well as other 
non-district monitoring networks, such as the Automated Surface 
Observing System (ASOS) sponsored by the Federal Aviation 
Administration,

[[Page 30033]]

National Weather Service, the U.S. Department of Defense, and the 
California Irrigation Management Information System (CIMIS), in 
evaluating episodes for exceedance days at PM-10 monitors in the SJV. 
These networks included many meteorological sites in the western and 
southwestern portions of the SJV. During the episodes studied, high 
wind speeds were not observed at these western and southwestern 
meteorological sites. ``Meteorological Analysis Applied to the San 
Joaquin Valley Air Pollution Control District's 2003 PM-10 State 
Implementation Plan,'' SVUAPCD, DRAFT (May 29, 2003). The District 
acknowledges that no definitive statement can be made about peak PM-10 
concentrations at Blackwells Corner absent a PM-10 monitoring site near 
the location; however, there are insufficient resources to saturate the 
valley with monitoring sites at a density that would be required to 
establish a definitive case for the entire Valley. Id., page 2. In 
accordance with EPA regulations, the District's monitoring sites are 
selected to evaluate exposure of populated areas to adverse air quality 
caused by anthropogenic activity. Low population on the west side of 
the SJV has resulted in a lack of monitors in that area. Id., pages 1 
and 7. EPA has evaluated the adequacy of the PM-10 monitoring network 
for the SJV and concluded that `` * * * the network meets all 
applicable statutory and regulatory requirements and is adequate to 
support the technical evaluation of the PM-10 nonattainment problem in 
the [District's] plan.'' Evaluation of the Adequacy of the Monitoring 
Network for the San Joaquin Valley, California for the Annual and 24-
Hour PM-10 Standards; Bob Pallarino, EPA Region 9, Air Division; 
September 22, 2003.
    Comment 4: C. Swanson states that 2002 wind speed data collected at 
a CIMIS station in Blackwells Corner documents periods of high wind 
velocity during all times of the year, contrary to the PM-10 Plan's 
statement that wind speeds are highest during the spring when PM-10 
levels are at their lowest. The Blackwells Corner data shows that more 
wind events occur during the summer period than the winter/spring 
period.
    Response: The statements in the PM-10 Plan cited by the commenter 
concerning wind velocity provide an accurate, general characterization 
of the SJV. The District acknowledges that exceptions to the 
characterization of low wind speeds occur in passes, along ridges, on 
mountainous terrain and other areas of terrain influence that create 
slope flows.\48\ The District's meteorological analysis of wind speeds 
associated with measured PM-10 exceedances found that they largely 
occurred during periods of low winds and stagnant conditions in the 
fall and winter.\49\
---------------------------------------------------------------------------

    \48\ Id., page 1.
    \49\ One recent exception is a May 20, 2002 Bakersfield-Golden 
exceedance that the District attributes to a large-scale wind 
episode involving thunderstorms and hail. 4/15/04 letter, page 2.
---------------------------------------------------------------------------

    Comment 5: C. Swanson states that CIMIS data for Blackwells Corner 
indicates several days throughout the year with sustained periods of 
high wind velocity that exceed the 13 mph wind velocity threshold 
described in the PM-10 Plan as a point of possible entrainment of 
geological material.\50\ The commenter provides a table of the 
aforementioned CIMIS wind data for Blackwells Corner. The commenter 
states that data from the nearby Lost Hills National Oceanic and 
Atmospheric Administration (NOAA) vertical profile corroborates the 
CIMIS data and some of the longest periods of sustained high winds are 
during the summer months when local soils may be dryer and have 
disturbed surfaces from agricultural activities.
---------------------------------------------------------------------------

    \50\ Commenter also cites a 2003 report by V. Etyemezian of 
Desert Research Institute in support of relying on 13 mph as the 
appropriate wind velocity threshold needed to generate fugitive 
dust.
---------------------------------------------------------------------------

    Response: We agree that CIMIS data indicates several days 
throughout the year in the Blackwells Corner area with sustained 
periods of wind velocity capable of elevating fugitive dust from 
disturbed surfaces.\51\ However, based on this information alone, we 
cannot conclude that the Blackwells Corner area or other areas in its 
immediate downwind vicinity are experiencing PM-10 exceedances. The 
Blackwells Corner wind velocities are not representative of typical 
wind velocities in other parts of the SJV, as evidenced by the 
District's compilation of wind speed data associated with PM-10 
exceedance days. The District conducted a specific analysis of the days 
on which CIMIS sites at Blackwells Corner and other west-side CIMIS 
sites historically recorded elevated winds.\52\ While one-in-six-day 
monitoring captured a representative sample of days where CIMIS sites 
recorded elevated winds (18% coincidence), the District did not find a 
correlation of those days with observed PM-10 exceedances.\53\ Only 
five PM-10 exceedance days spanning a 13-year period were identified as 
associated with strong winds.\54\ The PM-10 Plan does recognize that 
windblown dust can occur from agricultural disturbed surfaces by 
including windblown measures in the ``Other'' category in the proposed 
Ag CMP Program.
---------------------------------------------------------------------------

