Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; State of California; PM-10; Revision of Designation; Redesignation of the San Joaquin Valley Air Basin PM-10 Nonattainment Area to Attainment; Approval of PM-10 Maintenance Plan for the San Joaquin Valley Air Basin; Approval of Commitments for the East Kern PM-10 Nonattainment Area

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
 
PDF Version (17 pp, 227K, About PDF)

[Federal Register: November 12, 2008 (Volume 73, Number 219)]
[Rules and Regulations]
[Page 66759-66775]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no08-14]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2008-0306; FRL-8724-7]

Approval and Promulgation of Implementation Plans; Designation of
Areas for Air Quality Planning Purposes; State of California; PM-10;
Revision of Designation; Redesignation of the San Joaquin Valley Air
Basin PM-10 Nonattainment Area to Attainment; Approval of PM-10
Maintenance Plan for the San Joaquin Valley Air Basin; Approval of
Commitments for the East Kern PM-10 Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is approving the State of California's request under the
Clean Air Act (CAA or the Act) to revise the designation for the San
Joaquin Valley (SJV) serious nonattainment area for particulate matter
of ten microns or less (PM-10) (SJV nonattainment area) by splitting
the area into two separate nonattainment areas: The San Joaquin

[[Page 66760]]

Valley Air Basin (SJVAB) serious PM-10 nonattainment area and the East
Kern serious PM-10 nonattainment area. EPA is also redesignating the
SJVAB nonattainment area to attainment for the PM-10 national ambient
air quality standard (NAAQS) and approving the PM-10 maintenance plan,
motor vehicle emissions budgets and conformity trading mechanism for
the area. EPA is also excluding from use in determining that the area
has attained the standard exceedances on July 4, 2007, and January 4,
2008, that EPA has concluded were caused by exceptional events.
Finally, EPA is approving enforceable commitments by the Kern County
Air Pollution Control District and the California Air Resources Board
to install a PM-10 monitor in the East Kern nonattainment area and to
address CAA requirements under section 189(d) as necessary for the area.

DATE: This rule is effective on December 12, 2008. The motor vehicle
emission budgets are applicable as of November 12, 2008.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2008-0306 for
this action. The docket is available electronically at
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While all documents in the docket
are listed in the index, some information may be publicly available
only at the hard copy location (e.g., copyrighted material), and some
may not be publicly available in either location (e.g., CBI). To
inspect the hard copy materials, please schedule an appointment during
normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415) 972-
3959, lo.doris@epa.gov.

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

Table of Contents

I. Background
II. Public Comments and EPA Responses
    A. Area Has Attained
    B. Fully Approved SIP
    C. Improvements in Air Quality are Due to Permanent and
Enforceable Emission Reductions
    D. Area Has Met All Applicable CAA Section 110 and Part D Requirements
    E. Maintenance Plan
    F. Revision of Boundary Designation
    G. Miscellaneous Comments
III. Final Actions
IV. Statutory and Executive Order Reviews

I. Background

    On April 25, 2008 (73 FR 22307), EPA proposed the following actions:
    • Approval of the State of California's request to revise
the designation for the SJV serious PM-10 nonattainment area by
splitting the area into two separate nonattainment areas, the SJVAB
serious PM-10 nonattainment area and the East Kern serious PM-10
nonattainment area.
    • Redesignation of the SJVAB nonattainment area to
attainment for the PM-10 NAAQS and approval of the maintenance plan,
motor vehicle emissions budgets and conformity trading mechanism for
the SJVAB area.
    • Exclusion from use in determining that the SJVAB area has
attained the standard two exceedances that EPA has concluded were caused
by exceptional events that occurred on July 4, 2007, and January 4, 2008.
    • Approval of enforceable commitments by the Kern County Air
Pollution Control District (KCAPCD) and the California Air Resources
Board (CARB) to install a PM-10 monitor in the East Kern nonattainment
area and to address CAA requirements under section 189(d) as necessary
for the East Kern area.
    Subsequently, On May 23, 2008, EPA extended the public comment
period for two weeks, until June 10, 2008. 73 FR 30029. EPA issued the
extension in order to notify the public of a minor change in the motor
vehicle emissions budgets and to provide the public with the
opportunity to consider these technical corrections.
    Under section 107(d)(3)(D) of the CAA, the Governor of any state
may, on the Governor's own motion, submit to EPA a revised designation
of any area or portion thereof within the state.\1\ EPA is required to
approve or deny the revised designation within 18 months of receipt. On
January 31, 2008, the State submitted to EPA a revised designation that
involves a boundary change only and not a change in status (e.g., from
``nonattainment,'' to ``attainment'' or ``unclassifiable'') of any area.
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    \1\ Boundary changes are an inherent part of a designation or
redesignation of an area under the CAA. See CAA section
107(d)(1)(B)(ii).
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    Section 107(d)(3)(E) of the CAA states that an area can be
redesignated to attainment if the following conditions are met:
    (1) EPA has determined that the area has attained the NAAQS.
    (2) The applicable implementation plan has been fully approved by
EPA under section 110(k) of the CAA.
    (3) EPA has determined that the improvement in air quality is due
to permanent and enforceable reductions in emissions.
    (4) The State has met all applicable requirements for the area
under section 110 and Part D of the CAA.
    (5) EPA has fully approved a maintenance plan, including a
contingency plan, for the area under section 175A of the CAA. These
requirements are discussed in more detail in a September 4, 1992, EPA
memorandum, ``Procedures for Processing Request To Redesignate Areas to
Attainment,'' John Calcagni, Director, Air Quality Management Division
(Calcagni memorandum).
    The proposed rule provides a more detailed discussion of the
background pertinent to this final action.

II. Public Comments and EPA Responses

    EPA received one letter in support of EPA's proposed actions from
the San Joaquin Valley Air Pollution Control District (SJVAPCD or the
District) and two letters with adverse comments. As EPA sets forth in
detail in its responses to comments below, in taking final action EPA
has fully considered all data pertinent for regulatory use in
determining attainment in the SJVAB area and EPA continues to believe
that the area has attained the PM-10 standard. EPA has also determined
that the State's request for redesignation and the maintenance plan for
the SJVAB area meet the applicable requirements of the CAA. In
addition, EPA is granting the State's request for a boundary revision
for the area based on a multiplicity of factors. The available
monitoring data for the East Kern area, while limited, also indicate
that concentrations are well below the NAAQS. Thus, for the reasons set
forth in the responses to comments below, as well as in the proposed
rule, EPA is finalizing its proposed determinations as fully meeting
the requirements of the CAA.

A. Area Has Attained

    Comment 1: Earthjustice (EJ) states that the first condition that a
nonattainment area must meet in order to be redesignated to attainment
under CAA section 107(d)(3)(E) is that EPA has determined that the area
has actually attained the NAAQS. EJ alleges that the SJV nonattainment
area has recorded multiple exceedances of the standard during the
period that EPA is relying on to demonstrate attainment and that EPA is
thus ignoring a serious air quality problem and the health impacts
associated with it. EJ incorporates by reference and attaches its
previous comments on EPA's attainment determination that claim the
problem EPA is ignoring has existed for

[[Page 66761]]

many years, is part of what led EPA to designate the SJV area
nonattainment in the first place and is caused by ongoing human
activity that is not reasonably controlled.
    Response 1: The previous comments to which EJ refers in its June
10, 2008 comment letter on the proposed rule are contained in its
August 18, 2006 comment letter with attachments A-H, October 26, 2007
comment letter, December 29, 2006 Petition for Reconsideration and
March 21, 2007 Petition for Withdrawal, with attached declarations from
Sarah Jackson and Jan Null. EJ raised the same issues as it raises here
during EPA's rulemakings regarding the 2006 determination of attainment
for the SJV nonattainment area and 2008 affirmation of that
determination. EPA fully responded to EJ's comments at that time. See
the final rules at 71 FR 63642 (October 30, 2006) and 73 FR 14687
(March 19, 2008). See also the proposed rules for these actions at 
71 FR 40952 (July 19, 2006) and 72 FR 49046 (August 27, 2007). As we
explained in our responses to EJ's comments in the final rules, EPA
believes that the SJV area has attained the PM-10 NAAQS and that the
exceedances noted by EJ were properly excluded from consideration under
the Agency's Exceptional Events Rule (EER)(72 FR 13560; March 22, 2007).
    EJ subsequently filed petitions for review of the October 2006 and
March 2008 final rules in the U.S. Court of Appeals for the Ninth
Circuit. Latino Issues Forum, et al. v. EPA, Nos. 06-75831 and 08-
71238.\2\ In its opening brief in these cases, filed on June 16, 2008,
EJ again raises these issues. In its brief in opposition, filed on
September 3, 2008, EPA again responds to EJ's arguments. EJ was
required to raise any issues regarding the 2006 attainment
determination and 2008 affirmation of that determination during those
rulemakings and in the Ninth Circuit in Latino Issues Forum and cannot
relitigate the same issues here.
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    \2\ The Ninth Circuit has consolidated the two petitions for review.
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    Moreover, in the proposed rule for today's final action we proposed
to exclude under the EER data showing exceedances in the SJV
nonattainment area on July 4, 2007 and January 8, 2008, and concluded
that the area continued to attain the PM-10 standard through February
2008. We did not receive any adverse comments on this aspect of our
proposed rule. In this final action, for the reasons set forth in the
proposed rule and in EPA's concurrence letters to which it refers, we
are concurring with the State's flagging of those data as caused by
fireworks and high wind exceptional events, and excluding those data
from consideration in determining that the SJVAB area continues to
attain the standard.
    Finally, EPA is aware of PM-10 exceedances recorded on May 21, 2008
at the Corcoran and Bakersfield Federal Equivalent Method (FEM)
monitors and the Corcoran Federal Reference Method (FRM) monitor, and
on May 22, 2008 at the Corcoran FEM. On June 24, 2008, the District
posted on its website documentation that these exceedances were caused
by a natural event, i.e., high winds. The comment period ended on July
24, 2008 and no public comments were received. The documentation was
submitted to EPA on August 12, 2008 and EPA has concurred that these
exceedances should be flagged as exceptional events. Letter from Wayne
Nastri, EPA to Mary D. Nichols, CARB, September 24, 2008.
    EPA is not taking comment on whether the May 2008 exceedances
should be excluded from the determination in this final rule that the
SJVAB area continues to attain the PM-10 standard. The determination of
whether an area has attained the PM-10 standard is based on the most
recent three consecutive calendar years of data. As mentioned above and
in other EPA actions, the SJVAB area has attained the PM-10 standard
based on data for the three-year period from 2003 through 2005 and the
three-year period from 2005 through 2007. See 71 FR 63642 and 
73 FR 14687. Because 2008 has not ended, EPA cannot determine whether the
area has attained the standard based on the three-year period from 2006
through 2008. We can, however, determine with less than three years of
data whether the SJVAB area has failed to attain in the period from
2006 to date. See 40 CFR part 50, appendix K, section 2.3(c) and 
71 FR 63642, footnote 26.
    Because the May 21 and 22, 2008 exceedances are the only
exceedances at the Corcoran monitors since 2006 not excluded through
notice and comment rulemaking from regulatory consideration, the
expected number of exceedances recorded at the FRM monitor, based on
the May 21 exceedance, is three and the expected number of exceedances
recorded at the FEM monitor on May 21 and May 22 is two.\3\ Similarly,
because the May 21, 2008 exceedance is the only exceedance recorded at
the Bakersfield monitor since 2006 not excluded from regulatory
consideration through notice and comment rulemaking, the expected
number of exceedances at the Bakersfield monitor is one. Thus, even if
EPA does not exclude the May 21 and 22, 2008 exceedances from
regulatory consideration, the SJVAB area continues to attain the PM-10
NAAQS to date because both Corcoran and Bakersfield have an expected
number of exceedances of less than or equal to one per year, averaged
over the three year period 2005-2007 and through 2008 to date. All
other monitors in the SJV area had an expected number of exceedances of
less than or equal to one per year during these periods. EPA thus
determines that the SJVAB area has attained the PM-10 NAAQS as required
by section 107(d)(3)(E)(i).
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    \3\ Note that the Corcoran FRM operates on a one-in-three day
schedule and that EPA does not combine PM-10 data collected with
different monitoring methods, i.e., FRMs and FEMs. See Memorandum
from Gerald A. Emison, EPA, to EPA Regional Division Directors, ``Revision
to Policy on the Use of PM-10 Measurement Data,'' November 21, 1988 at 3.
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B. Fully Approved SIP

