Approval and Promulgation of Implementation Plans for
California--San Joaquin Valley PM-10 Nonattainment Area; Serious Area
Plan for Attainment of the 24-Hour and Annual PM-10 Standards
[Federal Register: May 26, 2004 (Volume 69, Number 102)]
[Rules and Regulations]
[Page 30005-30036]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26my04-12]
[[Page 30006]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 294-0450, FRL-7663-8]
Approval and Promulgation of Implementation Plans for
California--San Joaquin Valley PM-10 Nonattainment Area; Serious Area
Plan for Attainment of the 24-Hour and Annual PM-10 Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is finalizing approval of the ``2003 PM10 Plan, San
Joaquin Valley Plan to Attain Federal Standards for Particulate Matter
10 Microns and Smaller,'' submitted on August 19, 2003, and Amendments
to that plan, submitted on December 30, 2003, as meeting the Clean Air
Act (CAA or the Act) requirements applicable to the San Joaquin Valley,
California nonattainment area for particulate matter of ten microns or
less (PM-10)(SJV). The SJV violates the national ambient air quality
standards (NAAQS) for PM-10 and is classified as a serious PM-10
nonattainment area.
As a serious PM-10 nonattainment area, the State must submit to EPA
a plan that provides for, among other things, the implementation of
best available control measures (BACM). In addition, because the
serious attainment deadline, December 31, 2001, has passed, the plan
must provide for expeditious attainment of the PM-10 NAAQS and for an
annual reduction in PM-10 or PM-10 precursor emissions of not less than
five percent until attainment.
DATES: Effective Date: This rule is effective on June 25, 2004.
ADDRESSES: You can inspect copies of the docket for this action at
EPA's Region IX office during normal business hours by appointment at
the following locations: Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105-3901. Air and Radiation
Docket and Information Center, U.S. Environmental Protection Agency,
Room B-102, 1301 Constitution Avenue, NW., (Mail Code 6102T),
Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415)972-
3959, lo.doris@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Summary of Proposed Actions
II. Public Comments and EPA Responses
A. NOX/PM Strategy
1. Ammonia
2. VOC
3. SOX
B. Emission Inventory
C. BACM Demonstration
1. Commitments for BACM/BACT
2. Agricultural Conservation Management Practices (Ag CMP)
Program
3. Ag Crop Processing Losses and Ag Products Processing Losses
4. Plastics and Plastic Products Manufacturing Sources
5. Cotton Gins
6. Manufacturing and Industrial Fuel Combustion Sources
7. Oil Drilling and Workover
8. Residential Water Heaters
9. Charbroiling
10. Regulation VIII Fugitive Dust Sources
11. Significant Sources of VOC, Ammonia and SOx
12. Mobile Sources--Transportation Control Measures (TCMs)
13. Mobile Sources--South Coast Fleet and Low Sulfur Diesel
Rules
D. Attainment Demonstration
1. Attainment Deadline
2. Attainment Demonstration Overestimates Emission Reductions
3. Attainment as Expeditiously as Practicable
E. Five Percent Demonstration
F. RFP Demonstration
G. Contingency Measures
H. Full Approval with Commitments Violates the CAA
I. Adoption of All Feasible Measures (Section 179(d)(2)) for Ag
CMP Program
J. Approval of Commitments for VOC Sources--Wineries
K. Approvability of Indirect Source Mitigation Measure
L. Windblown Dust Issues
M. Transportation Conformity and the Trading Mechanism
N. Other Comments
III. EPA Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Actions
On February 4, 2004, (69 FR 5412), we proposed to approve the
``2003 PM10 Plan, San Joaquin Valley Plan to Attain Federal Standards
for Particulate Matter 10 Microns and Smaller,'' submitted on August
19, 2003, and Amendments to that plan, submitted on December 30,
2003,\1\ as meeting the CAA requirements applicable to the SJV for PM-
10. Specifically, we proposed to approve the following elements of the
Plan:
---------------------------------------------------------------------------
\1\ The Amendments to the 2003 PM-10 supersede some portions of
the 2003 PM-10 Plan and also add to it. References hereafter to the
``SJV 2003 PM-10 Plan'' or ``the Plan'' mean the 2003 Plan submitted
on August 19, 2003, as amended by the December 30, 2003 submittal.
? Motor vehicle budgets for transportation conformity;
? Emissions inventories for PM-10 and PM-10 precursors;
? A demonstration that reasonably available and best available
control measures (RACM and BACM) will be expeditiously implemented for
all significant sources of PM-10 and PM-10 precursors;
? A demonstration that attainment will be achieved as
expeditiously as practicable;
? A demonstration that the CAA section 189(d) five percent
requirement is met; and
? A demonstration that reasonable further progress (RFP) and
quantitative milestones will be achieved.
A detailed discussion of air quality planning in the SJV, the CAA
requirements for serious nonattainment areas, and how the 2003 PM-10
Plan complies with these requirements is provided in our proposed rule
and the technical support document (TSD).
II. Public Comments and EPA Responses
EPA received 19 comment letters and emails from the following
environmental groups, industry groups, agencies and public citizens
(some commenters provided more than one letter or email):
? Dr. David Pepper
? Gordon Jones, Tehachapi, California
? Michael E. LaSalle, Hanford, California
? Brent Newell, Stacey Wittorf, Center on Race, Poverty, & the
Environment (CRPE) on behalf of the Association of Irritated Residents
(collectively, CRPE)
? Art Caputi, Chairman, Wine Institute Air Quality Working Group
? D. Barton Doyle, on behalf of the California Building Industry
Association and its Affiliate Associations located in the SJV
? Suzanne Noble, Western States Petroleum Association
? Jan Marie Ennenga, Executive Director, Manufacturers Council
of the Central Valley
? David L. Crow, Executive Director/Air Pollution Control
Officer, San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD or the District)
? Patricia Taylor-Maley, Chair San Joaquin Valley TPA Director's
Association
? Charles Swanson, San Francisco, California
? David Moralez, Davis, California
? Susan Britton, Anne Harper and Vanessa E-H Stewart,
Earthjustice, on behalf of Medical Advocates for Healthy Air, Latino
Issues Forum, Sierra Club and Natural Resources Defense Council
(collectively, Earthjustice)
[[Page 30007]]
? Barbara Joy, Earth Matters
? San Joaquin Valley agricultural groups: California Cotton
Ginners and Growers Association, California Grape and Tree Fruit
League, California Citrus Mutual, Fresno County Farm Bureau, Kings
County Farm Bureau, Madera County Farm Bureau, Nisei Farmers League and
Tulare Lake Resource Conservation District.
EPA appreciates the time and effort made by the commenters in
reviewing the proposed rule and providing comments. We have summarized
the major comments and provided our responses below.
A. NOX/PM Strategy
The Plan relies on an oxides of nitrogen (NOX)/PM
strategy as the most effective and expeditious strategy for attaining
the PM-10 standards in the SJV, based on the best available information
at this time. The California Air Resources Board (CARB) and the
SJVUAPCD have examined the effects of controlling ammonia, volatile
organic compounds (VOC) and oxides of sulfur (SOx), and have determined
that the effect of controls for ammonia is uncertain, the effect of
additional VOC controls will not lead to PM-10 reductions throughout
the SJV, and that the effect of SOx controls would be very limited
because the contribution of ammonium sulfate to the particulate problem
in the SJV is small. EPA concurs that these findings are supported by
the current analysis of the best available data. However, the more
extensive California Regional PM-10/PM-2.5 Air Quality Study (CRPAQS)
field study and modeling will provide an improved basis to assess the
relationship of precursors in forming secondary particulates.\2\ EPA
expects that the results of the CRPAQS study will provide additional
technical information and is approving the SJVUAPCD's commitment to re-
evaluate the 2003 PM-10 Plan with the results of CRPAQS and to submit a
new plan to EPA by March 2006. (69 FR 5412, 5414).
---------------------------------------------------------------------------
\2\ The CRPAQS study was an extensive 14-month field study
conducted on 2000-2001, which measured PM-10, precursors and
meteorological parameters during episodes representative of high PM-
10 and PM-2.5 in the SJV. The domain for the study encompasses the
entire SJV, compared to the smaller IMS 95 domain of an earlier
field study, and the CRPAQS study captured more extensive ambient
air and meteorological measurements than the IMS 95 field study. The
CRPAQS modeling, discussed below, will be more extensive than the
Urban Airshed Model-Aerosol (UAM-Aero) modeling based on IMS 95.
Additional information regarding the CRPAQS study is available at
http://www.arb.ca.gov/airways/ccaqs.htm. 
The goal of the CRPAQS modeling is to better understand the
fundamental physical and chemical processes that contribute to
elevated particulate matter concentrations. The CRPAQS modeling
package includes evaluation of two complementary modeling
approaches. Each model provides particular strengths that will
support state implementation plan (SIP) modeling needs. In addition,
use of two modeling approaches allows improved diagnosis of
potential model errors and biases. The two modeling approaches have
fundamentally different modeling formulations. The first type of
modeling approach explicitly tracks particle types from individual
source types. This method has strong advantages in understanding
source-receptor relationships and in tracking specific source
contributions to secondary particulate matter. However, this
approach can be very resource and time intensive to apply. The
second modeling approach lumps similar pollutant emissions together,
thus reducing source tracking capabilities. The advantage of this
approach is that it requires fewer resources to run, enabling many
more sensitivity and control strategy evaluations to be conducted.
---------------------------------------------------------------------------
The attainment demonstration for the Plan is based on receptor
modeling based on chemical analysis of filter samples collected during
the CRPAQS field study. These samples include filters from days
representing typically high PM-10 concentrations in the SJV. However,
the photochemical grid modeling, UAM-Aero, presented in the Plan was
based on the previous, smaller field study in the SJV, IMS 95, because
the modeling from the CRPAQS field study was not complete at the time
of the Plan approval. The proposed modeling analysis based on CRPAQS
will better characterize the interaction of precursors to form
secondary particulates, because of the more robust CRPAQS database and
the more extensive CRPAQS modeling approach.
Responses to comments regarding individual precursors are addressed
below.
1. Ammonia
Comment 1: Earthjustice comments that all available evidence
supports that ammonium nitrate is a significant contributor to fall and
winter PM exceedances. CRPE comments that ammonium nitrate represents a
significant amount of the total PM-10 concentration, and represents the
largest amount of PM-10 during the winter. CRPE comments that the Plan
itself concedes that ammonia reacts with other precursor emission to
form ammonium nitrate during the winter.
Response: EPA concurs that ammonium nitrate is a significant
contributor to violations of both the 24-hour and annual PM-10
standards in the SJV. Ammonium nitrate, a secondary particulate, is not
directly emitted, but formed as a product of a series of chemical
reactions which involve ammonia (NH3), NOX, and many other
components. EPA believes that the Plan will effectively reduce ammonium
nitrate by controlling NOX, and that controlling ammonia in
addition to NOX will not accelerate the attainment date for
PM-10 in the SJV. EPA also believes that the effect of controlling
ammonia on ammonium nitrate is less clear than the effect of
controlling NOX at this time, for several reasons. The
current emission inventory and control strategies for ammonia have a
greater uncertainty than the NOX emission inventory and
control strategies. For NOX, the control technology and
management practices are better understood and well established. In
addition, analysis of ambient air quality data in the SJV indicates
that ammonia is relatively abundant throughout the SJV and, therefore,
controlling ammonia in addition to NOX controls, will not
effectively reduce ammonium nitrate, because it is not the limiting
pollutant. As discussed below, the current data suggest that
controlling ammonia may be neither an efficient nor an effective
approach to reducing ammonium nitrate concentrations in the SJV.
As discussed elsewhere in response to comments on the emissions
inventory, EPA believes that the Plan's emissions inventory for ammonia
reflects the current state of scientific knowledge. EPA also believes,
however, that both ammonia emission factors and ammonia source surveys,
and thus the ammonia inventory itself, have a high degree of
uncertainty. This is because the ammonia inventory is dominated by
emission sources--such as dairy, beef, poultry, fertilizer, and soil--
that have not been extensively sampled in the past, and that are
inherently difficult to measure even with the most sophisticated and
expensive techniques.\3\ This sharply contrasts with the confidence
level associated with quantifying emissions of NOX, a gas
which is emitted primarily by stationary and mobile source combustion
and which can therefore be accurately measured through stack or
tailpipe tests.
---------------------------------------------------------------------------
\3\ Surface isolation flux chambers are generally used to
collect field samples of ammonia sources. These samples are then
evacuated for laboratory analysis. For livestock waste, the flux
chambers need to be stationed at representative locations to sample
liquid and solid waste at various ages and under various exposure
conditions. See ``Results of the Measurement of PM10 Precursor
Compounds from Dairy Industry Livestock Waste,'' Air Toxics Limited,
C.E. Schmidt and E. Winegar, June 1996. This report was prepared for
the South Coast Air Quality Management District (SCAQMD), and is
currently available at: http://www.aqmd.gov/rules/doc/r1127/
pm10_dairy_waste_19960601.pdf.
---------------------------------------------------------------------------
For example, a calculation of net ammonia emissions from soil would
need to measure on a seasonal basis both ammonia emissions and ammonia
uptake considering such factors as soil
[[Page 30008]]
type, climatic variables, soil moisture, vegetative coverage, etc. The
accurate quantification of livestock emissions depends on survey data
and emissions measurement on a seasonal basis of various animal types,
ages, and residency times; animal and waste handling practices (such as
types of commercial feed or range feeding, stable housing, manure
spreading, and waste storage); climatic and soil variables, etc.\4\
---------------------------------------------------------------------------
\4\ For a discussion of these and other challenges associated
with quantifying livestock emissions in California and the progress
to date in addressing the issues, see: ``Air Emissions Action Plan
for California Dairies'', a report of the Ad hoc Dairy Subcommittee
of the San Joaquin Valley Unified Air Pollution Control District.
(May 2003, available at: http://www.arb.ca.gov/planning/agriculture/
cafowg/dairy062503.pfd, Memo from Patrick Gaffney, ARB, entitled
``Updating Livestock Emissions for California'' (October 1, 2003);
and ARB's ``Interim Draft Livestock Husbandry'' emissions factors
(October 2003), both available at: http://www.arb.ca.gov/ei/
areasrc/drftmeth.htm. The last of these documents summarizes
the current state of knowledge relating to livestock emissions:
``Currently, there are not TOG [total organic gases]
or ROG
[reactive organic gases]
emission factors for livestock that are
based on recent or California specific test data. However, even in
the absence of good quality emission factors, it is necessary to
estimate livestock TOG and ROG emissions. In order to meet the
regulatory requirements for livestock emission estimates, interim
emission factors were used. These factors are quite old, have many
shortcomings, and have very little field or laboratory data to
support them. The current emission estimates are intended as
placeholders to help begin identifying the gross magnitudes of
livestock air emissions.'' (Page x.xx-2). See also a report
commissioned by the SCAQMD: ``Literature Survey & National
Programs--Livestock Waste Management Practices Survey & Control
Option Assessment,'' Tetra Tech, Inc., March 2003. This SCAQMD
report is currently available at the Web address in the previous
footnote. Additional information on ammonia emissions from animal
husbandry operations can be found in EPA's recently released draft
report entitled, ``National Emissions Inventory--Ammonia Emissions
from Animal Husbandry Operations.'' The draft report includes
emission estimates from animal production facilities in the U.S. for
the years 2002, 2010, 2015, 2020, and 2030. While the data updates
past emission estimates, there are important limitations on the use
of the data, including the limited number of emission measurements.
The draft report can be found at--
http://www.epa.gov/ttn/chief/net/2002inventory.html#animal
While the data updates past emission estimates, there are
important limitations on the use of the data, including the limited
number of emission measurements. The draft report can be found at--
http://www.epa.gov/ttn/chief/net/2002inventory.html#animal.
---------------------------------------------------------------------------
These difficulties and complexities in quantifying baseline ammonia
emissions, particularly over an area as large and diverse as the SJV,
make it difficult to quantify the benefits of possible ammonia control
strategies. In addition, although there are many groups now assessing
various ammonia emission reduction approaches, there are few completed
scientific studies of the potential effectiveness of ammonia control
technologies and control techniques at this time, and no extended
record documenting the actual costs and benefits of regulatory control
programs in effect for ammonia. Moreover, the costs and benefits of
most ammonia control approaches must be assessed on a region-specific
basis, since the assessment would need to take into account fundamental
differences from one area to another in terms of the affected
industries, the availability of control options, and variations in
critical conditions, such as soils and soil coverage, temperature,
windspeed, and humidity.\5\
---------------------------------------------------------------------------
\5\ As part of a lengthy rule development process, the SCAQMD
has collected information on the costs and benefits of reducing
ammonia emissions from composting and from livestock waste within
the South Coast (metropolitan Los Angeles area), evaluating in
particular those control approaches reflected in the SCAQMD's Rules
1133, 1133.1, and 1133.2 (a series of composting rules adopted on
January 10, 2003) and in SCAQMD's proposed rule 1127 (livestock
waste). See, for example, ``Survey Current Livestock Waste
Management Practices in the South Coast Air Basin,'' Tetra Tech,
Inc., January 2002; and SCAQMD ``Preliminary Draft Staff Report:
Proposed Rule 1127--Emission Reductions from Livestock Waste,''
November 20, 2002. These reports are currently available at the web
address in the footnote above. Although some of this information may
be applicable to the SJV, much of the data is specific to the South
Coast and would need to be replaced with SJV data during a
rulemaking process.
---------------------------------------------------------------------------
Data analysis for the SJV indicates that the Valley is relatively
rich in ammonia and, therefore, reductions of ammonia are not likely to
be effective. Data analysis is based on measured concentrations of
precursors in the ambient air. Therefore, despite the uncertainties in
the emission inventory, data analysis can provide an understanding of
the relationship of the concentrations of the precursors in an area,
and the effect of control strategies of precursors will have on the
concentration levels of ammonium nitrate. Ammonium nitrate is a
secondary pollutant formed through the neutralization of nitric acid by
ammonia. Based on a molar comparison of the observed ion data, the
amount of ammonium needed if all the sulfate and nitrate were ammonium
sulfate and ammonium nitrate can be calculated. In an area where
ammonia concentrations are high relative to the concentrations of
nitric acid (which is produced from NOX and VOC), reducing
ammonia will not effectively reduce ammonium nitrate. In areas where
the ammonia concentrations are relatively low, reducing ammonia
concentrations will effectively reduce ammonium nitrate.
Data analysis results from several investigators support the
conclusion that SJV is ammonia rich. Based on the thermodynamic
equilibrium of ammonium nitrate and sulfate formation, CARB concluded
that there was no ambient ammonia deficiency during the IMS 95
episode.\6\ Hence, ammonia is in excess and initial reductions in
ammonia concentrations will not reduce ammonium nitrate. Independent
data analysis performed by Dr. Chu at EPA concluded that ``the high
ammonium nitrate particle concentrations observed in the winter in San
Joaquin Valley are not limited by the available ammonia emissions.''
\7\ Preliminary data analysis from the CRPAQS study also indicates that
``nitrate formation in the San Joaquin Valley Air Basin (SJVAB) is not
likely to be limited by ammonia availability.'' \8\ The NARSTO
assessment likewise concludes that for the San Joaquin Valley ``[t]here
is typically an abundance of NH3 present.'' \9\
---------------------------------------------------------------------------
\6\ Plan at M-11.
\7\ Shao-Hang Chu, Wintertime PM formation in San Joaquin
Valley. Memorandum to Doris Lo, December 2003.
\8\ Lurmann et al., in ``Phase Distributions and Secondary
Formation During Winter in the San Joaquin Valley''.
\9\ NARSTO at 10-12.
---------------------------------------------------------------------------
Although the UAM-Aero modeling presented in the plan indicates that
ammonia reductions may result in lower concentrations of ammonium
nitrate (secondary PM) in some areas of the SJV, because of the
uncertainty in the ammonia inventory and the atmospheric chemistry,
State and local air agency experts question these results. This is
discussed in greater detail in the response to comment 9 below.
Finally, EPA is also concerned that there is uncertainty about the
effects of ammonia controls in areas such as SJV that have conditions
conducive to the formation of acid fog. In such places, reductions of
ammonia might serve to increase the exposure to a category of PM-2.5
known as acid aerosols. Historical and present-day evidence suggests
that acid aerosols may have both acute and chronic effects on human
health.\10\
---------------------------------------------------------------------------
\10\ EPA has discussed its concerns with respect to exposure to
acid aerosols in more detail in the criteria document for the new
PM-2.5 NAAQS. See, U.S. EPA, Air Quality Criteria for Particulate
Matter, vol. III at 12-253, April 1996 (EPA/600/P-95/0001cF).
---------------------------------------------------------------------------
These fundamental scientific and technical uncertainties regarding
ammonia leave reasonable doubts regarding the extent to which ammonia
reductions would contribute to PM-10 attainment in the SJV. The CRPAQS
should resolve the question of whether ammonia and other possible
precursors, including VOC and SOX, contribute significantly
to PM-10 levels which exceed the standard in the SJV. In the
[[Page 30009]]
absence of the CRPAQS results, EPA believes that there is insufficient
evidence to support a determination that ammonia is a significant PM-10
precursor in the SJV. Thus, EPA is making the Agency's determination
under CAA section 189(e) that sources of ammonia do not contribute
significantly to PM-10 levels which exceed the standard in the SJV. If
the CRPAQS shows that ammonia is a significant precursor, however, EPA
will reevaluate this determination. At that point, ammonia could become
subject to the various PM-10 and PM-10 precursor control provisions of
the Clean Air Act, including BACM under section 189(b)(1)(B) and the 5
percent requirement under section 189(d).
In the proposed rule, EPA concurred with the 2003 PM-10 Plan's
NOX/PM strategy based on the currently available information
which includes a high degree of uncertainty regarding the ammonia
inventory and the effects of ammonia controls. EPA agrees with the
State and local agencies that this approach will not retard air quality
progress in the SJV. The SJVUAPCD has made an enforceable commitment to
submit a SIP revision by 2006 based on the CRPAQS results, including
appropriate controls based on those results. 69 FR 5412, 5414. In the
meantime, the area should achieve important reductions in ammonium
nitrate PM-10 concentrations through a NOX-based strategy.
Finally, EPA continues to believe that use of the CRPAQS has the
potential to avoid wasteful imposition of controls that may be found to
be not only expensive and dislocative but also unnecessary and
ineffective in advancing PM-10 attainment in the specific circumstances
applicable in the SJV.
Comment 2: Earthjustice comments that if ammonia comprises 22.4% of
the total mass of ammonium nitrate, this means that ammonia is
contributing anywhere from 13 [mu]g/m3 to 22.4 [mu]g/m3 to total mass
at each monitoring site.
Response: Ammonium nitrate is a secondary particulate, a product of
chemical reaction. Although ammonia participates in the series of
reactions to form ammonium nitrate, it is not appropriate to determine
the significance of the ammonia contribution to ammonium nitrate in
isolation. The effect of ammonia emissions on the formation of ammonium
nitrate is specific to each air basin. As presented in the response to
comment 1 above, EPA believes that the Plan will effectively reduce the
concentration of ammonium nitrate in the SJV by controlling
NOX, and that controlling ammonia will not effectively
reduce ammonium nitrate. Therefore, EPA believes that the Earthjustice
calculation determining the ammonia contribution to ammonium nitrate
for the purpose of determining significance is not appropriate.