    \51\ The District acknowledges that CIMIS data reports 118 days 
in the Blackwells Corner area with winds over 13 mph.
    \52\ The District's analysis reviews CIMIS wind speed data 
between 1990 and the present for the top one-hundred values of 
maximum hours observed with winds over 13 mph, as well as with other 
related data sets.
    \53\ 4/15/04 letter, pages 3-4.
    \54\ Id., page 4.
---------------------------------------------------------------------------

M. Transportation Conformity and the Trading Mechanism

    Comment 1: The commenter (TPAs) references the trading mechanism 
discussion in the proposed rule (69 FR 5412, 5416-5417). This section 
of the proposal discusses the transportation conformity trading 
mechanism. The commenter requests a clarification on the requirement 
for a new analysis of the emission trading, for subsequent conformity 
findings, once the U.S. Department of Transportation (DOT) has approved 
a conformity finding which relied upon the trading mechanism. 
Specifically, the commenter requests that a new analysis of emissions 
trading be completed only when a new regional emissions analysis is 
required for the new conformity finding.
    Response: EPA agrees with the commenter that a new analysis of 
trading is only required when a new regional emissions analysis is also 
required. Once the U.S. DOT has approved a conformity finding which 
relied upon the trading mechanism, the transportation planning agency 
cannot necessarily rely on that trading scenario for future conformity 
findings that require a new regional emissions analysis.
    Comment 2: The commenter (TPAs) also requests that the proposed 
rule, which states that the trading mechanism can only be used once 
approved by EPA, be modified to state that the trading mechanism could 
be used upon an EPA finding that a budget is adequate. The commenter 
feels that existing language permits use of trading once budgets in the 
SIP are adequate.
    Response: The commenter is correct that if an area has a trading 
mechanism in an approved SIP for a criteria pollutant, and that trading 
mechanism permits the trading of precursors and/or the pollutant, then 
the language of 40 CFR 93.124(c), the conformity rule, does permit 
trading to occur among pollutants or precursors for budgets once EPA 
finds the budgets adequate. However, the trading mechanism must be 
approved as part of the SIP before it can be used, even if adequate or 
approved budgets already exist. Section

[[Page 30034]]

93.124(c) only allows trading among budgets for the purposes of 
conformity if there is an approved mechanism in the SIP to allow 
trading to take place. The provision in Sec.  93.124(c) specifically 
states that:

    [a] conformity demonstration shall not trade emissions among 
budgets which the applicable implementation plan (or implementation 
plan submission) allocates for different pollutants or precursors, 
or among budgets allocated to motor vehicles and other sources, 
unless the implementation plan establishes appropriate mechanisms 
for such trades.