    Comment 2: EJ states that the second condition for redesignation
under section CAA section 107(d)(3)(E) is that an area seeking
redesignation must have a fully approved state implementation plan
(SIP) and must satisfy all requirements that apply to the area and that
the SJV nonattainment area does not have such a SIP. EJ argues that
while EPA concedes that it has never approved contingency measures for
the area and has instead suspended this requirement under the Agency's
Clean Data Policy, neither the policy nor the cases EPA cites addresses
PM-10 nonattainment areas and therefore do not square EPA's action with
the mandate under CAA section 189(c) that such areas continue to
achieve the milestones for emission reductions in order to demonstrate
reasonable further progress (RFP) ``until the area is redesignated to
attainment.'' EJ believes that because contingency measures are also
necessary to ensure this progress is achieved, EPA cannot suspend the
requirement for these measures. Citing Engine Mfrs. Ass'n v. EPA, 88
F.3d 1075, 1089 (D.C. Cir. 1996), EJ asserts that EPA does not have the
authority to waive statutory requirements and circumvent redesignation
provisions because it believes compliance with those requirements is
unnecessary.
    Response 2: In 2006 EPA approved the entire nonattainment plan for
the SJV area,\4\ including the CAA section 189(c)(1) reasonable further
progress milestones, except for the CAA section 172(c)(9) contingency
measures, on

[[Page 66762]]

which EPA deferred action. 69 FR 30006 (May 26, 2004). EPA subsequently
determined that the contingency measures requirement for the SJV area
was suspended as a result of its October 2006 determination that the
area has attained the PM-10 standard. 71 FR 63642, 63663. During that
rulemaking, EJ raised the same issues with regard to EPA's Clean Data
Policy \5\ and statutory construction as it raises here. EPA responded
to EJ's arguments in the final rule. See id. at 63643-63647. EJ again
raises these issues in its opening brief in Latino Issues Forum. EPA
again responds to EJ's arguments in its brief in opposition. EJ was
required to raise any issues regarding the suspension of the
contingency measures requirement during EPA's 2006 attainment
determination rulemaking and in Latino Issues Forum. EJ did so and
cannot relitigate the same issues here. Because EPA has approved SIP
provisions submitted by California for the SJVAB area that address all
applicable CAA requirements, EPA has concluded that the CAA section
107(d)(3)(E) requirement for a fully approved SIP has been met.
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    \4\ ``2003 PM10 Plan, San Joaquin Valley Plan to Attain Federal
Standards for Particulate Matter 10 Microns and Smaller'' (2003 PM-10 Plan).
    \5\ EPA has long interpreted the CAA to provide that certain
nonattainment area requirements, the purpose of which are to ensure
attainment of the relevant NAAQS by the applicable deadline, will no
longer apply once an area has attained that NAAQS, and for as long
it continues to do so until it is redesignated to attainment status.
While referred to as the Clean Data Policy, it is more accurately
described as EPA's interpretations of the relevant provisions of
Title I, Part D of the CAA. See Sierra Club v. EPA, 375 F.3d 537,
541-42 (7th Cir. 2004); Sierra Club v. EPA, 99 F.3d 1551, 1156-57
(10th Cir. 1996). EPA first set forth this interpretation in its
``General Preamble for the Interpretation of Title I of the Clean
Air Act Amendments of 1990,'' (General Preamble) thereafter
reiterated it in several policy memoranda and since codified the
policy with respect to ozone and PM-2.5 nonattainment areas. 57 FR
13498, 13564 (April 16, 1992), 40 CFR 51.918 (ozone) and 51.1004(c)
(PM_2.5). EPA has applied the policy to numerous PM-10
nonattainment areas, including the SJV area. For an expanded
description of the policy and our application of it, see Respondent
EPA's Merits Brief in Latino Issues Forum at 7-8, 71 FR 40952, 40954
and 71 FR 63642, 63644.
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    In addition, in the context of evaluating the area's eligibility
for redesignation, there is a separate and additional justification for
finding that the section 172(c)(9) contingency measures are not an
applicable SIP requirement for purposes of redesignation. Prior to and
independently of that policy, and specifically in the context of
redesignations, EPA interpreted the contingency measure requirement as
not applicable for purposes of redesignation. In the General Preamble
EPA stated that:

    [t]he section 172(c)(9) requirements are directed at ensuring
RFP and attainment by the applicable date. These requirements no
longer apply when an area has attained the standard and is eligible
for redesignation. Furthermore, section 175A for maintenance plans *
* * provides specific requirements for contingency measures that
effectively supersede the requirements of section 172(c)(9) for
these areas.

See also Calcagni memorandum at 6 (``The requirements for reasonable
further progress and other measures needed for attainment will not
apply for redesignations because they only have meaning for areas not
attaining the standard.''). Thus, even if the contingency measure
requirement had not previously been suspended, it would not apply for
purposes of evaluating whether an area that has attained the standard
qualifies for redesignation. EPA has enunciated and held this position
since the General Preamble was published more than sixteen years ago
and represents the Agency's interpretation of what constitutes
applicable requirements under section 107(d)(3)(E). The Courts have
recognized the scope of EPA's authority to interpret ``applicable
requirements'' in the redesignation context. See Sierra Club v. EPA,
375 F.3d 537 (7th Cir. 2004).

C. Improvements in Air Quality Must Be Due to Permanent and Enforceable
Emission Reductions

    Comment 3: EJ states that a 1992 guidance memorandum from John
Calcagni lays out the steps that an area must take to show that the
improvement in air quality is attributable to permanent and enforceable
reductions in emissions, the third condition for redesignation to
attainment under CAA section 107(d)(3)(E). EJ claims that this analysis
should include estimating the percentage reductions achieved from the
federal and state controls implemented in the area, taking into account
permitted emission rates, production capacities and other related
information. EJ states that EPA, banking on its waiver of all the
violations during the period of interest, neglected to perform the
proper analyses in the Calcagni memorandum and merely repeats the
District's belief, based on four observations (comments 4 through 7
below), that the area is attaining the standard.
    Response 3: As discussed in our proposed rule, the Calcagni
memorandum states that the state must be able to reasonably attribute
the improvement in air quality to emission reductions which are
permanent and enforceable, and the improvement should not be a result
of temporary reductions (e.g., economic downturns or shutdowns) or
unusually favorable meteorology. The Calcagni memorandum also states
that in making this showing the state should estimate the emission
reductions from adopted and implemented federal, state and local
control measures, and consider the emission rates, production
capacities, and other related information to show that the air quality
improvements are the result of implemented controls. Our proposed rule
discusses how each of these factors is addressed by the State in the
``2007 PM10 Maintenance Plan and Request for Redesignation,'' September
20, 2007, SJVAPCD (2007 Plan). 73 FR 22307; 2008, footnote 8; 22311-22312.
    In general, the 2007 Plan shows that there has been a significant
improvement in PM-10 air quality since 1990, noting that there were 33
estimated exceedance days during 1990-1992 and 2.9 exceedance days
during 2002-2004. This decrease in exceedance days (and emissions)
occurred during a period of rapid economic growth in the SJVAB area as
indicated by the increases in population and vehicle miles traveled
(VMT). The 2007 Plan did not find any evidence of significant shutdowns
that would cause the decline in exceedance days. The 2007 Plan analyzed
the meteorology in the SJVAB area during 2003-2006 by comparing the
average annual wind speeds, precipitation levels and stability levels
to long-term averages and found that there was no consistent pattern to
show that there was favorable meteorology leading to the improvement in
PM-10 levels during 2003-2006.
    The 2007 Plan states that over 500 new rules and rule amendments
have been adopted, reducing NO_X and PM-10 emissions from a
wide range of source categories, and it shows decreases in the overall
emissions of NO_X and PM-10 (which include all emissions from
area sources as well as from permitted major sources) since 2000. A
more detailed discussion of these analyses can be found in our proposed
rule and in the 2007 Plan. EPA's analysis is based on the State's
assessment and EPA continues to believe that the State has demonstrated
that the improvement in PM-10 air quality in the SJVAB area is a result
of permanent and enforceable reductions in emissions and has adequately
addressed the provisions of the Calcagni memorandum.
    Finally, as discussed in the response to comment 1 above, EPA has
determined that the SJV area has attained the PM-10 standard. 71 FR 63642; 
73 FR 14687. These determinations included EPA's concurrence
with the State's and Santa Rosa Rancheria Tribe's conclusion that a
number of exceedances were caused

[[Page 66763]]