Comment 3: Earthjustice comments that more than 151,000 tons of
ammonia are emitted from Valley sources and that ammonia must be
regulated because EPA's guidance, CAA section 189(e) and the District's
own data show that it is a significant contributor.
Response: As stated above, EPA believes that the most effective way
to reduce ammonium nitrate is by controlling NOX. As
discussed in the above response, EPA is determining, based upon the
best currently available information, that ammonia does not contribute
significantly to PM-10 levels which exceed the standard in the SJV. If
the results of CRPAQS indicate otherwise, EPA will revisit this
determination.
Comment 4: Earthjustice comments that the District's decision not
to regulate PM-10 precursors other than NOX is based on
results of sensitivity tests using the UAM-Aero to model the formation
of secondary particles in the atmosphere. The Plan admits the data set
was not ideal.
Response: EPA concurs that the data set used for the UAM-Aero
modeling was not ideal; however, it was the best available data set at
the time of the Plan submittal and was sufficient to make the necessary
determination. In addition, the determination of the efficacy of
ammonia control was based on data analysis (Plan at Appendix M, M-11).
This includes the preliminary data analysis based on the CRPAQS study,
which captured high values of PM-10 and ammonium nitrate, and supports
the conclusion that the SJV ammonium nitrate concentrations are not
sensitive to reductions in ammonia. Modeling based on the more
extensive CRPAQS field program will not be available until late 2005.
As stated above, EPA believes that controlling NOX will
effectively reduce ammonium nitrate. The District has made an
enforceable commitment to reevaluate the 2003 PM-10 Plan with the
results of CRPAQS and to submit a new plan to EPA by March 2006.
Comment 5: Earthjustice comments that the Plan states that ``In
rural sites where the ammonia concentrations are low, the Plan further
admits that reductions of PM-10 almost entirely depend on ammonia
controls.''
Response: EPA believes that the commenter is misinterpreting the
explanation of the graphic representation of the reduction strategies
presented in the Plan. The Plan supports the conclusion that
NOX reductions are the most effective strategy in rural
areas at current levels of ammonia. The full context of the remark that
the commenter points to is: ``The rural sites show sensitivity to only
NOX reductions until the ammonia concentrations are very
low. After that point the response becomes insensitive to
NOX controls and almost entirely responsive to ammonia
controls at higher NOX emissions.'' \11\ According to the
information presented in Figure 6 of Appendix M-11 of the Plan, only
after ammonia concentrations are reduced to a very low level do the
ammonia controls become effective. Therefore, large reductions of
ammonia would be required before ammonia reductions would become more
effective than NOX controls in reducing ammonium nitrate.
This is not the same thing as saying that ammonia reductions are the
most effective or efficient means to attain the PM-10 NAAQS
expeditiously, which is the goal of the Plan.
---------------------------------------------------------------------------
\11\ Plan at Appendix M-11.
---------------------------------------------------------------------------
Comment 6: Earthjustice comments that one of the District's
rationales for not regulating ammonia is that ``there is too much
uncertainty regarding the effects of ammonia controls.'' Plan at ES-16.
This is unsupported by facts and EPA itself has commissioned studies
documenting control efficiencies for various types of equipment
designed to control emissions of ammonia.
Response: EPA cannot find the same quote cited by Earthjustice at
ES-16. On page ES-16, the Plan states that there is ``* * * uncertainty
regarding ammonia emission controls to achieve attainment * * *,'' but
EPA does not agree that the District is questioning the control
efficiencies of the controls themselves on this page. As discussed
above, however, EPA believes that there are some uncertainties
concerning ammonia that support the District's position that it may be
better to focus on NOX reductions at this time.
Comment 7: Earthjustice comments that livestock waste is
responsible for approximately 85% of ammonia emissions in the Valley.
Sources of livestock waste must be presumed to contribute significantly
to violations of the NAAQS because the contribution to the PM-10 impact
in these areas is more than double EPA's standard of 5 [mu]g/m3 for the
24-hour average at every site. In addition, Earthjustice states that
SCAQMD Rules 1186 and 1127 reduce emissions from livestock waste and
should be included in a BACM analysis for this source category.
Response: As discussed in above responses, EPA has determined that
[[Page 30010]]
ammonia does not contribute significantly to PM-10 levels which exceed
the NAAQS in the SJV. In addition, although the South Coast and SJV air
basins each have relatively high levels of ammonium nitrate, the
difference in the relative emission levels of precursors and the
atmospheric conditions unique to each basin may lead to different
optimal control strategies for each basin. EPA also notes that the
SCAQMD does not claim ammonia reductions from Rule 1186, which is
designed to reduce fugitive dust, and SCAQMD has not yet adopted Rule
1127, which is currently scheduled for Board consideration in July 2004.
Comment 8: CRPE comments that the standard for requiring PM-10
precursor controls is not whether precursor reductions effectively
reduce PM-10, but rather whether the precursor itself contributes
significantly to violations of the PM-10 NAAQS. Earthjustice comments
that in its Addendum, EPA states that a source category ``will be
presumed to contribute significantly to a violation of the 24-hour
NAAQS if its PM-10 impact at the location of the expected violation
would exceed 5 [mu]g/m3.'' Addendum at 42011. Earthjustice
also comments that the Clean Air Act requires the regulation of major
stationary sources of PM-10 precursors (CAA 189(e)) and that, like the
South Coast, the SJV should take the prudent approach of regulating
ammonia given the uncertainty.
Response: As discussed in above responses, EPA is determining that
ammonia does not contribute significantly to PM-10 levels which exceed
the standard in the SJV. Although ammonium nitrate concentrations in
the Valley are substantial, as discussed above, EPA has determined that
NOX control is the most effective way to achieve the PM-10
NAAQS. In addition, the commenter refers to the Addendum test for
whether a source is presumed to be significant. That is not necessarily
the test for whether a particular precursor is significant. Although
the SJV and the South Coast air basins each have relatively high
concentrations of ammonium nitrate, the meteorology and the emissions
of each basin are different, leading to potentially different
strategies in reducing ammonium nitrate. See responses in this section
above and the District's ``Responses to Comments on the Draft 2003 Pm10
Plan,'' #34.
Comment 9: CRPE comments that the Plan states that for Bakersfield
on January 6, 1996, reductions of NOX and ammonia are nearly
equally effective in reducing nitrate concentrations. Earthjustice
comments that the Plan admits that the UAM-Aero model shows that the
``southern Valley shows a non-negligible sensitivity to ammonia
reduction.'' CRPE comments that ammonia controls are equally effective
as NOX controls in reducing ammonium nitrate in Fresno and
Bakersfield.
Response: The Plan at the section entitled ``Further Investigations
to Assess Apparent Ammonia Limitation at Bakersfield on January 6,
1996'' \12\ discusses the apparent disparity between the results of the
data analysis and the modeling. Based on the thermodynamic equilibrium
of ammonium nitrate and sulfate formation, the data analysis results
indicate that there was no ambient ammonia deficiency at Bakersfield
during the IMS 95 episode. The Plan indicates that ``[b]ased on
sensitivity simulations we performed, we believe that this apparent
ammonia limitation is due to the artificially low ammonia emissions in
the Southern San Joaquin Valley.'' Because of the uncertainties in the
ammonia emission inventory at this time, EPA believes that reliance on
the ambient data analysis is more appropriate at this time. EPA expects
that the results of the CRPAQS study will provide additional technical
information and is approving the SJVUAPCD's commitment to re-evaluate
the 2003 PM-10 Plan with the results of CRPAQS and to submit a new plan
to EPA by March 2006. (69 FR 5412, 5414).
---------------------------------------------------------------------------
\12\ Plan at Appendix M-11.
---------------------------------------------------------------------------
Comment 10: The SJVUAPCD comments that according to the Plan, the
preponderance of evidence indicates excess ammonia in nearly all of the
cases, and therefore NOX-only control was determined to be
the appropriate means to reduce ammonium nitrate. Peer-reviewed
scientific journal articles and papers submitted to EPA as part of the
SIP package for the PM-10 Plan support this position. The paper by
Kumar, et al. (Analysis of Atmospheric Chemistry During 1995 Integrated
Monitoring Study) found that of the 150 samples, 93% were ammonia rich.
Response: For the reasons stated above in the response to comment
1, EPA concurs with the SJVUAPCD that current evidence supports that
NOX controls are the most effective approach to reducing
ammonium nitrate in the SJV. EPA expects that the results of the CRPAQS
study will provide additional technical information regarding the
formation of ammonium nitrate in the SJV. EPA is approving the
SJVUAPCD's commitment to re-evaluate the 2003 PM-10 Plan with the
results of CRPAQS and to submit a new plan to EPA by March 2006.
Comment 11: The SJVUAPCD comments that Lurmann et al., in ``Phase
Distributions and Secondary Formation During Winter in the San Joaquin
Valley'' noted that nitrate formation in the San Joaquin Valley Air
Basin is not likely to be limited by ammonia availability. Although
these results are preliminary, they are included here because they
strongly support the peer-reviewed journal articles referenced above.
CRPAQS data analysis is now underway, with results due in 2005.
Response: EPA agrees that this paper represents the most current
data analysis for the CRPAQS study, and supports the conclusion of the
previous data analysis results that the NOX strategy is the
most effective approach to reduce ammonium nitrate in the SJV.
2. VOC
Comment 1: Earthjustice comments that the proposal to determine
that VOCs ``do not significantly contribute'' to PM-10 NAAQS
exceedances is inappropriate because it is based on the UAM-Aero
modeling which relies on three days of data from 1996, during a period
of unusually low PM levels.
Response: EPA agrees that the IMS 95 database is not ideal;
however, it was the best available data set at the time of the Plan
submittal. The modeling presented in the Plan is based on the time
period most representative of high PM-10 during the IMS 95 Study.
Modeling based on the more extensive CRPAQS field program will not be
available until late 2005. The District has made an enforceable
commitment to reevaluate the 2003 PM-10 Plan with the results of CRPAQS
and to submit a new plan to EPA by March 2006.
The District's UAM-Aero modeling was used to determine the
sensitivity of ammonium nitrate to VOC controls (whether VOC controls
would increase or decrease the ammonium nitrate in the SJV). The
chemical nature of the atmosphere is not likely to significantly change
from one winter period to another and, therefore, the response of the
atmosphere to reductions in VOC during the IMS 95 time period is likely
to be similar to the response in different winter time periods.
Therefore, despite the fact that the PM-10 levels were relatively low,
the IMS 95 modeling is useful to determine the relative impact of VOC
controls on the formation of ammonium nitrate.
As part of the technical support for the Plan, CARB determined the
expected response to emission reductions through modeling. The
[[Page 30011]]
sensitivity of ammonium nitrate concentrations to VOC controls is
presented in the Plan (Appendix M, M-6). A 50% reduction of VOCs
results in only a small reduction of ammonium nitrate concentrations
throughout the modeling domain. Plan at Appendix M, M-10. This suggests
that even with large reductions of VOC concentrations, the reduction of
the concentrations of ammonium nitrate will be small.
Comment 2: Earthjustice comments that there is evidence that VOCs
have much to do with facilitating the rate of PM formulation in the
Valley. To support this argument, Earthjustice refers to an analysis by
Pun and Seigneur, (Pun and Seigneur C, Conceptual Model of Particulate
Matter Pollution in the San Joaquin Valley. September 8, 1998 at 3-12).
Response: EPA agrees that VOC plays a role in the formation of
ammonium nitrate in the Valley. However, EPA believes that the control
of VOC is not an effective method to reduce ammonium nitrate in the
SJV. EPA has examined the analysis by Pun and Seigneur, as well as
other material, in considering the efficacy of a VOC control strategy
in the SJV. The Pun and Seigneur conceptual model is also based on the
IMS 95 database, and is therefore subject to the same limitations as
the photochemical modeling used in the Plan. In addition, Pun and
Seigneur is based on a less sophisticated box model, and is subject to
the limitations of a box model, compared to the more refined grid
model, UAM-Aero, presented in the 2003 PM-10 Plan. The commenter
overstates the conclusion of Pun and Seigneur with respect to the
efficacy of VOC control. Although the paper states that the basin may
be either NOX or oxidant sensitive, it does not conclude
which of the precursors is most influential in the SJV:
The ambient formation of HNO3 may be either NOX or
oxidant sensitive. Although information regarding the dominant
reaction was not available, indirect evidence from the diurnal
profile of total nitrate (peak concentrations in the afternoon)
seemed to indicate that the NO2 + OH reaction was an important
nitric acid production route. Thus to understand which primary
pollutants govern the formation of ammonium nitrate, we need to
address the oxidation potential of the atmosphere and determine
which pollutants (i.e., NOX or VOCS) are the most
influential for the formation of oxidants in the system.
Although Pun and Seigneur raises the need to address the oxidation
potential of the atmosphere and determine which pollutants are the most
influential, it does not conclude that VOC controls are absolutely
required in the SJV. The Plan's more refined modeling, based on the IMS
95 study, discussed above, indicates that ammonium nitrate
concentrations are not very sensitive to VOC control (Plan at Appendix
M, M-6) in the SJV. In other words, VOC controls will not have as great
an effect on PM formation. The CRPAQS study should provide an improved
database for more definitive results regarding the effect of VOC
controls in reducing PM-10 in the SJV.
Comment 3: Earthjustice comments that the NARSTO report indicates
``In the case of secondary winter PM nitrate in the SJV * * * nitrate
formation is thought to be sensitive to VOC concentrations in many
urban areas.'' The report opines:
Reductions in NOX may not be the best course of
action for reducing particulate nitrate in the possible VOC-
sensitive wintertime condition. Box model simulations indicate that
NOX reductions may have the counterintuitive effect of
increasing particulate nitrate formation during winter (Pun and
Seigneur, 2001). Therefore, coordinated efforts will be required to
formulate control strategies beneficial to both ozone and PM air quality.
Response: We believe that the NARSTO report's conclusions are
subject to several limitations. They are based on ``Sensitivity of
Particulate Matter Nitrate Formation to Precursor Emissions in the
California San Joaquin Valley,'' Pun and Seigneur, 2001.\13\ As
mentioned above, this study is based on the IMS 95 field study and
therefore is subject to the same database limitations as the UAM-Aero
modeling included in the Plan. In addition, Pun and Seigneur, 2001 is
based on a less sophisticated box model, and is subject to the
limitations of a box model compared to the more refined grid model,
UAM-Aero, presented in the 2003 PM-10 plan. Pun and Seigneur conclude:
\13\ Pun, B. and Seigneur, C. ``Sensitivity of Particulate
Matter Nitrate Formation to Precursor Emissions in the California
San Joaquin Valley,'' Environ. Sci. Technol., 2001, 35, 2979-2987.
It should be noted that the box model represents some domain-
average chemistry but cannot characterize the locally specific
chemical regimes. Other assumptions include stagnant conditions and
aloft carry-overs of gaseous and PM pollutants. Further work should
extend this box model analysis to a three-dimensional modeling study
so that transport processes can be simulated and the spatial
variability of the response of PM to precursors can be addressed.
However, an extensive reliable database is needed for the
application of a 3-D model. The forthcoming California Regional PM
---------------------------------------------------------------------------
Air Quality Study (CRPAQS) database may provide such an opportunity.
While Pun and Seigneur indicates that the San Joaquin Valley air basin
should not be sensitive to ammonia concentrations and may be sensitive
to VOC, each of these conclusions is subject to the limitations of the
investigation. EPA concurs that it is important to extend this analysis
to a three dimensional modeling study using a more extensive database.
In the Plan, CARB has presented a more refined modeling analysis based
on a three-dimensional model. The results of that modeling exercise
indicate that nitrate concentrations are not very sensitive to VOC
concentrations (Plan at Appendix M, M-6). Therefore, control of VOC
will not be as effective as NOX control. The forthcoming
CRPAQS database will provide a more extensive, reliable database to
support additional modeling. EPA expects that the modeling results of
the CRPAQS study will provide additional technical information and is
approving the SJVUAPCD's commitment to re-evaluate the 2003 PM-10 Plan
with the results of CRPAQS and to submit a new plan to EPA by March
2006. 69 FR 5412, 5414.
Comment 4: Earthjustice comments that the VOC emissions are
probably underestimated for the SJV and that it is irresponsible of the
Plan to not include controls for livestock waste, a significant VOC
source, when the negative effects of VOC pollution are well-known.
Furthermore, Earthjustice points out that the South Coast Air Quality
Management Plan relies on VOC reductions to attain the PM-10 standard
and that the SJV should, as the South Coast has, take the prudent
course of action by including VOC reductions.
Response: As discussed above, EPA has determined that for the
purposes of section 189(b)(1)(B) and (e), VOC does not contribute
significantly to PM-10 levels which exceed the standards in the SJV.
While the South Coast and the SJV each have a high level of ammonium
nitrate, the air basins are quite different in terrain, meteorology,
and emissions. In addition, the South Coast is primarily an urban area,
while the SJV is a mix of rural and urban areas. Differences in
relative emissions of precursors and the atmospheric conditions unique
to each basin lead to different optimal control strategies for each basin.
Comment 5: Earthjustice comments that EPA's proposal to find that
VOCs ``do not significantly contribute to PM-10 levels which exceed the
standard'' may make it extremely difficult to regulate CAFOs at all
under SB 700, which contains provisions requiring the District to show
that either source categories of agricultural practices ``cause or
contribute to violations of an ambient air quality standard'' before
[[Page 30012]]
issuing a permit or BACM/BACT analysis.
Response: As discussed above, EPA has determined that VOCs do not
significantly contribute to PM-10 levels which exceed the standard;
however, the CRPAQS results may change this determination. In addition,
VOC reductions may be necessary for ozone attainment, and the
determination with respect to PM-10 does not alter that fact.
Comment 6: One commenter (D. Moralez) inquires about whether the
determination that VOC controls will not lead to PM-10 reductions was
made based on stationary controls under the District's jurisdiction or
whether other sources such as pesticides, fertilizers and insecticides
were included. The commenter recommends including these sources in the
evaluation.
Response: EPA believes that all of the source categories mentioned
by the commenter were included in the District's evaluation.
3. SOX
Comment 1: Earthjustice comments that secondary ammonium sulfate
can be a significant contributor to PM-10 concentrations in certain
locations and at certain times of year, yet the Plan contains no
controls on SOX. Pun and Seigneur at 3-14 (ammonium sulfate
third largest component of PM-2.5 at Kern).
Response: EPA believes that the contribution of ammonium sulfate to
the PM-10 24-hour and annual standards is small, approximately 3-4% of
the total mass. The Pun and Seigneur paper indicates that ammonium
sulfate was the third largest component of PM-2.5 at the Kern Wildlife
Range:
Although ammonium sulfate only accounted for 6% (< 3.4 [mu]g/m\3\
at Kern Wildlife Refuge, < 3.7 [mu]g/m\3\ at Bakersfield) of the PM-
2.5 measured during IMS 95 in the San Joaquin Valley, it was the
third largest component at the rural site of Kern Wildlife Refuge.
The relative contribution of ammonium sulfate to PM-2.5 differs
from the contribution to PM-10. The percentage contribution of ammonium
sulfate to PM-10 levels in the San Joaquin Valley is low, especially at
the locations exceeding the PM-10 24-hour and annual standards. The
Plan at Appendix N, N39-43 lists the sulfate mass determined by
Chemical Mass Balance model, based on a chemical analysis of the
filters on days when the PM-10 standards were exceeded. The
contribution of the sulfate mass to the 24-hour standard ranges from
2.7 to 7.2 [mu]g/m\3\, approximately 3.5 to 4% of the total PM-10 mass.
The contribution of the sulfate mass to PM-10 concentrations violating
the annual standard is 2.6 to 3.1 [mu]g/m\3\. Plan at Appendix N, N-11.
Comment 2: Earthjustice comments that the SCAQMD regulates all PM-
10 precursors, including SOX.
Response: The relative importance of ammonium sulfate in
particulate matter in the South Coast Air Basin is not identical to the
San Joaquin Valley Air Basin. The South Coast Air Basin has measured a
maximum 24-hour sulfate concentration of 20.6 [mu]g/m\3\,\14\
substantially greater than the values of 2.7 to 7.2 [mu]g/m\3\ recorded
for the SJV (see above). Because the technical analysis done for the
SJV does not indicate that SO\2\ was a significant contributor to
violations of the NAAQS in the SJV, it is not necessary to control
SOX in the SJV to expeditiously attain the NAAQS.
---------------------------------------------------------------------------
\14\ 2003 South Coast Air Quality Management Plan, page 2-21.
http://www.aqmd.gov/aqmp/AQMD03AQMP.htm.
---------------------------------------------------------------------------
B. Emission Inventory
Comment 1: Earthjustice comments that the emissions inventories are
incomprehensible, that specific activity levels, emissions factors and
models are only summarized in the Plan, and that the emissions factors
are spread through numerous studies, memorandums and documents on a
compact disk available only by request. Earthjustice cites EPA's TSD
comment that the inventory ``is a massive collection of data and
requires a great deal of time to review* * *'' but disagrees with EPA
that the incomprehensibility is a ``minor comment.'' Earthjustice
states that the inventories do not meet minimum data reporting
documentation standards in EPA guidance, and thus should be returned to
the State for modification.
Response: The amount of data used to develop, maintain and update
the emissions inventories for the SJV, a large and diverse area, is
massive. The District and State have provided a detailed discussion of
how the inventories are developed and summaries of the inventories in
the 2003 PM-10 Plan.\15\ The reference documents, R1 and R2, are
provided on a compact disk (CD-ROM) and include numerous spreadsheets
with volumes of information. Providing these documents in hard copy
would require vast amounts of paper.
---------------------------------------------------------------------------
\15\ See Chapter 3, 2003 PM-10 Plan, Appendix B: Basin-Wide
Summary of District's On-road Motor Vehicle Emissions Inventory;
Appendix C: Updated Emissions Inventory Category Changes; Appendix
D: Seasonal Emissions Inventories; Appendix J: Attainment
Inventories; R1: Detailed Annual Emissions Inventories (CD-ROM); R2:
Detailed Seasonal Emissions Inventories (CD-ROM).
---------------------------------------------------------------------------
EPA believes that the information submitted to support the
inventories is sufficient. The 2003 PM-10 Plan includes many summaries
of the different types of inventories needed for the Plan, the compact
disk provides the necessary documentation supporting how the
inventories were derived, and supporting studies and memoranda
regarding inventories are also included in the docket for this
rulemaking. The State and District are also available to help
interested parties find any supporting data for the inventories. While
EPA notes the difficulty of evaluating these inventories due to the
immense amount of information involved (see TSD, page 9) and the
complexity of the airshed, EPA does not believe that the inventories
are incomprehensible and need to be returned to the State. The
summaries provided in the 2003 PM-10 Plan are very comprehensible and
the supporting documentation on compact disk is available to any
interested parties.
Comment 2: Earthjustice comments that the Plan omits a number of
critical pollution sources from the emissions inventory (i.e.,
cultivation emissions, agricultural and industrial bulk materials,
poultry emissions, and windblown dust from orchard and vineyards).
