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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
PDF Version (15 pp, 264K, About PDF)

[Federal Register: July 14, 2009 (Volume 74, Number 133)]
[Proposed Rules]
[Page 33933-33947]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jy09-18]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2008-0693; FRL-8929-9]

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

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

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SUMMARY: EPA is proposing to approve in part and disapprove in part
State implementation plan (SIP) revisions submitted by the State of
California to meet the Clean Air Act (CAA) requirements applicable to
the San Joaquin Valley, California 1-hour ozone nonattainment area (SJV
area). These requirements apply to the SJV area following its April 16,
2004 reclassification from severe to extreme for the 1-hour ozone
national ambient air quality standard (NAAQS). EPA is proposing to
approve the SIP revisions for the SJV area as meeting applicable CAA
requirements for the attainment demonstration, rate-of-progress
demonstration and related contingency measures, and other control
measures. EPA is also proposing to disapprove the contingency measures
for failure to attain. In addition, EPA is proposing to approve the SJV
Air Pollution Control District's Rule 9310, ``School Bus Fleets.''
Finally, EPA is withdrawing its previous proposal (73 FR 61381; October
16, 2008) to fully approve the SJV SIP revisions.

DATES: Comments must be submitted by August 13, 2009.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2008-0693, by one of the following methods:
    1. Agency Web site: http://www.regulations.gov. EPA prefers
receiving comments through this electronic public docket and comment
system. Follow the on-line instructions to submit comments.
    2. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions.
    3. E-mail: wicher.frances@epa.gov.
    4. Mail or deliver: Ms. Marty Robin, Office of Air Planning (AIR-
2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, CA 94105-3901.
    Instructions: All comments will be included in the public docket
without change and may be made available online at 
http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through the
agency Web site, eRulemaking portal, or e-mail. The agency Web site and
eRulemaking portal are anonymous access systems, and EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send e-mail directly to EPA, your e-mail
address will be automatically captured and included as part of the
public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for Clarifications, EPA may not be
able to consider your comment.
    Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region 9, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, U.S. EPA Region 9,
415-972-3957, wicher.frances@epa.gov or 31http://www.epa.gov/region09/
air/actions.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' mean U.S. EPA.

Table of Contents

I. The History of San Joaquin Valley 1-Hour Ozone Nonattainment Area
and Its Extreme Area Ozone Plan
A. The San Joaquin Valley 1-Hour Ozone Nonattainment Area
B. SJV 2004 SIP, SJV Portion of 2003 State Strategy and 2008 Clarifications
C. EPA's 2008 Proposed Approval of the SJV Extreme 1-Hour Ozone Plan
and 2003 State Strategy
II. Revocation of the 1-Hour Ozone Standard and Anti-Backsliding Requirements
III. Review of the 2004 SIP, the SJV Portion of the 2003 State
Strategy and the 2008 Clarifications
A. Control Measures
B. Emission Inventories
C. Rate of Progress Demonstrations
D. Attainment Demonstration
E. Contingency Measures
F. Proposed Findings on Other Requirements for Extreme Nonattainment Areas
IV. SJVAPCD Rule 9310 School Bus Fleets
V. Proposed Actions
    A. Summary
    B. Effect of Finalizing These Proposed Actions
VI. Statutory and Executive Order Reviews

I. The History of San Joaquin Valley 1-Hour Ozone Nonattainment Area
and its Extreme Area Ozone Plan

A. The San Joaquin Valley 1-Hour Ozone Nonattainment Area

    Eight counties comprise the San Joaquin Valley ozone nonattainment
area (SJV area). From north to south, these counties are San Joaquin,
Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and the valley
portion of Kern. 40 CFR 81.305. The local air district is the San
Joaquin Valley Air Pollution Control District (SJVAPCD or District).
    The SJV area was initially classified under the CAA, as amended in
1990, as a serious area for the 1-hour ozone standard. 56 FR 56694
(November 6, 1991). Under the amended CAA, the attainment deadline for
serious 1-hour ozone areas was no later than November 15, 1999. CAA
section 181(a)(1).
    In 2001, we found that the SJV area had failed to attain the 1-hour
ozone standard by the required deadline. 66 FR 56476 (November 8,
2001). As a result of this finding, the area was reclassified by
operation of law to severe with a new attainment deadline of no later
than November 15, 2005. CAA section 181(a)(1). After determining that
sufficient controls could not be implemented in time for the area to
attain by the severe area deadline, California requested a voluntary
reclassification of the area to extreme as allowed under CAA section
181(a)(5). See SJVAPCD Resolution 03-12-10 ``Requesting the [EPA] to
Classify the [SJV] Air Basin as Extreme Nonattainment for the Federal
1-Hr Ozone [] Standards,'' December 18, 2003. We granted California's
request in 2004. 69 FR 20550 (April 16, 2004). As a result, the SJV
area is currently classified as an extreme area for the 1-hour ozone
standard with an attainment date of as expeditiously as practicable but
no later than November 15, 2010. CAA section 181(a)(1).

B. 2004 SIP, SJV Portion of 2003 State Strategy and 2008 Clarifications

    The SJVAPCD adopted its ``Extreme Ozone Attainment Demonstration
Plan'' on October 8, 2004 and amended it on October 20, 2005 to, among
other things, substitute a new ``Chapter 4: Control Strategy.'' The
State submitted the plan

[[Page 33934]]

(with the exception of Chapter 8 \1\) and amendment on November 15,
2004 and March 6, 2006, respectively. See letters from Catherine
Witherspoon, California Air Resources Board (ARB), to Wayne Nastri,
EPA, November 15, 2004 and March 6, 2006. The plan and amendment,
collectively, will be referred to as the ``2004 SIP'' in this proposed
rule. The 2004 SIP addresses CAA requirements for extreme 1-hour ozone
areas including control measures, rate-of-progress (ROP) and attainment
demonstrations, and contingency measures.
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    \1\ Chapter 8 ``California Clean Air Act Triennial Progress
Report and Plan Review'' was included in the plan to meet a State
requirement to report every three years on the area's progress
toward meeting California's air quality standards. Nothing in the
chapter was intended to address federal Clean Air Act requirements.
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    For the reductions needed to demonstrate attainment and ROP, the
2004 SIP relies in part on the ``2003 State and Federal Strategy for
the California State Implementation Plan.'' This strategy document
identifies ARB's regulatory agenda to reduce ozone and particulate
matter in California and includes defined statewide control measures
that were to be reflected in future SIPs and provisions specific to air
quality plans for the San Joaquin Valley. On October 23, 2003, ARB
adopted the ``2003 State and Federal Strategy for the California State
Implementation Plan,'' which consists of two elements: (1) the Proposed
2003 State and Federal Strategy for the California State Implementation
Plan (released August 25, 2003); and (2) ARB Board Resolution 03-22
which approves the Proposed 2003 State and Federal Strategy with the
revisions to that Strategy set forth in Attachment A. On January 9,
2004, ARB submitted to EPA the ``2003 State and Federal Strategy for
the California State Implementation Plan.'' Letter from Catherine
Witherspoon, ARB, to Wayne Nastri, EPA, January 9, 2004.\2\
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    \2\ On February 13, 2008, ARB withdrew from EPA consideration
certain commitments related to the South Coast Air Basin in the
``Final 2003 State and Federal Strategy for the California State
Implementation Plan.'' These withdrawals do not change the 2003
Strategy's provisions that apply to the SJV area. Letter from James
N. Goldstene, ARB, to Wayne Nastri, EPA, February 13, 2008.
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    In this proposed rule we refer to the two documents comprising the
``Final State and Federal Strategy for the California State
Implementation Plan'' as the ``2003 State Strategy'' or individually as
the ``State Strategy'' and ``ARB Resolution 03-22,'' respectively.
    On August 21, 2008, the SJVAPCD adopted ``Clarifications Regarding
the 2004 Extreme Ozone Attainment Demonstration Plan'' (2008
Clarifications). The State submitted the 2008 Clarifications on
September 5, 2008. Letter from James N. Goldstene, ARB, to Wayne
Nastri, EPA, with enclosures, September 5, 2008. The 2008
Clarifications provide updates to the 2004 SIP related to reasonably
available control technology (RACT) measures adopted by the SJVAPCD,
the ROP demonstration, and contingency measures.
    CAA section 110(k)(1) requires EPA to determine whether a SIP
submission is complete within 60 days of receipt. This section also
provides that any plan that has not been affirmatively determined to be
complete or incomplete shall become complete within 6 months by
operation of law. EPA's completeness criteria are found in 40 CFR part
51, subpart V.
    The 2004 SIP, comprised of the original November 15, 2004 plan and
May 6, 2006 amendment, was deemed complete by operation of law on May
15, 2005 and September 6, 2006. On February 18, 2004, we determined the
Final 2003 State Strategy to be complete. Letter from Deborah Jordan,
EPA, to Catherine Witherspoon, ARB, February 18, 2004. We found the
2008 Clarifications complete on September 23, 2008. Letter from Deborah
Jordan, EPA, to James N. Goldstene, ARB, September 23, 2008.

C. EPA's 2008 Proposed Approval of the 2004 SIP, SJV Portion of the
2003 State Strategy and the 2008 Clarifications

    This is the second time we have proposed action on the 2004 SIP,
the SJV portion of the 2003 State Strategy and the 2008 Clarifications.
On October 16, 2008, we proposed full approval of these SIP submittals
and received three comment letters during the public comment period.\3\
73 FR 61381. After considering these comments, we are withdrawing our
October 16, 2008 proposed rule and reproposing action on these SIP
submittals. As a result, we are not responding to the comments we
received on that proposed action at this time. Commenters wishing to
again raise issues raised in comments on that proposal should resubmit
applicable comments to the docket for this rulemaking.
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    \3\ Comment letters were received from Earthjustice; the Center
for Race, Poverty and the Environment; and the National Association
of Home Builders. These letters can be found in the docket for this proposal.
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II. Revocation of the 1-Hour Ozone Standard and Anti-Backsliding Requirements

    In 1979, we set the health-based NAAQS for ozone at 0.12 parts per
million (ppm) averaged over one hour. See 44 FR 8220 (February 9,
1979). In 1997, we revised this ozone standard by lowering the level to
0.08 ppm and extending the averaging time to eight hours.\4\ See 62 FR
38856 (July 18, 1997).
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    \4\ In 2008 we lowered the 8-hour ozone standard to 0.075 ppm.
See 73 FR 16436 (March 27, 2008). The references in this proposed
rule to the 8-hour standard are to the 1997 standard as codified at
40 CFR 50.10.
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    In 2004, EPA designated and classified most areas of the country
under the 8-hour ozone standard. 69 FR 23858 (April 30, 2004). At the
same time, we issued the ``Final Rule to Implement the 8-Hour Ozone
National Ambient Air Quality Standard--Phase 1'' (Phase 1 rule or 8-
hour implementation rule). 69 FR 23951 (April 30, 2004). Among other
matters, the Phase 1 rule revoked the 1-hour ozone standard in the SJV
area (as well as in most other areas of the country), effective June
15, 2005. See 40 CFR 50.9(b); 69 FR at 23996 and 70 FR 44470 (August 3, 2005).
    The Phase 1 rule also set forth anti-backsliding principles to
ensure continued progress toward attainment of the 8-hour ozone
standard by identifying which 1-hour ozone standard requirements remain
applicable in an area after revocation of that standard. 40 CFR
51.900(f). The Phase 1 rule also identified several CAA requirements,
such as contingency measures in CAA sections 172(c)(9) and 182(c)(9),
that would not continue to apply after revocation. See Sec.  51.905(e).
    The U.S. Court of Appeals for the District of Columbia Circuit
subsequently vacated the provisions of the Phase 1 rule that waived the
requirements under the revoked 1-hour ozone standard for, among other
things, contingency measures for failure to attain or to make
reasonable further progress toward attainment of the 1-hour ozone
standard. See South Coast Air Quality Management District, et al., v.
EPA, 472 F.3d 882 (D.C. Cir. 2006), rehearing denied 489 F.3d 1245
(2007) (clarifying that the vacatur was limited to the issues on which
the court granted the petitions for review) (collectively referred to
below as South Coast). On January 16, 2009, EPA proposed to remove the
contingency measure exemption in 40 CFR 51.905(e) for these
requirements and to list contingency measures as applicable
requirements under Sec.  51.900(f). 74 FR 2936.
    As a general matter, the planning and control requirements that
remain applicable following the revocation of the 1-hour ozone standard
derive from CAA sections 110, 172, and 182. CAA sections 110 and 172
contain general planning and control requirements