by exceptional events and thus should be excluded from regulatory
consideration. Id. EJ seems to suggest that EPA's analyses should
include these exceedances even though they have been properly excluded
from regulatory consideration. EPA disagrees.
    Comment 4: EJ claims that the District provides a chart (2007 Plan
at 24, Figure 2) showing a downward trend in air pollution levels that
is completely misleading because it does not include EPA-acknowledged
exceedances in 2004 and 2005, let alone the many exceedances EPA has
ignored in its attainment determination.
    Response 4: The District's chart (2007 Plan at 24, Figure 2) shows
a long-term downward PM-10 trend from 1990 to 2006 for the SJVAB area
by plotting the estimated exceedance days over the NAAQS. The estimated
exceedance days in this chart are based on exceedances recorded with
FRMs and not FEMs such as continuous beta attenuation monitors (BAMs).
EPA believes that the District's chart is not misleading and provides a
general picture of the long-term trend for PM-10 and that 1990 is a
reasonable year to begin the analysis because that was the year the CAA
was amended.
    EJ's comment letter (page 4) includes a chart, ``PM-10 Trend,''
that appears to revise the 2007 Plan's chart by adding the exceedances
from BAMs that occurred in 2004 and 2005 and by removing the data for
1990 in order to show a less precipitous decline in PM-10 levels.
However, even with the exclusion of the 1990 data and the addition of
the exceedances from the BAMs, EJ's ``PM-10 Trend'' chart still shows a
decline in PM-10 levels.
    Moreover, the 2007 Plan provides a summary in Table 10 of the
declining annual average emissions inventories from 1990 through 2005
which is consistent with the District's trends chart. Table 10 shows
PM-10 emissions decreasing by 46 tons per day (tpd) and NO_X
emissions decreasing by 228 tpd during this time period.
    Finally, as discussed above, EPA has not ignored any recorded
exceedances but rather has followed its regulations to exclude from
regulatory consideration any exceedances that are caused by exceptional
events. 73 FR 14687; response to comment 3 above. EPA also set forth in
its 2006 attainment determination its conclusions as to prior monitored
data. 71 FR 63642.
    Comment 5: EJ claims that while the District asserts that growth in
the SJV nonattainment area has been rapid since 1990 but that emissions
have decreased, the sources of these claimed reductions do not support
redesignation.
    Response 5: See responses to comments 1, 3 and 4 above, and 7 and 8
below.
    Comment 6: EJ alleges that the District and EPA conclude without
justification that the District's meteorological analysis shows that
favorable meteorology did not lead to the improvements in air quality.
Instead, EJ argues, the analysis shows that from 2004 to 2006, the SJV
nonattainment area experienced some of the wettest years on record and
that 2003 through 2006 experienced lower than average stability levels,
which EPA and the District concede would lead to better dispersion
conditions and lower PM-10 levels. As a result, EJ claims the data
provided undercut any claim that the alleged air quality improvement is
likely to be maintained.
    Response 6: Our proposed rule summarizes the meteorological
analysis provided in the 2007 Plan which includes an examination of the
precipitation, temperature wind speeds and atmospheric stability during
the period 2003 through 2006. The summary was based on data presented
in Appendix C to the 2007 Plan. As EJ comments, there were some
conditions that favored lower PM-10 levels; however, there were also
conditions that favored higher PM-10 levels. Conditions that favored
higher PM-10 levels included no variation in annual average wind speeds
(which are generally quite low for the SJV area), warmer than average
temperatures and two dry years ranking 98th and 112th in wetness (with
the 1st year being the wettest year) during a 128 year period. Since
there were conditions that both favored and did not favor higher PM-10
levels, the conclusion of the 2007 Plan and EPA's analysis is that
there was no consistent pattern to show that attainment was a result of
unusually favorable meteorology. 73 FR 22307, 22312.
    Finally we note that the Calcagni memorandum makes clear that
``[a]ttainment resulting from * * * unusually favorable meteorology
would not qualify as an air quality improvement due to permanent and
enforceable emission reductions.'' Calcagni memorandum at 4. Therefore
EPA disagrees with EJ's comment that the meteorological data indicate
that the air quality improvement will not likely be maintained.
    In addition, EPA obtained available information on precipitation,
average monthly temperatures and wind speeds for 2007 and compared the
2007 data to the averages presented in Appendix C to the 2007 Plan at
Tables C-1, C-2 and C-3. (Atmospheric stability data for 2007 was not
available.) The total precipitation for 2007 was 7.03 inches (http://
www.wrh.noaa.gov/hnx/fat/normals/fatrnyr.htm) which is lower than the
average precipitation of 10.13 inches for 1878 through 2006 (2007 Plan
at Table C-1) and would favor higher PM-10 levels. The average monthly
temperatures in degrees Celcius for 2007 were 4.6 for January, 9.5 for
February, 14.3 for March, 15.9 for April, 20.7 for May, 24 for June,
26.3 for July, 26.3 for August, 21.7 for September, 16.1 for October,
11.9 for November and 5.5 for December. (http://www.weather.gov/
climate/xmacis.php?wfo=hnx) When compared to the average monthly
temperatures from 1900 through 2005 (2007 Plan at Table C-2), the
average temperatures for the months of March, May, June and August were
higher in 2007 than average and would favor higher PM-10 levels.
Finally, the average wind speed for 2007 was 3.7 miles per hour (mph)
(http://www.cimis.water.ca.gov) which is consistent with the average
wind speed of 3.72 mph for 1984 through 2006 (2007 Plan at Table C-3)
and would favor high PM-10 levels. Since the available 2007
meteorological data favor higher PM-10 levels, EPA continues to believe
that there is no consistent pattern that would establish that
attainment has resulted from unusually favorable meteorology.
    Comment 7: EJ disputes EPA's conclusion that improvements in air
quality are the result of permanent and enforceable reductions in
emissions from rules adopted by the District since 1992. EJ claims that
most of these rules were adopted only in the last few years and
therefore any trend in emission reductions that can be inferred from
the chart provided by the District (2007 Plan at 24, Figure 2) cannot
be attributed to these rules. EJ suggests that the drop in exceedance
days between 1990 and 1992 might be due to a difference in the
methodologies for measuring exceedances for the TSP and PM-10
standards. EJ provides its own chart, ``PM-10 Trend,'' adjusted to
include the exceedance days that it says EPA has acknowledged, that
purports to show only minimal changes in the recurring pattern of PM-10
violations over the last 15 years.
    Response 7: On July 1, 1987, EPA revised the NAAQS for particulate
matter by replacing the standards for total suspended particulate
matter (TSP) with new standards applying only to PM-10. 52 FR 24672.
While PM-10 monitoring data have been collected since 1987 (see 
71 FR 63642, 63653), the District and CARB have not reported TSP data to
EPA's Air Quality System

[[Page 66764]]

(AQS) database since 1989. Therefore any difference in measurement
methodologies for the two pollutants could not be the cause of the drop
in exceedance days between 1990 and 1992.
    Since enactment of the 1990 CAA Amendments, the State has adopted
and submitted several PM-10 plans. These include a moderate area plan
under CAA section 189(a), a serious area plan under section 189(b) and
a serious area plan under section 189(d) (i.e., the 2003 PM-10 Plan
approved by EPA in 2004 and discussed above). The 2003 PM-10 Plan
provides a summary of the many State, District and EPA rules adopted
from 1990 through 2003. See 2003 PM-10 Plan at Tables 4-1, 4-2, 4-3 and
4-4. The 2003 PM-10 Plan also includes commitments for additional PM-10
and NO_X measures, all of which were adopted by the District
and State after 2003 and most of which have been approved by EPA. See
response to comment 8 below.
    The District's chart (2007 Plan, Figure 2) shows that PM-10 levels
have declined from 1990 through 2006 while these PM-10 plans and rules
have been adopted and implemented. We note that even EJ's own ``PM-10
Trend'' chart shows a general decrease in PM-10 levels since 1992 and
since early 2000.
    Furthermore, the 2007 Plan shows that significant reductions in PM-
10 and NO_X emissions occurred from the year 2000 to the year
2005, the time period during which the SJV area attained the PM-10
standard. NO_X emissions have declined from 673 tpd in 2000
to 606 tpd in 2005 and PM-10 emissions have declined from 324 tpd in
2000 to 284 tpd in 2005. 2007 Plan; Staff Report, Air Resources Board,
``Analysis of the San Joaquin Valley 2007 PM10 Maintenance Plan,'' (ARB
Staff Report for 2007 Plan) Appendix B.\6\
---------------------------------------------------------------------------

    \6\ See footnote 2 of the proposed rule. 73 FR 22307, 22308.
---------------------------------------------------------------------------

    As can be seen from the above discussion and our responses to
previous comments, PM-10 exceedance days and PM-10 and NO_X
emission levels have declined while at the same time the SJV area has
exhibited significant growth in population and vehicle miles traveled.
2007 Plan at 24, Figure 2 and at 26, Figures 3 and 4. Thus EPA
continues to believe that it is reasonable to attribute the improvement
in PM-10 air quality to the emission reductions from adopted rules that
are permanent and enforceable.
    Comment 8: EJ argues that the District's failure to estimate the
tons or percent reduction from the baseline year achieved by its PM-10
control measures makes it difficult to assert that any improvements in
air quality are the result of such controls. Further, while EPA claims
that the District has adopted all of its rule commitments in the 2003
PM-10 Plan, only 2 of the 14 commitments have received EPA approval
according to EJ. The maintenance plan identifies 8 additional rules,
only 3 of which have been approved by EPA. EJ states that of the 22
rules the District identified during its PM-10 planning process to help
reduce PM-10 in the SJV nonattainment area, only 5 are enforceable
elements of the SIP.
    Response 8: The 2007 Plan provides a summary of overall
NO_X and PM-10 emissions and shows that emissions have
decreased from approximately 1177 tpd in 1990 to approximately 1000 tpd
in 2000 to approximately 900 tpd in 2005 and estimates that they will
continue to decrease to approximately 800 tpd in 2010. 2007 Plan at
Table 10 and 73 FR 22307, 22312. These declining emissions levels have
occurred as population and VMT have increased and are due to the
emissions reductions from rules and control measures that have been
adopted and implemented since 1990. 2007 Plan at 26 through 27 and 2003
PM-10 Plan at Tables 4-1, 4-2, 4-3 and 4-9.
    The 2003 PM-10 Plan summarizes the numerous rules and control
measures adopted by the SJVAPCD, the State and EPA prior to 2003. 2003
PM-10 Plan at Tables 4-1, 4-2 and 4-3. The 2003 PM-10 Plan also
includes District commitments to achieve additional reductions. 2003
PM-10 Plan at Table 4-9. As discussed below, the commitments have all
been converted to adopted rules. The emissions reductions from all of
the 2003 PM-10 Plan's rules, control measures and adopted commitments
are reflected in the 2007 Plan's emissions inventory. ARB Staff Report
for 2007 Plan at Appendix B.
    It is not clear what year EJ considers to be the baseline year;
however, the 2007 Plan provides emissions inventories for the years
1990, 2000, 2005 and 2010 which include the estimated tpd of reductions
achieved by the PM-10 rules, control measures and rules adopted
pursuant to commitments. 2007 Plan at Table 10 and ARB Staff Report for
2007 Plan at Appendix B. Thus, EPA believes that the State and District
have estimated the tpd reductions from several baseline years (1990,
2000 and 2005) achieved by its PM-10 control measures and have shown
that the improvements in air quality are the result of such controls.
    Regarding EJ's comment that only five of the 22 rules the District
identified during its PM-10 planning process are enforceable elements
of the SIP, EPA notes that this information was updated in the 2007
Plan. See ``Errata, 2007 PM10 Maintenance Plan and Request for
Redesignation,'' October 9, 2007, included in the 2007 Plan submittal
to EPA. Table 1 below summarizes the EPA-approved rules from the 2003
PM-10 Plan commitments and provides the EPA approval dates for these
rules as applicable. EPA has approved all but three of the submitted
rules (Rules 4694, 4401 and 9510).

     Table 1--Summary of EPA Actions on 2003 PM-10 Plan Commitments
------------------------------------------------------------------------
  2003 PM-10 plan commitment 7
     (pollutants covered by          Adopted rule         EPA action
           commitment)             number and title
------------------------------------------------------------------------
A. Agriculture (Conservation      4550--Conservation  Approved 2/14/06,
 Management Practice Program)      Management          71 FR 7683.
 (PM-10, VOC).                     Practices.
B. Cotton Gins (PM-10)..........  4204--Cotton Gins.  Approved 11/9/06,
                                                       71 FR 65740.
C. Dryers (NOX).................  4309--Dryers,       Approved 5/30/07,
                                   Dehydrators, and    72 FR 29886.
                                   Ovens.
D. Fugitive PM-10 (Regulation     8011--General       Approved 2/17/06,
 VIII) (PM-10).                    Requirements.       71 FR 8461.
                                  8021--Construction
                                   , Demo,
                                   Excavation.
                                  8031--Bulk
                                   Materials..
                                  8041--Carryout and
                                   Trackout..
                                  8051--Open Areas..
                                  8061--Paved and
                                   Unpaved Roads.
                                  8071--Unpaved
                                   Vehicle/Equip
                                   Traffic Areas.