Earthjustice comments that the ammonia inventory is possibly
underestimated due to using estimates (from Census of Agriculture) that
may underestimate the number of poultry and cows. Earthjustice then
comments that the emissions inventory lacks emissions from leaf blowers
and general landscape and maintenance activities and that these
emissions should be included in the Plan and not put off as ``further
study measures.''
Earthjustice also comments that there were numerous significant
changes made to the inventories which are unjustified. Earthjustice
states that drastic reductions in emissions for agricultural sources
were made during 2002-2003 based on ``stakeholder suggestions'' rather
than scientific evidence. Changes noted by Earthjustice include:
agricultural land preparation emissions decreased by approximately
20,000 tons per year of PM-10; almond shaking emissions factor (EF)
decreased by ten times from 3.7 to 0.37; CARB's almond sweeping EF of
13.1 pound PM-10/acre was rejected and replaced with a 3.7 EF; calf and
heifer populations were excluded from dairy operation emissions; and
changes were made to the internal combustion engine emissions, dropping
it 275% from 47 tpd of NOX to 17 tpd of NOX.
[[Page 30013]]
Earthjustice also notes that EPA was ``surprised'' by the ``relatively
low emissions estimates'' for sand and gravel and the Plan does not
make any commitment to further address this.
Response: As stated in the 2003 PM-10 Plan:
Emission inventories are never considered to be entirely
complete at one given time. * * * [I]nventories can always be
improved with the use of better emission factors and activity data.
The District, in cooperation with ARB, is committed to continually
updating the emission inventory as research studies, emission factor
updates, and other information become available. When emissions data
change dramatically, the District is committed to revising the
inventory and to ensuring that any impact is reflected in the
control strategy and the attainment demonstration.
Plan at 3-4.
EPA concurs with the above statement by the District. CAA section
172(c)(3) requires a ``comprehensive, accurate, and current'' inventory
of actual emissions from all sources; however EPA recognizes that
inventories are not static, but are constantly being updated and
renewed as new information, techniques and studies are made
available.\16\ The State and District used the best available
inventories at the time of plan development. If a State excludes any of
the emission sources from its emission inventory, it must provide
documentation on why the source(s) were excluded (PM-10 Emission
Inventory Requirements, Final Report, September 1994, Prepared for:
Emission Inventory Branch (MD-14), Sulfur Dioxide/Particulate Matter
Programs Branch (MD-15), Office of Air Quality Planning and Standards,
U.S. Environmental Protection Agency, Research Triangle Park, NC 27711,
page 20). CARB has provided additional information addressing why
sources were emitted (April 21, 2004 memorandum from Sylvia Morrow and
Patrick Gaffney to Kurt Karperos, Follow-up information on San Joaquin
Valley PM10 Plan emission inventory issues raised in public comment
(Morrow and Gaffney memo)) and EPA expects the inventory will be
updated as part of the State and District's commitment to submit a new
plan by March 2006. EPA generally relies on the State and local
agencies to develop, maintain and update their inventories. CARB has a
Web site with additional information on how California air districts
create, maintain and use emissions inventories. The Web site is:
http://www.arb.ca.gov/ei/district/districtresources.htm.
---------------------------------------------------------------------------
\16\ Once a plan has been adopted, EPA does not generally
require plan elements such as emissions inventories to be revisited
and updated in response to new information. The U.S. Court of
Appeals for the District of Columbia Circuit recently addressed a
similar issue and affirmed EPA's position. Sierra Club v. EPA, 356
F.3d 296 (D.C. Cir. 2004).
---------------------------------------------------------------------------
For categories where Earthjustice is claiming that there are
missing source category estimates, the Morrow and Gaffney memo provides
additional discussion of how these emissions will not impact the
attainment demonstration and how additional data may be obtained on
these categories in the future. For categories where the emissions
estimates have changed, generally going down, the Morrow and Gaffney
memo provides additional discussion on what the lower estimates were
based on and why they were used. The Morrow and Gaffney memo also
addresses comments raised by D. Howekamp in a declaration supporting
Earthjustice's comments. EPA has reviewed the 2003 PM-10 Plan's
inventory and the Morrow and Gaffney memo and continues to believe that
the Plan's inventory was the best available inventory at the time of
Plan development and thus satisfies the CAA's requirement for a
comprehensive, accurate, and current inventory. EPA expects that the
District and State will include additional inventory revisions in their
mid-course review due in March 2006.
Comment 3: Earthjustice comments that the base year relied upon to
determine de minimis levels is inconsistent and that different
inventories are used in order to exempt sources. The Plastic and
Plastic Products Manufacturing source category is provided as an
example of a category whose de minimis determination is based on a
different base year inventory (2003 PM-10 Plan, Table 4-8). In
addition, they believe that federally approved control measures are
necessary to ensure that de minimis source categories remain below the
de minimis levels.
Response: See section II.C.4. below.
Comment 4: One commenter (LaSalle) states that emission estimates
by CARB have been proven inaccurate. The commenter indicates that CARB
estimates of dairy ROG emissions have historically been too high and
CARB has failed to correct the problem.
Response: As discussed above, the emission inventories are
continually being improved and updated with new data. EPA believes that
CARB and the District used the best available information at the time
of plan development and understand that further refinements will be
included in future plan submittals.
C. BACM Demonstration
1. Commitments for BACM/BACT
Comment 1: Earthjustice comments that a large number of significant
source categories, in addition to Ag-CMP-regulated sources, are not
subject to adopted--or even proposed or identified--control measures.
Until the relevant requirements are adopted--and no longer subject to
change in the rule development process--for each of these source
categories, EPA cannot conclusively determine that the Plan provides
for the implementation of BACM/BACT for all significant sources of PM-
10 and PM-10 precursors. As a result, Earthjustice claims that full
approval of the Plan is improper. Earthjustice cross-references its
additional comments on commitments which are addressed in section II.H
below.
Response: Section 189(b)(1)(B) requires that serious area PM-10
plans include ``[p]rovisions to assure that the best available control
measures for the control of PM-10 shall be implemented no later than 4
years after the date the area is classified (or reclassified) as a
Serious Area.'' Nothing in this language either requires a state to
have adopted controls in place before a SIP revision can be approved
into its PM-10 plan or forbids the adoption of an enforceable
commitment to meet the statute's BACM \17\ requirement.
---------------------------------------------------------------------------
\17\ EPA has interpreted the BACM requirement in CAA section
189(b)(1)(B) to include BACT. ``State Implementation Plans for
Serious Areas, and Attainment Date Waivers for PM-10 Nonattainment
Areas Generally; Addendum to General Preamble for the Implementation
of Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998,
42009 (August 16, 1994)(Addendum).
---------------------------------------------------------------------------
Consistent with this statutory language, EPA has historically
determined that an enforceable commitment to adopt and implement BACM
in a SIP meets this statutory requirement since it constitutes a
``provision to assure that BACM is implemented'' by a fixed deadline.
As a result, the commenters' complaint that ``[b]y definition the plan
fails to implement BACM/BACT for all source categories for which no
developed control measures exist'' has no merit since the statute
itself does not impose such a requirement. Because the statute does not
define what is a ``provision to assure BACM is implemented,'' EPA may
adopt an interpretation reasonably accommodated to the purpose of the
statutory provision. Chevron U.S.A., Inc.
[[Page 30014]]
v. Natural Resources Defense Council, 467 U.S. at 842-44.\18\
---------------------------------------------------------------------------
\18\ EPA's approach here does not represent any departure from
prior Agency actions approving SIPs. See section II.H.
---------------------------------------------------------------------------
In accepting enforceable commitments to meet the requirements of
section 189(b)(1)(B), however, EPA has required states to undertake an
analysis to ensure that the regulation ultimately adopted pursuant to
the commitment will represent a BACM level of control. As we describe
in our proposed rule, a state must determine the technical and economic
feasibility of potential control measures for each of the significant
source categories. 69 FR 5412, 5418. Thus the measure that is the
subject of a commitment must describe generally the type and level of
control to be adopted.
Moreover, once the ultimate control measure is adopted and
submitted to EPA, the Agency undertakes an additional evaluation to
ensure that that measure meets the statute's BACM requirements. See,
e.g., the Arizona rulemakings in which EPA initially approved as RACM
\19\ a requirement in a state statute to adopt and implement best
management practices for agricultural operations and subsequently
determined that the rules adopted pursuant to the statute represented
RACM/BACM. 64 FR 34726 (June 29, 1999); 66 FR 51869 (October 11, 2001);
67 FR 48718 (July 25, 2002).
---------------------------------------------------------------------------
\19\ CAA section 189(a)(1)(C) contains the same language as
section 189(b)(1)(B) with respect to the implementation of RACM.
---------------------------------------------------------------------------
2. Agricultural Conservation Management Practices (Ag CMP) Program
Comment 1: Earthjustice comments that the Ag CMP program exists
only in conceptual form, accounts for a large portion of fugitive dust
emissions in the SJV and fails to provide for BACM-level controls for
several reasons.
First, Earthjustice comments that the Ag CMP program requires
growers to select only one CMP per category (e.g., categories include
unpaved roads, land preparation, harvest, etc.) which violates the RACM
and BACM standards. Earthjustice argues that the RACM process requires
adoption of all RACM and a reasoned justification must be provided for
any rejected measures. Allowing growers to select only one CMP per
category would allow growers to avoid adopting all RACM.
Response: As discussed in our proposed rule, the District has
chosen to reduce emissions from agricultural sources with a program,
i.e., the Ag CMP program, that provides more flexibility than a typical
command and control regulation. 69 FR 5412, 5420. The District's 2003
PM-10 Plan commits to adopt and implement a program that will achieve
BACM level controls by a specific schedule and 33.8 tons of emissions
reductions. The 2003 PM-10 Plan also states that:
[p]articipation in the Ag CMP program will be mandatory, but the
growers will, by their own choosing, select measures most
appropriate for their operation. The source categories include (1)
unpaved roads, (2) unpaved vehicle/equipment traffic areas, (3) land
preparation, (4) harvest, and (5) other--including windblown PM10
from open areas, and agricultural burning * * *. Growers must select
at least one management practice from each of the five categories. * * *
2003 PM-10 Plan, page 4-25.
More than one management practice may be selected by a grower if it
is technically and economically feasible, but a BACM level of control
will vary from grower to grower. The plan points out that:
[e]missions from agricultural sources vary by many factors that are
beyond the control of the grower. For example, drought conditions
and related cuts in water deliveries can lead to increased fallow
lands and more wind blown dust emissions. Market conditions can
change quickly and can turn a profitable crop into a losing
proposition. This limits the ability of growers to absorb the costs
of controls in many cases.
Id.
The regulatory approach selected by the District is similar to
those adopted by the SCAQMD for the South Coast Air Basin and by the
Arizona Department of Environmental Quality for the Phoenix (Maricopa
County) PM-10 nonattainment area. See, e.g., discussion of the South
Coast and Phoenix approaches at 66 FR 50252, 50268-50271 (October 2,
2001) and 67 FR 48730 (July 25, 2002). As we have pointed out in the
context of the Phoenix program, farming operations are inherently
complex and highly variable and therefore PM-10 controls need to be
tailored to individual circumstances. Moreover, there is a limited
amount of scientific information concerning the emission reduction
potential and cost effectiveness of the available and known control
measures for agricultural operations. Therefore, EPA has previously
concluded that, given this rudimentary state of knowledge, requiring
more than one control measure cannot be technically justified and could
cause an unnecessary burden on farmers. 66 FR 50268, 50269.
We have also previously found that allowing sources the discretion
to choose from a range of specified options is particularly important
for the agricultural sector because of the variable nature of farming.
As a technical matter, neither we nor the State is in a position to
dictate what precise control method is appropriate for a given farm
activity at a given time in a given locale. The decision as to which
control method from an array of methods is appropriate is best left to
the individual farmer. Moreover, the economic circumstances of farmers
vary considerably. As a result, it is imperative that flexibility be
built into any PM-10 control program for the agricultural source
category whether that program is required to meet the RACM or BACM
requirements of the Act. Id.
Furthermore, a requirement that an individual source select one
control method from a list, but allowing the source to select which is
most appropriate for its situation, is a common and accepted practice
for the control of dust. For example, in our PM-10 federal
implementation plan (FIP) for Phoenix, we promulgated a RACM rule
applicable to, among other things, unpaved parking lots, unpaved roads
and vacant lots. The rule allows owners and operators to choose one of
several listed control methods (pave, apply chemical stabilizers or
apply gravel). 40 CFR 52.128(d).\20\ In programs allowing a choice of
compliance methods, it is clearly not feasible to require a regulated
source to provide a reasoned justification for choosing one option over
another.
---------------------------------------------------------------------------
\20\ See also SCAQMD Rule 403 (providing for alternative
compliance mechanisms for the control of fugitive dust from
earthmoving, disturbed surface areas, unpaved roads etc.). We
approved this rule on December 9, 1998 (63 FR 67784). See also our
approval of Maricopa County Environmental Services Department
(MCESD) Rule 310 and Rule 310.01 as meeting the RACM/BACM
requirements of the CAA (67 FR 48718, July 25, 2002) and EPA's
proposed approval of Sections 90 through 94 of the fugitive dust
regulations for Clark County as meeting those requirements (68 FR
2954, January 22, 2003).
---------------------------------------------------------------------------
As with the South Coast and Phoenix programs, EPA believes that the
2003 PM-10 Plan's commitment described above, in our proposed rule and
in the 2003 PM-10 Plan provides the flexibility necessary to allow for
the variability in farming while still achieving a BACM level of
control. Indeed, flexibility is more important in the SJV because of
the far greater diversity and number of crops, acreage and soils. For
example, in 1997, there were over 9 million acres farmed in the SJV as
compared to approximately 700,000 acres in Maricopa County.\21\
[[Page 30015]]
Moreover, in 2002, there were 350 crops grown in California, 77 of
which were found in large-scale commercial operations, and there were
significant livestock and poultry operations. Six of the 10
agricultural counties in California are in the SJV.\22\ In contrast, in
Maricopa County in 2002, five crops (cotton, wheat, corn, alfalfa and
hay) comprised 83.6% of the acres farmed.\23\
---------------------------------------------------------------------------
\21\ 1997 Census of Agriculture, California Agricultural
Statistics Service and Arizona Agricultural Statistics Service, U.S.
Department of Agriculture (USDA).
\22\ 2002 California Department of Food and Agriculture Resource
Directory.
\23\ 2002 Arizona Agricultural Statistics Service, USDA.
---------------------------------------------------------------------------
EPA also believes that the SJV Ag CMP approach is consistent with
CAA section 172(c)(1) requiring the implementation of all RACM. EPA has
long provided for certain limitations on that requirement. For example,
EPA has not required the implementation of measures that would not
advance attainment or measures for source categories that are de
minimis. See 57 FR 13498, 13540, 13560 (April 16, 1992). These
limitations have been upheld by the courts. See, e.g., Ober v. Whitman,
243 F.3d 1190 (9th Cir. 2001) and Sierra Club v. EPA, 294 F.3d 155
(D.C. Cir. 2002). Similarly, and for the reasons discussed above, EPA
has concluded that requiring more than one measure for the agricultural
sector is not currently reasonably available.
Comment 2: Earthjustice claims that the Ag CMP program does not
meet BACM requirements since BACM is more stringent than RACM.
Response: When a moderate area is reclassified to serious, the
requirement to implement RACM in section 189(a)(1)(C) remains. Thus, a
serious area PM-10 plan must also provide for the implementation of
RACM as expeditiously as practicable to the extent that the RACM
requirement has not been satisfied in the area's moderate area plan.
However, we do not normally conduct a separate evaluation to
determine if a serious area plan's measures also meet the RACM
requirements as interpreted by us in the General Preamble at 13540.
This is because in our serious area guidance (Addendum at 42010), we
interpret the BACM requirement as generally subsuming the RACM
requirement (i.e. if we determine that the measures are indeed the
``best available,'' we have necessarily concluded that they are
``reasonably available''). Therefore, when, as here, a control measure
is being developed to meet both the RACM and BACM requirements, a
separate analysis to determine if the measures represent a RACM level
of control is not necessary. In such a case, the usual progression from
RACM to the generally more stringent BACM does not occur. The SJV is
not unique in this respect. In the Phoenix area we approved State
legislation and, subsequently, a general permit rule, for the
agricultural sector as meeting both RACM and BACM requirements. See
discussion at 66 FR 50252, 50254-50255.
Comment 3: Earthjustice comments that since there is no emission
reduction target there is nothing to prevent operators from selecting
only the least effective measure in a category when other more
effective and feasible measures may be available. At a minimum,
operators should be required to implement the most effective measure
from each category to meet BACM standards.
Response: As stated previously, the 2003 PM-10 Plan commits to
achieve a BACM level of control by reducing PM-10 emissions for the
overall agricultural category by 33.8 tons per year by 2010. 2003 PM-10
Plan, 4-29. For the reasons discussed in our response to the previous
comment, flexibility is needed in any program controlling agricultural
sources. The Ag CMP program will require at least one measure from each
of the five categories under the program, thus, where it's economically
and technically feasible, more than one measure may be implemented.
Comment 4: Earthjustice comments that exemptions found in Draft
District Rule 4550 (i.e., agricultural operations of less than 100
acres from the CMP program and animal feeding operations of various
sizes) are not justified. Exemptions should be based on whether there
is a de minimis contribution to the PM-10 problem and no demonstration
is made as to whether or not these smaller sources can not be included.
Comments also point out that smaller exemptions are found in other areas.
Response: EPA has been working closely with the District during the
development of Rule 4550 to ensure that the Ag CMP program will achieve
a BACM level of control. That rule, however, is not the subject of this
rulemaking. We will thoroughly evaluate the rule once it has been
adopted by the District and submitted to us. Earthjustice will of
course be able to comment on any rulemaking action EPA may take on Rule
4550.
EPA notes, however, that small quantity exemptions can be justified
on an economic basis. Thus, even if sources smaller than 1 acre result
in significant emissions, if control costs are too high, the BACM
requirement may be deemed met with no control. Addendum at 42010. Most
federally-enforceable prohibitory rules have some sort of analogous
small quantity exemption. See, for example, 40 CFR 60.32b(a), 40 CFR
63.100(b)(4); District Rule 4305.2.1.
Comment 5: Earthjustice comments that the Ag CMP program does not
require BACM for agricultural windblown dust. Windblown dust is one of
the most significant contributors to PM-10 in the SJV. Under the CMP
program, windblown dust requirements are combined with other categories
such as agricultural burning which is already subject to existing
District rules and Senate Bill 705. Nothing prevents an operator from
satisfying the CMP program by only complying with the agricultural
burning requirements. Further, there is no evaluation of the Coachella
Valley windblown dust measures.
Response: The District's meteorological analysis of wind speeds
associated with PM-10 exceedances found that the exceedances largely
occurred during periods of low winds and stagnant conditions in the
fall and winter. 2003 PM-10 Plan, ES-10, 5-6; see also section II.L.
below. Thus, windblown dust is not generally considered to be a
significant contributor to PM-10 exceedances in the SJV and EPA
believes that windblown dust measures are therefore not necessary for
attaining the PM-10 standards.
The District recognizes, however, that there may be specific
localized situations that warrant windblown dust measures and has
included them in the Ag CMP program so that growers will have the
flexibility to use them as needed (as well as in District Regulation
VIII).
Comment 6: Earthjustice comments that Draft Rule 4550 fails to set
forth criteria by which the air pollution control officer (APCO) will
implement the Ag CMP Program. Draft Rule 4550 currently allows the APCO
to weaken the Handbook, grant exemptions from the program, or to
increase the number of control categories, all without public input or
a SIP revision. Commenters believe that the CMP plans should be
available for public review (to same degree as CAA Title V or operating
permits are), should contain a mechanism to ensure citizens are able to
verify that growers are participating and the CMP plans are being
implemented, and that adjustments to rule applicability thresholds are
subject to public review.
Response: See our response to the previous comment. EPA is working
with the District as it develops Rule 4550 to ensure that the Ag CMP
program will achieve a BACM level of control. While Rule 4550 is not
the subject of today's
[[Page 30016]]
action, we note that the most recent draft limits the discretion of the
APCO.
Comment 7: Earthjustice comments that the Ag CMP Program must
contain actual control measures. The ``Ag CMP List'' must be included
as part of Rule 4550 in order to allow citizens to challenge the
substantive components of the list. Because EPA concedes that the lists
were not available for EPA review for the proposal and without the
lists, Earthjustice believes there is no basis for EPA's conclusion
that the Ag CMP program will achieve a BACM level of control (or even a
RACM level). EPA justifies that the Ag CMP program's program
description and similarity to other EPA approved programs is enough to
satisfy BACM, but Earthjustice believes this comparison must rely on a
comparison of actual requirements. Since there are no adopted measures
for the Ag CMP program, Earthjustice believes EPA cannot approve the
program as BACM. Further, Earthjustice notes that EPA's approval of
Maricopa's best management practices (BMP) general permit rule as BACM
was based on a rule that was adopted and already approved as RACM.
Response: EPA believes that the Agency can approve, as meeting the
CAA's BACM requirement, the commitment to adopt and implement the Ag
CMP Program based on the description provided in the 2003 Plan. As
discussed previously in section II.C.1. above, we believe that section
189(b)(1)(B) does not require that BACM be in the form of an adopted
rule. Moreover, the Plan, pages 4-23 to 4-29, contains a detailed
description of the scope of the program. EPA believes that the Plan's
commitment to implement a BACM level of control for agricultural
sources is sufficient to satisfy the BACM requirement. EPA will
continue to work with the District as it develops Rule 4550 to ensure
that the Ag CMP program will achieve a BACM level of control.
In fact, the history of the control of agricultural operations in
Maricopa County, alluded to by the commenter, is instructive. In August
1988, EPA promulgated a FIP for the Phoenix PM-10 moderate
nonattainment area.\24\ Among other things, the FIP provided for the
implementation of RACM for agricultural fields and aprons via an
enforceable commitment to propose and finalize adoption of RACM for
those sources in September 1999 and April 2000, respectively. In the
preamble to the rule EPA explained that the Agency intended to convene
a stakeholder process to develop the specific RACM that would
ultimately be proposed for adoption and that EPA intended the RACM to
take the form of BMPs. 63 FR 41326 (August 3, 1988). Thus, rather than
an adopted regulation, EPA promulgated a commitment accompanied by a
conceptual description of the program to meet the CAA's RACM
requirements.
---------------------------------------------------------------------------
\24\ The area was subsequently reclassified as a serious PM-10
nonattainment area. 61 FR 21372 (May 10, 1996).
---------------------------------------------------------------------------
In 1997, Arizona passed legislation establishing an Agricultural
BMP Committee and directing the Committee to adopt by rule by June 10,
2000, an agricultural general permit specifying BMPs for reducing PM-10
from agricultural activities. The legislation also required that
implementation of the agricultural controls begin by June 10, 2000 with
an education program and full compliance with the rule be achieved by
December 31, 2001. See Arizona Revised Statutes (A.R.S.) 49-457. On
June 29, 1999, we approved the legislation as meeting the RACM
requirements of the CAA and withdrew the FIP commitment to adopt and
implement RACM for agricultural fields and aprons in the Maricopa area.
64 FR 34726. While more extensive than the FIP commitment, the
legislation approved by EPA as meeting BACM is less detailed than the
Ag CMP Program provisions in the SJV 2003 Plan.