[[Page 33935]]

applicable to all nonattainment areas. CAA section 182 contains more
specific requirements applicable to ozone nonattainment areas,
including requirements in section 182(e) that apply to areas classified
as extreme, such as the SJV area.
    In 1992, EPA issued a General Preamble describing our preliminary
views on how we intended to review 1-hour ozone plans submitted to meet
these CAA's requirements. See ``General Preamble for Implementation of
Title I of the Clean Air Act Amendments of 1990.'' 57 FR 13498 (April
16, 1992). The General Preamble as well as other EPA guidance documents
related to 1-hour ozone plans continue to guide our review of the 1-
hour ozone requirements that remain applicable following revocation of
that standard.
    Under the Phase 1 rule, areas remain subject to the 1-hour
requirements until they attain the 8-hour ozone standard. Once an area
is redesignated to attainment for the 8-hour standard, it may shift the
applicable requirements to contingency measures (consistent with the
CAA sections 110(l) and 193). See Phase 1 rule at 23955 and 40 CFR 51.905(b).

III. Review of the 2004 SIP, the SJV Portion of the 2003 State Strategy
and the 2008 Clarifications

A. Control Measures

1. Requirements for Control Measures
    CAA section 172(c)(1) requires nonattainment area plans to provide
for the implementation of all reasonably available control measures
(RACM) including RACT. RACM is not listed separately in 40 CFR
51.900(f) as an applicable requirement following revocation of the 1-
hour ozone standard; however, EPA interprets the RACM requirement to be
a component of an area's attainment demonstration. See General Preamble
at 13560.
    EPA has previously provided guidance interpreting the RACM
requirement in the General Preamble at 13560 and a memorandum entitled
``Guidance on the Reasonably Available Control Measure Requirement and
Attainment Demonstration Submissions for Ozone Nonattainment Areas,''
John Seitz, Director, OAQPS to Regional Air Directors, November 30,
1999 (Seitz memo). In summary, EPA guidance provides that States, in
addressing the RACM requirement, should consider all potential measures
for source categories in the nonattainment area to determine whether
they are reasonably available for implementation in that area and
whether they would advance the area's attainment date by one or more years.
    Under the CAA, RACT is required for major sources of volatile
organic compounds (VOC) and for all VOC source categories for which EPA
has issued Control Techniques Guideline (CTG) documents. In addition,
EPA has issued Alternative Control Techniques (ACT) documents to help
States in making RACT determinations. CAA sections 172(c)(1),
182(a)(2)(A), 182(b)(2), and 183(a) and (b). CAA section 182(f)
requires that RACT also apply to major stationary sources of nitrogen
oxides (NO_X). In extreme areas, a major source is a
stationary source that emits or has the potential to emit 10 tons of
VOC or NO_X per year. CAA section 182(e). The RACT
requirement in 182(b)(2), the major source threshold in section 182(e)
as it applies to RACT, and the application of RACT to major sources of
NO_X are all applicable requirements under the Phase 1 rule.
40 CFR 51.905(a)(1)(i) and 51.900(f)(1), (3) and (12).
    The CAA also requires that SIPs ``shall include enforceable
emission limitations, and such other control measures, means or
techniques * * * as well as schedules and timetables for compliance, as
may be necessary or appropriate to provide for attainment * * * by the
applicable attainment date.* * *'' CAA section 172(c)(6). CAA section
110(a)(2)(A) contains almost identical language.
2. Control Measures in the 2004 SIP and 2003 State Strategy
a. RACM Demonstration
    To determine which measures would be feasible for the SJV area, the
District looked at measures implemented in other areas (including the
South Coast Air Basin, the San Francisco Bay Area, and the Houston-
Galveston area), documents produced by ARB, as well as measures
suggested by the public at local workshops. The District then screened
the identified measures and rejected those that affected few or no
sources in the SJV area, had already been adopted as rules, or were in
the process of being adopted. The remaining measures were evaluated
using baseline inventories, available control technologies, and
potential emission reductions as well as whether the measure could be
implemented on a schedule that would expedite attainment of the 1-hour
ozone standard. 2004 SIP, section 4.2.1.
    Based on this evaluation, the District developed an expeditious
rule adoption schedule listing 21 measures involving adoption of eight
new rules and revisions to over 20 existing rules. 2004 SIP, Table 4-1.
Since submittal of the SIP in 2004, the District has completed action
on these rules and submitted them to EPA for approval. Table 1 in the
2008 Clarifications and Table 2 below.
    In addition to the District's efforts, the eight San Joaquin Valley
Regional Transportation Planning Agencies (RTPAs) conducted a RACM
evaluation for transportation sources. This evaluation, described in
section 4.6.3. of the 2004 SIP, resulted in extensive local government
commitments to implement programs to reduce auto travel and improve
traffic flow. 2004 SIP, section 4.6 and Appendix C. The local
governments also provide reasoned justifications for any measures that
they did not adopt. See 2004 SIP, Appendix C.
    Finally, the 2004 SIP relies on the 2003 State Strategy to address
mobile and area source categories not under the District's
jurisdiction. 2004 SIP, section 4.7. Table I-1 in the 2003 State
Strategy shows the impressive list of both mobile and area source
measures that have been adopted by California between 1994 and 2003,
along with the mobile source rules that have been adopted by EPA during
this period. Table I-2 in the 2003 State Strategy lists proposed new
State measures, most of which have already been adopted.\5\ This list
of new State measures was developed through a public process intended
to identify and refine new emission reductions strategies for
California. 2003 State Strategy, page ES-5.
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    \5\ See chapter 3 (page 38) of the ``Air Resources Board's
Proposed State Strategy for California's 2007 State Implementation
Plan,'' Revised Draft (Release date: April 26, 2007) (2007 State
Strategy) and ``Status Report on the State Strategy for California's
2007 State Implementation Plan (SIP) and Proposed Revision to the SIP
Reflecting Implementation of the 2007 State Strategy,'' ARB, April 24, 2009.
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b. RACT Demonstration
    The 2004 SIP includes a brief section 4.2.5 discussing the RACT
obligation and specific source categories where further analysis and
potential future controls would need to be adopted in order to ensure
that RACT levels of control are applied to sources down to the 10 tons
per year (tpy) level. The State subsequently formally withdrew the RACT
portion of the 2004 SIP, specifically section 4.2.5. See 2008
Clarifications, page 3. On January 21, 2009, we made a finding that
California failed to submit the required RACT demonstration for the 1-
hour ozone standard and initiated sanction and Federal implementation
plan (FIP) clocks under CAA sections 179(a) and 110(c). 74 FR 3442.
    During the last several years, the District has also adopted and revised its

[[Page 33936]]

RACT demonstration plan for the 8-hour ozone standard. On January 31,
2007, California submitted the District's initial RACT plan for the 8-
hour ozone standard to EPA. The District adopted a revised 8-hour ozone
standard RACT plan on April 16, 2009 and the State submitted the
revised plan on June 17, 2009. In addition to addressing comments on
the initial plan, The District intends this revised plan to address the
failure to submit finding for the 1-hour ozone RACT demonstration and
to assure that its rules cover sources in the SJV area down to the
extreme area major source threshold of 10 tpy. See letter from Andrew
Steckel, EPA, to George Heinen, SJVAPCD, May 6, 2008. We are currently
reviewing the revised RACT plan for future action.
c. Enforceable Limitations and Other Control Measures
    The 2004 SIP's modeling analysis, discussed further below,
determined that attainment of the 1-hour ozone standard required
reducing 2000 baseyear emissions from 556.8 tons per day (tpd)
NO_X and 443.5 tpd VOC to 343.5 tpd NO_X and 314.4
tpd VOC. 2004 SIP at 3-7 through 3-11 and 5-9 through 5-12 and
``Proposed 2004 State Implementation Plan for Ozone in the San Joaquin
Valley,'' September 28, 2004, Air Resources Board Staff Report (ARB
Staff Report) at Table III-6.
    As shown in Table 1 below, we have divided the control measures in
the 2004 SIP's attainment demonstration among three categories:
Baseline measures, interim measures, and control strategy measures. As
the term is used here and in the ARB Staff Report, baseline measures
are rules and regulations adopted prior to September, 2002 (i.e., prior
to 2004 SIP's development) that provide continuing reductions through
and after 2010. We have defined interim measures as those rules adopted
between September, 2002 and the 2004 SIP's adoption date in October,
2004. See Table III-7 in the ARB Staff Report. Finally, control
strategy measures are the new rules, rule revisions, and commitments
included in the 2004 SIP and 2003 State Strategy that will ensure that
the additional increment of emission reductions needed beyond the
baseline and interim measures is achieved in time to demonstrate
attainment by November 2010. See Tables III-6 and III-8 in the ARB
Staff Report.

         Table 1--Summary of Emission Reductions in the 2004 SIP
                          [Tons per summer day]
------------------------------------------------------------------------
                                                          VOC      NOX
------------------------------------------------------------------------
2000 baseyear emissions...............................    443.5    556.8
2010 baseline emissions...............................    365.1    396.8
2010 Attainment emissions target......................    314.4    343.5
Reductions needed for attainment......................    129.1    213.3
Baseline Measures:
    SJVAPCD...........................................  \6\-8.5     18.9
    State.............................................     79.3     97.2
    Federal...........................................      7.6     43.9
                                                       -----------------
        Total.........................................     78.4      160
        Percent from Baseline Measures................      61%      75%
Interim Measures:
    SJVAPCD adopted rules.............................      2.4     12.2
    Percent from Interim Measures.....................       2%       6%
Control Strategy Measures:
    SJVAPCD (includes long-term measures).............     33.3     21.1
    State.............................................       15       20
                                                       -----------------
        Total.........................................     48.3     41.1
        Percent from Control Strategy Measures........      38%      19%
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ARB Staff Report, table III-6.
Percentage may not sum to 100% because of rounding.