[[Page 66765]]

                                  8081--Agricultural
                                   Sources.
E. Glass-Melting Furnaces (SOX).  4354--Glass         Approved 8/1/07,
                                   Melting Furnaces.   72 FR 41894.
F. Gas-Fired Oilfield Steam       4406--Sulfur        Not adopted by
 Generators (SOX).                 Compounds From      District.
                                   Oilfield Steam
                                   Generators--Kern
                                   County.
G. Indirect Source Review, and    9510--Indirect      Under EPA Review.
 Indirect Source Mitigation Fee    Source Review.
 (NOX, PM-10).
H. Solid Fuel Boilers, Steam      4352--Solid Fuel    Approved 5/30/07,
 Generators, and Process Heaters   Fired Boilers,      72 FR 29886.
 (NOX, SOX).                       Steam Generators,
                                   and Process
                                   Heaters.
I. Small Boilers, Steam           4307--Boilers,      Approved 5/30/07,
 Generators, and Process Heaters   Steam Generators,   72 FR 29886.
 (NOX, SOX).                       and Process
                                   Heaters 2.0 to
                                   5.0 mmBtu.
J. Water Heaters (Industrial,     4308--Boilers,      Approved 5/30/07,
 Commercial, and Institutional)    Steam Generators,   72 FR 29886.
 (NOX).                            and Process
                                   Heaters 0.075 to
                                   2.0 mmBtu.
K. Wineries (VOC)...............  4694--Wineries....  Under EPA Review.
L. Steam Enhanced Crude Oil       4401--Steam         Under EPA Review.
 Production Well Vents (VOC).      Enhanced Crude
                                   Oil Production
                                   Well Vents.
M. Residential Space Heating      4905--Natural Gas   Approved 5/30/07,
 (NOX).                            Fired, Fan-type,    72 FR 29886.
                                   Residential
                                   Central Furnaces.
N. Agricultural Internal          4702--Internal      Approved 1/10/08,
 Combustion Engines (PM-10, NOX).  Combustion          73 FR 1819.
                                   Engines Phase 2.
Residential Wood Combustion \8\.  4901--Residential   Approved 9/30/03,
                                   Wood Burning.       68 FR 56181.
------------------------------------------------------------------------
7 On May 26, 2004, EPA approved the 2003 PM-10 Plan including
  commitments for new District rules. See 2003 PM-10 Plan, Table 4-9
  List of New District Commitments. The commitments for PM-10 and NOX
  reductions were approved as meeting BACM and the commitments for other
  pollutants (SOX, VOC) were approved as SIP strengthenings. See 69 FR
  30006, 30035 and 69 FR 5412, 5423. The District subsequently amended
  the 2003 PM-10 Plan and revised Chapter 4 Control Strategy in May
  2005; however, the amendments were not submitted to EPA. The EPA-
  approved commitments are those found in the version of the 2003 PM-10
  Plan adopted by the District on December 18, 2003.
8 In its comment letter, EJ lists Residential Wood Combustion as a
  commitment from the 2003 PM-10 Plan; however, it was an adopted
  measure and not a commitment. We have included it in our Table for
  completeness in addressing EJ's comments.

    In addition to the rules in Table 1, the 2007 Plan cites reductions
from additional rules that were not included in the 2003 PM-10 Plan's
commitments. All of these additional rules have been adopted and
submitted to EPA by the State and most have been approved by EPA. Table
2 below provides a summary of EPA actions on these additional rules
based on the ``Errata, 2007 PM-10 Maintenance Plan and Request for
Redesignation.''

  Table 2--Summary of EPA Action on Additional Rules Identified by 2007
                                  Plan
------------------------------------------------------------------------
        Rule #                Rule title           EPA action
------------------------------------------------------------------------
4103..........................  Open Burning (VOC &     Approved 4/11/
                                 NOX).                   06, 71 FR
                                                         18216.
4305..........................  Boilers, Steam          Approved 5/18/
                                 Generators, and         04, 69 FR
                                 Process Heaters (NOX).  28061.
4409..........................  Components Serving      Approved 3/23/
                                 Light Crude Oil or      06, 71 FR
                                 Gases at Production     14652.
                                 Facilities (VOC).
4451 & 4452...................  Components at
                                 Petroleum Refineries
                                 (VOC).
4570..........................  Confined Animal         Under EPA
                                 Feeding Operations      Review.
                                 (VOC).
4604..........................  Can and Coil Coating    Approved 5/19/
                                 Operations (VOC).       06, 70 FR
                                                         28826.
9310..........................  School Bus Fleets       Under EPA
                                 (NOX).                  Review.
------------------------------------------------------------------------

    Thus, contrary to EJ's comment, most of the rules identified in the
2007 Plan have been approved by EPA as federally enforceable elements
of the SIP. EPA is continuing to process the remainder of the State's
submitted rules.
    Comment 9: EJ concludes that because the air quality improvements
are premised on ignoring multiple violations of the PM-10 standard and
fewer than one quarter of the rules the District relies on for
reductions are an enforceable part of the SIP, EPA cannot reasonably
attribute air quality improvements to permanent and enforceable
emission reductions.
    Response 9: See above responses to comments 1, 3, 4, 6, 7 and 8.

D. Area Has Met All Applicable CAA Section 110 and Part D Requirements

    Comment 10: EJ asserts that the District fails to comply with CAA
section 107(d)(3)(E) because it has not met all applicable requirements
under section 110 and part D. EJ says that in addition to the
contingency measure requirement, the District has not met the section
189(b)(1)(B) BACM requirement because BACM were required to be
implemented by January 8, 1993 and EPA has still not approved most of
the PM-10 rules relied on (as a result of the 2003 PM-10 Plan
commitments) as being BACM-level controls.
    Response 10: As noted above, in its October 30, 2006 attainment
determination EPA suspended the 172(c)(9) contingency measure
requirement and as a result it is no longer an applicable part D
requirement. 71 FR 63642, 63663; 73 FR 22307, 22313. In any event, as
set forth above (see response to comment 2), independent of its
suspension, the contingency measure requirement is not an applicable
requirement for purposes of redesignation.
    With respect to the section 189(b)(1)(B) BACM requirement, as

[[Page 66766]]

discussed in our proposed rule, EPA determined that this requirement
was met for the SJV nonattainment area in our approval of the 2003 PM-
10 Plan. See 69 FR 30006, 30035. (``EPA is approving the RACM/BACM
demonstration for all significant PM-10 and NO_X sources in
the SJV as meeting the requirements of sections 189(a)(1)(C) and
189(b)(1)(B)''). In the 2003 PM-10 Plan the District addressed the BACM
requirement by providing enforceable commitments to implement BACM
rules in the future rather than already adopted rules. During the
rulemaking on the 2003 PM-10 Plan, EJ argued that until the relevant
BACM requirements are adopted and no longer subject to change in the
rule development process for each of these source categories, EPA could
not conclusively determine that the plan provides for the
implementation of BACM/BACT for all significant sources of PM-10 and
PM-10 precursors. In rejecting that argument we stated that:

    [s]ection 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 [footnote omitted] requirement.

Id. at 30013. We further stated, in fully approving commitments as
meeting the Act's BACM requirement that:

    [c]onsistent 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. v. Natural Resources Defense Council, 467 U.S. at 842-44.

Id. at 30013-30014. In conclusion we stated that:

    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 [footnote omitted] 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).

Id. at 30014. EPA's interpretation and its full SIP approval of the
BACM requirement was not challenged. EPA may rely on prior SIP
approvals in approving a redesignation request. Calcagni memorandum at
3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d. 984.
989-990 (6th Cir. 1998); and Wall v. EPA, 265 F.3d 526 (6th Cir. 2001).
Finally we note that EPA has approved many of the rules submitted by
the State as meeting a BACM level of control. See the Federal Register
notices listed in Tables 1 and 2 above in which we approve SJVAPCD PM-
10 and NO_X rules.

    Comment 11: EJ also claims that the District has failed to submit
to EPA a demonstration that the quantitative milestones as required by
CAA section 189(c)(1) and (c)(2) and the section 189(d) 5 percent
requirement have been met. EJ also claims that the District has not met
its commitment to update and improve the 2003 PM-10 Plan by March 2006.
    Response 11: CAA section 107(d)(3)(E)(v) requires that a state
seeking redesignation of an area to attainment must have met all
requirements applicable to the area under section 110 and part D. In
interpreting this requirement EPA has stated that ``any requirements
that came due prior to submittal of the redesignation request must be
fully approved into the plan at or before the time EPA redesignates the
area.'' Calcagni memorandum at 5. Sierra Club v. EPA, 375 F.3d 537 (7th
Cir. 2004). EPA has approved the 2003 PM-10 Plan's RFP demonstration as
meeting the requirements of 172(c)(2) and 189(c)(1) and has approved
the plan as meeting the quantitative milestones requirement in section
189(c)(1). 69 FR 30006, 30034. Also, as we explained in our 2006
attainment finding, we believe that once an area attains the NAAQS the
requirements of section 189(c)(2) with respect to milestones no longer
applies under the Agency's Clean Data Policy. 71 FR 63642, 63646-63647.
We also explained in that rulemaking the application of the Clean Data
Policy to PM-10. See 71 FR 40952, 40954-40955 and 71 FR 63642, 63643-
63645. Apart from the Clean Data Policy, for an area that has attained
the standard and is eligible for redesignation, the requirements for
milestone demonstrations under section 189(c) have no further meaning
or function. Therefore the District was not required to submit
milestone demonstrations pursuant to section 189(c).
    In addition, EPA approved a commitment in the 2003 PM-10 Plan by
the State to submit a SIP revision by March 31, 2006 based on a mid-
course review to determine whether the level of emission reductions in
the plan is sufficient to attain the PM-10 standards. 69 FR 30006,
30035. EPA approved this commitment as part of the Plan's attainment
demonstration. See 69 FR 5412, 5429. While the SJVAPCD adopted a mid-
course review SIP addressing the quantitative milestone reporting
requirement and mid-course review SIP commitment and submitted the SIP
to the State, the State has not submitted the mid-course review SIP to
EPA. Nevertheless, EPA's full approval of the attainment demonstration
in the 2003 PM-10 Plan fully satisfies the requirement of CAA section
107(d)(3)(E)(v).
    Moreover, EPA has determined that the SJV area attained the PM-10
standard in 2005, and continues to attain the standard. The mid-course
review requirement is not a requirement under section 110 or Part D,
and therefore is not an applicable CAA requirement for purposes of
redesignation. Furthermore, even if it were, the requirement for a mid-
course review was approved as part of the attainment demonstration.
Therefore, because EPA has determined that the SJV area is attaining
the PM-10 standard, a submission under the mid-course review provision
would not be required for purposes of redesignation. 57 FR 13498,
13564; Clean Data Policy.
    Comment 12: EJ claims that EPA misinterprets an October 14, 1994
memorandum from Mary Nichols, EPA, entitled ``Part D NSR Requirements
for Areas Requesting Redesignation to Attainment'' as allowing the
District to replace its new source review (NSR) program with a
prevention of significant deterioration (PSD) program. EJ quotes the
memorandum as saying that ``the part D program may be replaced by the
corollary PSD program, if it is shown

[[Page 66767]]

through the maintenance demonstration that the area will maintain
without part D NSR.'' EJ asserts that here neither EPA nor the District
has made any such demonstration and claims that this is especially
worrisome in light of EPA's recent proposed approval of revisions to
the District's NSR program exempting ``so-called minor agricultural
sources such as industrial dairy operations.''
    Response 12: First, the commenter overlooks the fact, enunciated in
our proposed rule, that EPA has previously fully approved the NSR
program for the SJV area. We also noted that EPA has recently proposed
approval of some revisions to the NSR rule. 73 FR 22307, 22313. EJ's
citation to the October 14, 1994 memorandum from Mary Nichols, EPA,
entitled ``Part D NSR Requirements for Areas Requesting Redesignation
to Attainment'' (Nichols memorandum) is misdirected. The Nichols
memorandum's discussion of the need to demonstrate maintenance without
fully approved NSR addressed the situation, not the case here, where an
area's NSR rule has not been approved. Moreover, as our proposed rule
explained, even though EPA previously approved the NSR rule, such
approval is not a prerequisite to finalizing our approval of the
State's redesignation request. Id. If an area does not have a fully
approved NSR program, it can still be redesignated if it shows
maintenance without NSR in effect. The 2003 PM-10 Plan and 2007 Plan do
not rely on reductions from the area's NSR program. Nothing in the
plans' inventories or estimated emissions reductions indicates any
reliance on NSR program reductions. Thus, the SJVAB area will maintain
the NAAQS without NSR. This is consistent with the provisions of the
Nichols memorandum. Finally, we note that while the PSD requirements
will apply once the area has been redesignated to attainment, the
District's SIP-approved NSR rule will continue to apply with respect to
PM-10 until EPA approves a revised NSR rule.