While we approved the Arizona legislation as RACM, it was the
State's intent that it also serve as BACM for agricultural sources in
the serious area PM-10 plan. After a series of meetings during 1999 and
2000, the Agricultural BMP Committee adopted the agricultural general
permit rule and associated definitions, effective May 12, 2000, at
Arizona Administrative Code (AAC) R18-2-610, ``Definitions for R18-2-
611,'' and 611, ``Agricultural PM-10 General Permit; Maricopa PM10
Nonattainment Area'' (collectively, general permit rule). The general
permit rule contains the BMPs that regulated sources are required to
regulate. We approved the general permit rule as meeting the CAA
requirement for RACM on September 10, 2001 (66 FR 34598) and for BACM
on July 25, 2002 (67 FR 48718).
Thus, in the Phoenix area, the development of RACM/BACM controls
took a number of years and evolved from a simple commitment to adopt
and implement RACM to a fully developed general permit rule with
specific BMPs that provides for a BACM level of control. The evolution
from a commitment through an expanded conceptual approach to the final
rule was necessary for a number of reasons, chief among them that the
agricultural sector had traditionally been unregulated. As such,
extensive stakeholder input, among other things, was absolutely
essential. In the SJV, the development of a mature regulatory program
is necessarily following a similar path from concept to specific controls.
Comment 8: One commenter (D. Moralez) inquires about the mechanism
for including VOC controls in the Ag CMP program. Commenter also
recommends a recordkeeping requirement for pesticides and other VOC-
containing materials applied to agricultural crops in the Ag CMP program.
Response: The 2003 PM-10 Plan does not include VOC reductions from
the Ag CMP program. The District will be developing their ozone plan in
coming months which may address VOC emissions from pesticides.
3. Ag Crop Processing Losses and Ag Products Processing Losses
Comment 1: Earthjustice comments that the Plan fails to implement
BACM for agricultural crop processing losses and agricultural products
processing losses. The Plan has identified these as significant source
categories. As a result, it is not sufficient that the Plan merely
states the District's unenforceable intention to update these inventory
items.
Response: After the close of the comment period, we discussed this
and other comments with District staff and received copy of a March 30,
2004 memorandum from George Heinen (SJVUAPCD) to Scott Nester
(SJVUAPCD) regarding, ``EPA questions on 2003 PM10 Attainment
Demonstration Plan'' (SJVUAPCD's 3/30/04 memo). As discussed in this
memo, these categories were vestiges of past emission inventory
practices and encompassed field activities (crop processing) and post-
harvest activities (product processing). Implementation of BACM for the
field activities is addressed by other components of the Plan,
including the Conservation Management Practice program and state and
federal mobile source controls. Implementation of BACM for the post-
harvest activities, which are primarily stationary heat sources, is
also addressed by other components of the Plan, including SJV Rule 4306
(boilers, steam generators and process heaters), commitment C (dryers),
and commitment I (small boilers, steam generators and process heaters).
2003 PM-10 Plan, 4-23. The statement in the Plan regarding inventory
improvements was not intended as a demonstration of BACM implementation.
[[Page 30017]]
4. Plastics and Plastic Products Manufacturing Sources
Comment 1: Earthjustice comments that the Plan fails to implement
BACM for plastics and plastic products manufacturing sources. The Plan
does not demonstrate that the regulations adopted in 2000 fulfill BACM
nor does the Plan justify that it is appropriate to use an inventory
for a different year in evaluating emissions from this category as de
minimis. Furthermore, the Plan does not demonstrate that emissions from
this source category will be de minimis in future years, when emissions
are projected to increase.
Response: SJVUAPCD's 3/30/04 memo explains that after the Plan was
developed, the District determined that emissions had been
overestimated for this source category. It appears that the 1.5 tons
per day (tpd) emission estimate was based on obsolete inventory methods
preceding consolidation of the eight county air pollution control
districts into the SJVUAPCD. SJVUAPCD's current emissions estimate,
based on information for each of the specific sources within the
category, is 0.07 tpd of PM-10. We believe that this information is
derived from a more accurate methodology than the 1.5 tpd estimate and
is well below the de minimis level of .9 tpd for PM-10. 2003 PM-10
Plan, pages 4-14 to 4-15.
5. Cotton Gins
Comment 1: Earthjustice comments that the Plan fails to implement
BACM for cotton gins. The Plan merely describes various measures that
could be adopted to implement BACM, and does not even clearly commit to
specific requirements.
Response: We agree that the description of this control measure on
page 4-30 of the Plan does not explicitly commit to specific
requirements for cotton gins. However, language on pages 4-22, 4-23 and
4-30 clearly and explicitly commits to 1.5 tpd of NOX
emission reductions from this category. SJVUACPD's 3/30/04 memo
explains that the 1.5 tpd commitment was based on an assumption that
high efficiency 1D-3D and 2D-2D cyclones would be required of existing
sources. EPA's TSD noted that 1D-3D cyclones are considered BACT when
issuing permits for new and modified sources in the SJV. BACT
determinations associated with permits for new and modified sources are
generally at least as stringent as BACM for existing sources because it
is generally more cost effective to control new sources than existing
sources. The Plan committed to adopt BACM requirements for cotton gins
by the 4th quarter of 2004. SJVUAPCD has drafted Rule 4204 to regulate
cotton gins, held workshops on the draft rule, and appears on schedule
for 4th quarter 2004 adoption. The April 6, 2004 draft staff report for
Rule 4204 includes analysis of several alternative control strategies
(e.g., rotary drum filters, mechanical conveyors and plenum chambers)
which further supports the conclusion that 1D-3D cyclones generally
fulfill BACM for this source category.
6. Manufacturing and Industrial Fuel Combustion Sources
Comment 1: Earthjustice comments that the Plan fails to implement
BACM for manufacturing and industrial fuel combustion sources. The Plan
merely describes generalized control concepts that could be developed,
and does not even clearly commit to specific requirements. No basis is
provided for EPA's conclusion that controls to be developed for
industrial water heaters will generally establish 30 ppm NOX
limits similar to SCAQMD Rules 1146.1 and 1146.2.
Response: We agree that the descriptions of these control measures
on pages 4-31, 4-43 and 4-44 of the Plan do not explicitly commit to
specific requirements for manufacturing and industrial fuel combustion
sources. However, the language on pages 4-22, 4-23, 4-30, 4-31 and 4-42
to 4-44 clearly and explicitly commits to 2.2 tpd of NOX
emission reductions from this category. SJVUAPCD's 3/30/04 memo
explains that the 2.2 tpd commitment was based on an assumption that a
30 ppmv standard would be applied to these sources. This memo notes
that, ``as part of the Plan development effort, the District examined
similar, existing standards and found the 30 ppmv limits in SCAQMD
Rules 1146.1 and 1146.2 to be the most stringent rules, at that time.''
SCAQMD staff reports for these actions include analysis of several
control measures and estimates cost effectiveness of Rule 1146.2
requirements as high as $8,400/ton for retrofitting some units.
7. Oil Drilling and Workover
Comment 1: Earthjustice comments that the Plan fails to implement
BACM for oil drilling and workover sources. The Plan fails to evaluate
lower emission limits such as those promulgated in Ventura County Rule
74.16 and SJVUAPCD 4701 and the State has not submitted a revised
version of SJVUAPCD Rule 2280.
Response: The TSD associated with our proposed approval of the Plan
explains that SJVUAPCD Rule 2280 and CARB's portable equipment
registration program (PERP, see 13 California Code of Regulations 2450-
2466) provide BACM for this category. These rules establish numerous
operational requirements and emission limitations for applicable
engines. Sources may choose to register engines, including those used
for oil drilling and workover, under either PERP or SJVUAPCD's
analogous Rule 2280 program. Most sources register under PERP because
it is less expensive and allows use of portable engines throughout the
state.
We believe that PERP does on balance provide more stringent
requirements than Ventura County Rule 74.16 for engines used in oil
drilling and workover. While Ventura County Rule 74.16.B.1 requires
electrification of drilling operations, most sources have been exempted
from this requirement under section C of the rule and few, if any, new
wells have electrified as a result of this requirement (per telephone
conversation between Karl Krause, Ventura County APCD, and Andrew
Steckel). As a result, most sources subject to Ventura County Rule
74.16 must comply with the State (adopted January 27, 2000 http://
www.arb.ca.gov/regact/ciengine/ciengine.htm) and national
(40 CFR 89.112) Tier 1 NOX standard for off-road compression
ignition engines. By comparison, the PERP program has required most
engines to comply with Tier 1 or more stringent Tier 2 standards. In
addition, Ventura County Rule 74.16 applies only to new well drilling,
while PERP applies to both new wells and well workover. We note that
comparison to SJVUAPCD Rule 4701 limits is not necessary because Rule
4701 was not designed to control engines used for oil drilling and
workover.
8. Residential Water Heaters
Comment 1: Earthjustice comments that the Plan fails to implement
BACM for residential water heaters. The Plan does not demonstrate that
Rule 4902's 40 nanogram/joule limit fulfills BACM in light of the 10
nanogram/joule limit in SCAQMD Rule 1121.
Response: SJVUAPCD's 3/30/04 memo explains that there is
significant concern that Rule 1121's technology-forcing limit of 10
nanogram/joule may not be adequately available by the compliance
deadlines. The memo notes that SCAQMD has received approximately $1
million in mitigation fees from manufacturers to date for failing to
meet Rule 1121's currently applicable 20 nanogram/joule limit,
suggesting that this limit is also not yet adequately available. In
addition, all
[[Page 30018]]
manufacturers have requested a delay in implementing Rule 1121's future
effective 10 nanogram/joule limit. As discussed in the TSD for EPA's
proposed approval of the Plan, when Rule 1121's more stringent limits
are demonstrated to be adequately available, they may become a basis
for future BACM determinations.
9. Charbroiling
Comment 1: Earthjustice comments that the Plan fails to implement
BACM for charbroiling sources. Neither the Plan nor EPA has provided a
demonstration that SJVUAPCD Rule 4692 or SCAQMD Rule 1138 fulfills BACM.
Response: In developing Rule 4692, Commercial Charbroiling,
SJVUAPCD investigated the scope of the source category, currently
available control technologies, emission reduction potential and cost-
effectiveness of various options.\25\ SJVUAPCD determined that
flameless catalytic oxidizers can reduce PM-10 emissions by 83% and VOC
emissions by 86%, with an overall cost-effectiveness of approximately
$3,000 per ton of reduced emissions. Fiber-bed filters, thermal
incinerators, and activated carbon adsorbers were among the other
control technologies considered. SJVUAPCD acknowledged that some
technologies (e.g., thermal incineration) may result in higher control
efficiencies, but SJVUAPCD believes these technologies are not
practical to require for every source because of the overall expense
and cost effectiveness. SJVUAPCD estimates that implementation of Rule
4692 will reduce PM-10 emissions by 0.11 ton/day. Based on the
requirements contained in Rule 4692 and the detailed analyses provided
in the associated staff report, we believe SJVUAPCD has adequately
demonstrated implementation of BACM for commercial charbroilers.
---------------------------------------------------------------------------
\25\ Final Staff Report for SJVUAPCD Rule 4692, March 21, 2002.
---------------------------------------------------------------------------
The TSD associated with our proposed approval of the Plan further
notes that SJVUAPCD used SCAQMD Rule 1138 as guidance in developing
SJVUAPCD Rule 4692 for this category. The TSD associated with our
proposed approval of the Plan further notes that SJVUAPCD used SCAQMD
Rule 1138 as guidance in developing SJVUAPCD Rule 4692 for this
category. SCAQMD Rule 1138 is considered the most effective district
regulatory standard in effect for this source category and SJVUAPCD
Rule 4692 is nearly identical. See SJVUAPCD's 3/21/02 staff report for
Rule 4692.
10. Regulation VIII Fugitive Dust Sources
Comment 1: Earthjustice states that the ``Fugitive PM-10 Management
Plan'' (FPMP) compliance alternative in Rules 8061, 8071 and 8081 does
not appear to have a basis for its inclusion and no other district has
such a provision. The commenter compares Rule 8081's 20% opacity
limits, stabilized unpaved road requirements, and concrete compliance
options (e.g., watering) to the FPMP compliance alternative's minimum
control efficiency requirement of 50% and its lack of a clear mandate
to comply with 20% opacity. On this basis, the commenter states that
the FPMP compliance alternative does not add any clear benefit to the
rule and, in fact, could weaken it.
Response: The FPMP's requirement that 50% control efficiency be
achieved is equivalent to the minimum control efficiency expected from
compliance with Rule 8081's surface stabilization requirement \26\
which otherwise applies. We agree that the FPMP alternative does not
contain an explicit requirement for sources to comply with 20% opacity.
However, it is unclear whether compliance with 20% opacity would
necessarily increase control efficiency for unpaved roads or parking
areas above the minimum 50% control mandated. Also, while the FPMP
alternative does not specify control measure options from which
applicants can choose, all FPMPs must include the control measure to be
applied (see Rules 8011 and 8081, section 7.5.4.) along with specific
information as to the method, frequency and intensity of the
application. Therefore, the FPMP alternative offers the same minimum
control efficiency (50%) and a defined method of control as would
otherwise be achieved by compliance absent a FPMP.
---------------------------------------------------------------------------
\26\ ``Technical Support Document for Maricopa County
Nonattainment Area PM-10 FIP: Revision to the Phoenix FIP final rule
for Unpaved Parking Lots, Unpaved Roads and Vacant Lots,'' January
19, 1999, page 3.
---------------------------------------------------------------------------
Potential benefits of FPMPs include: owners/operators expressly
planning in advance where and when vehicle trip thresholds in the rule
will be exceeded and the details of dust suppressant application or
other treatment; an emphasis on preventative control as opposed to
remedial control in response to a 20% opacity exceedance, and; a
potential mechanism for targeted inspections by the District.
Comment 2: Earthjustice states that the Rule 8081 FPMP
administrative requirement allowing growers to submit plans to the
Natural Resources Conservation Service (NRCS) instead of to the
SJVUAPCD is not justified. The NRCS' role should be limited to
providing technical information rather than evaluating compliance
alternatives.
Response: Although FPMPs do not need to be submitted to the
District for approval, the District is responsible for developing
guidance and criteria by which NRCS (specifically, local resource
conservation districts or the Fresno Regional Office) would use to
evaluate the FPMPs in order to verify their consistency with the
District's guidance. Therefore, the NRCS' role is limited to reviewing
the FPMPs for consistency with the District's guidance, rather than
evaluating compliance alternatives absent criteria. Furthermore, all
verified FPMPs are to be made available to the District and the public.
For these reasons, in addition to the requirement for FPMPs to
demonstrate 50% control efficiency, we believe the FPMP administrative
requirements are sufficient to ensure enforceable controls.
Comment 3: Earthjustice states that Maricopa's Dust Control Plan
requirements (as contained in Maricopa County Rules 310 and 303)
provide a more appropriate model for an acceptable FPMP.
Response: Maricopa's Dust Control Plan requirements are specific to
construction sites, which have multiple sources of fugitive dust. The
FPMP provisions of Rules 8061, 8071 and 8081 only apply to unpaved
roads and unpaved vehicle/equipment traffic areas. Therefore, we do not
believe it is necessary for the FPMPs to be modeled after the extensive
dust control plan requirements adopted in Maricopa County for
construction sites.
Comment 4: Earthjustice states that the Plan retains a threshold of
500-3,000 average daily trips to trigger the requirement to pave
shoulders in Rule 8061. It is unclear what a threshold with a range
means in practice. In order to meet BACM, the Plan should either
establish the threshold as 500 average daily trips or justify any
higher threshold.
Response: The format of the 500-3,000 average annual daily trip
(AADT) threshold for existing paved roads in Rule 8061 does not
adversely impact the rule's clarity. In practice, cities and counties
responsible for modifying existing paved roads determine the AADT of
the road. If the AADT is between 500 and 3,000, Rule 8061 requires a 4-
foot shoulder to be established, and if the AADT is above 3,000, Rule
8061 requires a 8-foot
[[Page 30019]]
shoulder to be established. For purposes of meeting BACM, the rule
clearly establishes 500 AADT as the baseline threshold above which
paved road shoulder requirements apply. Thus, we do not agree with the
commenter that the requirement is unclear or insufficient to meet BACM.
Comment 5: Earthjustice states that although the Plan commits to
remove the exemption for ``implements of husbandry'' from vehicle daily
trip counts in Rule 8081, the 75 vehicle daily trip threshold should be
lowered to account for higher emissions resulting from multiple
wheelsets of implements of husbandry. The rule credits trips made by
implements of husbandry the same as trips made by passenger vehicles
and this may underestimate emissions from implements of husbandry.
Response: The District's BACM analysis for Rule 8081 evaluates
emissions from both passenger vehicles and implements of husbandry with
multiple wheelsets, e.g., tractors and implements with 8 wheels, using
EPA's AP-42 emissions factor equation for unpaved roads. The District
concludes that a tractor operating between 4 and 9 miles per hour
produces 85-88 percent of the emissions produced by a pickup truck
traveling 15 miles per hour.\27\ This analysis supports including
implements of husbandry in the rule's vehicle trip threshold, but not
the commenter's assertion that implements of husbandry generate higher
emissions than passenger vehicles and that the 75 vehicle trip
threshold should be lowered.
---------------------------------------------------------------------------
\27\ PM-10 Plan at Appendix G, Exhibit C ``Supplemental BACM
Analysis'', page 27.
---------------------------------------------------------------------------
Comment 6: Earthjustice states that the District eliminated a
proposed commitment to require that visible emissions not travel beyond
the property line on the basis that such disturbances would be
``subject to the District's nuisance rule.'' The commenter indicates
that many counties in the Valley specifically exempt agriculture from
nuisance rules and lack a mechanism to control dust traveling beyond
property lines. The commenter concludes that no basis exists for
SJVUAPCD's elimination of its initial commitment to control visible
emissions that travel beyond property lines.
Response: EPA's proposed approval of Regulation VIII as BACM (69 FR
5420-5421) absent a property line limitation for visible emissions was
not based on the District's statement that sources are subject to the
District's nuisance rule. Rather, we believe that a property line limit
provides little to no benefit when a fugitive dust source is located
well within the property line. Alternatively, if a source is located
immediately adjacent to the property line (e.g., an unpaved road), it
may be technically infeasible to comply with a property line limit
which would essentially require that no dust be emitted. The applicable
standard in Regulation VIII for visible fugitive dust is 20% opacity.
Comparing the relative stringency of a property line limit to an
opacity standard is technically difficult due to the variety of
meteorological and other factors associated with any scenario. However,
because the 20% opacity standard is determined at the source's origin,
we generally consider it to be the more stringent standard given the
speed with which visible fugitive dust particles disperse into the
atmosphere. Therefore, we are relying on the applicability of the 20%
opacity standard in lieu of a property line limit for purposes of
meeting the BACM requirement.
Comment 7: Earthjustice states that the Plan unjustifiably lacks a
commitment to include a 100-foot dust plume limit. SCAQMD Rule 403
includes a 100-foot limit. The commenter notes that SJVUAPCD defended
the importance of a plume distance threshold as a measure ``of value
for construction site managers to judge the need for additional control
application'' \28\ and that ``a combination of opacity with plume
distance limits (e.g., 100 yards) is the best standard to use.'' \29\
Notwithstanding, SJVUAPCD eliminated the proposed commitment to
establish a 100-foot dust limit.
---------------------------------------------------------------------------
\28\ SJVUAPCD response to April 21, 2003 EPA comments at No. 118.
\29\ PM-10 Plan at Appendix G, page G-28.
---------------------------------------------------------------------------
Response: The District raises concerns as to the technical
feasibility of compliance with a 100-foot limit, given the speed with
which a moving vehicle or mobile construction equipment can cover a
100-foot area.\30\ The inclusion of a 100-foot limit in SCAQMD Rule 403
does not mean it is necessary for Regulation VIII to meet BACM, as long
as other applicable limits combined provide adequate stringency. We
believe the combined effect of the 20% opacity limit and control
measure requirements in Regulation VIII are sufficient to meet BACM.
---------------------------------------------------------------------------
\30\ PM-10 Plan at Appendix G, Exhibit C ``Supplemental BACM
Analysis,'' page 17.
---------------------------------------------------------------------------
11. Significant Sources of VOC, Ammonia and SOX
Comment 1: Earthjustice disagrees that a BACM demonstration is not
needed for VOC, ammonia and SOX based on the NOX/
PM strategy. They question the defensibility of the NOX/PM
strategy and even if it is the most expeditious strategy for attaining
the PM-10 standards, Earthjustice believes the District still retains
the obligation to evaluate and include BACM/BACT for significant
sources of VOC, ammonia and SOX as BACM are to be
established generally independent of the attainment needs of an area.
In addition, Earthjustice points out that livestock waste is the
most significant VOC source under the District's control, that the
South Coast Air Quality Management District is controlling VOCs and
ammonia from this source and that the SJV's Ag CMP program only covers
the PM-10 emissions from this source. Pesticides and fertilizers is
also a very significant source of VOCs in the SJV, not currently
covered by BACM requirements.
Finally, Earthjustice points out that EPA has previously provided
comments to the District about the lack of BACM for non-de minimis
sources of VOCs. In particular, Earthjustice points out that EPA wrote
``Categories that must be analyzed for BACM include coatings and
related process solvents; other cleaning and surface coatings; waste
burning and disposal; food and agriculture (industrial processes);
nonmetallic minerals (this BACM analysis should consider any processing
activity not addressed by Regulation VIII) and landfill gases.''
Earthjustice also points out that EPA commented that the steam enhanced
oil well vents category had not been adequately evaluated for BACM as
it did not contain provisions found in similar Ventura and South Coast
rules. Since EPA previously treated these source categories as needing
BACM, Earthjustice believes EPA has no basis on which to conclude that
BACM demonstration are not needed at this time.
Response: As discussed in section II.A. above, EPA is concurring
with the SJV PM-10 Plan's NOX/PM strategy until the CRPAQS
results become available. Since, consistent with the NOX/PM
strategy, VOC, SOX and ammonia reductions are not necessary
for attainment, EPA believes a BACM demonstration is not necessary at
this time for these precursors. 69 FR 5412, 5423. If the CRPAQS results
indicate that reduction of precursors other than NOX play a
significant role in reducing PM-10, the District will be required to
revise the 2003 PM-10 Plan to include BACM for those precursors and any
additional reductions needed for expeditious attainment.
[[Page 30020]]
In an April 23, 2003 letter to the District, EPA commented that
certain VOC source categories needed to be evaluated for BACM; however,
these preliminary comments were based on an initial review of the
District's Draft PM-10 Plan dated March 25, 2003.\31\ In response to
EPA's comments, the District included an enforceable commitment to
revise the 2003 PM-10 Plan by March 2006 using the CRPAQS results which
will provide the necessary technical information to clearly understand
the role VOC, SOX and ammonia play in attaining the PM-10
standards in the SJV. Given this enforceable commitment and the
NOX/PM strategy, EPA believes that requiring BACM/BACT
demonstrations for VOC, SOX and ammonia is not warranted at
this time.
---------------------------------------------------------------------------
\31\ Letter from Jack P. Broadbent to David L. Crow, RE:
Preliminary Review of the Draft 2003 PM-10 Plan, April 21, 2003.