i. Baseline and Interim Measures
    As shown in Table 1, the majority of the emission reductions needed
to demonstrate attainment by November 2010 come from baseline and
interim measures. These reductions come from a combination of Federal,
State, and District measures.
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    \6\ The negative number here indicates that emissions increased
in the source categories under the District's authority to control.
The increase is mainly from growth in livestock operations. ARB
Staff report, table III-6.
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    A. SJVAPCD Measures--SJVAPCD currently has adopted more than 50
prohibitory rules that limit emissions of either VOC or NO_X.
These rules include controls for boilers, oil field and refinery
equipment, a variety of surface coatings operations, and open burning.
We have provided a list of SJVAPCD NO_X and VOC rules
together with information on their SIP approval status in the technical
support document (TSD) for this proposal.
    B. State measures--California has adopted standards for many
categories of on- and off-road vehicles and engines, gasoline and
diesel fuels, and numerous categories of consumer products. The State's
baseline measures fall within two categories: measures for which the
State has obtained or has applied to obtain a waiver of Federal pre-
emption under CAA section 209 (section 209 waiver measures or waiver
measures) and those for which the State is not required to obtain a
waiver (non-waiver measures).
    Section 209 waiver measures. A waiver under section 209 is, in
general, required for most on- and non-road vehicle or engine
standards. Examples of State waiver measures are: low emission vehicle
program, heavy duty bus standards, and small off-road engines. A list
of California's waiver measures can be found in the TSD. We discuss in
more detail the CAA section 209 waiver provisions and how we intend to
treat reductions from these measures in attainment and ROP
demonstrations in section C.3.b. below.
    Non-waiver measures. These measures include: improvements to
California's inspection and maintenance (I/M) program, SmogCheck;
cleaner burning gasoline and diesel regulations; and limits on the VOC
content and reactivity of consumer products.\7\ A list of these non-
waiver measures can be found in the TSD.
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    \7\ California's Department of Pesticide Regulations (DPR)
limits total pesticide emissions in the San Joaquin Valley. However,
the attainment demonstration in the 2004 SIP does not assume any DPR
regulatory limits on pesticide emissions. See 2003 State Strategy, p. III-C-3.
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    Federal measures. These measures include EPA's national emission
standards for heavy duty diesel trucks,\8\ certain new construction and
farm equipment,\9\ and locomotives.\10\ States are allowed to rely on
reductions from Federal measures in attainment and ROP demonstrations.
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    \8\ 66 FR 5001 (January 18, 2001). ARB estimates that interstate
trucks registered outside of California represent over 50 percent of
the heavy duty trucks in California. See Table III-1 in ``Staff
Report: Initial Statement of Reason for Proposed Rulemaking,
Proposed Regulation for In-Use, On-road Diesel Vehicles,''
California Air Resources Board (October 2008).
    \9\ Tier 2 and 3 non-road engines standards, 63 FR 56968
(October, 23, 1998); Tier 4 diesel non-road engine standard, 69 FR
38958 (June 29, 2004).
    \10\ 63 FR 18978 (May 16, 1998) and 73 FR 37045 (June 30, 2008).
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ii. Control Strategy Measures
    A. SJVAPCD's commitments and rule adoption. In the 2004 SIP, the
District committed to adopt specific rules or rule revisions by
specified dates, to submit the rules within one month of adoption to
ARB for submittal to EPA, and to achieve from each measure specified
reductions by 2010. 2004 SIP at Table 4-1 and SJVAPCD Resolution No. 5-
10-12 (October 20, 2005), p. 4, item 9. This information is updated in

[[Page 33937]]

Table 1 of the 2008 Clarifications which shows not only the original
commitment in the 2004 SIP but also the date on which the District
adopted the rule associated with each commitment and the actual
emissions reductions achieved by each rule. A summary of the
information found in Table 1 in the 2008 Clarifications is presented in
our Table 2 below. Table 2 also gives the date and cite for EPA's
approval or proposed approval of the rule or the date of signature on
the proposed approval.

         Table 2--San Joaquin Valley Air Pollution Control District 2004 Plan Specific Rule Commitments
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                                                           Achieved
  Rule No., description and commitment ID     2004 SIP     emission      Local         Approval cite/date or
               from 2004 SIP                 commitment   reductions    adoption    proposed approval cite/date
                                             (2010-tpd)   (2010-tpd)
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                                              NOX Control Measures
----------------------------------------------------------------------------------------------------------------
9310 Fleet School buses (C)...............          0.1     0.6 \11\      9/21/06  NPR signed 6/30/09.
9510 Indirect Source Mitigation (D).......          4.0  ...........     12/15/05  See note below.
4307 Small Boilers (2-5 MMBTU) (E)........          1.0          5.1      4/20/06  72 FR 29887 (5/30/07).
4352 Solid fuel boilers (G)...............          0.0          0.0      5/18/06  Proposed 72 FR 29901 (5/30/
                                                                                    07).
4702 Stat. IC engines (H).................          8.0         16.8      1/18/07  73 FR 1819 (1/10/08).
4309 Commercial Dryers (I)................          1.0          0.7     12/15/05  72 FR 29887 (5/30/07).
4308 Water Heaters 0.075 (N)..............          0.2          0.8     10/20/05  72 FR 29887 (5/30/07).
4103 Open Burning (Q).....................          1.1          1.7      5/17/07  Proposed 74 FR 30485 (6/26/
                                                                                    09).
4703 Sta. Gas Turbines (S)................          0.6          1.9      8/17/06  NPR signed 6/22/07.
Long-term measures........................          5.0  ...........  ...........  See discussion below.
                                           ---------------------------------------------------------------------
    NOX Total.............................         21.1         27.6
----------------------------------------------------------------------------------------------------------------



                                                           Achieved
                                              2004 SIP     emission      Local       Submittal date or approval
         Rule No. and description            commitment   reductions    adoption             cite/date
                                             (2010-tpd)   (2010-tpd)
----------------------------------------------------------------------------------------------------------------
                                              VOC Control Measures
----------------------------------------------------------------------------------------------------------------
4409 Oil & Gas Fug. (A)...................          4.7          5.1      4/20/05  71 FR 14653 (3/23/06).
4455 Ref. & Chem. Fug. (B)................          0.2          0.3      4/20/05  71 FR 14653 (3/23/06).
4694 Wineries (F).........................          0.7  ...........     12/15/05  See note below.
4565 Composting/Biosolids (J).............          0.1  ...........      3/15/07  See note below.
4612 Automotive Coating (incorporates Rule          0.1          1.0      9/20/07  Proposed 74 FR 28467 (6/16/
 4602)(K).                                                                          09).
4570 CAFO Rule (L)........................         15.8         17.7      6/15/06  NPR signed 6/30/09.
4662 Org. Solvent Degreasing (M)..........  ...........  ...........  ...........  Proposed 74 FR 27084 (June 8,
                                                                                    2009).
4663 Org. Sol. Cleaning (M)...............          1.3          3.1      9/20/07  Proposed 74 FR 27084 (June 8,
                                                                                    2009).
4603 Metal Parts/Products (M).............  ...........  ...........  ...........  Proposed 74 FR 28467 (June
                                                                                    16, 2009).
4604 Can and Coil Coating (M).............  ...........  ...........  ...........  Proposed 74 FR 28467 (6/16/
                                                                                    09).
4605 Aerospace Coating (M)................  ...........  ...........  ...........  NPR signed 6/30/09.
4606 Wood Products Coating (M)............  ...........  ...........  ...........  NPR signed 6/26/09.
4607 Graphic Arts (M).....................  ...........  ...........  ...........  NPR signed 6/26/09.
4612 Automotive Coating (M)...............  ...........  ...........  ...........  Proposed 74 FR 28467 (6/16/
                                                                                    09).
4653 Adhesives (M)........................  ...........  ...........  ...........  NPR signed 6/26/09.
4684 Polyester Resin Operation (M)........  ...........  ...........  ...........  NPR signed 6/30/09.
4401 Steam-Enhanced Oil-well (O)..........          1.4          0.3     12/14/06  NPR signed 6/30/09.
4651 Soil Decontamination (P).............       < 0.05          0.0      9/20/07  NPR signed 6/22/09.
4103 Open Burning (Q).....................          2.9          3.9      5/17/07  Proposed 74 FR 30485 (6/26/
                                                                                    09).
4682 Polymeric Foam Mfg. (R)..............          0.1  ...........      9/20/07  See note below.
4621 & 4624 Gasoline storage & trans. (T &          0.9          1.9     12/20/07  NPRs signed 6/22/09 and 6/26/
 U).                                                                                09.
Long-term measures........................            5  ...........  ...........  See discussion below.
                                           ---------------------------------------------------------------------
    VOC total.............................         33.3         33.3
----------------------------------------------------------------------------------------------------------------
Note: This rule has been adopted and submitted. EPA is currently reviewing the rule for SIP action. Numbers may
  not add to totals because of rounding.

[[Page 33938]]

    As can be seen from Table 2, the District also committed to achieve
an additional 5 tpd NO_X and 5 tpd of VOC reductions from
unidentified long-term measures. The status of this aggregate
commitment is discussed further below. In total, the District committed
to reductions of 33.3 tpd of VOC and 21.1 tpd of NO_X by
2010. See Table 1 above.
---------------------------------------------------------------------------

    \11\ Table 1 in the 2008 Clarifications erroneously gives this
reduction as 1.6 tpd. See e-mail, Jessi Hafer, SJVAPCD, to Frances
Wicher, EPA, February 18, 2009, ``Reductions from 1-hour SIP clarifications.''
---------------------------------------------------------------------------

    B. State commitments and rule adoption. The 2003 State Strategy,
adopted prior to the 2004 SIP, includes a commitment to reduce
NO_X emissions in the SJV area by 10 tpd by 2010.\12\ 2003
State Strategy, I-24 through I-26. Possible measures to achieve these
reductions are described and listed in the 2003 State Strategy at I-14
through I-26 and ARB Resolution 03-22, Attachment A. The 2003 State
Strategy also states that beyond its emission reduction commitment, new
commitments to achieve further VOC\13\ and NO_X reductions
would be needed for the future SJV 1-hour ozone plan (which the SJVAPCD
and ARB subsequently adopted as the 2004 SIP) and would be considered
as part of that plan. 2003 State Strategy, I-26. To that end, the 2004
SIP incorporates the 2003 State Strategy as it applies to the area and
includes an additional commitment by the State to achieve by the
beginning of the 2010 ozone season emissions reductions of 10 tpd
NO_X and 15 tpd VOC.
---------------------------------------------------------------------------

    \12\ The 2003 State Strategy makes clear that this commitment
was intended for immediate inclusion in the 2003 PM-10 plan for the
SJV area and for later inclusion in the 1-hour ozone plan for the
SJV area. State Strategy, I-23 and I-26.
    \13\The State uses the term ``reactive organic gases'' (ROG) in
its documents. For the purposes of this proposed rule, VOC and ROG
are interchangeable.
---------------------------------------------------------------------------

    Although the 2003 State Strategy identifies possible control
measures that could deliver these reductions, the State's commitment is
only to achieve these NO_X and VOC emission reductions in the
aggregate by the beginning of the 2010 ozone season. Thus the State's
total enforceable commitments in the 2004 SIP are to achieve 20 tpd
NO_X and 15 tpd VOC emission reductions in the aggregate by
2010. See 2003 State Strategy, pages I-7 through I-9 and I-26; ARB
Board Resolution 04-29, October 28, 2004; ARB Staff Report, pages 29-
30; 2004 SIP at section 4.7 (including Table 4-3 which duplicates Table
I-2 in the 2003 State Strategy).\14\
---------------------------------------------------------------------------

    \14\In these documents the State's commitment is sometimes
referred to as 20 tpd NO_X and sometimes as 10 tpd
NO_X. The 20 tpd reference is to ARB's commitment for 10
tpd NO_X in the Statewide Strategy and ARB's additional
commitment for 10 tpd NO_X in the 2004 SIP at section 4.7
and ARB Board Resolution 04-29. See also ARB Staff Report for the
2004 SIP at 29. The 10 tpd reference is to ARB's additional
commitment for 10 tpd NO_X in the 2004 SIP at section 4.7
and ARB Resolution 04-29.
---------------------------------------------------------------------------