E. Maintenance Plan

    Comment 13: EJ maintains that even if all of the other issues it
has raised with respect to the redesignation were remedied, EPA cannot
approve the redesignation request because the maintenance plan is
flawed and cannot be approved. EJ concludes that EPA's decision to
approve the maintenance plan without the requisite analysis and without
meeting the basic requirements laid out in the Calcagni memorandum
leaves little for EJ to comment upon and, as such, is the very
definition of arbitrary and capricious. EJ believes that EPA's
obligation is to provide not just its legal conclusions but the facts
and rationale that support them.
    Response 13: EPA disagrees. Our proposed rule lays out all of the
requirements for maintenance plans found under the CAA and the Calcagni
memorandum and sets forth the Agency's analysis of how the 2007 Plan
meets each of those requirements. 73 FR 22307, 22313-22315. In
addition, the 2007 Plan itself addresses in detail the requirements in
the Calcagni memorandum. Thus EJ's contention that EPA's discussion of
the maintenance plan left them ``very little'' to comment on is without
basis.
    Comment 14: EJ asserts that the 2005 emissions inventory is
insufficient to identify the level of emissions in the area because the
continuing PM-10 problem is the result of direct PM-10 emissions during
the fall rather than secondary wintertime NO_X emissions and
the direct PM-10 inventory is expected to increase over the next 10
years. EJ states that EPA's claim that increasing direct PM-10
emissions are offset by a larger decrease in the NO_X
inventory demonstrates a lack of understanding of the PM-10 problem in
the SJV nonattainment area because reducing secondarily formed PM-10
does nothing to reduce the ongoing direct PM-10 problems. EJ concludes
that since the maintenance demonstration is based on an inventory that
is insufficient to attain the NAAQS, EPA cannot find that the plan will
maintain healthful air for 10 years following redesignation.
    In a footnote to its comment above regarding the emissions
inventory for the maintenance plan, EJ claims that prior to 2004 the
District had never asked EPA to waive PM-10 data but in the past 4
years it has been asked to waive 11 separate events, 10 of them after
the Agency's original attainment finding. EJ states that if windy days
are this common EPA and the District must accept that the SJV
nonattainment area has a windblown dust problem and they must do more
to control it. EJ states that an event is only exceptional if it is not
expected to recur on a regular basis.
    Response 14: As discussed in our proposed rule, the Calcagni
memorandum provides that a state should provide an attainment emissions
inventory to identify the level of emissions in the area sufficient to
attain the NAAQS and, where the state as here has made an adequate
demonstration that air quality has improved as a result of the SIP (see
above responses to comments 3 through 4 and 6 through 8), the
attainment inventory will generally be an inventory of actual emissions
at the time the area attained.
    The 2007 Plan does exactly what the Calcagni memorandum recommends
and selects the 2005 PM-10 and NO_X inventories as the
attainment emission inventories because the SJV area attained the
standard in 2005. 73 FR 22307, 22314 and 71 FR 63642. The SJV area
relies on reductions of both NO_X (a PM-10 precursor) and
directly emitted PM-10 sources to achieve attainment. 2003 PM-10 Plan
at ES-9 through ES-10, Chapters 2, 4 and 5; 69 FR 5412, 5414 and 69 FR
30006, 30007. Analysis of ambient air quality data for the SJV area
shows that it experiences the most frequent and severe exceedances from
October through January during stagnant weather conditions (i.e., low
wind speeds that are unable to disperse the PM-10).\9\ Both direct PM-
10 and secondary PM-10 (formed by reactions with NO_X ) occur
during this time. October and November exceedances are dominated by
direct PM-10 emissions and December and January are dominated by
secondary PM-10 such as ammonium nitrate (formed when NO_X
reacts with ammonia and other components); however, the reduction of
both direct PM-10 and NO_X is necessary for reducing ambient
PM-10 levels throughout the year. 2003 PM-10 Plan at ES-9 through ES-10
and 5-6 through 5-7. Thus, EPA's belief that the slight increase in PM-
10 emissions of 284 tpd in 2005 to 290 tpd in 2020 is insignificant
when compared to the substantial NO_X decreases of 606 tpd in
2005 to 328 tpd in 2020 is based on an understanding that high PM-10
levels in the SJV area are caused by both direct PM-10 and precursor
NO_X emissions. In addition, consistent with the Calcagni
memorandum, the modeled maintenance demonstration is primarily based on
modeling similar to the modeling used for the 2003 PM-10 Plan. 73 FR
22307, 22314. Finally, contrary to EJ's comments, there is no ongoing
direct PM-10 problem in the SJVAB as we have determined that the area
has attained the PM-10 standard. 71 FR 63642 and 73 FR 14687. See also
response to comment 1.
---------------------------------------------------------------------------

    \9\ As discussed in our attainment affirmation and proposed
rule, unusually high winds can also cause exceedances. 73 FR 14687
and 73 FR 22307, 22311.
---------------------------------------------------------------------------

    EJ's comment in footnote 3 of its letter does not appear to be
related to the inventory or any other provision of the maintenance plan
in the 2007 Plan or the maintenance plan requirement of CAA section
107(d)(3)(E)(iv). Rather it appears to be an expansion of EJ's argument
that the SJV area has not in fact attained the PM-10 standard. In this

[[Page 66768]]

regard, see response to comment 1 above. Notwithstanding , EPA notes
that not all of the exceptional event days in the past five years in
the SJV area have been due to high winds. Of the eleven exceptional
event days, seven were caused by high wind events and the remaining
four by construction, improper monitor siting and fireworks.
    Comment 15: EJ states that it is not clear whether the modeling
takes into account the September 2004 and November 2005 exceedances EPA
has conceded but if it does not then the modeling for the maintenance
plan is flawed because it fails to include these higher values in its
projections.
    Response 15: As discussed in our proposed rule, a state may
generally demonstrate maintenance of the NAAQS by either showing that
future emissions of a pollutant or its precursors will not exceed the
level of the attainment inventory, or by modeling to show that the
future anticipated mix of sources and emission rates will not cause a
violation of the NAAQS. 73 FR 22307, 22314-22315. See also Calcagni
memorandum at 9 and Wall v. EPA, 265 F.3d 426 (6th Cir. 2001). While
only required to use one of these methods, the SJVAPCD showed both with
emissions inventory and modeling that the area would maintain the
standard for at least ten years after redesignation, in accordance with
section 175A. For areas such as the SJV that used modeling for their
attainment demonstrations, the same level of modeling should be used
for the maintenance demonstrations. The 2007 Plan uses Chemical Mass
Balance (CMB) and rollback to demonstrate maintenance of the 24-hour
PM-10 standard until 2020 which is consistent with the modeling
performed for the 2003 PM-10 Plan. 73 FR 22307, 22314; 2007 Plan at 6-
11. The modeling involves selecting a representative day for each
location, determining the speciation data for the site based on
analysis of the monitoring filters and sources in the area and
determining the emissions reductions that are necessary or that will be
achieved due to emissions reductions from implemented rules.
    The 2007 Plan's maintenance demonstration modeling was based on the
highest episodes during the most recent attainment year at the time,
2006. The District selected representative peak winter days for each of
the monitors in the SJVAB for modeling, and used the observed values
from those days as the basis of its modeling exercise. In addition,
fall episode days were included for several monitors. Table 2 of the
2007 Plan summarizes the episode values and the 2020 projections.
    One of the objectives in determining appropriate representative
episodes is to choose those days that are approximately as severe as
the design value for the modeled pollutant. The design value is based
on three years of monitoring data, or in this case, 2004 through 2006,
and depends on the frequency and completeness of recorded values. In
addition, for PM-10, the design values are generally based on FRM data,
but FEM data can also be used; however, as noted in footnote 3 above,
data from different monitoring instruments are not combined.
    The representative days selected for modeling are consistent with
the design values for the Corcoran and Bakersfield sites where the
September 2004 and November 2005 values were measured. For the Corcoran
FRM, the design value is 140 &mu;g/m\3\, based on a calculation that
includes and explicitly accounts for the 217 &mu;g/m\3\ measured in
September 2004.\10\ This value is very close to, and supports the
selection of, the two representative high episode values in the 2007
Plan for Corcoran: A 136 &mu;g/m\3\ for the winter episode and a 137
&mu;g/m\3\ for the fall episode. The small differences between the
design value of 140 &mu;g/m\3\ and the selected winter and fall episode
values is not an issue because the projected maintenance levels are
well below the 24-hour PM-10 standard of 150 &mu;g/m\3\. 2007 Plan at
Table 2. The Bakersfield FEM does not have a complete set of data from
2004 through 2006, and therefore a design value for this time period
cannot be calculated based on the FEM data. However, the 2004-2006 PM-
10 design value for Bakersfield using the data collected with the FRM
monitor would be 154 ug/m\3\.\11\ This concentration is consistent with
the values of 153 ug/m\3\ and 154 &mu;g/m\3\ measured during the
representative modeled episodes included in the 2007 Plan for
Bakersfield. Therefore, the September 2004 and November 2005
exceedances to which EJ refers in its comment were taken into account
in the 2007 Plan's maintenance demonstration modeling.
---------------------------------------------------------------------------

    \10\ If we assume that the September 2004 exceedance is not
flagged, the highest recorded PM-10 values from 2004 through 2006
are: (1) 217 &mu;g/m\3\ on September 3, 2004; (2) 140 &mu;g/m\3\ on
October 26, 2006; and (3) 139 &mu;g/m\3\ on October 15, 2004. Since
the Corcoran FRM operates on a one-in-three day schedule, the design value
is based on the second highest recorded PM-10 value, or 140 &mu;g/m\3\.
    \11\ The design value for Bakersfield is calculated using the
FRM data set from 2004-2006. The design value in this case would be
the highest non-flagged value for the three year period, 154 &mu;g/
m\3\ measured on December 7, 2006.
---------------------------------------------------------------------------