Emphasis added. The references to the ``applicable implementation 
plan'' and the ``implementation plan'' in the second and last line of 
this paragraph are consistent with the definition for `applicable 
implementation plan' in Sec.  93.101 of the conformity rule. The 
definition states that: ``Applicable implementation plan is defined in 
section 302(q) of the CAA and means the portion (or portions) of the 
implementation plan, or most recent revision thereof, which has been 
approved under section 110, or promulgated under section 110(c), or 
promulgated or approved pursuant to regulations promulgated under 
section 301(d) and which implements the relevant requirement of the 
CAA.'' Furthermore, the reference to the implementation plan submission 
is in regard to any SIP which establishes budgets, not one which 
establishes a trading mechanism.
    EPA does not make adequacy findings on trading mechanisms in 
submitted SIPs. EPA's adequacy review is limited to determining whether 
the budgets in a SIP meet the criteria in Sec.  93.118(e)(4). For more 
information regarding adequacy, please refer to the preamble of EPA's 
June 30, 2003, proposed rule, which includes our current adequacy 
policy to date (68 FR 38979-38984).
    Comment 3: The commenter (Earth Matters) references the proposed 
rule at page 5415 (Section IV.B.2., second to last paragraph, fourth 
sentence and Footnote 7). This section of the proposal discusses the 
interconnections between conformity findings for subarea budgets by the 
multiple Metropolitan Planning Organizations (MPOs) in the SJV. The 
proposal clarified that if an individual MPO could not show conformity 
to their individual county budget, then the remaining MPOs in the SJV 
cannot make any new conformity determinations. The commenter requests 
that this requirement apply to Federal actions only.
    Response: EPA cannot clarify that the action applies to Federal 
actions only since this requirement does apply to both actions by U.S. 
DOT and by MPOs in adopting conformity documents. This requirement is 
not a new requirement. Section 176(c) of the Clean Air Act clearly 
states that conformity applies in nonattainment and maintenance areas. 
Section 176(c) also states that the Federal government and MPOs cannot 
approve transportation activities unless they conform to a SIP, and 
SIPs are established for a nonattainment or maintenance area. In a 
nonattainment or maintenance area with more than one MPO, all MPOs must 
conform even if the SIP has established subarea budgets. If an 
individual MPO lapses, it has not demonstrated that it can conform to 
its subarea budgets. Therefore, there is no way for the other MPOs to 
show that their planned transportation activities still conform to the 
SIP until the lapse is resolved.
    Comment 4: The commenter (Earth Matters) also requests that EPA add 
clarification that this requirement and associated clarifying language 
apply solely during a conformity lapse that results from a 
Transportation Improvement Plan (TIP) or Regional Transportation Plan 
(RTP) expiration only.
    Response: EPA disagrees with the commenter. In an area with subarea 
budgets and more than one MPO, if conformity for one MPO lapses for any 
reason, the other MPOs in the area cannot determine conformity until 
the first MPO resolves its lapse. This prohibition on other MPOs 
applies whether the conformity lapse is caused by the expiration of a 
transportation plan or TIP, or any another reason, such as failure to 
determine conformity within 18 months of approval of a SIP that 
establishes new budgets.
    In an area with more than one MPO, if one MPO lapses, the other 
MPOs in the area would not lapse immediately. Instead, the other MPOs 
can still proceed with projects in their current TIPs. However, these 
other MPOs could not make new conformity determinations until the 
lapsing MPO resolves the lapse by re-establishing conformity for its 
plan and TIP.

N. Other Comments

    Comment 1: Several commenters noted the health issues caused by PM-
10 and other pollutants. Commenters wanted clean air as soon as 
possible and no more delays.
    Response: EPA believes that the 2003 PM-10 Plan provides a road-map 
towards meeting the PM-10 standards as soon as possible for the SJV.
    Comment 2: One commenter (LaSalle) stated that the PM-10 standards 
and plan are built upon insubstantial evidence. Commenter stated that 
the PM-10 standard was last revised in 1987 and more recent studies 
needed to be addressed.
    Response: The purpose of the 2003 PM-10 Plan is to achieve the PM-
10 standards in the SJV. Evaluation of the PM-10 standards is outside 
the scope of the 2003 PM-10 Plan and this rulemaking. In addition to 
the PM-10 standards, EPA has promulgated standards for PM-2.5 (40 CFR 
50.7) and is currently developing guidance for their implementation.
    Comment 3: CRPE comments that the 2003 PM-10 Plan fails to comply 
with the requirements of the CAA and that EPA's approval of the Plan is 
nothing more than an attempt to avoid promulgating a Federal 
Implementation Plan (FIP).
    Response: EPA's proposed approval provides detailed discussions of 
how each of the CAA requirements are adequately addressed by the 2003 
PM-10 Plan. When possible, EPA prefers approving a State's plan 
requirements in lieu of promulgating a FIP. We have expedited our 
rulemaking to avoid a FIP for the SJV, but we do not believe that we 
proposed to approve an unapprovable plan.
    Comment 4: EPA received comments (LaSalle) that the public comment 
period does not meet the requirements of due process. Given the 
complexity and technicality of the 2003 PM-10 Plan, comment suggests 
180 days as a more appropriate timeframe for public review and comment.
    Response: EPA provided a 30-day comment period which was extended 
for an additional 2 weeks, until March 19, 2004. The 2003 PM-10 Plan is 
a complicated document; however, prior to the publication of EPA's 
proposed rule, the District and State held public processes to discuss 
the Plan with the public. Numerous workshops were held prior to the 
SJV's Board's adoption of the 2003 PM-10 Plan in June 2003. Following 
that adoption, the State also provided a comment and response period 
before its adoption of the Plan and submittal to EPA.
    Comment 5: EPA received comments (Jones) complaining about 
pollution from a cement plan in Tehachapi, California. Commenter wanted 
controls found in SJV's Regulation VIII applied to the source.
    Response: Tehachapi, California is located in Eastern Kern County, 
outside of the SJV PM-10 nonattainment area. EPA Region 9 Enforcement 
Office and the Kern County Air Pollution Control Office has been 
notified of the complaint.