3. EPA's Evaluation of the Control Measures in the SIP Submittals
a. RACM/RACT Demonstration
    As described above, with respect to the RACM requirement, the
District evaluated a range of potentially available measures for
inclusion in its 2004 SIP and committed to adopt those it found to be
feasible for attaining the 1-hour ozone standard. The process and the
criteria the District used to select certain measures and reject others
are consistent with EPA's RACM guidance. We also describe above the
measure evaluation process undertaken by the State, the SJV RTPAs and
the SJV local jurisdictions. This process is also consistent with EPA's
RACM guidance. See General Preamble at 13560 and Seitz memo.
    Based on our review of the results of these RACM analyses, the 2003
State Strategy and the District's and California's adopted rules and
commitments to adopt and implement controls, we propose to find that
there are, at this time, no additional reasonably available measures
that would advance attainment of the 1-hour ozone standard in the SJV
area. We estimate that it would take an additional reduction of from
3.7 to 6.2 tpd VOC and 13.7 to 17.0 tpd NO_X to advance
attainment by one year in the San Joaquin Valley. See TSD, Section V.
No reasonably available unadopted measures identified in the 2004 SIP,
2003 State Strategy, and revised 8-hour ozone RACT demonstration plan,
either individually or collectively, could deliver this level of
emission reductions. See TSD, Section V for more details.
    Therefore, we propose to find that the 2004 SIP, together with the
2003 State Strategy, provides for the implementation of RACM as
required by CAA section 172(c)(1). This proposed finding does not
affect the District's continuing obligation under the CAA to implement
RACT pursuant to CAA section 182(b)(2) and 40 CFR 51.905(a)(1)(ii).
b. Enforceable Limitations and Other Control Measures
i. SJVAPCD Measures
    Every District baseline and interim rule has been either approved
into the SIP or replaced by a SIP-approved revision to that rule. See
Table 8 in the TSD. Emission reductions from these rules are fully
creditable in attainment and ROP demonstrations and may be used to meet
other CAA requirements, such as contingency measures.
    As shown above and discussed further below, the 2008 Clarifications
and Table 2 above demonstrate that the District has fulfilled its
control strategy commitments in the 2004 SIP to adopt specific rules.
The reductions from these adopted rules have exceeded the District's
total emission reduction commitments, including its commitments for
reductions from long-term measures. We have either approved or proposed
to approve all measures relied upon to achieve these emission
reductions; therefore, the reductions from these measures are or will
be, when finally approved, fully creditable in attainment and ROP
demonstrations and may be used to meet other CAA requirements.
    To the extent such measures are not credited for attainment or ROP,
they may also be used as contingency measures that would be triggered
by a failure to attain or to make reasonable further progress.
ii. State Measures and Commitments
    A. Section 209 Waiver Measures.
    California's motor vehicle emissions control program predates the
first Federal statute regulating motor vehicle emissions, the Motor
Vehicle Air Pollution Control Act of 1965 (which amended the CAA of
1963). In further CAA amendments, referred to as the Air Quality Act of
1967 (Pub. L. 90-148), Congress allowed the State of California, and
only California, a waiver of the Air Quality Act's pre-emption of State
emissions standards for new motor vehicles or new motor vehicle engines
because of California's pioneering efforts and unique problems. This
was not changed when the statute was amended in 1970. The 1977
amendments to the CAA expanded the flexibility granted to California in
order ``to afford California the broadest possible discretion in
selecting the best means to protect the health of its citizens and the
public welfare.'' (H.R. Rep. No. 294, 95th Congr., 1st Sess. 301-2
(1977). So long as California determines that its motor vehicle
standards are ``in the aggregate'' at least as protective of public
health and welfare as applicable Federal standards, title II of the CAA
requires EPA, unless it makes certain findings, to waive the Act's
general prohibition on State adoption and enforcement of standards
relating to the control of emissions from new motor vehicles or new motor

[[Page 33939]]

vehicle engines. See CAA section 209(a) and (b).
    In the Agency's review of the California SIP and its many
revisions, EPA has historically allowed emission reduction credit for
the motor vehicle emissions standards that are subject to a section
209(b) waiver without requiring California to submit the standards
themselves to EPA for approval as part of the California SIP. In this
respect EPA treated these rules similarly to the Federal motor vehicle
control requirements, which EPA has always allowed States to credit in
their SIPs without submitting the program as a SIP revision. CAA
section 193, enacted as part of the 1990 Amendments to the CAA, is a
general savings clause that provides for, among other things, EPA
statutory interpretations that predate those amendments to remain in
effect so long as not inconsistent with the Act. At the time it enacted
section 193, Congress did not insert any language into the statute
rendering EPA's treatment of California's motor vehicle standards
inconsistent with the Act. Thus, in section 193, Congress effectively
ratified EPA's longstanding pre-1990 practice of allowing emission
reduction credit for California standards subject to the waiver process
notwithstanding the absence of the standards in the SIP itself.
    As part of the 1990 Amendments to the CAA, Congress enacted
subsection (e) of section 209. In nearly identical language to
subsections (a) and (b) of section 209, subsection (e) sets forth the
Federal pre-emption of State emissions standards for nonroad vehicles
or engines but allows the State of California, and only California, a
waiver of pre-emption (with certain exceptions) under criteria that
mirror the section 209(b) waiver provisions for motor vehicles. Since
1990, EPA has treated such nonroad standards in the same manner as
California motor vehicle standards, i.e., allowing credit for standards
subject to the waiver process without requiring submittal of the
standards as part of the SIP. Congress is presumed to be aware of
agency interpretations and its subsequent revision of the statute to
add subsection (e) without overruling EPA's interpretation with respect
to motor vehicle standards is further compelling evidence that the
Agency correctly interpreted congressional intent with respect to
crediting California requirements subject to a section 209 waiver
without requiring California to submit the standards themselves to EPA
for approval as part of the California SIP.
    B. Non-waiver measures. In separate proposed rules, we have
proposed to approve the latest revisions to the gasoline and diesel
fuel standards (proposed rule signed June 30, 2009 and will be
published in early July, 2009 \15\) and consumer products rules (74 FR
30481 (June 26, 2009)). We also will be proposing action soon on the
State's I/M program. The reductions from these measures will be, if
finally approved into the SIP, fully creditable in attainment and ROP
demonstrations. To the extent such measures are not credited for
attainment or ROP, they may also be used as contingency measures that would
be triggered by a failure to attain or to make reasonable further progress.
---------------------------------------------------------------------------

    \15\ These fuel regulations do not include the Low Carbon Fuel
Standards adopted by ARB on April 24, 2009.
---------------------------------------------------------------------------

    C. State commitments. As stated above, measures already adopted by
the District and State (both prior to and pursuant to the 2004 SIP)
provide the majority of emission reductions needed to demonstrate
attainment. The balance of the needed reductions is in the form of
enforceable commitments by ARB. EPA believes, consistent with past
practice, that the CAA allows approval of enforceable commitments that
are limited in scope where circumstances exist that warrant the use of
such commitments in place of adopted measures.\16\ Once EPA determines
that circumstances warrant consideration of an enforceable commitment,
EPA considers three factors in determining whether to approve the
enforceable commitment: (a) does the commitment address a limited
portion of the statutorily-required program; (b) is the State capable
of fulfilling its commitment; and (c) is the commitment for a
reasonable and appropriate period of time.\17\
---------------------------------------------------------------------------

    \16\ Commitments approved by EPA under section 110(k)(3) of the
CAA are enforceable by EPA and citizens under, respectively,
sections 113 and 304 of the CAA. In the past, EPA has approved
enforceable commitments and courts have enforced these actions
against states that failed to comply with those commitments: See,
e.g., American Lung Ass'n of N.J. v. Kean, 670 F. Supp. 1285 (D.N.J.
1987), aff'd, 871 F.2d 319 (3rd Cir. 1989); NRDC, Inc. v. N.Y. State
Dept. of Env. Cons., 668 F. Supp. 848 (S.D.N.Y. 1987); Citizens for
a Better Env't v. Deukmejian, 731 F. Supp. 1448, recon. granted in
par, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition for Clean Air v.
South Coast Air Quality Mgt. Dist., No. CV 97-6916-HLH, (C.D. Cal.
Aug. 27, 1999). Further, if a state fails to meet its commitments,
EPA could make a finding of failure to implement the SIP under CAA
Section 179(a), which starts an 18-month period for the State to
correct the non-implementation before mandatory sanctions are imposed.
    CAA section 110(a)(2)(A) provides that each SIP ``shall include
enforceable emission limitations and other control measures, means
or techniques * * * as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the
applicable requirement of the Act.'' Section 172(c)(6) of the Act,
which applies to nonattainment SIPs, is virtually identical to
section 110(a)(2)(A). The language in these sections of the CAA is
quite broad, allowing a SIP to contain any ``means or techniques''
that EPA determines are ``necessary or appropriate'' to meet CAA
requirements, such that the area will attain as expeditiously as
practicable but no later than the designated date. Furthermore, the
express allowance for ``schedules and timetables'' demonstrates that
Congress understood that all required controls might not have to be
in place before a SIP could be fully approved.
    \17\ The U.S. Court of Appeals for the Fifth Circuit upheld
EPA's interpretation of CAA sections 110(a)(2)(A) and 172(c)(6) and
the Agency's use and application of the three factor test in
approving enforceable commitments in the Houston-Galveston ozone
SIP. BCCA Appeal Group et al. v. EPA et al., 355 F.3d 817 (5th Cir. 2003).
---------------------------------------------------------------------------

    We believe that, in acting on the 2004 SIP and 2003 State Strategy,
circumstances warrant the consideration of enforceable commitments. As
shown in Table 1 and discussed below in section III.D., the majority of
emission reductions needed to demonstrate attainment and all of the
emission reductions needed to demonstrate ROP come from rules and
regulations that were adopted prior to the plan's submittal in November
2004, i.e., they come from the baseline and interim measures. All of
these rules and regulations have been approved, proposed for approval,
granted a waiver, or promulgated by EPA.
    As a result of these State and District efforts, most sources in
the SJV area were already subject to stringent rules prior to the
plan's development, leaving fewer opportunities to reduce emissions. In
the 2004 SIP and the 2003 State Strategy, SJVAPCD and ARB identified
potential control measures that could achieve the additional emission
reductions needed for attainment (see 2004 SIP, sections 4.2.4 and 4.3
and 2003 State Strategy, sections II-IV.). However, the timeline needed
to develop, adopt, and implement these measures went well beyond the
November 15, 2004 deadline to submit the SJV's extreme area plan.\18\
---------------------------------------------------------------------------

    \18\ This deadline was set pursuant to CAA section 182(i), when
the SJV was reclassified to extreme on April 16, 2004 at 69 FR 20550.
---------------------------------------------------------------------------

    Given these circumstances, we believe that the reliance in the 2004
SIP on enforceable commitments was warranted. As noted before, SJVAPCD
has now fully satisfied its 2004 SIP commitments, leaving just ARB's
commitment remaining. We now consider the three factors to determine
whether ARB's commitment is approvable.
    First, we look to see if the commitment addresses a limited portion
of a statutory requirement. Only the

[[Page 33940]]

attainment demonstration in the 2004 SIP relies on ARB's aggregate
commitment to achieve reductions of 20 tpd NO_X and 15 tpd
VOC in the SJV area by 2010. Because the District's rules are now
anticipated to achieve more emission reductions than anticipated in the
2004 SIP (see Table 2 above), we expect that not all of the reductions
committed to by ARB will be needed to demonstrate attainment. Table 3
below shows that the remaining reductions from commitments needed to
attain the 1-hour ozone standard will be 13.5 tpd NO_X or
6.3% and 15 tpd VOC or 11.6 percent or 8.3 percent of the combined
NO_X and VOC needed for attainment.

Table 3--Remaining Commitment Portion of the 2004 SIP Reductions in Tons
                            per Day for 2010
------------------------------------------------------------------------
                                               NOX             VOC
------------------------------------------------------------------------
Reductions needed to attain............           213.3            129.1
Reductions from baseline measures                 172.2             80.8
 adopted by 9/02 and interim measures..
Reductions needed from commitments in              41.1             48.7
 2004 SIP..............................
Reductions achieved from SJVAPCD rules             27.6             33.3
 that are approved or proposed for
 approval..............................
Reductions needed to attain from                   13.5             15
 commitments...........................
Percent of reductions needed to attain              6.3             11.6
 from commitments......................
------------------------------------------------------------------------
Sources: ARB Staff Report for the 2004 SIP, Table III-6; 2008
  Clarifications, Table 1.