---------------------------------------------------------------------------
12. Mobile Sources--Transportation Control Measures (TCMs)
Comment 1: Earthjustice states that the Plan fails to include a
BACM analysis addressing any section 108(f) TCMs. The Plan's only
reference to TCMs is its assertion that certain unspecified measures
were analyzed by the Regional Transportation Authorities for the
Valley's ozone ROP plan, and are incorporated by reference in the plan.
However, because the TCMs in the ROP plan were analyzed only for RACM,
Earthjustice believes that the TCMs are insufficient to meet BACM
requirements. The District errs in responding to a public comment that
a BACM analysis needs to be performed when the District states that
EPA's Addendum does not require BACM for TCMs.
Response: The 2003 PM-10 Plan incorporates the 2002 Ozone ROP Plan
analyses and commitments by the 6 metropolitan planning organizations
and 2 transportation planning agencies, representing collectively the 8
counties, numerous transit agencies, and all of the cities in the San
Joaquin Valley ozone nonattainment area.\32\ The commitments and
feasibility analyses are included in Appendix E of the 2002 Ozone ROP
Plan, which consists of approximately one thousand pages of TCM
analyses and resolutions adopted by the local and regional governments,
committing the governments to specific TCMs.
---------------------------------------------------------------------------
\32\ ``The resolutions adopted by the respective entities to
commit to implement local government control measures are included
in the Regional Transportation Planning Agency Commitments for
Implementation Document, April 2002. The document is available for
public review at the central San Joaquin Valley Unified APCD office
located in Fresno. In accordance with the Air District planning
process for the PM-10 Plan, these commitments are incorporated by
reference into the PM-10 Plan. The ozone measures will provide
emission reductions for precursor gases and help to address the
secondary particulate problem.'' PM-10 Plan, Appendix I, page 4.
---------------------------------------------------------------------------
Although the Agency's PM10 BACM guidance does not provide an
extensive discussion of TCMs, EPA agrees with the commenter that the
PM10 BACM requirement applies to TCMs.\33\ CAA section 108(f) lists 16
transportation control measures. In order to ensure that each entity
reviewed comprehensively and consistently these measures, as well as
subcategories of the measures, the San Joaquin Valley agencies broke
the 16 TCMs into a matrix of 126 measures. The agencies then expanded
the matrix by adding 14 other possible measures (labeled 17), 9
``existing local government control measures'' (18), and 22 measures
recommended for consideration by the public (19), for a grand total of
171 measures. Appendix E to the 2002 Ozone ROP Plan (incorporated by
reference in the 2003 PM-10 plan) includes for these measures the
commitments adopted by the multitude of jurisdictions, as well as the
entities' reasoned justifications for not adopting particular measures.
For example, see the ``Fresno COG Summary of Commitments--2002 Severe
Area Ozone Plan,'' displaying the commitments for the Fresno COG
itself, Fresno County, the 15 cities in the County, and the 3 transit
agencies relating to the matrix of candidate control measures.
---------------------------------------------------------------------------
\33\ EPA's General Preamble includes a discussion of RACM
provisions for TCMs: ``Local circumstances relevant to the
reasonableness of any potential control measure involve practical
considerations that cannot be made through a national presumption.
Various TCM's must be locally coordinated to minimize contradictory
results and maximize mutually supportive outcomes. Feasibility of
TCM implementation can thus be particularly complicated, and EPA
recognizes the importance of assessing candidate TCM's in the
context of each particular area's situation. Finally, with respect
to TCM's or any other control measures, EPA does not believe that
Congress intended the RACM requirement to compel the adoption of
measures that are absurd, unenforceable, or impracticable (see 55 FR
38326, September 18, 1990). The EPA, therefore, concludes that it is
inappropriate to create a presumption that all of the measures
listed in section 108(f) are per se reasonably available for all
nonattainment areas. All States must, at a minimum, address the
section 108(f) measures. The EPA believes that at least some of the
measures will be reasonably available for implementation in many
nonattainment areas. Where a section 108(f) measure is reasonably
available, section 172(c)(1) requires its implementation.'' 57 FR
13560 (April 16, 1992). The TCM RACM discussion concludes with
comments on the legislative history of the 1990 CAA Amendments and
EPA's 1979 guidance on RACM as construed by the Court of Appeals for
the Ninth Circuit in Delaney v. EPA, 898 F. 2d 687 (1990).
In the 8/16/94 supplement to the General Preamble relating to
SIPs for Serious PM-10 areas, EPA provided the following brief
guidance on BACM for mobile sources: ``It does not currently appear
that mobile sources, as distinct from the surfaces on which they
travel, contribute significantly to the PM-10 air quality problem in
a sufficient number of areas to warrant issuing national guidance on
best available transportation control measures for PM-10 under
section 190 of the Act. However, in those areas where mobile sources
do contribute significantly to PM-10 violations, the State must, at
a minimum, address the transportation control measures listed in
section 108(f) to determine whether such measures are achievable in
the area considering energy, environmental and economic impacts and
other costs.'' Addendum at 42013.
---------------------------------------------------------------------------
Appendix E includes resolutions adopted by each entity. For each of
the hundreds of measures where implementation has already occurred or
is programmed to occur, the resolutions describe the measure fully,
identify the responsible agency and implementation authority, set out
the implementation schedule, present the levels of personnel and
funding for implementation, specify the enforcement program (if any is
required), and describe the monitoring program.
EPA believes that the explanations for not including specific
measures are equally applicable for BACM as for RACM, because the
justifications reflect each entities' careful considerations and
conclusions that particular measures simply are infeasible for the area
because of technical, practical, or economic reasons. See, for example,
City of Ridgecrest table ``Control Measures Which are Not Feasible for
Implementation''; City of Coalinga Resolution No. 2892; City of Orange
Cove, Resolution No. 2002-12, Exhibit A--Local Government Control
Measures That will not be Implemented; County of Fresno Resolution
#02-128; Kern Council of Governments table ``Example Local
Government Measures.'' The reasoned justifications are based on factors
that make a measure either inapplicable or impractical to the area,
such as density levels, urbanized area configuration, centers of
employment, traffic volume and flow, congestion levels, measure
redundancy, economic issues relating to implementing agencies or public
participation levels, potential for measures to be counter-productive
from an emissions perspective (e.g., creation of new one-way streets),
absence of traffic signals, no means of reasonable enforcement, etc.
The commenter has not shown that any of the analyses and commitments
would be different for BACM, and EPA believes that they would not in
fact differ.
EPA therefore believes that both the analyses performed by the San
Joaquin Valley transportation and governmental entities and the
commitments by the
[[Page 30021]]
entities reflect a conscientious effort to assess the viability of
achieving reductions from implementation of each of the section 108(f)
measures and other possible candidate measures, and to adopt and
expeditiously implement all measures that were determined to be
available at this time.
EPA believes that these assessments were conducted in a thorough
process with full public involvement. The documents were subject to
public review and comment in 5 public workshops before adoption by the
local governments.\34\ Before adoption, the measures and assessments
underwent an extensive process, which is summarized in Appendix I of
the 2003 PM-10 Plan in a document labeled ``Overview of Regional
Transportation Planning Agency Process to Identify and Implement Best
Available Control Measures in Support of the PM-10 Attainment Plan for
the San Joaquin Valley'' (April 2003 RTPA BACM Submittal). This
document sets out an 8-step process for biweekly/monthly meetings to
review candidate measures, obtain input and feedback, share
information, and document in a consistent fashion conclusions on
economic and technological feasibility and program selection and
implementation. This 8-step process was followed as the plans were
being prepared, and the agencies are continuing the process to reassess
the viability of additional controls as circumstances change in the
future. Again, the public is invited to participate in the process and
the results of the process are readily available to the public on a
continuing basis.
---------------------------------------------------------------------------
\34\ The San Joaquin Valley regional transportation planning
agencies developed a Web site to provide the public with information
on the BACM process.
---------------------------------------------------------------------------
Finally, it should also be noted that the San Joaquin Valley
regional transportation planning agencies reviewed the adopted measures
and the candidate measure analyses in the 2002 Ozone ROP Plan and
concluded that they constitute BACM for TCMs and for other types of
measures under their jurisdiction with respect to control of secondary
particulate matter, such as NOX. The agencies further agreed
that they needed also to address additional BACM controls for direct
particulate matter to supplement PM BACM. ``A key requirement for the
PM-10 Attainment Plan is the implementation of Best Available Control
Measures (BACM). Since the ozone measures described in the previous
section will be used to address the secondary particulate problem, the
control measures being pursued for the PM-10 Attainment Plan focus on
direct particulate.'' See ``Overview of Regional Transportation
Planning Agency Process to Identify and Implement Best Available
Control Measures in Support of the PM-10 Attainment Plan for the San
Joaquin Valley'' (April 2003 RTPA BACM Submittal), page 5.
These analyses and the resulting measures are included as elements
of the reentrained dust and street cleaning provisions of the plan
(Regulation VIII), rather than as TCMs. EPA agrees that this is
appropriate, since the only significant source of primary particulate
matter associated with motor vehicles is reentrained dust from paved
and unpaved roads, and the specific control measures to reduce those
emissions (paving unpaved roads, stabilizing access points onto paved
roads, curbing, sweeping, erosion clean-up, etc.) are not categorized
as TCMs. See the definition of TCMs at 40 CFR 93.101: ``Transportation
control measure (TCM) is any measure that is specifically identified
and committed to in the applicable implementation plan that is either
one of the types listed in section 108 of the CAA, or any other measure
for the purpose of reducing emissions or concentrations of air
pollutants from transportation sources by reducing vehicle use or
changing traffic flow or congestion conditions.'' Measures to reduce
primary particulate matter emissions through reductions in ``vehicle
use or changing traffic flow or congestion conditions'' are already
addressed in Appendix E to the 2003 Ozone ROP Plan, since these
categories of measures relate to the ozone precursors NOX
and VOC.
Comment 2: Earthjustice states that the transportation agencies may
have proposed a measure to limit vehicle idling for the ozone ROP plan,
but the plan appears to be voluntary and clearly fails to meet BACM.
The Plan must evaluate implementation of enforceable idling control
measures covering all vehicles and equipment throughout the Valley.
Response: Many of the SJV jurisdictions, as part of their TCM
assessment, considered and rejected mandatory idling controls at the
local level as infeasible, because of enforceability, safety, and
public health issues. Moreover, idling controls were also being
developed on a Statewide basis in ways that would surmount the
feasibility concerns associated with a local program. Before the PM10
Plan was prepared, CARB had already adopted the State's Diesel Risk
Reduction Program (October 2000), and as part of that plan had
scheduled expeditious adoption and implementation of Statewide idling
control programs for diesel vehicles. Also before the PM10 Plan was
prepared, the State had already enacted the most stringent Statewide
idling control measure in the country, a restriction on idling in the
vicinity of schools. CARB has now scheduled a public hearing on July
22-23, 2004, to consider adoption of Statewide idling control
regulations for heavy-duty diesel vehicles.\35\
---------------------------------------------------------------------------
\35\ The CARB public notice of the proposed regulatory program
provides the following summary of the intended regulation: ``The ARB
staff is proposing a regulation to reduce idling emissions from new
2007 and later model year on-road heavy-duty diesel vehicles (HDDV)
with gross vehicle weight rating greater than 14,000 lbs. The
proposal requires HDDVs to be equipped with an idle shutdown system
that will shut down the engine after 5 minutes of continuous
operation at idle. The proposal allows the use of alternative idle
reduction devices/strategies in order to provide heating and air
conditioning for cab comfort, engine oil heating for easy engine
start-up in cold ambient conditions, and electric power to charge
batteries and for on-board accessories. Such devices include, but
are not limited to, an automatic stop-start system, on-board
auxiliary devices such as fuel-fired heaters and auxiliary power
units, and power inverter/chargers for use with batteries and grid
supplied electricity. The use of these devices, in lieu of operating
the heavy-duty engine at idle, will result in significant
NOX reductions. Reductions in ROG, carbon monoxide and
carbon dioxide are also expected, but to a lesser extent depending
on the type of alternative idle reduction device/strategy used.''
More details on the proposed regulation, including the rule
language, appear at:
http://www.arb.ca.gov/regact/hdvidle/hdvidle.htm.
---------------------------------------------------------------------------
One of the San Joaquin Valley agencies' primary justifications for
rejecting adoption and implementation of local idling restrictions was
their determination that local police enforcement programs needed for
non-technology based restrictions on idling were simply infeasible. For
the same reason, the proposed State program emphasizes required
installation of tamper resistant, automatic idling control equipment,
as opposed to an idling prohibition enforceable against vehicle
operators. Like the commenter, CARB concluded that voluntary programs
would be ineffective, based on evaluations of the State's limited
success using educational programs. Unlike the commenter, CARB
determined that idling restrictions on gasoline-fueled vehicles and
engines should not be pursued because the hot and cold start emissions
associated with gasoline engines could cancel out or even exceed the
benefits from reduced idling. San Joaquin Valley entities reached the
same conclusion.\36\ Finally,
[[Page 30022]]
CARB decided to exclude from idling restrictions all commercial and
school buses to avoid jeopardizing public health, in view of the need
for continuous passenger cooling and heating.
---------------------------------------------------------------------------
\36\ See, for example, the reasoned justification adopted by the
City of Clovis in Appendix E of the 2003 Ozone ROP Plan for not
adopting an idling restriction: ``This measure is infeasible for the
City of Clovis Police Department to implement at this time because
traffic stall or congestion is almost exclusively limited to short
term signal light cycling. It would be impracticable and unadvisable
to turn off engines during this time. Furthermore, based on the type
of short-term traffic delays noted above, the City does not feel
this measure would * * * reduce emissions. Rather this measure would
increase emissions due to the stop and start of engines, as well as
be an issue to public health and safety.''
---------------------------------------------------------------------------
EPA agrees with the State's reasoning and conclusions regarding the
best approach and appropriate targets for idling restrictions. Thus,
EPA supports both the San Joaquin Valley agencies' reasoned
justifications for not pursuing local idling controls and CARB's
rationale for expeditiously developing, adopting, and implementing the
proposed Statewide heavy-duty diesel vehicle idling control program.
13. Mobile Sources--South Coast Fleet and Low Sulfur Diesel Rules
Comment 1: Earthjustice claims that while the Plan includes a
generalized commitment to control emissions from publicly-owned fleets,
Regulation IX is merely in the ``initial stages of development.'' The
Plan fails to incorporate or even evaluate the SCAQMD's fleet rules.
Response: Following adoption of the SCAQMD's fleet rules, the
Engine Manufacturers Association (EMA), joined by other parties, filed
suit against the SCAQMD arguing, among other things, that such rules
were preempted under section 209(a) of the Clean Air Act. Although the
SCAQMD prevailed before the U.S. District Court and U.S. Court of
Appeals for the Ninth Circuit, EMA appealed to the U.S. Supreme Court.
EMA v. SCAQMD, Supreme Court Case Number 02-1343. On April 28, 2004,
the U.S. Supreme Court ruled that at least certain aspects of the
SCAQMD fleet rules appear to be preempted by CAA section 209, and
remanded the case. Based on this decision and pending final resolution
of other issues of authority not addressed by the decision, EPA does
not consider local air district adoption of rules similar to the
SCAQMD's fleet rules to be authorized or required.
Comment 2: Earthjustice comments that the Plan should incorporate a
rule akin to SCAQMD's rule 431.2 (low sulfur diesel). Although EPA will
require all on-road vehicles to use low sulfur fuel by mid-2006 and
California has proposed to adopt rules applying to off-road vehicles in
2006, the District could achieve significant reductions immediately
with the introduction of low sulfur diesel, which would enable new
control technologies.
Response: SCAQMD's rule prohibits producing or supplying greater
than 15 ppm sulfur fuel on and after January 1, 2005, but that date
would be extended to match a later compliance date adopted by CARB, if
no later than June 1, 2006. Rule 431.2(c)(4). CARB has workshopped
amendments to the State's diesel fuel regulations and issued the 15-day
notice for the rule amendments, based on the CARB Board's authorization
to proceed with the rule adoption, which is currently scheduled for
July 24, 2004. On that date, CARB expects to amend the State's diesel
regulations not only to prohibit sale/supply of greater than 15 ppm
sulfur fuel on and after June 1, 2006, for mobile sources and
stationary sources, but also to regulate fuel lubricity levels.
Moreover, EPA's national 15 ppm sulfur rule goes into effect June 1,
2006 for motor vehicles, and EPA has indicated its intention to
finalize in the near future national low sulfur fuel restrictions for
nonroad vehicles and engines as part of the Tier 4 nonroad standards,
which were proposed on May 23, 2003 (68 FR 28328). Finally, it is not
clear that local agencies (as opposed to the State) have authority to
adopt and enforce provisions relating to motor vehicle fuel
specifications. For these reasons, EPA does not agree that adoption by
SJVUAPCD of a rule comparable to SCAQMD's rule 431.2 is appropriate or
required as BACM at this time.
D. Attainment Demonstration
1. Attainment Deadline
Comment 1: Earthjustice states that, under section 188(c)(2) and
(e), serious PM-10 nonattainment areas such as the SJV may be granted
at most one extension of their December 31, 2001 attainment deadlines
of no more than 5 years, i.e., to no later than December 31, 2006.
Instead, in the proposed rule, EPA states that ``because the SJV missed
the 2001 attainment date otherwise applicable, we believe that the
attainment date is governed by other provisions of the CAA.'' 69 FR at
5424. This is not a reasonable basis for failing to apply section
188(e) given the fact that EPA approved deadline extensions for other
serious nonattainment areas, such as Clark County, Coachella Valley,
Maricopa County, the South Coast and Phoenix, after they missed the
2001 date and still applied section 188(e).
Earthjustice further states that EPA cites CAA section 179(d)(3) to
support an extension of a PM-10 nonattainment deadline for the first
time beyond 2006 [sic]. Because the subpart 1 provision EPA cites
applies to nonattainment areas in general as opposed to the PM-10-
specific subpart 4, EPA is not permitted to extend the attainment
deadline for up to 10 years. If EPA's interpretation were correct, EPA
would be permitted to endlessly extend attainment deadlines for up to
10 year periods after each finding of nonattainment. Clearly Congress
intended for all serious PM-10 nonattainment areas to attain by
December 31, 2006 at the very latest. If Congress ``has directly spoken
to the precise question at issue'' and ``the intent of Congress is
clear, that is the end of the matter.'' Chevron at 842-843. It is a
general principle of statutory construction that where a statute
addresses an issue specifically in one section and more generally in
another, the more specific provision applies.
Response: EPA's conclusion regarding the attainment deadline
applicable to the SJV appropriately reconciles the provisions of
sections 188(c)(2) and (e) and 189(d). EPA agrees that, in the first
instance, i.e., upon classification or reclassification to serious, the
attainment deadline for such an area can be no later than December 31,
2001 unless extended in accordance with the conditions in section
188(e) to no later than December 31, 2006. When section 188(c)(2) and
(e) is read in conjunction with section 189(d), however, it is clear
that, after EPA has made a finding of failure to attain for a serious
area, the provisions of section 189(d) apply to the subsequently
required serious area plan.\37\ This is apparent from the plain
language of section 189(d): ``In the case of a Serious PM-10
nonattainment area in which the PM-10 standard is not attained by the
applicable attainment date, the State * * * shall * * *submit within 12
months after the applicable attainment date, plan revisions which
provide for attainment of the PM-10 air quality standard * * *.''
Emphasis added. Section 189(d) clearly governs a situation in which a
serious area has failed to meet its original attainment date of 2001
under section 188(c)(2) (or up to 2006 under section 188(e)) and
therefore must submit a new plan that demonstrates attainment some date
that is beyond the earlier established deadline. Thus, the attainment
plan to be submitted within 12 months of the
[[Page 30023]]
applicable attainment date which has been missed cannot be subject to
the same attainment deadline as the previous plan.
---------------------------------------------------------------------------
\37\ In the case of the serious nonattainment areas other than
the SJV cited by the commenters, EPA had not made findings of
failure to attain the serious area deadline. In such cases, section
188(c)(2) and (e) continues to govern the applicable attainment deadline.
---------------------------------------------------------------------------
Because, however, section 189(d) merely requires the new plan to
``provide for attainment,'' EPA looked elsewhere in the statute to
determine the outer bounds of that deadline. The only other provision
of the statute that addresses planning requirements applicable to a PM-
10 nonattainment area for which EPA has made a finding of nonattainment
is section 179(d). Thus, the Agency did not ignore subpart 4 in favor
of subpart 1, but rather applied subpart 4 to its maximum extent before
turning to subpart 1 to determine the applicable attainment deadline
for the SJV under the prevailing circumstances.
Under section 179(d)(3), the attainment deadline applicable to an
area that misses the serious area attainment date is as soon as
practicable, but no later than 5 years from the publication date of the
nonattainment finding. EPA may, however, extend the attainment deadline
to the extent it deems appropriate for a period no greater than 10
years from the publication date, ``considering the severity of
nonattainment and the availability and feasibility of pollution control
measures.'' Because section 189(d), standing alone, does not establish
a specific outer attainment deadline for areas that fail to meet their
original or (one time) extended deadline, EPA adopted an interpretation
reasonably accommodated to the purpose of the statutory provisions.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. at
842-44. In contrast, the commenters' interpretation would write out of
the statute entirely the language in section 189(d) that addresses
attainment.
Finally commenters claim that ``if EPA's interpretation were
correct, EPA would be permitted to endlessly extend attainment
deadlines for up to 10 year periods after each finding of
nonattainment.'' EPA has the responsibility under CAA sections 179(d)
and 188(b)(2) of determining within 6 months of the applicable
attainment date whether an area has attained the standards. Once EPA
approves a specific deadline for the SJV under section 179(d)(3), it
becomes the applicable deadline for the purpose of such a
determination. If the SJV fails to meet its 179(d)(3) deadline, the
provisions of section 189(d) will once again apply. We believe that
result is what Congress intended in these circumstances.
2. Attainment Demonstration Overestimates Emission Reductions
Comment 1: Earthjustice believes that the emissions reductions from
certain control measures are drastically overstated. In particular,
they point out that many of the proposed practices listed in the Ag CMP
are commonly acknowledged to be in widespread practice already, but
whose reductions have not been included in the emission inventory.
Earthjustice argues that if this is the case, then the plan's inventory
is overstated and future reductions from the Ag CMP program to meet
attainment and the 5% requirement will not be achieved because they are
already in the baseline. In addition, Earthjustice points out that many
of the emission factors have been lowered and the inventory may not
reflect existing practices, thus, overstating future reduction
estimates. Either way, Earthjustice believes that since many growers
are already implementing the CMP, the current inventory and reductions
for the attainment demonstration are not accurately portrayed.
Response: The inventory and emissions reductions estimates found in
the 2003 PM-10 Plan are based on the best available data at the time of
Plan development. The District is currently developing the Ag CMP
program's rule and a draft list of CMP is available for review. As
stated previously, that rule is not the subject of this rulemaking and
we will thoroughly evaluate the rule once it has been adopted by the
District and submitted to us. We note, however, that while some of the
CMP on the draft list may already be implemented by some farmers, this
may only mean that these farmers are already implementing BACM. We also
note that the latest draft of Rule 4550 contains a backstop provision
to ensure that sufficient emission reductions are achieved by the
agricultural sector.