    Comment 16: While EJ is glad that the District plans to continue
operation of its PM-10 monitoring network, EJ is troubled that the
District suggests in its 2008 ``Ambient Air Monitoring Network Plan''
that it may reduce the frequency of its monitoring. EJ hopes that the
District will strengthen its network because EJ continues to believe
that the current network does not adequately represent the west side
communities and the near-highway areas of high concentration and that
more monitoring is required.
    Response 16: In 2003, EPA evaluated the adequacy of the monitoring
network for the SJV area and concluded that it meets all the applicable
statutory and regulatory requirements. See 69 FR 30006, 30033 and
``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, September 22, 2003. We reaffirmed the
adequacy of the network in our 2006 determination of attainment for the
SJV area. 71 FR 63642, 63648-63658.
    With regard specifically to monitoring frequency, EPA regulations
require minimum frequencies for manual PM-10 and PM-2.5 samplers at
designated state or local air monitoring stations (SLAMS) sites. See 40
CFR 58.12. On October 17, 2006 EPA revised its monitoring regulations
to require air monitoring agencies to perform an assessment of their
monitoring networks every five years according to guidance issued by
EPA. See 71 FR 61299 and 40 CFR 58.10(d). The first monitoring network
assessment required by this regulation must be submitted to EPA by July
1, 2010. Agencies are directed to make changes to their monitoring
networks based in part on the results of these network assessments.
Such an assessment in the SJVAB area may result in a requirement that
the District increase the sampling frequency of certain PM-10 monitors
sited to record the maximum concentrations of PM-10 pollution. See 40
CFR 58.12(e).
    Most manual PM-10 samplers in the SJV monitoring network currently
operate at the minimum required frequency of once every six days,
except for Corcoran which operates manual PM-10 samplers once every
three days. The District has exceeded this required sampling frequency
by operating continuous FEM monitors, which produce a 24-hour average
PM-10 concentration every day, at three locations in the SJVAB area,
Tracy, Corcoran and Bakersfield. According to the District's 2008
``Ambient Air

[[Page 66769]]

Monitoring Network Plan,'' the Corcoran and Bakersfield-Golden State
Highway sites are two of the four PM-10 monitoring sites located to
record the highest PM-10 concentrations in the SJVAB area.\12\
Therefore, the District has already proactively increased the sampling
frequency at two high concentration sites to the maximum frequency
possible.
---------------------------------------------------------------------------

    \12\ The other two sites are the Fresno-First Street site and
the Stockton-Hazelton site.
---------------------------------------------------------------------------

    Comment 17: EJ believes that the contingency measure provision in
the maintenance plan is much too weak and cannot be approved. EJ states
that the provision relies first and foremost on trying to excuse any
future violation under the EER and then, in the event of any post-
redesignation violations, on seeing if there are any estimated
reductions achieved that were not counted towards the attainment
demonstration that can be used to ``cover'' the violation. EJ does not
believe this approach makes sense because if an area is violating the
standard, there are no ``extra'' reductions because all of the
reductions are by definition not working. EJ believes that while EPA
may accept this gaming in the context of RFP demonstrations such an
approach would be illegal and arbitrary when real ambient violations
are being monitored. EJ believes that the District should adopt the
approach suggested in the Calcagni memorandum which sets indicators
that trigger contingency provisions before a violation occurs which
would avoid NAAQS violations and not just come up with on-paper
``covers'' for those violations.
    Response 17: Under CAA section 175A(d), maintenance plans must
contain ``such contingency provisions as the Administrator deems
necessary to assure that the State will promptly correct any violation
of the standard.'' The Calcagni memorandum states that ``EPA will
review what constitutes a contingency plan on a case-by-case basis. At
a minimum, it must require that the State will implement all measures
contained in the Part D nonattainment plan for the area prior to
redesignation. * * * '' Calcagni memorandum at 12-13. The memorandum
also makes clear that a monitored violation of the standard is
appropriate to serve as the indicator or trigger for contingency measures.

Id. at 12.

    EJ's statement that the contingency provisions of the 2007 Plan
``relies first and foremost'' on trying to excuse any future violation
under the EER is misleading. The 2007 Plan selects an action level or
trigger based on an exceedance of the PM-10 NAAQS of 155 micrograms per
cubic meter (&mu;g/m\3\).\13\ 2007 Plan at 16. In addition, the
District may also consider other factors such as a succession of values
just below but near the level of the PM-10 standard. In our proposed
rule we explained why we believe that an exceedance of 155 &mu;g/m\3\
is an appropriate trigger:
---------------------------------------------------------------------------

    \13\ An exceedance is defined as a daily value that is above the
level of the 24-hour standard (150 &mu;g/m\3\) after rounding to the
nearest 10 &mu;g/m\3\ (i.e. values ending in 5 or greater are to be
rounded up). Thus, a recorded value of 154 &mu;g/m\3\ would not be
an exceedance since it would be rounded to 150 &mu;g/m\3\ whereas a
recorded value of 155 &mu;g/m\3\ would be an exceedance since it would be
rounded to 160 &mu;g/m\3\. See 40 CFR part 50, appendix K, section 1.0.

    The SJVAB has several continuous PM-10 monitors, and a single
measurement of 155 &mu;g/m\3\ at one of these monitors would not
constitute a violation of the PM-10 NAAQS. Even if a measurement of
155 &mu;g/m\3\ is recorded at a one-in-six day FEM, a violation is
not necessarily being recorded as the State might need to evaluate
---------------------------------------------------------------------------
the possibility that the measurement is due to an exceptional event.

73 FR 22307, 22315. Thus the contingency plan makes clear that
determining whether an exceedance of the PM-10 standard is due to an
exceptional event is part of determining whether a violation of the
standard actually occurred, which would require corrective actions. In
other words, we concluded that the 2007 Plan's action level or trigger,
including the exclusion of exceedances caused by exceptional events,
meets the statutory mandate that the contingency provisions ``correct
any violation of the standard.'' Because it is clearly part of the
action level or trigger, and not the corrective actions to be
undertaken in the event of a violation, it is not accurate to conclude,
as EJ does, that the contingency plan relies ``first and foremost'' on
the use of the EER. Moreover, since an exceedance, which is not
necessarily a violation, triggers the contingency measure provision,
the provision may also be used to prevent violations of the NAAQS, and
at a minimum provides for a violation that is determined not to be due
to an exceptional event to trigger a measure.
    Once the contingency plan is triggered, the District would
determine the possible causes of the exceedance and determine if
emissions reductions from adopted measures that are not needed to
maintain the PM-10 NAAQS are available to serve as contingency
measures. 2007 Plan at 16. EJ objects to the use of these excess
reductions (i.e., those not relied on in the maintenance demonstration)
when ambient concentrations are being monitored.
    Initially we note that EPA has long approved contingency provisions
that rely on reductions from measures that are already in place but are
over and above those relied on in the attainment and RFP demonstrations
under CAA section 172(c)(9). See, e.g., 62 FR 15844 (April 3, 1997); 62
FR 66279 (December 18, 1997); 66 FR 30811 (June 8, 2001); 66 FR 586 and
66 FR 634 (January 3, 2001). We discussed this interpretation of
section 172(c)(9) in our final PM-2.5 implementation rule. See 72 FR
20586, 20642-20643 (April 25, 2007). This interpretation has also been
upheld in LEAN v. EPA, 382 F.3d 575 (5th Cir. 2004), and the court in
that case set forth in detail the reasoning for accepting excess
reductions from already adopted measures as contingency measures.
    In addition to being triggered by a failure to meet RFP,
contingency measures under section 172(c)(9) are triggered when EPA
determines that an area has failed to attain a NAAQS. Determinations of
whether an area has attained a NAAQS (see, e.g., section 188(b)(2); 
71 FR 40952) are based on monitored concentrations. Likewise, here, a
determination of whether the action level has been reached is based on
monitored concentrations. Therefore our interpretation that excess
emission reductions can appropriately serve as section 172(c)(9)
contingency measures is equally applicable to section 175A(d)
contingency measures.
    Furthermore, section 172(c)(9) is considerably less flexible than
section 175A(d) in that under the former provision contingency measures
are required to be fully adopted measures that will take effect without
further action by the state, whereas this is not a requirement in order
for the maintenance plan to be approved. Moreover, section 175A(d)
grants considerably more discretion to EPA in determining whether to
accept contingency provisions in maintenance plans (maintenance plans
must contain ``such contingency provisions as the Administrator deems
necessary to assure that the State will promptly correct any violation
of the standard.'' (Emphasis added). In addition, the Calcagni
memorandum at 12-13 states that a contingency plan under section
175A(d) ``[a]t a minimum must require that the State will implement all
measures contained in the Part D nonattainment plan for the area prior
to redesignation. * * * '' The 2007 Plan so provides and goes well
beyond this minimum threshold.
    The U.S. Court of Appeals for the Sixth Circuit addressed the issue
of the adequacy of reductions from already

[[Page 66770]]

adopted measures in the context of section 175A(d) contingency measures
in a maintenance plan for Cuyahoga County, Ohio. Greenbaum v. EPA, 370
F.3d 527 (6th Cir. 2004).\14\ There EPA had approved section 172(c)(9)
contingency measures into the SIP in 1996 as part of the State's
moderate area PM-10 nonattainment plan. In approving these measures EPA
found that they provided for emission reductions following any
prospective determination that the SIP failed to provide for timely
attainment of the NAAQS. In 2000, Ohio submitted a redesignation
request with a maintenance plan that included as section 175A(d)
contingency provisions the already approved section 172(c)(9)
contingency measures. Among other things, the petitioners argued that
the CAA does not authorize EPA to use other measures outside the
maintenance plan to assure correction of a violation. In upholding
EPA's approval of the redesignation, the court found that:
---------------------------------------------------------------------------

    \14\ As early as 1995, EPA approved a maintenance plan under
section 175A that included contingency provisions that relied in
part on measures to be implemented prior to any post-redesignation
NAAQS violation. See 60 FR 27028, 27029 (May 22, 1995).

    [t]he Administrator has been granted broad discretion by
Congress in determining what is `necessary to assure' prompt
correction. The EPA has approved Ohio's maintenance plan, concluding
that its contingency measures provide a means to deal with likely
violations. We do not believe that this determination is `arbitrary,
capricious, or manifestly contrary to the statute.' Chevron, 467
---------------------------------------------------------------------------
U.S. at 844.

The Sixth Circuit in Greenbaum further noted that Congress contemplated
that contingency measures need not be sufficient to correct all
violations and that EPA and the state could rely on a combination of
factors to correct violations. See the extensive discussion of
contingency measures in Greenbaum.
    Here, the 2007 Plan looks first to emission reductions from adopted
measures that are not needed to maintain the PM-10 NAAQS to serve as
section 175A(d) contingency measures. If these emission reductions
prove to be insufficient to correct the violation, the District commits
to proceed with identifying control measures from feasibility studies
such as those found in its 2007 Ozone Plan and Proposed 2008 PM2.5 Plan
\15\ (see 2007 Ozone Plan at Table 6-2 and 2008 PM2.5 Plan at Table 6-
4) and with prioritizing measures most relevant for reducing PM-10
emissions. 2007 Plan at 16-17. The SJVAPCD has also provided
clarification that if additional control measures are necessary, the
SJVAPCD will adopt and implement such measures. Letter from Seyed
Sadredin, SJVAPCD, to Deborah Jordan, EPA, April 17, 2008. EPA believes
that the 2007 Plan's contingency provisions which rely in part on
emissions reductions from adopted measures not needed to maintain the
PM-10 NAAQS to correct any PM-10 violation are consistent with the
Agency's policies and with the statute. As the court in Greenbaum
observed, Congress has expressly delegated to EPA the authority to
determine what contingency measures are necessary. Here, EPA has
determined that the contingency measures, which include both the
potential for emission reductions from already adopted measures and
from measures to be adopted, clearly are sufficient.
---------------------------------------------------------------------------

    \15\ The 2008 PM2.5 Plan was adopted by the District on April
30, 2008, approved by the State on May 22, 2008, and submitted to
EPA on June 30, 2008.
---------------------------------------------------------------------------

    Finally, with respect to EJ's preference, suggested in the Calcagni
memorandum, that the contingency plan for the SJVAB area set indicators
that trigger contingency provisions before a violation occurs, we note
again that the memorandum provides that contingency provisions are to
be judged on a case by case basis. See also Greenbaum. With the
exception of the minimum requirement mentioned above, the Calcagni
memorandum is not prescriptive and allows for considerable latitude as
to what constitutes an adequate contingency plan. The Calcagni
memorandum itself provides that a violation of the standard is an
appropriate trigger for contingency measures. Calcagni memorandum at
12. See also Greenbaum. It is a common practice in maintenance plans to
provide that a violation will trigger the requirement for a contingency
measure to be implemented. Moreover, as pointed out above, under the
contingency measure provisions, a monitored exceedance of the standard
that does not itself constitute a violation (e.g., at a continuous
monitor or a one-in-three day FRM monitor) could trigger a contingency
measure prior to a violation occurring.