    Given the State's efforts to date, we believe this relatively small
portion of reductions from enforceable commitments in the 2004 SIP is
acceptable.
    Second, we look to see if the State is capable of fulfilling its
commitment. ARB has recently submitted information on its efforts to
fulfill its commitment in the 2004 SIP and 2003 State Strategy. See
Letter, James Goldstene, ARB, to Laura Yoshii, EPA, June 29, 2009.
Overall, ARB adopted rules between July 2003 and October 2007 that are
expected to achieve 14.1 tpd NO_X and 3.3 tpd VOC. Attached
to this letter is a list of these measures which includes tighter
diesel fuel standards and tighter consumer product limits which we have
proposed to approve, and a number of waiver measures. These measures
represent the most stringent regulations yet enacted in the country.
    The list, however, does not include a number of State programs that
may reduce emissions between now and the 2010 attainment deadline
(e.g., California's greenhouse gas motor vehicle standards and limits
on pesticide emissions in the SJV area adopted by DPR). Moreover, in
2007, ARB adopted a revised State Strategy that continues its program
of identifying, evaluating, developing and adopting new or tighter
controls on sources within its jurisdiction.\19\ See 2007 State
Strategy as revised and updated on April 24, 2009.
---------------------------------------------------------------------------

    \19\ The State's current rulemaking agenda for 2009 can be found
at: http://www.arb.ca.gov/regact/2009rulemakingcalendar.pdf.
---------------------------------------------------------------------------

    Given the evidence of the State's efforts to date and its
continuing program to adopt controls, we believe that the State will be
able to meet its enforceable commitments to achieve 20 tpd
NO_X and 15 tpd VOC by 2010. We, therefore, conclude that the
second factor is satisfied.
    Finally, we look to see if the commitment is for a reasonable and
appropriate period of time. In order to meet the commitment to achieve
reductions of 15 tpd VOC and 20 tpd NO_X by the beginning of
the 2010 ozone season, the State projected an ambitious rule
development, adoption, and implementation schedule in the 2003 State
Strategy. This projected schedule reasonably anticipated sufficient
time to achieve the committed reductions by 2010. See 2003 State
Strategy, Tables I-7 and I-10. Most projected adoption dates for
measures that could fulfill the commitment were in 2006 or earlier,
with implementation in 2006 to 2008. These dates were all well before
the SJV area's required attainment deadline of November 15, 2010. They
are also reasonable given the type of measures that were contemplated
(e.g., retrofit controls for existing heavy-duty off-road diesel
equipment), measures that require significant lead times to achieve
reductions. Therefore, the State's schedule was reasonable and
appropriate for achieving its commitment, and we conclude that the
third factor is satisfied.
    For the above reasons, we believe that the three factors EPA
considers in determining whether to approve enforceable commitments are
satisfactorily addressed with respect to the State's commitment. We are
therefore proposing to approve the State's commitment in the 2004 SIP,
ARB Board Resolution 04-29 and Final 2003 State Strategy to achieve 20
tpd NO_X and 15 tpd VOC reductions by 2010. Final approval of
this commitment would make the commitment enforceable by EPA and by citizens.

B. Emission Inventories

    We have evaluated the emission inventories in the 2004 SIP to
determine if they are consistent with EPA guidance (General Preamble at
13502) and adequate to support that plan's ROP and attainment
demonstrations. Chapter 3 of the 2004 SIP presents the baseline and
projected emission inventories relied on for the attainment and ROP
demonstrations. This chapter also discusses the methodology used to
determine 1999 emissions and identifies the growth and control factors
used to project emissions for the 2000 baseline inventory and the 2008
(ROP milestone) and 2010 (attainment) projected year inventories. The
plan includes weekday summer inventories for the base year of 2000 and
projected baseline inventories for 2008 and 2010 for all major source
categories. Emissions are calculated for the two major ozone
precursors--NO_X and VOC--as well as for the less significant
precursor, carbon monoxide (CO). 2004 SIP at Table 3-1. Motor vehicle
emissions were based on estimates of vehicle miles traveled (VMT)
provided by the regional transportation planning agencies and the
California Department of Transportation. The plan uses ARB's EMission
FACtor (EMFAC) 2002, version 2.2, to calculate the emission factors for
cars, trucks and buses. At the time the 2004 SIP was developed, EMFAC
2002 was the mobile source model approved for use in California's SIPs
68 FR 15720 (April 1, 2003).
    We have determined that the 2000 baseyear emission inventory in the
2004 SIP was comprehensive, accurate, and current at the time it was
submitted on November 15, 2004 and that this inventory as well as the
2008 and 2010 projected inventories were prepared consistent with EPA
guidance. Accordingly, we propose to find that these inventories
provide an appropriate basis for the ROP and attainment demonstrations
in the 2004 SIP.

[[Page 33941]]

C. Rate of Progress Demonstrations

1. Requirements for Rate of Progress Demonstrations
    CAA section 172(c) requires nonattainment area plans to provide for
reasonable further progress (RFP) which is defined in section 171(1) as
such annual incremental reductions in emissions as are required in part
D or may reasonably be required by the Administrator in order to ensure
attainment of the relevant ambient standard by the applicable date.
    CAA sections 182(c)(2) and (e) require that serious and above area
SIPs include ROP quantitative milestones that are to be achieved every
3 years after 1996 until attainment. For ozone areas classified as
serious and above, section 182(c)(2) requires that the SIP must provide
for reductions in ozone-season, weekday VOC emissions of at least 3
percent per year net of growth averaged over each consecutive 3-year
period. This is in addition to the 15 percent reduction over the first
6-year period required by CAA section 182(b)(1) for areas classified as
moderate and above. The CAA requires that these milestones be
calculated from the 1990 inventory after excluding, among other things,
emission reductions from ``[a]ny measure related to motor vehicle
exhaust or evaporative emissions promulgated by the Administrator by
January 1, 1990'' and emission reductions from certain Federal gasoline
volatility requirements. CAA section 182(b)(1)(B)-(D). EPA has issued
guidance on meeting 1-hour ozone ROP requirements. See General Preamble
at 13516 and ``Guidance on the Post-1996 Rate-of-Progress Plan and the
Attainment Demonstration,'' EPA-452/R-93-015, OAQPS, EPA, February 18,
1994 (corrected).
    CAA section 182(c)(2)(C) allows for NO_X reductions that
occur after 1990 to be used to meet the post-1996 ROP emission
reduction requirements, provided that such NO_X reductions
meet the criteria outlined in the CAA and EPA guidance. The criteria
require that: (1) the sum of all creditable VOC and NO_X
reductions must meet the 3 percent per year ROP requirement; (2) the
substitution is on a percent-for-percent of adjusted base year
emissions for the relevant pollutant; and (3) the sum of all
substituted NO_X reductions cannot be greater than the
cumulative NO_X reductions required by the modeled attainment
demonstration. See General Preamble at 13517 and ``NO_X
Substitution Guidance,'' OAQPS, EPA, December 1993.
    Our guidance in the General Preamble states that by meeting the
specific ROP milestones discussed above, the general RFP requirements
in CAA section 172(c)(2) will also be satisfied. General Preamble at 13518.
    Rate of progress reductions as well as the NO_X
requirements of CAA section 182(f) remain applicable requirements under
the 8-hour ozone implementation rule for areas that are nonattainment
for both the 1-hour and 8-hour ozone standards. See Sec. 
51.905(a)(1)(i) and Sec.  51.900(f)(4) and (12).
2. Rate of Progress Demonstrations in the 2004 SIP and the 2008 Clarifications
    Chapter 7 of the 2004 SIP, updated by Table 2 in the 2008
Clarifications, provides a demonstration that the SJV area meets both
the 2008 and 2010 ROP milestones. We have summarized this ROP
demonstration in Table 4.

                              Table 4--San Joaquin Rate of Progress Demonstrations
                                         [Summer planning tons per day]
----------------------------------------------------------------------------------------------------------------
                                                                     Base-year            Milestone year
                                                                 -----------------------------------------------
                                                                       1990            2008            2010
----------------------------------------------------------------------------------------------------------------
                                                VOC Calculations
----------------------------------------------------------------------------------------------------------------
A. 1990 Baseline VOC............................................           633.2           633.2           633.2
B. CA Pre-1990 MV standards adjustment..........................  ..............           120.1           123.8
C. Adjusted 1990 baseline VOC in the milestone year (Line A-Line  ..............           513.1           509.4
 B).............................................................
D. Cumulative VOC reductions needed to meet milestone...........  ..............           261.7           209.4
E. Target level of VOC needed to meet ROP requirement (Line C-    ..............           251.4           219.0
 Line D)........................................................
F. Projected level (baseline) of VOC in milestone year with       ..............           369.4           362.7
 adopted controls only..........................................
G. VOC ROP shortfall (Line F-Line E)............................  ..............           118.0           143.7
H. VOC ROP shortfall (% of adjusted baseline)...................  ..............           23.0%           28.2%
----------------------------------------------------------------------------------------------------------------
                                                NOX Calculations
----------------------------------------------------------------------------------------------------------------
A. 1990 Baseline NOX............................................           805.1           805.1           805.1
B. CA Pre-1990 MV standards adjustment..........................  ..............           114.0           116.6
C. Adjusted 1990 baseline NOX in the milestone year (Line A-Line  ..............           691.1           688.5
 B).............................................................
D. Projected level (baseline) of NOX in milestone year with       ..............           411.0           384.5
 adopted controls only..........................................
E. Change in NOX since 1990 (Line C-Line D).....................  ..............           280.1           304.0
F. Change in NOX since 1990 (% of adjusted baseline)............  ..............           40.5%           44.2%
G. VOC ROP shortfall............................................  ..............           23.0%           28.2%
H. % Surplus NOX reductions after offsetting VOC ROP shortfall    ..............           17.5%           16.0%
 available for contingency measures (Line F-Line G).............
----------------------------------------------------------------------------------------------------------------

[[Page 33942]]

    Because there are insufficient VOC reductions to meet the
milestones, the ROP demonstration relies on NO_X
substitution, consistent with EPA's guidance, to show that the area
meets the emission reduction requirements for 2008 and 2010. The
demonstration does not depend on reductions from any measures that are
not either Federal, SIP-approved, proposed for approval or State waiver
measures or on reductions from any measures that are not creditable
under the terms of section 182(b)(1).\20\
---------------------------------------------------------------------------

    \20\ The ROP demonstration relies on ``the emission control
program as it existed when the Valley's 2004 SIP was submitted * *
*'' 2008 Clarification at 6. As discussed in section III.C.2.c.i.
above, all baseline measures are either federal, SIP-approved,
proposed for approval, or otherwise creditable in ROP demonstrations.
---------------------------------------------------------------------------

3. EPA's Evaluation of the Rate of Progress Demonstrations in the SIP Submittals
    The 2008 Clarifications follow EPA's guidance on addressing the
pre-1990 motor vehicle program adjustments, using the pre-1990
California motor vehicle exhaust and evaporative standards in lieu of
the national motor vehicle control program.\21\ Because the 2004 SIP
and the 2008 Clarifications demonstrate that sufficient emission
reductions have or will be achieved to meet the 2008 and 2010 ROP
milestones, we propose to approve the ROP provisions in these documents
as meeting the requirements of CAA section 182(c)(2). As stated above,
if the ROP milestones are met, we deem the general RFP requirements of
CAA section 172(c)(2) to also have been met. Therefore, we also propose
to approve the ROP provisions as meeting the requirements of CAA
sections 172(c)(2).
---------------------------------------------------------------------------

    \21\ See ``How to calculate non-creditable reductions for motor
vehicle programs in California as required for reasonable further
progress (RFP) SIPs,'' EPA, Office of Transportation and Air
Quality, Transportation and Regional Program Division, September 6, 2007.
---------------------------------------------------------------------------