3. Attainment as Expeditiously as Practicable
Comment 1: CRPE comments that because the five percent requirement
has not been adequately addressed and because the Ag CMP program does
not require BACM, the Plan does not demonstrate attainment will be
achieved as expeditiously as practicable.
Response: Since we believe that the section 189(d) five percent
requirement has been met and that the BACM requirement for agricultural
sources has also been met, we continue to believe attainment is based
on all reasonably achievable emissions reductions and is as expeditious
as practicable. See, respectively, section II. E. and C.2.
E. Five Percent Demonstration
Comment 1: Earthjustice and CRPE comment that the Plan fails to
demonstrate ``* * * an annual reduction of PM-10 or PM-10 precursors of
not less than five percent * * *'' (emphasis added) as required by CAA
section 189(d). The commenters assert that the statute is clear in
requiring PM-10 or PM-10 precursor emissions to be reduced by at least
5% in each year. The commenters also point to legislative history which
they assert precludes any interpretation of the statute that would
allow less than 5% reduction of PM-10 or PM-10 precursors in each and
every year until attainment. Finally, the commenters note that the SJV
is the first area subject to the requirements of section 189(d), making
this an important question of first impression.
Response: EPA agrees that this is a question of first impression
and that the application of section 189(d) to the SJV is an important
aspect of this action. Because EPA has not previously applied the
provision, this action represents the Agency's first experience with
interpreting the provision in order to determine how best to implement
the statute in light of the facts of an actual plan. As explained in
the proposed approval of the Plan (69 FR 5412, 5430), EPA believes that
the express statutory language allows the District to develop a plan
that targets reductions of either direct PM-10 or PM-10 precursors in
each year, and to alternate or vary the approach from year to year.
This is a plain reading of the statute that gives effect to the word
``or.'' Even if the statutory provision were ambiguous on this point,
EPA believes that its interpretation is reasonable, given that this
reading of the statute provides some flexibility to the state to
determine whether it is more effective or more practicable to obtain
reductions of direct PM-10 or PM-10 precursors from year to year, as
the facts and circumstances dictate, so long as the state is making
progress towards attainment of the NAAQS as expeditiously as practicable.
As further explained in the proposed rule, EPA believes that the
express statutory language of section 189(d) authorizes the Agency to
approve a plan that achieves 5% reductions of either direct PM-10
emissions, or 5% of the emissions of one or more precursors that EPA
determines to be the precursor emissions appropriate for the District
to target in order to attain the NAAQS as expeditiously as practicable.
EPA believes that this is a literal reading of
[[Page 30024]]
the provision because the term ``precursor'' must be read in light of
what the District establishes and EPA agrees are the chemicals that are
the PM-10 precursors for regulatory purposes in the SJV. Even if the
statute were ambiguous on this point, EPA believes that it is
appropriate to interpret section 189(d) to allow for the calculation of
the 5% reduction of precursors based upon the overall strategy of the
plan. This approach is confirmed by the terms of section 189(e) in
which the statute permits EPA to determine whether or not certain
precursors from stationary sources significantly contribute to
violations of the NAAQS, in essence distinguishing between chemicals
that may be precursors from an academic perspective and chemicals that
should be precursors from the regulatory perspective. Were EPA to
require the District to obtain 5% emission reductions of chemicals that
are not the appropriate precursor or precursors to control, that could
result in reductions that would not expedite attainment.
In this case, the District has designed a plan that targets
reductions of PM-10 and NOX, because they believe that this
strategy will be the most effective and efficient way to reach
attainment. In order to comply with section 189(d), the District has
therefor structured its plan to ensure that it will achieve reductions
of either PM-10 or NOX sufficient to meet the 5%
requirement. As explained elsewhere in more detail, EPA has evaluated
the 2003 Plan as a whole and concurs that, based upon currently
available information, the PM-10 and NOX reduction strategy
will be the most effective approach to attain the PM-10 NAAQS as
expeditiously as practicable. Accordingly, EPA believes that the
reference in section 189(d) to 5% emission reductions of ``PM-10
precursors'' should be interpreted to mean 5% of the precursors that
have been determined to be effective for achieving the NAAQS, i.e., 5%
of the type of emissions that are PM-10 precursors for regulatory
purposes.
For the 2003 Plan, for example, the District has argued and EPA
agrees that it would not be an effective strategy for the District to
obtain 5% reductions of ammonia because this degree of ammonia
reduction would not appreciably move the SJV towards attainment given
that most portions of the area appear to be NOX-limited so
that reductions of ammonia would not be as effective. Similarly, the
District has argued and EPA agrees that reductions of VOC would not be
as useful as reductions of NOX to reduce PM formation, so
that achieving reductions of 5% of VOC emissions would not be as
effective. With respect to SOX, the relatively small amount
of SOX emissions in the District compels the conclusion that
achieving annual reductions of 5% of SOX emissions would not
significantly affect the ambient PM-10 levels in the SJV.
In short, given the PM-10 and NOX strategy adopted by
the District and the supporting technical analysis and modeling they
have provided, NOX is the regulatory ``PM-10 precursor'' in
the SJV for purposes of section 189(d). Should this determination
change as a result of further analysis in the CRAPQS study, the content
of the section 189(d) requirement would also change.
In light of these facts, EPA has concluded that it is appropriate
to read the provisions of section 189(d) to permit the District to
calculate the 5% reduction of PM-10 precursors based upon the overall
strategy of the Plan, i.e., to require a 5% reduction of NOX
in those years that the District is not obtaining a 5% reduction of PM-
10. EPA emphasizes that this approach is appropriate because the
strategy and the technical support for the strategy indicate that
NOX reductions are the most effective control strategy in
the SJV, and that this conclusion might not be appropriate in other
locations with different mixtures of emissions, sources, atmospheric
conditions, and other plan-specific considerations.
These commenters also take issue with the way in which EPA has read
the statute to allow the District to take credit for early reductions
of PM-10 or PM-10 precursors. The commenters assert that because the
statutory language requires ``annual reductions in PM-10 or PM-10
precursor emissions within the area of not less than 5 percent of the
amount of such emissions as reported in the most recent inventory
prepared for such area,'' the District must obtain ``at least'' 5%
reduction in each year of the Plan.
As explained in the proposed rule, EPA does not believe that the
explicit statutory language compels this approach and that such an
interpretation of section 189(d) might not be the best way to encourage
early reductions to achieve the NAAQS. Although the statute does use
the term ``annual reductions,'' the statutory language does not in fact
use the phraseology advocated by the commenters. The provision does not
explicitly require reductions of 5% ``in each year,'' ``in each
individual year,'' ``in each and every year,'' or in any such terms.
The provision instead merely requires that the District's plan must
provide for ``annual reductions'' of not less than 5% and does not
indicate that the plan could not allow such reductions to occur earlier
than would otherwise be required, yet on average or when looked at as a
whole, to have met the requirement of an annual 5% reduction. EPA notes
that Congress did explicitly provide for required emissions reductions
in each year in section 187(g), which is the analogous provision
applicable to carbon monoxide (CO) nonattainment areas that fail to
attain by the applicable attainment date. In that provision, the
statute explicitly requires reductions of ``5 percent per year in each
year.'' Because this was not stipulated in section 189(d), we conclude
that we are permitted to take a different approach.
EPA believes that a plain reading of section 189(d) does not
preclude an approach that permits earlier reductions to count towards
the 5% calculation for subsequent years. To the extent that the
provision is ambiguous on this point, however, EPA believes that its
interpretation is preferable because encouraging reductions earlier is
more consistent with obtaining emissions reductions and achieving the
NAAQS more quickly. EPA acknowledges that the obligation to achieve the
NAAQS as expeditiously as practicable is a separate and simultaneous
obligation, yet also recognizes that legitimate concerns such as the
cost and technical feasibility of control measures might result in
decisions to delay or limit the implementation even of BACM level
controls. By encouraging the District's efforts to obtain reductions
sooner through, e.g., the earliest possible implementation date
notwithstanding resulting higher costs, EPA believes that an
interpretation of section 189(d) to allow early reductions to count
towards the 5% calculation for later years is consistent with the
larger goals of the CAA.
EPA would not, however, agree that section 189(d) would allow
``backloading'' of emissions reductions to meet the 5% calculation
requirement, i.e., if reductions that occur in later years were counted
towards the 5% requirement for earlier years. While the statutory
language of section 189(d) might also be susceptible to an
interpretation allowing backloading of reductions, EPA believes that
such an interpretation would be inconsistent with the goal of the
section, which is to move an area to attainment as expeditiously as
practicable. In addition, other provisions indicate how Congress
addressed situations in which reduction requirement backloading might
be appropriate. In section 182(c)(2)(B), Congress laid out a specific
[[Page 30025]]
approach for backloading of otherwise required VOC reductions. By
contrast, were EPA to interpret section 189(d) rigidly to require at
least 5% reductions in each year as the commenters assert is absolutely
required, a state might feel compelled to schedule the implementation
of controls in order to ensure that it could meet the technical
requirement of at least 5% reductions in each and every year in order
to avoid the legal consequences of failure to meet that requirement.
This might result in decisions that were not optimal in terms of
obtaining emissions reductions from as many sources as possible, as
early as possible, thereby exalting the 5% requirement over the larger
goals of the CAA.
In support of their position that section 189(d) does strictly
require 5% reductions in each and every year, the commenters quote a
particular selection from the legislative history for the CAA in which
the House Committee on Energy and Commerce summarized the provisions of
H.R. 3030, and described section 189(d) as requiring a state ``to
reduce the total tonnage of emissions of PM-10 in the area by at least
5 percent per year in each year after submission of the plan revisions
until attainment of the standard.'' See 1990 CAA Leg. Hist. 3021, 3292.
Setting aside a debate about the relative weight appropriate to a
particular piece of legislative history, EPA also believes that the
quoted language itself does not necessarily contradict the Agency's
interpretation of the provision with respect to giving credit for
earlier reductions. The House Report summary merely states that the
provision requires a new plan that will reduce emissions by at least 5%
``per year in each year,'' but does not explicitly state that the plan
could not provide for earlier reductions that could count toward the
calculation for subsequent years. For the reasons stated above, EPA has
concluded that encouragement of earlier reductions is important and
strict adherence to an interpretation that might dissuade states from
attaining reductions sooner is not a reasonable approach to
interpreting the 5% requirement.
Comment 2: Earthjustice and CRPE comment that neither of the
District's two options for demonstrating a 5% annual reduction
satisfies CAA section 189(d).
Response: EPA agrees that one of the methods proposed by the
District in the 2003 Plan is unacceptable because it would allow
improper calculation of the 5% reduction by adding reductions of PM-10
and reductions of NOX to reach the target percentage. Unless
the District determined the necessary amount of annual reductions by
adding the total tonnage of PM-10 and NOX into one sum and
then calculating 5% of that total sum, this method would be
mathematically incorrect. To say that 2% of 100 units of PM-10 and 3%
of 200 units of NOX equals 5% of one or the other or both is
simply improper; 8 units would not be 5% of 100 units, 200 units, or
300 units. EPA contends that Congress cannot have intended application
of the statute in a way that is inconsistent with basic mathematical
principles, so this approach is not acceptable.\38\
---------------------------------------------------------------------------
\38\ If the District had wanted to achieve 5% from a combination
of PM-10 and NOX, they would have had to achieve 5% of
each (i.e., 5 tons of PM-10 and 10 tons of NOX) or it
might also have been appropriate to achieve 5% of the total
emissions of PM-10 and NOX (i.e., 15 tons total from PM-
10 and NOX). This approach of calculating 5% from a
single summed total of PM-10 and NOX may be an
appropriate interpretation given the insertion of the word ``or''
into the statute, because the approach would at least comport with
basic mathematical principles. It is unnecessary to resolve this
latter point for purposes of today's action, however, because the
2003 Plan did include another option for demonstrating the 5%
calculation that EPA believes is acceptable and consistent with the
statute.
---------------------------------------------------------------------------
In EPA's proposed rule (69 FR 5412, 5430), the Agency recognized
that the ``Alternative Method'' (see 2003 PM-10 Plan, Table 7-2) for
calculating the five percent requirement ``* * * [a]chieves the 5%
annual reduction of either PM-10 or PM-10 precursors * * * [and]
[c]arries forward any reductions beyond 5% towards calculating the 5%
requirement for a future year.'' As explained in the response above,
EPA believes that the explicit language of the statute permits the
District to target reductions of either PM-10 or PM-10 precursors in
each year, and to vary the approach from year to year, depending upon
whether it is more effective or more practicable to obtain reductions
of direct PM-10 or PM-10 precursors from year to year, as the facts and
circumstances dictate. In this approach, the District will obtain 5%
reductions of either the total amount of NOX or the total
amount of PM-10 in each year, or earlier. As described in more detail
above, EPA believes that allowing the District to carry forward excess
reductions in emissions to succeeding years is helpful because it will
encourage earlier reductions and will provide practical flexibility
that a strict numerical approach would not.
Comment 3: CRPE comments that the alternative interpretation
(``Alternative Method'') allows ``extra'' emissions achieved through
BACM rules in 2003, 2004 and 2005 to be applied to later years in order
to meet CAA section 189(d). CRPE believes that section 189(d) requires
the 5% reductions to be in addition to reductions achieved from BACM
requirements since BACM requirements were required to be implemented by
1997. CAA section 189(b)(1)(B); 64 FR 51489 (September 23, 1999). In
addition, CRPE comments that EPA's rationale that allowing reductions
``* * * to be carried forward in order to encourage emissions
reductions as quickly as possible'' should not apply to BACM
requirements since they were due seven years ago.
Response: The commenter is correct that the 2003 Plan uses
reductions achieved through implementation of BACM level controls in
order to meet the 5% requirement of section 189(d). The commenter
asserts that this is inappropriate, given that the reductions required
for BACM level of controls should already have occurred and that the 5%
reduction requirement of section 189(d) should be in addition to those
previously required reductions.
EPA disagrees that this is the proper way to interpret section
189(d) in this situation. Congress did not explicitly word section
189(d) to provide that the 5% reduction may not include reductions that
would otherwise occur as a result of the implementation of BACM level
controls. Instead, Congress simply required that a state that misses
the serious area attainment date must submit a plan that provides for
progress towards attainment on a regular basis, and did not qualify
whether these reductions should occur through the imposition of RACM,
BACM, or indeed any specific level of control. EPA notes that in
another provision, section 182(b)(1)(B), Congress did explicitly direct
EPA to exclude certain emissions reductions for purposes of subsequent
calculations. Similarly, in section 182(c)(2)(B), Congress explicitly
directed EPA to include certain emissions reductions in subsequent
calculations. No such explicit directive appears in section 189(d).
EPA believes that because the provision does not explicitly require
the 5% reductions to be over and above the reductions that could occur
through implementation of BACM level controls, it is more appropriate
to interpret section 189(d) literally as a requirement to implement
controls that meet the percentage reduction requirement. Nevertheless,
the District is still under an obligation to require BACM level
controls to be implemented on the appropriate sources as soon as
possible. In addition to the 5% requirement, the CAA imposes a
continuing obligation to attain the NAAQS as expeditiously as
practicable. Even if the statute is ambiguous with respect to whether the
[[Page 30026]]
5% reduction requirement is in addition to other emission reductions,
EPA believes that its approach is the most reasonable. EPA notes that
the analogous provision for CO nonattainment areas, section 187(g),
explicitly provides that a state's plan must use certain measures that
``in combination with other elements of the revised plan, shall be
adequate to reduce the total tonnage by at least 5% per year.'' EPA
believes that this language demonstrates that Congress contemplated
that a state would use a mixture of measures, including previously
required or available measures, to obtain the reductions that would
meet the 5% reduction requirement. Although section 189(d) does not
include this identical ``in combination with'' language, EPA believes
that the existence of this language in the analogous provision suggests
that its reading of the statute to allow this approach for PM-10 is a
reasonable one.
As a practical matter, EPA recognizes that imposition of BACM level
controls takes time and resources and that a state must often sequence
its efforts in order to achieve the necessary level of controls.\39\
For example, with respect to BACM level controls on direct PM-10
emissions from agricultural sources, EPA agrees that the District will
need a reasonable period of time in order to implement the Ag CMP
program. Were EPA to adopt the commenter's approach, EPA would have to
require the District to meet a 5% reduction requirement above and
beyond the reductions from BACM controls on its sources, and to obtain
those reductions well before the District's rules could reasonably
achieve those reductions. While EPA shares the commenter's serious
concerns that the SJV should attain the NAAQS as expeditiously as
practicable, EPA believes that it would be unreasonable to require the
District to obtain reductions in advance of the time that it can
practicably do so through BACM level controls. EPA believes that the
proper focus is on the requirements that the District implement BACM
and that it do so in the manner and on the schedule that will provide
for the most expeditious attainment of the NAAQS. In this context, the
5% requirement of section 189(d) does provide an impetus for regular
progress towards attainment, as it should. The commenter's suggestion
that the 5% be above and beyond and before what is achievable through
BACM level controls is not a feasible approach, and therefore EPA
believes that it is not an appropriate way to interpret section 189(d)
in the circumstances at hand.
---------------------------------------------------------------------------
\39\ Within the statutory scheme, Congress implicitly recognized
that states could not immediately implement BACM level controls. In
section 189(b)(1)(B), the statute provides that a state plan must
implement BACM within four years after classification or
reclassification to serious PM-10 nonattainment. In this instance,
of course, BACM level controls should have been implemented by 1997.
The more general point, however, is that in developing a plan, EPA
recognizes that it may not be possible for all controls to be
implemented instantaneously.
---------------------------------------------------------------------------
Comment 4: Earthjustice comments that the 2003 Plan includes
incentive measures towards the calculation of the 5% reductions
required by section 189(d). Because the measures are not regulatory and
enforceable, and because the Plan indicates that funding for the
measures has not been provided past 2005, the commenter asserts that
the reductions in the years 2005 to 2010 are not creditable toward the
5% demonstration.
Response: The comment appears to refer to two measures in the SJV
plan: Incentive Programs (IP) and Indirect Source Mitigation Program
(ISMP). The District's commitment to specific emissions reductions from
these measures is shown below.
San Joaquin PM-10 SIP Incentive Programs and Indirect Source Mitigation
Program
[Emission Reductions of NOX in Tons per Day (Annual/Seasonal)]
------------------------------------------------------------------------
Control measure 2005 2008 2010
------------------------------------------------------------------------
Incentive Programs............... 6.3/4.8 6.8/5.2 6.5/5.0
Indirect Source Mitigation 0.7/0.5 2.7/2.0 4.1/3.1
Program.........................
------------------------------------------------------------------------
Source: PM-10 Plan, Tables 4-17 and 4-18.
The IP, which has been in actual operation since 1992, consists of
various elements, including the Heavy-Duty Engine Emission Reduction
Incentive Program, the Reduce Motor Vehicle Emissions (REMOVE) program
for heavy-duty engines, a recently concluded program for light- and
medium-duty vehicles, and a Green Yard Machine Program (electric
lawnmowers). The IP is a long-established program which is continuing,
using various State-Federal funding sources, and the District has
indicated that it will pursue new funding sources to achieve additional
reductions claimed in years after 2005.\40\
---------------------------------------------------------------------------
\40\ The Plan indicates that current funding sources include
California's Carl Moyer Program, State transportation funds, State
peaker power plan offset funds, Federal Congestion Mitigation and
Air Quality Improvement Program (CMAQ), and District Department of
Motor Vehicle (DMV) Surcharge Fees. 2003 PM-10 Plan, page 4-62. It
should be noted that revenue from the $4 DMV registration surcharge
fee is a permanent source of IP funding under State law.
---------------------------------------------------------------------------
The commenter quotes the 2003 Plan's discussion of the relationship
between current funding and the emissions reductions associated with
the measure:
Emission reductions projected to be achieved by completed
projects and with currently committed funding amount to 6.1 tons per
day of NOX by 2005. The Air District expects additional
funding will be obtained to allow continued emission reductions in
later years.
As shown above, the District has committed to achieve an additional
0.2 tpd of NOX reductions by 2010 beyond the level achieved
in 2005 from already completed projects and presently committed funding.
In the SJV, there is a long track record of District and State
funding support for these incentive programs. Moreover, the
quantification and documentation of obtaining of emissions reductions
from these incentive programs are well established and fully adequate
to validate the reductions. See, for example, the Carl Moyer Memorial
Air Quality Standards Attainment Program Guidelines, electronically
available at http://www.arb.ca.gov/msprog/moyer/moyer.htm.
The Moyer program procedures have served as models for the design
of national, state, and local credit validation systems for mobile
source subsidy programs, and California continuously refines these
guidelines to reflect accurately the reductions associated with the
program subsidies. The procedures address emission reduction
quantification issues associated with both baseline emissions and the
amount of reductions
[[Page 30027]]
achievable from the various repower, retrofit, and replacement
technologies and alternative fuel options, as well as issues associated
with project life, enforceable requirements to ensure that reductions
must continue within the nonattainment area, etc.
EPA believes that, by approving the Plan, EPA is approving the
District's enforceable commitments to continue to implement the long-
established programs in the IP to achieve the specified reductions. EPA
and the public may enforce this emission reduction obligation if the
District fails to demonstrate that the reductions have been achieved by
the milestones. EPA therefore disagrees with the commenter that credit
towards the section 189(d) calculation for the IP is unwarranted.
While the IP is indeed an incentive program and relies on
guidelines rather than rules, the ISMP is clearly intended to be
enforced through new Rules 3180 and 9510. In the plan, the District
commits to final implementation of the ISMP regulations in the 4th
quarter of 2004 sufficient to achieve the projected reductions shown
for the milestone years, similar to other regulatory measures. By
approving the plan, EPA is approving the District's enforceable
commitments to implement new ISMP regulations to achieve the specified
reductions. When Rules 3180 and 9510 are submitted as SIP revisions,
EPA will review those regulations, like the future regulations
associated with other committal measures, to ensure that the rules meet
applicable requirements, including federal enforceability. Thus, EPA
disagrees with the commenter's contention that the ISMP is an
unenforceable and non-regulatory measure, and believes that it is
appropriate to include it in the section 189(d) calculations.
Comment 5: Earthjustice comments that section 189(d) does not allow
for ``running averages'' using ``banked'' credits from year to year to
meet the annual 5% reduction requirement. Earthjustice also comments
that the Addendum states that annual reduction requirements require
``linear progress for quantitative milestones'' for areas which meet
certain requirements, as the SJV does. Finally, Earthjustice states
that CAA section 182(c)(2)(B) regarding ozone plans specifically allows
for averaging and had Congress intended similar treatment for PM-10
plans, it would have included such language in section 189(d).
Response: As discussed more fully in response to the commenter
above, EPA believes that the explicit provisions of section 189(d) do
not preclude an approach that would encourage earlier emissions
reductions to count towards the 5% calculation for subsequent years.