F. Revision of Boundary Designation

    Comment 18: EJ maintains that the portion of the San Joaquin Valley
that EPA now proposes to split off was designated as part of the SJV
nonattainment area because, as provided in CAA section 107(d)(1)(A), it
was part of the geographic area ``that does not meet (or that
contributes to ambient air quality in a nearby area that does not meet)
the national primary or secondary air quality standard for that
pollutant.'' EJ states that EPA makes no attempt to explain how
circumstances have changed to justify the removal of this portion of
the designated nonattainment area. EJ notes that the SJV area includes
other high-elevation areas that are located above the inversion layer
and that whether a community is above or below the inversion layer is
irrelevant because these areas are part of the Valley and part of the
same air basin polluted by emissions generated in the Valley.
    Response 18: As discussed in our proposed rule, on January 31, 2008
California requested a boundary redesignation splitting the SJV
nonattainment area into two separate nonattainment areas, the SJVAB and
East Kern. Section 107(d)(3)(D) of the CAA authorizes the State to
submit to EPA a revised designation of any area and EPA is required to
approve or deny it within 18 months of receipt of a complete State
submittal. The type of revised designation that the State of California
requested involves a boundary change only and does not involve a change
in status (e.g., from ``nonattainment'' to ``attainment'' or
``unclassifiable'') of any area. Our criteria for evaluating the
State's request are discussed in our proposed rule.
    In general, the State has provided a compelling technical
justification for splitting the nonattainment area which includes an
evaluation of the differences in jurisdiction, geography, population
and degree of urbanization, employment and traffic/commuting patterns,
emissions and air quality. 73 FR 22307, 22308-22310. EJ notes that
there are other high elevation areas in the SJV nonattainment area;
however, the State has not made a request to revise any other
boundaries. In addition, as discussed in our proposed rule, the SJVAB
and East Kern areas are in separate air basins and do not have the same
mix of air pollution sources. Id. EPA continues to believe that it
should grant the State's request for a revised designation splitting
the SJV nonattainment area into two PM-10 nonattainment areas, the
SJVAB area and the East Kern area for the reasons set forth in the
proposed rule and in this response.
    Comment 19: A commenter states that while the proposal to separate
the western portion of the KCAPCD is clear and compelling, the
commenter is concerned about environmental justice issues for the East
Kern area. The commenter states that if the purpose of the separation
is to clean-up one area and ignore the other industrialized area with
the State prison, then EPA is not following its ethics concerning

[[Page 66771]]

environmental justice. The commenter states that communities with
prisons serve as a target of environmental neglect and should not be
abandoned from environmental laws and attainment requirements and
should not be forgotten by EPA.
    Response 19: EPA's final action to split the SJV nonattainment area
into two nonattainment areas does not relax any requirements. EPA is
also approving enforceable commitments for the East Kern area that will
ensure progress in meeting CAA requirements for the area. These
commitments include the installation of a FRM/FEM \16\ and submittal of
a SIP addressing applicable CAA requirements if the monitor violates
the PM-10 standard. 73 FR 22307, 22317. In the meantime, the existing
data from the IMPROVE monitor, although not a FRM or FEM, do not
indicate an air quality problem in East Kern--rather they show levels
that are consistently significantly below the standard. See id. at
22310 (``* * * IMPROVE monitor has, since February 2000, consistently
measured PM-10 concentrations far below the PM-10 standard.'').
---------------------------------------------------------------------------

    \16\ Currently there is no FRM or FEM monitoring of PM-10 in the
East Kern area. However, there is an Interagency Monitoring of
Protected Visual Environments (IMPROVE) monitor located in the Kern
River Valley. Pursuant to its commitment, CARB has purchased the new
monitor and has secured permission from the Bureau of Land
Management to install it next to the existing IMPROVE monitor.
---------------------------------------------------------------------------

    With respect to the commenter's concerns for fair treatment of the
inhabitants of East Kern, EPA is taking steps to assure that the East
Kern area will not be forgotten by EPA, and no community in that area
will be ``abandoned from environmental laws and attainment
requirements.'' EPA is committed to meeting the goals of environmental
justice and is equally concerned for the populations of both the SJVAB
and East Kern areas. There is no basis for concluding that the
population of East Kern is exposed to ongoing levels above the
standard, and EPA and the State have worked to provide assurances that
the area will be required to conduct more comprehensive monitoring and
to adopt additional requirements if needed. Thus EPA recognizes the
role of environmental justice and is observing its principles.
    Comment 20: A commenter disagrees with the proposed rule's
statement that the boundary redesignation makes sense because of the
difference in chemical composition of PM-10 between the two areas. The
commenter believes this is not a valid statement because there are no
FRMs or FEMs in the East Kern area. Furthermore, the commenter states
that the one IMPROVE monitor in the East Kern area is inadequate and
the chemical composition of the SJVAB and East Kern should not be
compared until there is an adequate monitoring system in East Kern. In
addition, the commenter concludes that a reanalysis of reported data
must be performed before considering attainment for the SJVAB.
    Response 20: We based our conclusion that the SJVAB and East Kern
should be separate nonattainment areas on multiple factors, only one of
which relates to the difference in the types of air pollutants in the
two areas. See 73 FR 22307, 22310. While the commenter is correct that
there is no FRM or FEM in the East Kern area, as stated above, the
State and the District have committed to install an FRM/FEM in the East
Kern area. Pending data from this new monitor, the IMPROVE monitor does
provide useful information regarding the composition of PM-10 in the
area. See id. and Attachments B and C to letter from James N.
Goldstene, CARB, to Deborah Jordan, EPA, January 31, 2008. See also
response to comment 19. The newly created East Kern area will retain
its nonattainment designation until the State can demonstrate,
following assessment of data from the new monitor, that all the applicable
CAA requirements for redesignation of the East Kern area are met.
    EPA does not agree that a reanalysis of the reported data must be
performed before considering whether the SJVAB area has attained the
PM-10 standard. As noted above, EPA has found that the SJVAB area has
an adequate monitoring system on which to base such a determination.
See 69 FR 30006, 30033, 71 FR 63642, 63648 and ``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, September 22, 2003. To demonstrate attainment, an area must show
that it meets the standard over a three-year period. The SJVAB area has
demonstrated attainment over three separate 3-year periods--2003-2005,
2004-2006, and 2005-2007, and it continues to attain the standard.

G. Miscellaneous Comments

    Comment 21: A commenter states that there are several gaps in
evaluating the PM-10 data for the SJVAB from 1990 to 2004 and that
given the cyclical nature of PM-10 the downward trend should be
considered inconclusive until all yearly averages are taken into
account as well as seasonally weighted averages.
    The commenter also states that in the proposed rule's discussion of
meteorological conditions a lower stability level would more likely
lead to less dispersion and higher PM-10 values. The commenter believes
the lower stability means the PM-10 levels were overestimated and
provides information as to the unequal distribution in the surrounding
community and who is bearing the brunt of the higher exposures.
    Response 21: In our proposed rule we reference the expected PM-10
exceedances from 1990-1992, 1998-2000 and 2002-2004 to show that there
has been a significant decline in NAAQS exceedances over the past 17
years, i.e., from 1990 through 2006. There are no data gaps; the 2007
Plan includes data for each year. 2007 Plan at 23-24, Figure 2. EPA
believes that a 17 year period is sufficient to establish a trend that
accounts for any cyclical changes in PM-10 data. In addition, an
evaluation of the seasonal conditions causing PM-10 is provided in the
2003 PM-10 Plan. 2003 PM-10 Plan at ES-4 to ES-10 and Chapter 2.
    EPA examined meteorological data, including information about
atmospheric stability, wind speeds, precipitation and temperature in
order to determine if there were any unusually favorable meteorological
conditions that would cause PM-10 exceedances. EPA determined that
overall there was no consistent pattern of favorable meteorology. 73 FR
22307, 22312; responses to comments 3 and 6 above.
    For the SJVAB area, it has been determined that on an annual
average basis, unstable conditions (or low stability) result in
dispersion of pollutants and lower PM-10 levels and stable conditions
(or high stability) result in a temperature inversion which keeps
emissions at the surface and leads to higher PM-10 levels. 2007 Plan at
Appendix C. During the attainment period of 2003 through 2006, the
SJVAB area experienced somewhat low stability which allowed for
dispersion of pollutants and lower PM-10 levels; however, as discussed
in response to comment 6 above, based on the analysis of all the
meteorological parameters, EPA determined that there was no overall
pattern which favored improved PM-10 levels.
    It is not completely clear to EPA what point the commenter is
trying to make regarding stability. EPA acknowledges, however, that
unstable conditions combined with other factors (e.g., emissions) in
the SJV area can lead to

[[Page 66772]]

high PM-10 levels on a daily basis, as has been seen with exceedances
that occur during high wind events. Such exceedances however have been
excluded from regulatory consideration under EPA's Exceptional Events
Rule. 73 FR 22307, 22310-22311 and 73 FR 14687.
    Comment 22: The SJVAPCD provided comments supporting EPA's proposed
actions and also notes a minor typographical error for the proposed
transportation conformity budgets found in Table 4 for Merced County
for 2005. The SJVAPCD states that the budget should read 39.4 tons per
day and not 39.2 tons per day.
    Response 22: EPA appreciates the comments and has made the
correction in today's final action.

III. Final Actions

    For the reasons set forth in the proposed rule and in the responses
to comments above, EPA is taking the final actions summarized below:
    Having concluded that the State has addressed all the necessary
requirements for a revised boundary designation, EPA is approving the
State's request under section 107(d)(3)(D) to revise the boundary
designation for the SJV PM-10 nonattainment area by splitting the area
into two separate serious PM-10 nonattainment areas, the SJVAB PM-10
nonattainment area and the East Kern PM-10 nonattainment area.
    Having concluded that the CAA requirements of section 107(d)(3)(E)
for redesignations and section 175A for maintenance plans have been met
for the SJVAB area, EPA is approving the State's request to redesignate
the newly created serious SJVAB nonattainment area to attainment for
the PM-10 NAAQS and approving the 2007 maintenance plan for the area.
    EPA is also approving the conformity trading mechanism for the
SJVAB area and the motor vehicle emissions subarea budgets for the
attainment year, 2005, and the maintenance year, 2020, found in Table 3
below. The 2005 attainment year budget replaces the current attainment
budgets from the approved 2003 PM-10 Plan. These budgets are approved
as of November 12, 2008 pursuant to section 93.118(f)(2)(iii).\17\
---------------------------------------------------------------------------

    \17\ 40 CFR 93.118(f)(2) applies when EPA reviews the adequacy
of an implementation plan simultaneously with EPA's approval or
disapproval of the implementation plan, as is the case here.
Subsection (f)(2)(iii) provides that ``[i]f EPA makes an adequacy
finding through a final rulemaking that approves the implementation
plan submission, such a finding will become effective upon the
publication date of EPA's approval in the Federal Register.''