D. Attainment Demonstration

1. Requirements for Attainment Demonstrations
    One-hour ozone nonattainment areas classified as extreme under CAA
section 181(b)(3) must demonstrate attainment ``as expeditiously as
practicable'' but not later than the date specified in CAA section
181(a), November 15, 2010. CAA Section 182(c)(2)(A) requires serious,
severe and extreme areas to use photochemical grid air quality modeling
or an analytical method EPA determines to be as effective.
    For areas such as the SJV area that did not have a fully approved
attainment demonstration for the 1-hour ozone standard at the time they
were designated nonattainment for the 8-hour ozone standard, the Phase
1 rule required the submission of the 1-hour ozone attainment
demonstration or, alternatively, the early submission of an 8-hour
attainment demonstration or an early increment of progress toward
attainment of the 8-hour standard. See 40 CFR 51.905(a)(1)(ii). For the
SJV area, California submitted an attainment demonstration for the 1-
hour ozone standard.
2. Air Quality Modeling in the 2004 SIP
    For purposes of demonstrating attainment, CAA section 182(c)(2)(A)
requires extreme areas to use photochemical grid modeling or an
analytical method EPA determines to be as effective. EPA guidance
identifies the features of a modeling analysis that are essential to
obtain credible results.\22\ The photochemical grid modeling analysis
is performed for days when the meteorological conditions are conducive
to the formation of ozone. For purposes of developing the information
to put into the model, the State must select days in the past with
elevated ozone levels that are representative of the ozone pollution
problem in the nonattainment area and a modeling domain that
encompasses the nonattainment area. The State must then develop both
meteorological data describing atmospheric conditions for the selected
days and an emission inventory to evaluate the model's ability to
reproduce the monitored air quality values. Finally, the State needs to
verify that the model is properly simulating the chemistry and
atmospheric conditions through diagnostic analyses and model
performance tests. Once these steps are satisfactorily completed, the
model can be used to generate future year air quality estimates to
support an attainment demonstration. A future-year emissions inventory,
which includes growth and controls through the attainment year, is
developed for input to the model to predict air quality in the
attainment year.
---------------------------------------------------------------------------

    \22\ EPA has issued the following guidance regarding air quality
modeling used to demonstrate attainment of the 1-hour ozone NAAQS:
``Guideline for Regulatory Application of the Urban Airshed Model,''
EPA-450/4-91-013 (July 1991); ``Guidance on Use of Modeled Results
to Demonstrate Attainment of the Ozone NAAQS,'' EPA-454/B-95-007
(June 1996); ``Guidance for the 1-hour Ozone Nonattainment Areas
that Rely on Weight-of-Evidence for Attainment Demonstrations, Mid-
Course Review Guidance'' (March 28, 2002); and ``Guidance for
Improving Weight-of-Evidence Through Identification of Additional
Emission Reduction Not Modeled'' (Nov 99). Copies of these documents
may be found on EPA's Web site at http://www.epa.gov/ttn/scram and
in the docket for this proposed rule.
---------------------------------------------------------------------------

    For the 1-hour ozone standard, the modeled attainment test compares
model-predicted 1-hour daily maximum ozone concentrations in all grid
cells for the attainment year to the level of the standard. For the 1-
hour ozone standard, a predicted concentration above 0.124 parts per
million (ppm) indicates that the area is expected to exceed the
standard in the attainment year and a prediction at or below 0.124 ppm
indicates that the area is expected to attain the standard.
    Attainment is demonstrated when all predicted concentrations inside
the modeling domain are at or below the standard or at an acceptable
upper limit above the NAAQS permitted under certain conditions by EPA's
guidance. When the predicted concentrations are above the standard, a
weight of evidence determination, which incorporates other analyses
such as air quality and emissions trends, may be used to address the
uncertainty inherent in the application of photochemical grid models.
    EPA recommended that States use the Urban Airshed Model (UAM)
version IV as the ozone model of choice for the grid-point modeling
required by the CAA for 1-hour ozone attainment demonstrations.\23\
Other models are allowed if the State shows that they are
scientifically valid and they perform as well as (i.e., are just as
reliable), or better than, UAM IV. California selected the
Comprehensive Air Quality Model with Extensions (CAMx) based on
slightly better performance for the SJV area than the other tested
models. Details on the model and its selection can be found in Appendix
D to the 2004 SIP. The meteorological modeling was based on a hybrid
approach, using the Meso-scale Model 5 (MM5) and Calmet models, because
of the ability of this modeling system to reproduce the measured design
value near the Fresno monitoring site.
---------------------------------------------------------------------------

    \23\ EPA has not recommended a model for attainment
demonstrations for the 8-hour ozone standard.
---------------------------------------------------------------------------

    Information on how the CAMX modeling meets EPA guidance is
summarized here and detailed in the State's submittals. 2004 SIP at
Chapter 5 and Appendix D. The air quality modeling domain extends from
the Oregon border in the north to Los Angeles County in the south, and
from the Pacific Ocean in the west to Nevada in the east.
    EPA's Guideline on the use of photochemical grid models recommends
that areas model three or

[[Page 33943]]

more episodes, including the types of weather conditions most conducive
to ozone formation. The final photochemical grid modeling submitted by
California focused on the CAMx modeling for one several day episode,
July 27 to August 2, 2000. This episode represents high measured ozone,
with a peak measured concentration of 151 parts per billion (ppb) at
Bakersfield on August 2, 2000. The episode was typical of the worst
case meteorology (i.e., the highest potential for ozone formation) of
episodes in the San Joaquin Valley.
    The CAMx model was run using the MM5/CALMET meteorological
processor with State emission inventories for the 2000 base year and
with projected emissions representing grown and controlled emissions
for the attainment year. The projected 2010 emissions inventory was
developed for modeling simulations and included the effects of
projected growth and control measures adopted prior to September 2002,
as discussed in section II.C. below.
    The CAMx simulation for July 30, with the emission inventory for
the year 2010, was used to develop targets for reduction of VOC and
NO_X in the attainment year.
    EPA has established the following guidelines for model performance:
unpaired peak ratio 0.80-1.2, normalized bias +/-15 percent, and gross
error less than 35 percent. The model performance is presented in
Appendix D to the 2004 SIP for the Fresno and Bakersfield areas,
representing areas of highest 1-hour ozone levels in the SJV area and
shows that the CAMx model predicts ozone within the quality limits
recommended in EPA guidance on most days for most subregions of the
modeling domain. On those days for which a subregion had peak measured
ozone concentrations above 125 ppb, the model performance meets the EPA
recommended criteria.
    We conclude that the modeling is consistent with the CAA and EPA
modeling guidance; therefore, we propose to find that the modeling
analysis is adequate to support the attainment demonstration in the
2004 SIP. For more information on EPA's review of the modeling, see the
TSD, section II.
3. The Attainment Demonstration in the 2004 SIP
    The 2004 SIP's air quality modeling identified the SJV area's 2010
attainment target as 343.5 tpd NO_X and 314.4 tpd VOC or a
reduction of 213.3 tpd of NO_X and 129.1 tpd of VOC from the
2000 projected baseline emissions. 2004 SIP, section 5.6; ARB Staff
Report, section III.C. See also Table 1 above.
    The 2004 SIP shows that Federal rules, rules approved or proposed
for approval by EPA, the State's waiver measures, and the State's
commitment for the SJV area in the 2003 State Strategy reduce the 2000
projected baseline emissions by 219.8 tpd of NO_X and 129.5
tpd of VOC by the beginning of the 2010 ozone season. These levels
represent a decrease in emissions from the 2000 baseline of 38 percent
NO_X and 29 percent VOC and are in excess of the reductions
needed for attainment in the SJV area. Table 5 provides a summary of
the 2004 SIP's attainment demonstration.

  Table 5--2004 SIP Attainment Demonstration Summary as Updated by 2008
                             Clarifications
------------------------------------------------------------------------
                                           NOX (tpd)        VOC (tpd)
------------------------------------------------------------------------
2000 baseline.........................            556.8            443.5
2010 attainment target................            343.5            314.4
                                       ---------------------------------
    Total reductions needed to attain             213.3            129.1
     in 2010..........................
------------------------------------------------------------------------
Reductions from creditable baseline               172.2             80.8
 measures and interim measures........
Reductions from SIP-approved (or                   27.6             33.3
 proposed for approval) rules.........
Reductions from enforceable State                  20               15
 commitment...........................
                                       ---------------------------------
    Total reductions from Federal                 219.8            129.1
     rules, measures approved or
     proposed for approval, waiver
     measures, and enforceable
     commitments......................
------------------------------------------------------------------------

    The reductions needed for attainment of the 1-hour ozone standard
in the SJV area derive from ambitious State and District rule
development projects to adopt or amend new regulations to tighten
controls expeditiously on existing sources and to regulate a few
previously uncontrolled sources.\24\ Moreover, both agencies set tight
compliance schedules for their amended and newly adopted rules,
requiring full compliance in most cases within one year or less.
Attainment reductions also come from the benefits of mobile source
fleet turnover to meet increasingly stringent Federal and State
emission standards. Finally, as discussed previously, no other
reasonably available control measure or set of RACMs have been
identified that can advance attainment of the 1-hour ozone standard in
the SJV area.
---------------------------------------------------------------------------

    \24\ We note that the majority of emission reductions needed to
demonstrate attainment (63% of the VOC and 81% of the
NO_X) come from baseline or interim measures, i.e., from
measures adopted prior to October, 2004. See Table 2 above.
---------------------------------------------------------------------------

    Based on our evaluation of the State's submittals, we propose to
approve the 2004 SIP's demonstration of attainment as meeting the
requirements of CAA sections 172 and 181 and 40 CFR 51.905(a)(1)(ii)
that areas classified as extreme demonstrate attainment as
expeditiously as practicable but no later than November 15, 2010.

E. Contingency Measures

1. Requirements for Contingency Measures
    Sections 172(c)(9) and 182(c)(9) of the CAA require that SIPs
contain contingency measures that will take effect without further
action by the State or EPA if an area fails to attain the ozone
standard by the applicable date (section 172(c)(9)) or fails to meet a
ROP milestone (section 182(c)(9)).
    The Act does not specify how many contingency measures are needed
or the magnitude of emission reductions that must be provided by these
measures. However, EPA provided initial guidance interpreting the
contingency measure requirements in the General Preamble at 13510. Our
interpretation is based upon the language in sections 172(c)(9) and
182(c)(9) in conjunction with the control measure requirements of
sections 172(c), 182(b) and 182(c)(2)(B), the reclassification and
failure to attain provisions of section 181(b) and other provisions. In
the General Preamble, EPA indicated that states with moderate and above
ozone nonattainment areas should include sufficient contingency

[[Page 33944]]

measures so that, upon implementation of such measures, additional
emission reductions of 3 percent of the emissions in the adjusted base
year inventory (or such lesser percentage that will cure the identified
failure) would be achieved in the year following the year in which the
failure is identified. The States must show that the contingency
measures can be implemented with minimal further action on their part
and with no additional rulemaking actions.
    In subsequent guidance, EPA stated that contingency measures could
be implemented early, i.e., prior to the milestone or attainment
date.\25\ Under this policy, States are allowed to use excess
reductions from already adopted measures to meet the CAA sections
172(c)(9) and 182(c)(9) contingency measures requirement. The key is
that the CAA requires extra reductions that are not relied on for ROP
or attainment and that will provide a cushion while the plan is being
revised to fully address the failure. Nothing in the CAA precludes a
State from implementing such measures before they are triggered. This
approach has been approved by EPA in numerous SIPs. See 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). A recent court ruling
upheld this approach. See LEAN v. EPA, 382 F.3d 575 (5th Cir. 2004). 70
FR 71611, 71651.
---------------------------------------------------------------------------