Even if the statute were ambiguous on this point, EPA believes that an
interpretation that encourages states to obtain the reductions earlier
than might otherwise be required consistent with prompt adoption and
implementation of BACM level controls and attainment of the NAAQS as
expeditiously as practicable, is an appropriate interpretation. The
commenter disparages the approach by referring to it as ``banking'' or
``running averages,'' but EPA contends that such an approach is more
consistent with the overall goals of the CAA and is more practical
given what would otherwise be a potential disincentive to get
reductions sooner out of concern that there might otherwise be a
failure to get 5% reductions in a later year.
With respect to the commenter's reference to the ``linear
progress'' requirement of the Addendum, as discussed in section II.F.
below, that guidance addresses linear progress with respect to the
reasonable further progress (RFP) provisions of the CAA applicable to
the 2003 Plan. The discussion in the guidance, however, neither
requires linear progress for RFP nor mentions at all the 5% requirement
of section 189(d). Furthermore, EPA believes that strict adherence to
the concept of a perfectly straight line on a graph representing
emissions reductions is less important than obtaining the reductions
earlier, if possible. Given the option, EPA would prefer that a section
189(d) plan with a ten year strategy obtain 50% PM-10 reductions in
year one rather than a more rigid plan that provided only for a
``linear'' reduction of 5% per year for 10 years. Unfortunately, the
difficulties of devising rules, implementing rules, and obtaining
emissions reductions are not usually conducive to such approaches and
require a balancing of what is technologically, economically, and
practicably achievable. This may not easily result in a straight line
on a graph.
EPA agrees with the commenter that the statutory language of
section 182(c)(2)(B) explicitly directs EPA to allow a state to use
early reductions to meet ``reasonable further progress'' requirements
for VOC emission reductions. These provisions do not, however, apply to
PM-10 and do not necessarily indicate or control how EPA should
interpret the different language of section 189(d). The commenter takes
the position that had Congress intended to allow any early PM-10 or PM-
10 precursor reductions to count towards the 5% requirement for later
years, Congress would have inserted provisions similar to section
182(c)(2)(B) into section 189(d). EPA disagrees with the basic
assertion that EPA should not credit early reductions towards the 5%
calculation for a number of reasons, as discussed more fully in other
responses. In this specific context, however, EPA notes that the bulk
of the provision relevant to VOCs is necessary to specify the
conditions under which EPA can allow a state to reduce the percentage
of reductions otherwise required, not how to credit early emission
reductions to meet the percentage reduction requirement for later
years. This fundamental difference at least suggests that EPA need not
follow section 182(c)(2)(B) even by analogy in interpreting section
189(d). To reiterate, EPA believes that its approach in effect ensures
that the plan will achieve reductions of at least 5% of PM-10 or 5% of
PM-10 precursors each year, but encourages earlier reductions rather
than discouraging them.
Comment 6: Earthjustice comments that because the 2003 Plan relies
on a 1.5 to 1 ratio of NOX to PM-10 (secondary nitrate)
reductions for some modeling purposes, EPA should require the District
to use this ratio to determine how many tons of NOX or PM-10
reductions are necessary to meet the section 189(d) 5% requirement. The
commenter suggests that requiring the District to use this ratio might
cause the District to attain the NAAQS as early as 2006, instead of its
target date.
Response: EPA agrees that having approved the NOX-PM-10
ratio for some purposes, it might theoretically be appropriate to
consider requiring the District to use the ratio throughout the Plan,
including in the section 189(d) 5% reduction calculation. However, in
this respect, EPA believes that the literal language of section 189(d)
refers to a plan that will obtain reductions of ``5 percent of the
amount of such emissions, as reported in the most recent inventory
prepared for such area.'' The use of both the term ``amount'' and the
reference to ``the most recent inventory'' clearly seem to refer to
emissions in units of weight, most appropriately tons, given that this
is the common unit of emissions inventories. The explicit language of
section 189(d) does not refer to calculation of the required reductions
of tons of PM-10 or PM-10 precursors by any method that would weight
them differently or require a specific ratio between the tons of
reduction. Unlike other provisions of the CAA which impose an explicit
obligation to make reductions of a given pollutant in accordance with a
set ratio; e.g., sections
[[Page 30028]]
182(a)(4), 182(b)(5), 182(c)(10), 182(d)(2), and 182(e)(1), section
189(d) does not include such a requirement.
The lack of explicit language directing EPA to require a state to
make the PM-10 or PM-10 precursor reductions on a weighted or ratio
basis is perhaps not surprising, given that Congress may well have
recognized the inherent difficulties of specifying the proper ratio in
all circumstances in advance in the statute. Nevertheless, had Congress
desired EPA to make the calculations on an area by area basis, one
would assume that the statute would expressly direct EPA to ascertain
the proper ratio. Given that section 189(d) provides only that there
must be a 5% reduction in the ``amount'' of the respective pollutants,
EPA believes that the language is plain on its face that tons of PM-10
or tons of PM-10 precursor reductions are to be weighted equally.
Even if the language were ambiguous, EPA believes that its
interpretation, that the statute directs the calculation of the
percentage based upon the weight of the respective pollutants and a 1:1
ratio, would seem to be the easiest and most straightforward reading of
the statute and method to perform the 5% calculation. Moreover, EPA
notes that the legislative history cited by the commenters in support
of other arguments discussed above, explicitly refers to section 189(d)
as requiring a plan ``to reduce the tonnage'' of emissions and makes no
explicit mention of any ratio between PM-10 and precursors. EPA
continues to believe that the legislative history cited by the
commenters is not necessarily controlling as to Congressional intent
concerning the provision, but if the legislative history is clear on
any point, it would seem to be that the 5% calculation is to be based
on tonnage of emissions and there is no reference to setting a ratio
between direct PM-10 emissions and PM-10 precursors.
Comment 7: The SJVUAPCD comments that EPA should approve both
methods for demonstrating the 5 percent requirement. In particular, the
District argued that adding the percentages of NOX and PM-10
to meet the 5% requirement would be similar to the ozone rate of
progress guidance which allows aggregation of VOC and NOX
reductions to achieve the 3% requirement. Given that there is no EPA
guidance on meeting section 189(d), the commenter believes the ozone
guidance for rate of progress should apply.
Response: As stated in the proposed rule, EPA does not believe that
the method summarized in Table 7-1 satisfies the CAA section 189(d) 5%
requirement because adding percentages does not achieve the necessary
5% reductions. 69 FR 5412, 5430. To illustrate this as simply as
possible, assuming 100 tons of PM-10 and 100 tons of NOX,
the District believes that a 2% reduction in PM-10 and a 3% reduction
in PM-10 precursor should be allowed. However, this approach would only
yield 5 tons of PM-10 and NOX reductions. Since there are
200 tons of PM-10 and NOX, EPA does not believe that one
could argue that 5 tons is 5% of 200. Because this approach would not
make sense from a simple mathematical perspective, EPA has concluded
that this cannot be a proper interpretation of the provision.
The existing guidance cited by the commenters concerning the use of
either VOC reductions or NOX reductions to meet the rate of
progress percentage requirements of other sections of the CAA is simply
not controlling in light of the explicit statutory language of section
189(d). The commenters also misread the guidance. It requires the
calculation of reduction of NOX and VOCs to be either 3% of
total NOX and VOCs or 3% of NOX and 3% of VOCs.
Finally, EPA believes that it is not necessary to used the strained
mathematical logic of the commenter's approach. As described above in
response to other commenters, EPA does believe that the District's
alternative method for calculation of the 5% reduction does comport
with the statute, so EPA can properly approve the plan as meeting the
requirements of section 189(d) requirements.
F. RFP Demonstration
Comment 1: Earthjustice comments that an analysis of the
incremental reductions towards attainment is not provided in the 2003
PM-10 Plan. Earthjustice believes that the 5% demonstration does not
satisfy the CAA section 172(c)(2) RFP and 189(c)(1) quantitative
milestone requirements as it does not show linear progress toward the
attainment date, which should be December 31, 2006.
Response: The 2003 PM-10 Plan implies that the section 172(c)(2)
RFP requirement is satisfied by meeting the 5% requirement. However, as
discussed in EPA's proposed rule, ``* * * RFP is a separate statutory
requirement and is to be determined relative to attainment. Thus, in
order to satisfy the RFP requirement, there must be an analysis which
shows that incremental reductions towards attainment are being made for
both the 24-hour and annual standards. * * * [EPA's]
evaluation of the
attainment demonstration coupled with the expected yearly emissions
reductions shows that RFP is being met.'' We also determined that the
2003 Plan contains quantitative milestones which are to be achieved
every three years until the area is redesignated to attainment. The
reader is referred to the proposed rule for the details of our
evaluation. 69 FR 5412, 5430-1531.
There is nothing in the language of either section 172(c)(2) or
189(c)(1) that requires linear progress. In fact, section 171(1)
defines RFP as ``such annual incremental reductions in emissions * * *
as are required by this part [D]
or may reasonably be required by the
Administrator for the purpose of ensuring attainment * * * by the
applicable date.'' Emphasis added. Thus the statute provides EPA with
discretion to determine what constitutes RFP in individual cases.
In the Addendum, we explain that historically RFP has been met by
showing annual incremental emission reductions sufficient generally to
maintain at least linear progress towards attainment by the specified
deadline. Addendum at 42015. We then provide several examples of when
``[requiring linear progress reductions may be appropriate.'' Emphasis
added. Id. The use of the word ``may'' clearly indicates that we did
not intend to mandate linear progress in the cited circumstances. We
further buttress this conclusion by explaining that ``EPA will
determine whether the annual emission reductions to be achieved are
reasonable in light of the statutory objective to ensure timely
attainment of the PM-10 NAAQS.'' Id. at 42016.
In the case of the SJV, we have concluded that the annual
incremental reductions in PM-10 and NOX emissions are
sufficient without linear progress to meet the RFP requirements of
sections 172(c)(2) and 189(c)(1).
G. Contingency Measures
Comment 1: Earthjustice states that EPA's proposed approval of the
2003 PM-10 Plan omits any discussion of contingency measures required
by section 172(c)(9) and is in violation of the CAA and the Agency's
own policy (Addendum at 40215). The likelihood that contingency
measures will be necessary is a virtual certainty and in fact should
have gone into effect within 60 days of EPA's July 23, 2002 finding of
failure to attain. EPA has never proposed full approval of a SIP for a
serious PM-10 nonattainment area without a discussion of the adequacy
of contingency measures contained in the plan. The District of Columbia
Circuit Court of Appeals in Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir.
2002) recently vacated an EPA decision to approve a SIP without the
required contingency
[[Page 30029]]
measures. The commenters request that EPA address the adequacy of the
contingency measures in the Plan in its final action and then specifies
the ways in which they consider that the measures fail to meet the
requirements of the Act.
Response: EPA is not required by the CAA or Agency policy to act on
contingency measures in a SIP at the same time that it acts on other
elements of the plan. A SIP is not a single document that is prepared
once and then reviewed and approved as a single action. Rather it is a
collection of regulations, demonstrations, and other items that
develops over time. When the State revises the plan, either to change
an existing element or to add additional elements required by the
statute, the revisions themselves, not the entire plan, are submitted
to EPA. Thus, in reviewing the 2003 Plan, EPA did not have to consider
whether the independent requirement to have contingency measures in the
plan had been met.
This conclusion is well supported by the language and structure of
the Act. The basic requirements of a SIP for a nonattainment area,
including the contingency plan requirement, are listed in section
172(c). The introductory language, by referring to ``plan provisions''
and ``plan items,'' makes clear that the contingency plan provision and
the other subsections of this provision each set forth independent
components of the overall plan. The specific plan revisions under
review here are independent plan requirements that are required by
separate sections of the statute, e.g., section 189(b) and (d).
It is true that section 172(c)(9) refers to the inclusion of
contingency measures in ``the plan revision.'' It is ambiguous,
however, as to what plan revision this section refers. For example,
section 189(b) and (d) requires various revisions to be submitted to
EPA on different schedules: for areas such as the SJV that were
reclassified from moderate to serious under section 188(b)(1), the
attainment demonstration is due within 4 years of reclassification and
the BACM demonstration no later than 18 months from the
reclassification. EPA determined that states must submit contingency
measures for serious PM-10 areas (or otherwise demonstrate that
adequate measures are in place) within 3 years of reclassification.
Addendum at 42015. Thus, the contingency measures contemplated by
section 172(c)(9) are intended to be part of a different plan revision
from the attainment and BACM demonstrations required by section 189(b).
The fact that these submissions were to be made at different times
clearly demonstrates that EPA is not required to consider contingency
measures in its approval of the 2003 Plan.
The severability of these provisions is made even more clear by
section 110(k)(3), which was added as part of the 1990 Amendments to
clarify that EPA is not required to approve or disapprove a submission
as a whole, but may separately approve and disapprove different
portions. It makes no sense to say that Congress gave EPA this
authority, but at the same time prohibited EPA from approving the 2003
Plan without acting on the contingency measures in it. Because the
statute clearly allows EPA to approve these elements of the plan
without considering other elements such as contingency measures, that
is the end of the question. Chevron, 467 U.S. at 842-43.
Consistent with the above interpretation of the Act, on April 13,
2000, EPA proposed to approve certain provisions of the serious area
PM-10 plan for the Phoenix, Arizona nonattainment area. In the
proposal, EPA stated that the ``plan contains contingency measures as
required by CAA section 172(c)(9). We are not proposing action on these
contingency measures at this time. Contingency measures are a distinct
provision of the Clean Air Act that we may act on separately from the
attainment requirements.'' 65 FR 19964, 19965. See also 62 FR 1150
(January 8, 1997) and 65 FR 18903 (April, 10, 2000) (approval of
provisions of California ozone plan revisions without acting on
contingency measures in those revisions).
EPA agrees with the D.C. Circuit's holding in Sierra Club, 294 F.3d
at 164, that contingency measures are required to be included in a SIP
for a nonattainment area. EPA does not believe, however, that the
Agency is prohibited from approving certain elements of the 2003 Plan
without acting on the contingency measures in the plan. As demonstrated
above, these are independent elements of the SIP that EPA can
separately approve or disapprove. EPA also notes that the plan at issue
in the D.C. Circuit's decision in Sierra Club was an ozone plan subject
to the provisions of section 182(c)(9) regarding the inclusion of
contingency measures, while this plan is a PM-10 plan not subject to
those provisions. Because EPA is not acting on the contingency measures
in the 2003 Plan in this action, the Agency is not responding to the
comments raised regarding the adequacy of those measures in the Plan.
EPA intends to act separately on the pending contingency measures and
will respond to all comments on those measures at that time.
H. Full Approval With Commitments Violates the CAA
Comment 1: Earthjustice comments that the Plan must contain actual,
adopted control measures to attain the PM-10 standard. The only
enforceable commitments allowed by the Act are those pursuant to CAA
section 110(k)(4), conditional approvals, which require a commitment by
the state to adopt specific enforceable measures within one year of the
approval.
Response: Our proposed rule provides in detail EPA's rationale for
accepting the enforceable commitments found in the 2003 PM-10 Plan (69
FR 5412, 5427-5429). In short, EPA believes, consistent with past
practice, that the CAA allows for the approval of enforceable
commitments under CAA section 110(k)(3) that are limited in scope where
circumstances exist that warrant the use of such commitments in place
of adopted measures. See 69 FR 5412, footnotes 28 and 29. The U.S.
Court of Appeals for the Fifth Circuit recently upheld EPA's
interpretation and specifically found that nothing in the CAA or in the
legislative history supports the theory that section 110(k)(4) (added
in the 1990 Amendments to the statute) was intended to supplant the
Agency's use of enforceable commitments under sections 110(a)(2)(A) and
172(c)(6). The court further found that, in the 1990 Amendments to the
CAA, Congress in fact expanded EPA's authority under section
110(a)(2)(A). In this respect, the court concluded that because that
section ``is silent on the issue of whether an enforceable commitment
is an `appropriate' `means' or `technique' to reach attainment, EPA's
interpretation must be upheld if the court finds it a permissible
construction of the statute.'' The court proceeded to do so. BCCA
Appeal Group et al. v. U.S.E.P.A. et al., 348 F.3d 93, 115 (5th Cir.
2003). In addition, see section II.C.1. above.
Comment 2: Earthjustice comments that EPA does not use consistent
methods for calculating the percentage of commitments for
NOX and PM-10. Furthermore, EPA needs to evaluate the
percentage of commitments used to specifically satisfy the 5% requirement.
Response: EPA estimates that the NOX enforceable
commitments make up approximately 15-16% of the overall reductions
since 1999 needed for attainment of the annual and 24-hour
[[Page 30030]]
PM-10 standards (69 FR 5412, 5428). For PM-10, EPA estimates that the
enforceable commitments make up approximately 72% and 92% of the
reductions needed to attain the annual and 24-hour standards,
respectively, in the attainment year, 2010 (69 FR 5412, 5428-5429).
EPA believes that the calculation of the reductions in the Plan
attributable to enforceable commitments should include the historical
and ongoing reductions from already adopted programs. This approach
(which Earthjustice calls the ``net emissions reductions'' method) is
used in estimating the NOX reductions where the enforceable
commitment reductions in 2010 are compared to the change in overall
NOX emissions since 1999 which include reductions from
already adopted programs (i.e., state and federal mobile source and
district stationary source rules).\41\
---------------------------------------------------------------------------
\41\ The overall change in NOX emissions since 1999
also includes emissions from growth. Thus, EPA believes this
approach may provide a higher percentage estimate of enforceable
commitments since the additional reductions necessary to offset any
growth are not included in the percentage calculation.
---------------------------------------------------------------------------
For the PM-10 enforceable commitments evaluation, however, EPA uses
a different approach. This is because ``[t]he PM-10 inventories do not
have the same steady decline exhibited by the NOX
inventories due to the need to further refine the backcasted
inventories for PM-10.'' 69 FR 5412, 5428; see also 2003 PM-10 Plan, p.
4-8 to 4-9.\42\ Since using the NOX approach does not
provide a comparison of the 2010 PM-10 enforceable commitment
reductions to the reductions from already adopted programs since 1999,
EPA believes that a better approach in evaluating the PM-10 enforceable
commitments reductions is to compare them to the total reductions
needed in the attainment year (which Earthjustice calls the ``annual
emissions reductions'' method).
---------------------------------------------------------------------------
\42\ According to the 2003 PM-10 Plan, ``[o]ne reason for the
apparent increase in growth in PM10 in the mid-1990s is that a
significant new emissions inventory category, prescribed burning,
totaling approximately 23 tons per day, was added to the emissions
inventory in the late 1990s and was not back cast into prior year
inventories. With that correction, the PM10 inventory will show a
small decline during that period. * * *'' Id.
---------------------------------------------------------------------------
The purpose of the percentage calculations for the NOX
and PM-10 enforceable commitments is to estimate the portion of the
2003 PM-10 Plan attributable to enforceable commitments. EPA believes
the two approaches above do just that and does not believe that a
consistent approach must be used. For this reason, EPA does not believe
that the percentage of enforceable commitments must be evaluated for
separate CAA requirements such as the 5% requirement and reasonable
further progress demonstrations.
Comment 3: Earthjustice comments that the ``three-factor test''
used to determine the acceptability of the commitments is not
consistent with the Act. The fact that district court decisions have
made State commitments enforceable does not mean that EPA can approve
commitment-based plans, especially since there is nothing in the Act
that allows it. Furthermore, even if the three-factor test is allowed,
the factors are not met.
Response: EPA does not rely on district court decisions holding
commitments enforceable as the basis for the Agency's approval of plans
containing commitments. As discussed above and in our proposed rule,
the Fifth Circuit Court of Appeals in BCCA Appeal Group recently upheld
EPA's interpretation of CAA sections 110(a)(2)(A) and 172(c)(6) and the
Agency's use and application of the three factor test in approving
enforceable commitments in the Houston-Galveston ozone SIP. 69 FR 5412,
5427, footnote 30. In addition, as discussed below, EPA believes the
three factors have been met.
Comment 4: Earthjustice comments that the first factor, that the
commitments address a ``limited portion'' of the Plan, is not satisfied
by the Plan and that the percentage of commitments calculated by EPA is
extremely high. The 15-16% of commitments for NOX reductions
and 72-92% of commitments for PM-10 reductions are clearly not a
limited portion of the Plan. Earthjustice points out that the Maricopa
County, Arizona PM-10 plan had a limited portion of commitments which
involved improvements to already adopted rules and improving testing
and enforcement, and all of the BACM measures had been previously
approved by EPA. The Clark County, Nevada plan's commitments were for
incremental reductions above an already adopted baseline with
substantial immediate reductions. These commitment percentages far
exceed the 6% found to be reasonable by the Fifth Circuit Court [in
BCCA Appeal Group]
for the Houston SIP.
Response: The enforceable commitment component in the SJV plan is
higher than for other areas such as Maricopa and Clark Counties;
however, we believe that the percentages must be evaluated on a case-
by-case basis since each area's circumstances are different. For
example, as noted in the proposed rule:
* * * a significant portion * * * of the needed reductions come from
the Ag CMP Program which controls agricultural fugitive dust
sources, a previously unregulated category. * * * measures for
agricultural sources must be determined on a case-by-case basis. The
Ag CMP Program is an effort that is well under way as the District
has worked diligently with stakeholders * * * to develop the best
available measures for the SJV. An enforceable commitment is
necessary at this time in order to allow the additional time
required to further assess the dust measures that the District will
establish for agricultural sources. * * *
69 FR 5412, 5428-5429.
In contrast, Clark County did not need to include any significant
agricultural controls in its plan, and neither Clark County nor
Maricopa County needed to evaluate and prepare control strategies for
secondary PM, while at the same time developing primary PM controls.
Indeed, with the possible exception of the South Coast area, no area in
the country has had to undertake the complexity of the control measure
development task facing the SJV, with its remarkably diverse primary
and secondary PM problem, the dominant place of agricultural controls
in its attainment strategy, and the magnitude of its emissions
reductions target. See also, section II.C.3., response to comment 7.
Given the prevailing conditions in the SJV, EPA believes that the
percentage of commitments in the Plan is acceptable.
Moreover, the majority of the SJV's PM-10 commitments have adoption
and implementation dates in 2004. EPA noted in the proposal that
``[g]iven the difficulties in controlling direct PM-10 in the SJV and
the near term adoption and implementation dates, EPA believes the PM-10
reductions coming from enforceable commitments is acceptable.'' EPA
continues to believe that the percentage of enforceable commitments for
PM-10 is acceptable given these circumstances.
Comment 5: Earthjustice comments that the second factor, that the
State and District are capable of fulfilling their commitment, is also
not satisfied by the plan. Earthjustice does not understand how ongoing
development, past records of accomplishment and a promise to fulfill
the reduction commitments show that they are capable of fulfilling
their commitments. Instead, Earthjustice notes the District's history
of failures and believes there is no basis for EPA to conclude that the
District will fulfill the Plan's commitments.
Response: EPA disagrees and believes that ongoing development, past
record
[[Page 30031]]
of accomplishments and a promise (i.e., enforceable commitment) to
fulfill the reduction commitments do indicate that the District and
State are capable of fulfilling their commitments. As discussed in our
proposed rule (69 FR 5412, 5429), examples of ongoing development
include the Ag CMP Program, Regulation VIII revisions and the State's
mobile source measures. All of these programs are well on their way
towards adoption and implementation. In addition, the State's long
history of success in adopting new and challenging mobile source
controls is a good indication that they will be capable of meeting
their enforceable commitments. Finally, in the event that the Plan's
category-specific enforceable commitments cannot be met, the District
has also committed to ``* * * adopt, submit and implement substitute
rules and measures that will achieve equivalent reductions in the same
adoption and implementation timeframes.'' SJVUAPCD Governing Board,
Resolution No. 03-06-07, #10, June 19, 2003. The commitments in
the 2003 Plan are for requirements and reductions that the District and
State are capable of meeting and are enforceable by EPA and the public.