[[Page 30035]]

III. EPA Action

    EPA is finalizing its approval pursuant to CAA section 110(k)(3) 
the following elements of the 2003 PM-10 Plan as meeting the CAA 
requirements applicable to serious PM-10 nonattainment areas that have 
failed to meet their attainment date:
    (1) EPA is approving the emissions inventories as meeting the 
requirements of section 172(c)(3).
    (2) EPA is approving the RACM/BACM demonstration for all 
significant PM-10 and NOX sources in the SJV as meeting the 
requirements of sections 189(a)(1)(C) and 189(b)(1)(B). Approval of 
this demonstration with respect to fugitive dust sources regulated by 
SJVUAPCD Regulation VIII terminates all sanction, FIP, and rule 
disapproval implications of our February 26, 2003 action. 68 FR 8830.
    (3) EPA is approving, as meeting the requirements of sections 
179(d)(3) and 189(d), (a) the attainment demonstration, associated 
motor vehicle budgets and trading mechanism; (b) commitments to adopt 
and implement new, identified stationary, area and mobile source BACM 
to reduce PM-10 and NOX emissions; (c) a commitment for the 
Indirect Source Mitigation Program; (d) a commitment for 10 tpd of 
NOX and 0.5 tpd of PM-10 reductions from State mobile source 
measures; (e) and the commitment to submit a SIP revision by March 31, 
2006 based on a mid-course review that will include an evaluation of 
the modeling from the CRPAQS and the latest technical information 
(inventory data, monitoring, etc.) to determine whether the level of 
emission reductions in the 2003 PM-10 Plan is sufficient to attain the 
PM-10 standards.
    (4) EPA is approving under section 110(k)(3) and 301(a) as 
strengthening the SIP the commitments to adopt and implement VOC and 
SOx measures.
    (5) EPA is approving the NOX and PM-10 emissions levels 
necessary to meet the 5% annual reduction requirement in section 
189(d).
    (6) EPA is approving the reasonable further progress demonstration 
as meeting the requirements of section 172(c)(2) and 189(c)(1).
    (7) EPA is approving the Plan as meeting the quantitative 
milestones requirement in section 189(c)(1).
    (8) EPA is approving the PM-10 and NOX motor vehicle 
emission budgets for purposes of transportation conformity for 2005, 
2008, and 2010 and the associated trading mechanism for demonstrating 
conformity for years after 2010, under CAA section 176(c)(2)(A). These 
budgets are reproduced in EPA's proposed rule on the 2003 PM-10 Plan in 
a table printed at 69 FR 5416. As proposed, we are limiting this 
approval to last only until the effective date of our adequacy findings 
for new replacement budgets.\55\ The trading mechanism is discussed in 
EPA's proposed rule at 69 FR 5416.
---------------------------------------------------------------------------

    \55\ For further discussion of the rationale for, and effect of, 
this limitation, please see the proposed rule at 69 FR 5415, and 
EPA's promulgation of a limitation on motor vehicle emission budgets 
associated with various California SIPs, at 67 FR 69139 (November 
15, 2002).
---------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 26, 2004. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

[[Page 30036]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: April 28, 2004.
Deborah Jordan,
Acting Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.220 is amended by revising paragraph (c)(317) and adding 
paragraph (c)(327) to read as follows:


Sec.  52.220  Identification of plan.

    (c) * * *
    (317) The plan and amended regulation for the following APCD were 
submitted on August 19, 2003, by the Governor's designee.
    (i) Incorporation by reference.
    (A) San Joaquin Valley Unified Air Pollution Control District.
    (1) Rule 4901, adopted on July 15, 1993 and amended on July 17, 
2003.
    (2) 2003 PM10 Plan, San Joaquin Valley Plan to Attain Federal 
Standards for Particulate Matter 10 Microns and Smaller (all except 
``Contingency Control Measures'' section, pages 4-53 to 4-55), adopted 
on June 19, 2003, and ``Regional Transportation Planning Agency 
Commitments for Implementation,'' dated April 2003 (Volume 3).
* * * * *
    (327) The following plan was submitted on December 30, 2003 by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) San Joaquin Valley Unified Air Pollution Control District.
    (1) Amendments to the 2003 San Joaquin Valley Plan to Attain 
Federal Standards for Particulate Matter 10 Microns and Smaller, 
adopted December 18, 2003.
* * * * *
[FR Doc. 04-11667 Filed 5-25-04; 8:45 am]
BILLING CODE 6560-50-P