    \25\ See Memorandum from G.T. Helms, EPA, to EPA Air Branch
Chiefs, Regions I-X, entitled ``Early Implementation of Contingency
Measures for Ozone and Carbon Monoxide (CO) Nonattainment Areas,''
August 13, 1993.
---------------------------------------------------------------------------

    As discussed in section II above, EPA initially determined that
contingency measures for the 1-hour ozone standard would not be
required once the standard was revoked. See 70 FR 30592 (May 26, 2005).
However, the D.C. Circuit in South Coast vacated the provision of the
Phase 1 rule that waived the 1-hour contingency measure requirements.
Consequently, States subject to the anti-backsliding requirements must
continue to meet the CAA sections 172(c)(9) and 182(c)(9) requirements.
We have recently proposed to revise Sec.  51.900(f) in order to remove
the vacated provision and to add language consistent with the Court's
holding that contingency measures for failure to attain or to make
reasonable further progress toward attaining the 1-hour standard
continue to apply in such areas. See 74 FR 2936 (January 16, 2009).
2. Contingency Measures in the 2004 SIP and 2008 Clarifications
    Table 2 in the 2008 Clarifications provides an updated ROP
demonstration that shows that, after meeting the VOC ROP milestones for
2008 and 2010 with NO_X substitution, there are still
creditable NO_X reductions of 17.5 percent of the adjusted
baseline for the 2008 milestone and 16 percent for the 2010 milestones.
See also Table 4 in this proposed rule. The reductions shown in Table 2
in the 2008 Clarifications come from creditable measures adopted prior
to September 2002 and not from any interim or control strategy
measures. 2008 Clarifications, page 6.
    In addition, Table 3 in the 2008 Clarifications, which is
reproduced as Table 6 below, shows that on-road fleet turnover will
continue to deliver substantial reductions in 2011 from adopted and
creditable measures, i.e., an additional 10 tpd NO_X and 5
tpd VOC beyond the reductions shown in Tables 1 and 2 in the 2008
Clarifications. These reductions are available to serve as additional
contingency reductions in 2011.
3. EPA's Evaluation of the Contingency Measures in the SIP Submittals
    Table 2 of the 2008 Clarifications and Table 4 above show that
there are significant additional NO_X reductions beyond the
levels needed to meet the 2008 and 2010 ROP milestones in the SJV area.
These reductions are more than the 3 percent excess reductions
suggested by EPA's policy for contingency measures and come from fully
adopted and creditable measures and occur in or prior to the milestone
year. We therefore propose to approve the ROP contingency measures
provisions in the SJV extreme area plan as meeting CAA section 182(c)(9).
    For the attainment year, 2010, the requirement is to show that
there are fully adopted contingency measures that will achieve emission
reductions in excess of the levels needed for attainment and sufficient
to provide continued ROP in the year after the attainment date, i.e., 3
percent reductions from the pre-1990 adjusted baseline, if triggered by
a failure to attain. Consistent with the ROP demonstration, an
additional 3 percent equates to approximately 15.3 tpd of VOC or 20.7
tpd of NO_X with NO_X substitution.\26\
---------------------------------------------------------------------------

    \26\ States may use a combination of NO_X and VOC
reductions to meet the 3 percent contingency requirement. See
General Preamble at 13520, footnote 6.
---------------------------------------------------------------------------

    Table 4 above shows that there are no excess reductions from
adopted measures in the 2004 SIP's attainment demonstration and that,
in addition to the adopted measures that make significant reductions
toward attainment, the plan relies on commitments to adopt measures to
achieve the additional reductions needed to demonstrate attainment.
Table 6 below shows that there are 10 tpd NO_X and 5 tpd VOC
in reductions in 2011 from adopted on-road mobile source measures that
could serve to fulfill a portion of the attainment contingency measure
requirement. However, these amounts collectively provide just a 2.4
percent rate of progress in 2011, short of the suggested 3 percent.
    Based on our analysis and the information currently available to
EPA, there are not enough excess reductions to satisfy the contingency
measure requirement for the attainment demonstration. We therefore
propose to disapprove the attainment contingency measures provision in
the San Joaquin Valley extreme area plan as not meeting the
requirements of CAA section 172(c)(9). The State may remedy this
failure by submitting either new contingency measures or a
demonstration that existing creditable measures provide, consistent
with the guidance cited above, sufficient emission reductions in 2011.

F. Proposed Findings on Other Requirements for Extreme Nonattainment Areas

1. TCMs To Offset Growth in Motor Vehicle Emissions Under CAA Section 182(d)(1)
    CAA section 182(d)(1)(A) requires that extreme areas submit
transportation control measures (TCMs) sufficient to offset any growth
in emissions from growth in VMT or the number of vehicle trips, and to
provide (along with other measures) the reductions needed to meet ROP.
This VMT offset requirement is a continuing applicable requirement for
1-hour ozone nonattainment areas under EPA's 8-hour ozone
implementation rule. See 40 CFR 51.900(f)(11). EPA interprets this CAA
provision to allow areas to meet the requirement by demonstrating that
emissions from motor vehicles decline each year through the attainment
year. General Preamble at 13522.
    Information in the 2008 Clarifications and reproduced in Table 6
below shows that on-road mobile source emissions of VOC and
NO_X decline steadily from 2000 to 2011. This decline in
emissions is due to EPA's and California's on-road mobile source
programs. As discussed above, these programs are fully creditable in
attainment and ROP demonstrations and therefore can also be used to
demonstrate compliance with CAA section 182(d)(1). Because

[[Page 33945]]

emissions decline each year for both VOC and NO_X, the plan
need not include additional TCMs to offset growth; therefore, we
propose to find that the 2004 SIP as amended by the 2008 Clarifications
meets this CAA requirement.

                                                   Table 6--Baseline Motor Vehicle Emissions 2000-2011
                                                 [San Joaquin Valley, Summer Planning, in tons per day]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Year                         00       01       02       03       04       05       06       07       08       09       10       11
--------------------------------------------------------------------------------------------------------------------------------------------------------
VOC.........................................      115      107      100       93       88       82       77       72       67       63       59       54
NOX.........................................      223      218      211      201      192      184      176      166      157      148      137      127
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The emission levels in Table 6 are derived from the inventory used
in the modeling analysis for the 2004 SIP and are calculated using
EMFAC2002, version 2.2, and the same transportation activity
projections used in the 2004 SIP.
2. Clean Technology and/or Fuels for Boilers
    CAA section 182(e)(3) provides that SIPs for extreme areas must
require each new, modified, and existing electric utility and
industrial and commercial boiler that emits more than 25 tpy of
NO_X to burn as its primary fuel natural gas, methanol, or
ethanol (or a comparably low polluting fuel), or use advanced control
technology (such as catalytic control technology or other comparably
effective control methods). This requirement is a continuing applicable
requirement for 1-hour ozone nonattainment areas under EPA's Phase 1
rule. See 40 CFR 51.905(a)(1)(i) and 51.900(f)(7).
    Further guidance on this requirement is provided in the General
Preamble at 13523. According to the General Preamble, boilers should
generally be considered as any combustion equipment used to produce
steam and would generally not include a process heater that transfers
heat from combustion gases to process streams. General Preamble at
13523. In addition, boilers with rated heat inputs less that 15 million
Btu (MMBtu) per hour which are oil or gas fired may generally be
considered not subject to these requirements since it is unlikely that
they will exceed the 25 tpy NO_X emission limit. General
Preamble at 13524.
    The 2004 SIP, which addresses the CAA section 182(e)(3)
requirements on page 4-37, states that District Rules 4305, 4306, and
4352 address NO_X from affected boilers and that these rules
meet the requirements of the CAA. Since submittal of the 2004 SIP, Rule
4305 has been superseded by Rules 4306, 4307, and 4308.
    Rule 4306 ``Boilers, Steam Generators, and Process Heaters--Phase
3'' as revised on September 18, 2003, applies to any gaseous fuel or
liquid fuel fired boiler, steam generator, or process heater with a
total rated heat input greater than 5 million Btu per hour. The
emission limits in the rule, which range from 5 ppm to 30 ppm for
gaseous fuels and is 40 ppm for liquid fuels, cannot be achieved
without the use of advance control technologies. See ``Alternative
Control Techniques Document--NO_X Emissions from Industrial/
Commercial/Institutional (ICI) Boilers,'' Emissions Standards Division,
EPA, March 1994. We approved Rule 4306 as a SIP revision on May 18,
2004 at 69 FR 28061.
    Rule 4307 ``Boilers, Steam Generators, and Process Heaters--2.0
MMBtu/hr to 5.0 MMBtu/hr,'' as revised on April 20, 2006, applies to
any gaseous fuel or liquid fuel fired boiler, steam generator, or
process heater with a total rated heat input greater than 2.0 MMBtu per
hour but less than 5.0 MMBtu per hour. Rule 4308 ``Boilers, Steam
Generators, and Process Heaters--0.075 MMBtu/hr to 2.0 MMBtu/hr,'' as
revised on October 20, 2005, applies to any gaseous fuel or liquid fuel
fired boiler, steam generator, or process heater with a total rated
heat input greater than 0.075 MMBtu per hour but less than 2.0 MMBtu
per hour. The limits in these rules, which are 30 ppm for gaseous fuels
and for 40 ppm for liquid fuels for units between 2 and 5 MM Btu/hour
and between 30 ppm and 77 ppm for units between 0.75 and 5 MM Btu/
hour, could not be met without the use of advance control technologies.
We approved both rules as SIP revisions on May 30, 2007 at 72 FR 29887.
    Rule 4352 ``Solid Fuel Fired Boilers, Steam Generators And Process
Heaters,'' as revised May 18, 2006, applies to any boiler, steam
generator or process heater fired on solid fuel at a source that has a
potential to emit more than 10 tons per year of NO_X or VOC.
In order to meet the emission limitations in this rule, which are
between 115 and 200 ppm, sources use advance NO_X control
technologies. See ``Reasonably Available Control Technology (RACT)
Demonstration and Negative Declaration for Two Source Categories
Covered By EPA Control Techniques Guidelines, SJVAPCD, April 2009, p.
4-67. We proposed to approve Rule 4352 on May 30, 2007 at 72 FR 29901.\27\
---------------------------------------------------------------------------

    \27\ Concurrent with the May 30, 2007 proposal, we also approved
Rule 4352 in a direct final action. See 72 FR 29887. Because we
received adverse comments on this direct final action, we withdrew
it on July 30, 2007 (72 FR 41450). This withdrawal, however, left
the proposed action in place.
---------------------------------------------------------------------------

    Based on our review of the emission limitations in SJVAPCD's rules,
we propose to find that the SJV area meets the clean fuel/clean
technology for boilers requirement in CAA section 182(e)(3).
3. Adequate Resources and Enforcement Authority
    CAA Section 110(a)(2)(E)(i) requires that implementation plans
provide necessary assurances that the State (or the general purpose
local government) will have adequate personnel, funding and authority
under State law to carry out the submitted plan. Under this section, a
State needs to provide assurances of adequate personnel, funding and
authority for its submitted implementation plan. These requirements are
further defined in EPA's regulations at 40 CFR part 51, subpart L
(authority) and Sec. Sec.  51.280 (resources). States and responsible
local agencies must demonstrate that they have the legal authority to
adopt and enforce provisions of the SIP and to obtain information
necessary to determine compliance. SIPs must also describe the
resources that are available or will be available to the State and
local agencies to carry out the plan, both at the time of submittal and
during the 5-year period following submittal.
    The 2004 SIP and 2003 State Strategy do not directly address the
resources requirement in EPA regulations. However, as submitted, the
2004 SIP and 2003 State Strategy consist of a description of the result
of technical work already completed by ARB and the District to develop
emission inventories, perform air quality modeling, analyze potential
controls, and to evaluate the effect of those controls on attainment
and ROP in the SJV nonattainment area. The 2004 SIP contains
commitments by the District to adopt certain rules or rule