                          Table 3--Motor Vehicle Emissions Subarea Budgets 2007 Plan *
                                                 [Tons per day]
----------------------------------------------------------------------------------------------------------------
                                                                        2005                      2020
                           County                            ---------------------------------------------------
                                                                 PM-10         NOX         PM-10         NOX
----------------------------------------------------------------------------------------------------------------
Fresno......................................................         13.5         59.2         16.1         23.2
Kern **.....................................................         12.1         88.3         14.7         39.5
Kings.......................................................          3.1         16.7          3.6          6.8
Madera......................................................          3.6         13.9          4.7          6.5
Merced ***..................................................          6.2         39.4          6.4         12.9
San Joaquin.................................................          9.1         42.6         10.6         17.0
Stanislaus..................................................          5.6         29.7          6.7         10.8
Tulare......................................................          7.3         25.1          9.4         10.9
                                                             ---------------------------------------------------
    Total...................................................         60.5        314.9         72.2        127.6
----------------------------------------------------------------------------------------------------------------
* The budgets are based on attainment and maintenance of the 24-hour PM-10 NAAQS. The annual standard was
  revoked on December 18, 2006. See 71 FR 61144.
** MVEBs in Table 3 are only for the SJVAB portion of Kern County.
*** EPA's April 25 and May 23, 2008 proposed rules (73 FR 22307 and 73 FR 30029) incorrectly include 39.2 tons
  per day for the Merced 2005 NOX subarea budget. This was a typographical error. The number provided in the
  State's submittal of the 2007 Plan is 39.4 tons per day, which is reflected in Table 3 above.

    EPA is excluding from use in determining that the SJVAB area has
attained the PM-10 NAAQS two exceedances that it has concluded were
caused by exceptional events on July 4, 2007 and January 4, 2008, and
is determining that the SJVAB area continues to attain the PM-10 standard.
    Finally, EPA is approving commitments from KCAPCD and CARB to
install a FRM or FEM in the newly created East Kern serious PM-10
nonattainment area and to address section 189(d) CAA requirements for
the area in a SIP revision in the event the FRM or FEM records a
violation of the PM-10 standard.

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 a revised boundary designation, a redesignation to
attainment for the SJVAB, a maintenance plan for the SJVAB area, motor
vehicle emissions budgets and conformity trading mechanism for the area
and commitments for the East Kern area, all of which were either
requested or submitted by the State. 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 does not impose any
additional enforceable duty, it does not contain any unfunded mandate
or significantly or uniquely affect small governments, as described in
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    Executive Order 13175 (59 FR 22951, November 9, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' Seven Indian tribes have

[[Page 66773]]

reservations located within the boundaries of the SJVAB. EPA has
consulted with representatives of the tribes and will continue to work
with the tribes as provided for in Executive Order 13175. Accordingly,
EPA has addressed Executive Order 13175 to the extent that it applies
to this action. 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 requests or submittals
from the State and does not alter the relationship or the distribution
of power and responsibilities established in the Clean Air Act.
    Executive Order 12898 establishes a Federal policy for
incorporating environmental justice into Federal agency actions by
directing agencies to identify and address, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority and
low-income populations. Today's action involves approvals of a revised
boundary designation, a redesignation to attainment for the SJVAB area,
a maintenance plan for the SJVAB area, motor vehicle emissions budgets
and conformity trading mechanism for the area and commitments for the
East Kern area. It will not have disproportionately high and adverse
effects on any communities in the area, including minority and low-
income communities.
    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. 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 because it
would be inconsistent with applicable law for EPA, when determining the
attainment status of an area, to use voluntary consensus standards in
place of promulgated air quality standards and monitoring procedures
that otherwise satisfy the provisions of the Clean Air. 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 January 12, 2009. 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)).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks,
Wilderness areas.

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

    Dated: September 24, 2008.
Wayne Nastri,
Regional Administrator, Region IX.

• Parts 52 and 81 of Chapter I, Title 40 of the Code of Federal
Regulations are amended as follows:

PART 52--[AMENDED]

• 1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

• 2. Section 52.220 is amended by adding paragraphs (c)(356) and (357) to
read as follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (356) The following plan was submitted on November 16, 2007, by the
Governor's Designee.
    (i) Incorporation by reference.
    (A) San Joaquin Valley Air Pollution Control District.
    (1) 2007 PM10 Maintenance Plan and Request for Redesignation,
adopted by the San Joaquin Valley Air Pollution Control District on
September 20, 2007, section 6. Contingency Plan on pages 16 to 17.
    (ii) Additional materials.
    (A) San Joaquin Valley Air Pollution Control District.
    (1) 2007 PM10 Maintenance Plan and Request for Redesignation,
adopted by the San Joaquin Valley Air Pollution Control District on
September 20, 2007, except for Appendices A through F.
    (2) State of California, Air Resources Board, Staff Report,
Analysis of the San Joaquin Valley 2007 PM10 Maintenance Plan, Release
Date: October 12, 2007, Appendix B Emission Inventory.
    (3) Letter dated May 13, 2008, from James N. Goldstene, California
Air Resources Board, to Wayne Nastri, EPA, providing revised motor
vehicle emission budgets for the 2007 San Joaquin Valley PM10
Maintenance Plan.
    (357) The following commitments were submitted on February 29,
2008, by the Governor's Designee:
    (i) Incorporation by reference.
    (A) Commitments for the installation and operation of a FRM or FEM
PM-10 monitor and SIP development and submittal.
    (1 ) Resolution No. 2008-001-02, adopted by the Air Pollution
Control Board, Kern County Air Pollution Control District on February
27, 2008.
    (2 ) Executive Order S-08-004, adopted by the California Air
Resources Board on March 3, 2008.
* * * * *

PART 81--[AMENDED]

• 3. The authority citation for Part 81 continues to read as follows:

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

• 4. In Sec.  81.305 the ``California--PM-10'' table is amended under
Fresno, Kern, Kings, Madera, Merced, San Joaquin, Stanislaus, Tulare
Counties by revising the entry for the ``San Joaquin Valley planning
area'' to read as follows:

Sec.  81.305  California.

[[Page 66774]]

                                                California--PM-10
----------------------------------------------------------------------------------------------------------------
                                                    Designation                           Classification
          Designated Area          -----------------------------------------------------------------------------
                                             Date                  Type              Date            Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Fresno, Kern, Kings, Madera,
 Merced, San Joaquin, Stanislaus,
 Tulare Counties:

                                                  * * * * * * *
East Kern; that portion of Kern     11/15/1990...........  Nonattainment.......   11/15/1990  Serious.
 County which lies between the
 following two lines (with the
 exception of that portion in
 Hydrologic Unit Number 18090205--
 the Indian Wells Valley):
    (1) West and north of a line
     described as follows:
     Beginning at the southwest
     corner of section 31, T. 10
     N. 16 W. and running east to
     the northwest boundary of the
     Rancho La Liebre Land Grant;
     then running north and east
     along the northwest boundary
     of the Rancho La Liebre Land
     Grant to the point of
     intersection with the range
     line common to R. 15 W. and
     R. 16 W., San Bernardino Base
     and Meridian; then north
     along the range line to the
     northwest corner of section
     2, T. 32 S., R. 32 E., Mount
     Diablo Base and Meridian;
     then east along the township
     line common to T. 32 S. and
     T. 31 S.; then north along
     the range line common to R.
     35 E. and R. 34 E.; then east
     along the township line
     common to T. 29 S. and T. 28
     S.; then north along the
     range line common to R. 36 E.
     and R. 35 E.; then east along
     the township line common to
     T. 28 S. and T. 27 S.; then
     north along the range line
     common to R. 37 E. and R. 36
     E. to the Kern-Tulare County
     boundary.
    (2) East and south of a line
     of a line described as
     follows: Beginning at the
     southwest corner of section
     31, T. 10 N. 16 W. and
     running north along the range
     line common to R. 16 W. and
     R. 17 W., San Bernardino Base
     and Meridian; north along the
     range line to the point of
     intersection with the Rancho
     El Tejon Land Grant boundary;
     then southeast, northeast,
     and northwest along the
     boundary of the Rancho El
     Tejon Land Grant to the
     northwest corner of S. 3, T.
     11 N., R. 17 W.; then west
     1.2 miles; then north to the
     Rancho El Tejon Land Grant
     boundary; then northwest
     along the Rancho El Tejon
     line to the southeast corner
     of S. 34, T. 32 S., R. 30 E.,
     Mount Diablo Base and
     Meridian; then north to the
     northwest corner of S. 35, T.
     31 S., R. 30 E.; then
     northeast along the boundary
     of the Rancho El Tejon Land
     Grant to the southwest corner
     of S. 18, T. 31 S., R. 31 E.;
     then east to the southeast
     corner of S. 13, T. 31 S., R.
     31 E.; then north along the
     range line common to R. 31 E.
     and R. 32 E., Mount Diablo
     Base and Meridian, to the
     northwest corner of S. 6, T.
     29 S., R. 32 E.; then east to
     the southwest corner of S.
     31, T. 28 S., R. 32 E.; then
     north along the range line
     common to R. 31 E. and R. 32
     E. to the northwest corner of
     S. 6, T. 28 S., R. 32 E.,
     then west to the southeast
     corner of S. 36, T. 27 S., R.
     31 E., then north along the
     range line common to R. 31 E.
     and R. 32 E. to the Kern-
     Tulare County boundary.

[[Page 66775]]

San Joaquin Valley Air Basin;       December 12, 2008....  Attainment..........
 Fresno County, Kings County,
 Madera County, Merced County, San
 Joaquin County, Stanislaus
 County, Tulare County, and that
 portion of Kern County which lies
 west and north of a line
 described as follows: Beginning
 at the Kern-Los Angeles County
 boundary and running north and
 east along the northwest boundary
 of the Rancho La Libre Land Grant
 to the point of intersection with
 the range line common to R. 16 W.
 and R. 17 W., San Bernardino Base
 and Meridian; north along the
 range line to the point of
 intersection with the Rancho El
 Tejon Land Grant boundary; then
 southeast, northeast, and
 northwest along the boundary of
 the Rancho El Tejon Land Grant to
 the northwest corner of S. 3, T.
 11 N., R. 17 W.; then west 1.2
 miles; then north to the Rancho
 El Tejon Land Grant boundary;
 then northwest along the Rancho
 El Tejon line to the southeast
 corner of S. 34, T. 32 S., R. 30
 E., Mount Diablo Base and
 Meridian; then north to the
 northwest corner of S. 35, T. 31
 S., R. 30 E.; then northeast
 along the boundary of the Rancho
 El Tejon Land Grant to the
 southwest corner of S. 18, T. 31
 S., R. 31 E.; then east to the
 southeast corner of S. 13, T. 31
 S., R. 31 E.; then north along
 the range line common to R. 31 E.
 and R. 32 E., Mount Diablo Base
 and Meridian, to the northwest
 corner of S. 6, T. 29 S., R. 32
 E.; then east to the southwest
 corner of S. 31, T. 28 S., R. 32
 E.; then north along the range
 line common to R. 31 E. and R. 32
 E. to the northwest corner of S.
 6, T. 28 S., R. 32 E., then west
 to the southeast corner of S. 36,
 T. 27 S., R. 31 E., then north
 along the range line common to R.
 31 E. and R. 32 E. to the Kern-
 Tulare County boundary.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. E8-26500 Filed 11-10-08; 8:45 am]
BILLING CODE 6560-50-P
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