[[Page 33946]]

revisions and commitments by the District and ARB to achieve certain
emission reductions. At this point in time, the District has adopted
all the rules it committed to adopt. See Table 2 of this proposal.
California has also made substantial progress in adopting rules to
fulfill its commitment and has an ambitious rulemaking schedule for
2009 and 2010. See section III.C.1.c. of this proposal. By carrying out
their commitments in these plans, which were submitted in November 2004
(almost 5 years ago), both the District and ARB have demonstrated that
they have adequate resources.
    The District's and State's authorities to adopt and enforce plans,
rules and regulations to achieve and maintain Federal air quality
standards are listed in the resolutions of adoption that accompany the
plans' submittals. See ARB Resolutions 04-29, October 28, 2004
(adopting the SJV 1-hour ozone plan) and 03-22 (October 23, 2003)
(adopting the 2003 State Strategy). These authorities are found in
California's Health and Safety Code (HSC) at sections 40000, 40002,
40701, 40702, and 41650 for the District and 39002, 39500, 39602,
40469, 41650, and part 5 for ARB. These authorities are sufficient to
meet CAA and EPA requirements.
    EPA regulations at 40 CFR 51.111 also require that plans describe
procedures for monitoring compliance, procedures for handling
violations, and designation of the agency responsible for enforcement.
    The District has primary responsibility under California law to
adopt and enforce rules controlling air pollution from nonvehicular
source rules. CA HSC 40001. See also ARB Resolution 04-29, October 28,
2004. ARB has primary responsibility under California law to adopt and
enforce rules controlling air pollution form vehicular (including
fuels) and consumer products. CA HSC 39002, 39500, part 5, and 41712.
    The 2004 SIP and 2003 State Strategy do not describe procedures for
monitoring compliance and for handling violations; however, this
information is readily available on the Internet. The District's source
monitoring and enforcement programs, including its procedures for
handling violations, are described on its Web site at http://
www.valleyair.org  under ``Compliance Assistance.'' ARB's source
monitoring and enforcement programs including its procedures for
handling violations, are described at http://www.arb.ca.gov/enf/
enf.htm. Specific compliance monitoring procedures (such as test
methods, recordkeeping and/or continuous monitoring) are evaluated as
part of EPA's action on individual rules. See, for example, proposed
action on several SJVAPCD surface coating rules at 74 FR 28467 (June 15, 2009).

IV. SJVAPCD Rule 9310 School Bus Fleets

    On September 21, 2006, SJVAPCD adopted Rule 9310, ``School Bus
Fleets,'' to regulated NO_X, PM, and diesel toxic air
contaminants from in-use school bus fleets. The rule was submitted to
EPA by the State on December 29, 2006. See letter, Michael S. Scheible,
ARB, to Wayne Nastri, EPA, December 29, 2006. We found the submittal
complete on February 13, 2007. See Letter, Deborah Jordan, EPA to
Catherine Weatherspoon, ARB. A copy of the adopted rule and the
material submitted with it can be found in the docket for this proposed
action. Estimated reductions from the rule for 2010 are listed in Table 2 above.
    Rule 9310 applies to all school bus fleet operators with one or
more buses, including both public and private operators and any
contractors who provide school bus services. Under provisions of the
rule, fleet operators must replace by no later than January 1, 2016 any
diesel school buses in their fleet manufactured before January 1, 1978
with buses that meet the applicable ARB or EPA emission standards for
the year the bus is delivered to the operator. For diesel buses
manufactured after January 1, 1978, fleet operators have the option to
replace them with buses that meet the applicable ARB and EPA emission
standards for the delivery year, retrofit them with an Approved Diesel
Emission Control Strategy (i.e., ARB level 3 verified technologies to
reduce PM and or other precursor emissions by at least 85%), or repower
them with an engine meeting the ARB or EPA emissions standards that are
applicable to engines produced on and after October 1, 2002. Rule 9310,
section 5.1.1.
    The rule also requires existing alternative or gasoline-fueled
school buses and any diesel school buses manufactured after October 1,
2002 to operate per manufacturers' specification and, if replaced, the
operator must replace with a school bus that meets all applicable
emissions standards for the delivery year. Rule 9310, section 5.1.2.
New school buses and additions to school bus fleets must meet all ARB
and EPA applicable emissions standards for the delivery year. See Rule
9310, section 5.2.
    Administrative requirements in Rule 9310 require each operator to
provide the District with a list identifying existing school bus fleets
by January 1, 2007 and to include information specific to each affected
bus and an explanation of how each school bus will comply with the
requirements of Rule 9310. See Rule 9310, section 6.1
    Rule 9310 requires operators to maintain records for a minimum of
five years of each school bus annual mileage, amount of fuel purchased
by fuel type, and travel records beginning on and after September 21,
2006. These records must be made available for inspection by the
District's Air Pollution Control Officer (APCO) upon request. Rule
9130, section 6.4.
    Rule 9310 is enforced by the APCO under the authority of the
California HSC, Sections 40001, 40702, 40752, and 40753, and by all
officers and employees empowered by Sections 40120 and 41510.
Enforceability is mainly tied to school bus fleet operators' reporting
requirements.
    In reviewing a rule for SIP approval, EPA looks to assure that the
rule is enforceable as required by CAA section 110(a)(2)(A), is
consistent with all applicable EPA guidance, and does not relax
existing SIP requirements as required by sections 110(l) and 193.
    We have determined that the recordkeeping and reporting
requirements in Rule 9310 are sufficient for enforceability. EPA has
not issued any guidance applicable to rules such as Rule 9310. There
are no previous versions of Rule 9310 and, as such, its approval would
strengthen the SIP. EPA's approval of Rule 9310 would also not
interfere with attainment, reasonable further progress or any other
requirement of the CAA. We therefore propose to approve SJVAPCD Rule
9130 under CAA section 110(k)(3) as part of California SIP for the SJV area.

V. Proposed Actions

A. Summary

    1. EPA is proposing to approve pursuant to CAA section 110(k)(3),
the following elements of the 2004 SIP and the 2008 Clarifications:
    a. The rate of progress demonstration as meeting the requirements
of CAA sections 172(c)(2) and 182(c)(2);
    b. The rate-of-progress contingency measures as meeting the
requirements of CAA section 182(c)(9); and
    c. The attainment demonstration as meeting the requirements of
182(c)(2)(A) and 181(a).\28\
---------------------------------------------------------------------------

    \28\ The 2004 SIP also included motor vehicle emission budgets
(MVEB) for NO_X and VOC for the milestone year of 2008 and
attainment year of 2010. We do not address these budgets in this
proposal because they are no longer required for the 1-hour ozone
standard. Furthermore, the budgets in the 2004 SIP have been
replaced by budgets in the SJV plan for the 1997 8-hour ozone standard.
    As discussed in section II. of this proposal, EPA has revoked
the 1-hour ozone standard. As a result, transportation conformity
determinations and thus budgets are no longer required for that
standard. Under our transportation conformity regulations, 8-hour
ozone MVEBs replace existing 1-hour ozone MVEBs once the 8-hour
ozone MVEBs are found adequate or are approved. See 40 CFR
93.109(e)(1) and (2). Although the MVEB budgets from the 2004 SIP
have been used in the initial conformity determinations in the SJV
area for the 1997 8-hour ozone standard, these budgets have now been
replaced by budgets in the SJV 8-hour ozone plan which were found
adequate on January 8, 2009. See Letter, Deborah Jordan, EPA to
James Goldstene, ARB, ``Adequacy Status of San Joaquin Valley 8-Hour
Ozone Rate of Progress and Attainment Plan Motor Vehicle Emissions
Budgets'' and 74 FR 4032 (January 22, 2009). Thus, because the 1-
hour ozone budgets will have no further utility, we are not
proposing action on them here.

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[[Page 33947]]

    The proposed approval of the attainment demonstration is predicated
in part on emission reductions from a number of State and District
rules that we have proposed to approve in separate actions. These
proposed-for-approval rules, combined with previously approved rules
and other creditable measures, provide more than the minimum reductions
needed for attainment of the 1-hour standard in the SJV area. See Table
5 above. Should we be unable to finalize approval of one or more of
these rules and, as a result, there is a shortfall in the needed
emission reductions, we will not be able to finalize our proposed
approval of the attainment demonstration.
    2. EPA is proposing to find pursuant to CAA section 110(k)(3) that
the 2004 SIP and the 2008 Clarifications meet the requirements of:
    a. CAA section 182(e)(3) for clean fuel/clean technology for boilers; and
    b. CAA section 182(d)(1)(A) for TCMs sufficient to offset any
growth in emissions from growth in VMT or the number of vehicle trips.
    3. EPA is proposing to approve pursuant to CAA section 110(k)(3)
section 4.7 in the 2004 SIP and the provisions of the 2003 State
Strategy and ARB Board Resolution 04-29 that relate to aggregate
emission reductions in the San Joaquin Valley Air Basin as meeting the
requirements of CAA sections 110(a)(2)(A) and 172(c)(6).
    4. EPA is proposing to approve pursuant to CAA section 110(k)(3),
the 2004 SIP, the 2003 State Strategy and the 2008 Clarifications as
meeting the RACM (exclusive of RACT) requirements of CAA section 172(c).
    5. EPA is proposing to approve pursuant to CAA section 110(k)(3),
SJVAPCD Rule 9310 School Bus Fleets (adopted September 21, 2006) into
the San Joaquin Valley portion of the California SIP.
    6. EPA is proposing to disapprove pursuant to CAA section 110(k)(3)
the attainment contingency measures in the 2004 SIP and the 2008
Clarifications as failing to meet the requirements of CAA section 172(c)(9).

B. Effect of Finalizing the Proposed Disapproval Actions

    If we should finalize our disapproval of the attainment contingency
measures, the offset sanction in CAA section 179(b)(2) will be applied
in the SJV 1-hour ozone nonattainment area 18 months after the
effective date of the final disapproval. The highway funding sanctions
in CAA section 179(b)(1) will apply in the area 6 months after the
offset sanction is imposed. Neither sanction will be imposed if
California submits and we approve prior to the implementation of the
sanctions replacement attainment contingency measures.
    In addition to the sanctions, CAA section 110(c)(1) provides that
EPA must promulgate a Federal implementation plan addressing the 1-hour
ozone contingency measures in the SJV area, two years after the
effective date of a disapproval should we not be able to approve
replace attainment contingency measures adopted and submitted by the State.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to either review by the Office of Management
and Budget or to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).
    This action merely proposes to approve in part and disapprove in
part a State-adopted attainment plan and to approve a State-adopted
rule for the San Joaquin Valley Air Basin and does not impose any
additional requirements. Accordingly, the Administrator certifies that
this proposed action 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 proposed action does not
impose any additional enforceable duties, 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).
    This proposed action does not have tribal implications as specified
by Executive Order 13175 (59 FR 22951, November 9, 2000), because the
plan is not approved to apply in Indian country located in the State.
It will not impose substantial direct costs on tribal governments or
preempt tribal law.
    This proposed 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 proposed action merely proposes to approve in
part and disapprove in part a State-adopted plan and to approve a
State-adopted rule and does not alter the relationship or the
distribution of power and responsibilities established in the CAA.
    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 a proposed approval in
disapproval in part of a State-adopted plan and proposed approval of a
State-adopted rule. It will not have disproportionately high and
adverse effects on any communities in the area, including minority and
low-income communities.
    This proposed action 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. This proposed action does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

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

    Dated: June 30, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E9-16492 Filed 7-13-09; 8:45 am]
BILLING CODE 6560-50-P
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Approval and Promulgation of Implementation Plans: 1-Hour Ozone Extreme Area Plan for San Joaquin Valley, CA

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