Comment 6: Finally, Earthjustice comments that the third factor,
that the commitments are for a reasonable and appropriate period of
time, is not satisfied by the Plan. For many categories the
implementation dates extend beyond 2004 and even as far as 2020 for
residential space heating. Furthermore, implementation dates beyond
2004 are unreasonable in light of the past delay (e.g., BACM should
have been implemented by 1997) and severity of the Valley's
nonattainment problem. Finally, Earthjustice notes that Maricopa
County's SIP commitments all had deadlines of less than one year after
their approval and that the District has already slipped on the Ag CMP
program deadlines.
Response: EPA continues to believe that overall the commitments are
for a reasonable and appropriate period of time, especially given the
circumstances in the SJV (see response to comment 4 in this
subsection). Tables 4-15 and 4-16 (2003 PM-10 Plan, 4-52) \43\
summarize the reductions and final implementation dates coming from the
PM-10 commitments. Table 4-15 shows that the majority of the emissions
reductions coming from commitments, approximately 56.5 tpd, have final
implementation dates by 2004. Approximately 9.9 tpd of the committed
emissions reductions will occur after 2004 from Cotton Gins, Regulation
VIII unpaved road measure, the Indirect Source Mitigation Program and
the State and Federal Measures. Table 4-16 shows that approximately
63.5 tpd have final implementation dates by 2004 and approximately 10.2
tpd of the reductions will occur after 2004. Tables 4-17 and 4-18
summarize the reductions and final implementation dates coming from the
NOX commitments. For NOX, the portion of
reductions coming from commitments with implementation dates beyond
2004 is much higher (i.e., approximately 34.3 tpd for the annual
inventory and 34.0 tpd for the seasonal inventory); however, many of
the NOX reductions relied upon by the 2003 PM-10 Plan are
from already adopted measures which will yield substantial reductions.
---------------------------------------------------------------------------
\43\ Tables 4-15 and 4-16 represent the estimated emissions
reductions from commitments for the annual and seasonal inventories,
respectively. The annual inventory is representative of the annual
PM-10 standard and the seasonal inventory is representative of the
24-hour PM-10 standard.
---------------------------------------------------------------------------
As noted by Earthjustice, the residential space heating commitment
has a final implementation date of 2020, modeled after the Bay Area Air
Quality Management District's program (2003 PM-10 Plan at 4-46);
however, the Plan only relies on 0.1 tpd of reductions from this
category which will be achieved in 2010.
Finally, as discussed above in response to comment 4 in this
subsection, the nonattainment situation in the SJV is much more complex
than for most other areas, such as Maricopa County, and EPA believes
that a case-by-case evaluation of the needs for each area is warranted
in determining whether commitments should be accepted. In this regard,
we note that the Ag CMP program is extensive and complicated and
believe that the District is working diligently to ensure that the
program meets the 2004 implementation deadline in their commitment.
Comment 7: CRPE comments that EPA's decision to stop the Regulation
VIII sanctions and FIP clocks based on a PM-10 Plan with commitments
violates the CAA sections 110(c) and 179(a).
Response: As discussed above, EPA believes the enforceable
commitments in the 2003 PM-10 Plan are approvable for overall plan
purposes as well as for other nonattainment area requirements, such as
RACM and BACM. On February 26, 2003, EPA finalized a conditional
approval of Regulation VIII for RACM purposes and simultaneously
finalized a limited approval and limited disapproval of Regulation VIII
for BACM purposes (68 FR 8830). The conditional approval required
SJVUAPCD to provide to EPA a RACM demonstration within a year of the
final action. The BACM limited disapproval identified as deficiencies
SJVUAPCD's failure to submit a BACM demonstration for Regulation VIII
or to make appropriate upgrades to Regulation VIII to ensure that it
meets BACM requirements. Failure to meet the condition of the
conditional approval or address the deficiencies identified in the
limited disapproval would have FIP and sanctions consequences under CAA
sections 110(c) and 179(a). However, as previously discussed, SJVUAPCD
met the condition of the conditional approval and addressed the BACM
deficiencies by including in the 2003 PM-10 Plan adequate RACM/BACM
demonstrations and commitments to upgrade Regulation VIII. See EPA's
TSD for the 2003 PM-10 Plan, January 27, 2004, pages 14-45). Therefore,
this final action appropriately stops all FIP and sanctions clock
implications of EPA's February 26, 2003 and earlier actions regarding
Regulation VIII.\44\
---------------------------------------------------------------------------
\44\ In a separate action raising different issues, certain
organizations have filed an appeal with the Ninth Circuit Court of
Appeals challenging EPA's February 23, 2003 action on Regulation
VIII, See Latino Issues Forum et al. v. U.S. EPA, appeal docketed,
No. 03-70987; Associations of Irritated Residents v. U.S. EPA,
appeal docketed, No. 03-71696 (9th Cir. March 4, 2003).
---------------------------------------------------------------------------
I. Adoption of All Feasible Measures (Section 179(d)(2)) for Ag CMP
Program
Comment 1: CRPE comments that the proposed approval does not
address CAA section 179(d)(2) which states that a SIP revision ``* *
*shall include such additional measures as the Administrator may
reasonably prescribe, including all measures that can be feasibly
implemented in the area in light of technological achievability, costs,
and any nonair quality and other air quality-related health and
environmental impacts.'' CRPE comments that the CMP concept allows
agricultural sources to select at least one practice from each category
and that this conflicts with the requirement for all feasible measures
as stated by section 179(d)(2).
Response: CRPE misinterprets CAA section 179(d)(2) which provides,
among other things, that SIP revisions triggered by a failure to attain
under section 179(d)(1) ``* * *shall include additional measures as the
Administrator may reasonably prescribe, * * *'' Emphasis added. It is
clear from the plain language of this provision, i.e., the use of the
word ``may'' rather than ``shall,'' that Congress intended the
Administrator's action here to be permissive rather than mandatory.
Under this provision,
[[Page 30032]]
therefore, EPA has the option to mandate specific additional feasible
measures beyond those measures otherwise required in nonattainment
areas. EPA is not, however, required to prescribe such measures.
The 2003 Plan does, however, need to address the requirements of
section 189(b)(1)(B) that BACM be applied to all significant sources
such as agricultural sources covered by the CMP program. We have
determined that the CMP program will expeditiously achieve a BACM level
of control. We have also concluded that the Plan provides for
attainment of the PM-10 standards as expeditiously as practicable.
Therefore we did not believe it necessary to require additional
measures pursuant to section 179(d)(2). Thus, since the provision of
section 179(d)(2) cited by the commenters is discretionary and since
EPA has not chosen to prescribe any additional SIP measures under it,
neither the 2003 PM-10 Plan nor EPA's proposed rule was required to
address it.
J. Approval of Commitments for VOC Sources--Wineries
Comment 1: The Wine Institute and the Manufacturers Council of the
Central Valley comment that a great deal of work has been done in
evaluating VOC emissions from wine fermentation. Commenters state that
past work has indicated that winery controls were technically feasible,
but not cost effective. Commenters provided data that indicate winery
emissions are overestimated and state that the District has failed to
include this information. Commenters ask EPA to remove this source
category from the PM-10 Plan prior to EPA approval.
Response: Under the Act, states have primary responsibility for
regulating air quality within their borders. Under CAA section
110(k)(3), EPA has an obligation to act on State submittals. While we
do not believe a rule for wineries is required for purposes of
satisfying the section 182(b)(1)(B) BACM requirement,\45\ we do believe
that such a rule will strengthen the SJV's SIP, especially since VOC
reductions are needed for ozone attainment. Thus, EPA is approving the
commitment under sections 301(a) and 110(k)(3) as strengthening the SIP.
---------------------------------------------------------------------------
\45\ See above comments and responses in section II.A.2. and
C.11.
---------------------------------------------------------------------------
K. Approvability of Indirect Source Mitigation Measure
Comment 1: The California Building Industry Association (CBIA) and
its Affiliate Associations located in the SJV comment that the Indirect
Source Mitigation Program does not meet CAA criteria requiring control
measures to provide quantifiable, surplus, enforceable, permanent, and
adequately supported reductions in air emissions. Thus, CBIA recommends
that the measure should not be approved.
Response: See section II.E., response to comment 4.
L. Windblown Dust Issues
Comment 1: A commenter (C. Swanson) cites an excerpt from the PM-10
Plan, Appendix G, Table G-15 ``BACM Comparative Analysis for ``On-Field
Activities'' concerning the BACM justification discussion associated
with the ``Other'' category of the District's proposed Ag CMP:
The SJV does not have a windblown dust problem to anywhere near
the extent of the other nonattainment areas. The SJV has some of the
lowest average wind speeds in the country. No wind related
exceedances have been recorded in the basin during the last three
years. Wind speeds are highest during the spring when PM-10 levels
are at their lowest. The majority of the fugitive dust emissions are
generated from earth disturbing activities. Certain soil types and
crops are more prone to windblown dust problems. The ``Other''
category will give the farmers with the potential to experience wind
blown dust emissions the flexibility to address this issue with a CMP.
The commenter states that this excerpt provides a synopsis of the PM-10
Plan's characterizations of airflow in the valley and how it relates to
the regulation of agricultural land use. The commenter believes the
Plan's characterizations do not adequately portray the conditions in
the entire valley and may not lead to proper regulatory actions. The
commenter states that his study of the conditions of one dust storm on
June 20, 2002 in Northwest Kern County contradicts the statements in
the excerpt and that wind events on this side of the valley appear to
have an episodic component related to a regular summer cycle of heating
and cooling in the SJV.
Response: Below we respond to the commenter's specific comments on
the statements cited from the Plan. In general, however, the
information in Appendix G, Table G-15 reflects monitored PM-10
exceedances and the District's analysis of meteorological data on
exceedance days. In contrast, the data provided by the commenter is not
sufficient to support the conclusions made with regard to regulatory
actions, given that wind speed data alone does not provide evidence of
PM-10 concentrations.
Comment 2: C. Swanson disagrees with the Plan's assessment that the
San Joaquin Valley Air Basin does not have a windblown dust problem to
anywhere near the extent of the other [PM-10]
nonattainment areas.
Examination of Caltrans data for the southern San Joaquin Valley
reveals that in the year 2002, Caltrans posted signs warning of low
visibility due to windblown dust during all months of the year. Some
locations had warnings posted four different times during the year.
Response: Caltrans windblown dust postings are based on field
observations by Caltrans employees, as opposed to measured PM-10
concentrations. They do not reveal whether exceedances of the PM-10
standards occurred at the locations of the postings. Therefore, neither
the District nor EPA can rely on them for purposes of identifying PM-10
exceedances. The Caltrans-reported events generally do not correlate
with days on which PM-10 monitors exceeded the PM-10 standards.\46\
This means that the Caltrans-reported events are not being recorded by
the monitors and are therefore spatially limited. The District's
monitors have detected some high hourly rates downwind for a few of the
events, but not for substantial enough periods that the 24-hour PM-10
standard is exceeded.\47\
---------------------------------------------------------------------------
\46\Letter from James Sweet, SJVUAPCO, to Doris Lo, EPA Region
9, April 15, 2004, page 2 (4/15/04 letter).
\47\4/15/04 letter, page 2.
---------------------------------------------------------------------------
Comment 3: C. Swanson disputes the following statement in the PM-10
plan: ``The SJVAB has some of the lowest average wind speeds in the
country. No wind related exceedances have been recorded in the basin
during the last three years.'' Commenter states that while large areas
in the center of the valley have very low average wind speeds, large
areas around the periphery of the basin can be subject to periods of
high wind velocity and windblown dust. The current siting of monitoring
stations does not capture the air flow patterns on the western side of
the valley in Kern County and therefore cannot be used to represent
conditions in Western Kern County.
Response: The ambient monitoring network for the SJV operated by
the District and CARB was designed to meet the requirements of EPA
regulations at 40 CFR part 58. Monitoring for representative air flow
patterns is not one of the criteria used to design a criteria pollutant
monitoring network. The SJV 2003 PM-10 Plan did utilize meteorological
data from the District's ambient monitoring network as well as other
non-district monitoring networks, such as the Automated Surface
Observing System (ASOS) sponsored by the Federal Aviation Administration,
[[Page 30033]]
National Weather Service, the U.S. Department of Defense, and the
California Irrigation Management Information System (CIMIS), in
evaluating episodes for exceedance days at PM-10 monitors in the SJV.
These networks included many meteorological sites in the western and
southwestern portions of the SJV. During the episodes studied, high
wind speeds were not observed at these western and southwestern
meteorological sites. ``Meteorological Analysis Applied to the San
Joaquin Valley Air Pollution Control District's 2003 PM-10 State
Implementation Plan,'' SVUAPCD, DRAFT (May 29, 2003). The District
acknowledges that no definitive statement can be made about peak PM-10
concentrations at Blackwells Corner absent a PM-10 monitoring site near
the location; however, there are insufficient resources to saturate the
valley with monitoring sites at a density that would be required to
establish a definitive case for the entire Valley. Id., page 2. In
accordance with EPA regulations, the District's monitoring sites are
selected to evaluate exposure of populated areas to adverse air quality
caused by anthropogenic activity. Low population on the west side of
the SJV has resulted in a lack of monitors in that area. Id., pages 1
and 7. EPA has evaluated the adequacy of the PM-10 monitoring network
for the SJV and concluded that `` * * * the network meets all
applicable statutory and regulatory requirements and is adequate to
support the technical evaluation of the PM-10 nonattainment problem in
the [District's]
plan.'' Evaluation of the Adequacy of the Monitoring
Network for the San Joaquin Valley, California for the Annual and 24-
Hour PM-10 Standards; Bob Pallarino, EPA Region 9, Air Division;
September 22, 2003.
Comment 4: C. Swanson states that 2002 wind speed data collected at
a CIMIS station in Blackwells Corner documents periods of high wind
velocity during all times of the year, contrary to the PM-10 Plan's
statement that wind speeds are highest during the spring when PM-10
levels are at their lowest. The Blackwells Corner data shows that more
wind events occur during the summer period than the winter/spring period.
Response: The statements in the PM-10 Plan cited by the commenter
concerning wind velocity provide an accurate, general characterization
of the SJV. The District acknowledges that exceptions to the
characterization of low wind speeds occur in passes, along ridges, on
mountainous terrain and other areas of terrain influence that create
slope flows.\48\ The District's meteorological analysis of wind speeds
associated with measured PM-10 exceedances found that they largely
occurred during periods of low winds and stagnant conditions in the
fall and winter.\49\
---------------------------------------------------------------------------
\48\ Id., page 1.
\49\ One recent exception is a May 20, 2002 Bakersfield-Golden
exceedance that the District attributes to a large-scale wind
episode involving thunderstorms and hail. 4/15/04 letter, page 2.
---------------------------------------------------------------------------
Comment 5: C. Swanson states that CIMIS data for Blackwells Corner
indicates several days throughout the year with sustained periods of
high wind velocity that exceed the 13 mph wind velocity threshold
described in the PM-10 Plan as a point of possible entrainment of
geological material.\50\ The commenter provides a table of the
aforementioned CIMIS wind data for Blackwells Corner. The commenter
states that data from the nearby Lost Hills National Oceanic and
Atmospheric Administration (NOAA) vertical profile corroborates the
CIMIS data and some of the longest periods of sustained high winds are
during the summer months when local soils may be dryer and have
disturbed surfaces from agricultural activities.
---------------------------------------------------------------------------
\50\ Commenter also cites a 2003 report by V. Etyemezian of
Desert Research Institute in support of relying on 13 mph as the
appropriate wind velocity threshold needed to generate fugitive dust.
---------------------------------------------------------------------------
Response: We agree that CIMIS data indicates several days
throughout the year in the Blackwells Corner area with sustained
periods of wind velocity capable of elevating fugitive dust from
disturbed surfaces.\51\ However, based on this information alone, we
cannot conclude that the Blackwells Corner area or other areas in its
immediate downwind vicinity are experiencing PM-10 exceedances. The
Blackwells Corner wind velocities are not representative of typical
wind velocities in other parts of the SJV, as evidenced by the
District's compilation of wind speed data associated with PM-10
exceedance days. The District conducted a specific analysis of the days
on which CIMIS sites at Blackwells Corner and other west-side CIMIS
sites historically recorded elevated winds.\52\ While one-in-six-day
monitoring captured a representative sample of days where CIMIS sites
recorded elevated winds (18% coincidence), the District did not find a
correlation of those days with observed PM-10 exceedances.\53\ Only
five PM-10 exceedance days spanning a 13-year period were identified as
associated with strong winds.\54\ The PM-10 Plan does recognize that
windblown dust can occur from agricultural disturbed surfaces by
including windblown measures in the ``Other'' category in the proposed
Ag CMP Program.
---------------------------------------------------------------------------
\51\ The District acknowledges that CIMIS data reports 118 days
in the Blackwells Corner area with winds over 13 mph.
\52\ The District's analysis reviews CIMIS wind speed data
between 1990 and the present for the top one-hundred values of
maximum hours observed with winds over 13 mph, as well as with other
related data sets.
\53\ 4/15/04 letter, pages 3-4.
\54\ Id., page 4.
---------------------------------------------------------------------------
M. Transportation Conformity and the Trading Mechanism
Comment 1: The commenter (TPAs) references the trading mechanism
discussion in the proposed rule (69 FR 5412, 5416-5417). This section
of the proposal discusses the transportation conformity trading
mechanism. The commenter requests a clarification on the requirement
for a new analysis of the emission trading, for subsequent conformity
findings, once the U.S. Department of Transportation (DOT) has approved
a conformity finding which relied upon the trading mechanism.
Specifically, the commenter requests that a new analysis of emissions
trading be completed only when a new regional emissions analysis is
required for the new conformity finding.
Response: EPA agrees with the commenter that a new analysis of
trading is only required when a new regional emissions analysis is also
required. Once the U.S. DOT has approved a conformity finding which
relied upon the trading mechanism, the transportation planning agency
cannot necessarily rely on that trading scenario for future conformity
findings that require a new regional emissions analysis.
Comment 2: The commenter (TPAs) also requests that the proposed
rule, which states that the trading mechanism can only be used once
approved by EPA, be modified to state that the trading mechanism could
be used upon an EPA finding that a budget is adequate. The commenter
feels that existing language permits use of trading once budgets in the
SIP are adequate.
Response: The commenter is correct that if an area has a trading
mechanism in an approved SIP for a criteria pollutant, and that trading
mechanism permits the trading of precursors and/or the pollutant, then
the language of 40 CFR 93.124(c), the conformity rule, does permit
trading to occur among pollutants or precursors for budgets once EPA
finds the budgets adequate. However, the trading mechanism must be
approved as part of the SIP before it can be used, even if adequate or
approved budgets already exist. Section
[[Page 30034]]
93.124(c) only allows trading among budgets for the purposes of
conformity if there is an approved mechanism in the SIP to allow
trading to take place. The provision in Sec. 93.124(c) specifically
states that:
[a]
conformity demonstration shall not trade emissions among
budgets which the applicable implementation plan (or implementation
plan submission) allocates for different pollutants or precursors,
or among budgets allocated to motor vehicles and other sources,
unless the implementation plan establishes appropriate mechanisms
for such trades.
Emphasis added. The references to the ``applicable implementation
plan'' and the ``implementation plan'' in the second and last line of
this paragraph are consistent with the definition for `applicable
implementation plan' in Sec. 93.101 of the conformity rule. The
definition states that: ``Applicable implementation plan is defined in
section 302(q) of the CAA and means the portion (or portions) of the
implementation plan, or most recent revision thereof, which has been
approved under section 110, or promulgated under section 110(c), or
promulgated or approved pursuant to regulations promulgated under
section 301(d) and which implements the relevant requirement of the
CAA.'' Furthermore, the reference to the implementation plan submission
is in regard to any SIP which establishes budgets, not one which
establishes a trading mechanism.
EPA does not make adequacy findings on trading mechanisms in
submitted SIPs. EPA's adequacy review is limited to determining whether
the budgets in a SIP meet the criteria in Sec. 93.118(e)(4). For more
information regarding adequacy, please refer to the preamble of EPA's
June 30, 2003, proposed rule, which includes our current adequacy
policy to date (68 FR 38979-38984).
Comment 3: The commenter (Earth Matters) references the proposed
rule at page 5415 (Section IV.B.2., second to last paragraph, fourth
sentence and Footnote 7). This section of the proposal discusses the
interconnections between conformity findings for subarea budgets by the
multiple Metropolitan Planning Organizations (MPOs) in the SJV. The
proposal clarified that if an individual MPO could not show conformity
to their individual county budget, then the remaining MPOs in the SJV
cannot make any new conformity determinations. The commenter requests
that this requirement apply to Federal actions only.
Response: EPA cannot clarify that the action applies to Federal
actions only since this requirement does apply to both actions by U.S.
DOT and by MPOs in adopting conformity documents. This requirement is
not a new requirement. Section 176(c) of the Clean Air Act clearly
states that conformity applies in nonattainment and maintenance areas.
Section 176(c) also states that the Federal government and MPOs cannot
approve transportation activities unless they conform to a SIP, and
SIPs are established for a nonattainment or maintenance area. In a
nonattainment or maintenance area with more than one MPO, all MPOs must
conform even if the SIP has established subarea budgets. If an
individual MPO lapses, it has not demonstrated that it can conform to
its subarea budgets. Therefore, there is no way for the other MPOs to
show that their planned transportation activities still conform to the
SIP until the lapse is resolved.
Comment 4: The commenter (Earth Matters) also requests that EPA add
clarification that this requirement and associated clarifying language
apply solely during a conformity lapse that results from a
Transportation Improvement Plan (TIP) or Regional Transportation Plan
(RTP) expiration only.
Response: EPA disagrees with the commenter. In an area with subarea
budgets and more than one MPO, if conformity for one MPO lapses for any
reason, the other MPOs in the area cannot determine conformity until
the first MPO resolves its lapse. This prohibition on other MPOs
applies whether the conformity lapse is caused by the expiration of a
transportation plan or TIP, or any another reason, such as failure to
determine conformity within 18 months of approval of a SIP that
establishes new budgets.
In an area with more than one MPO, if one MPO lapses, the other
MPOs in the area would not lapse immediately. Instead, the other MPOs
can still proceed with projects in their current TIPs. However, these
other MPOs could not make new conformity determinations until the
lapsing MPO resolves the lapse by re-establishing conformity for its
plan and TIP.
N. Other Comments
Comment 1: Several commenters noted the health issues caused by PM-
10 and other pollutants. Commenters wanted clean air as soon as
possible and no more delays.
Response: EPA believes that the 2003 PM-10 Plan provides a road-map
towards meeting the PM-10 standards as soon as possible for the SJV.
Comment 2: One commenter (LaSalle) stated that the PM-10 standards
and plan are built upon insubstantial evidence. Commenter stated that
the PM-10 standard was last revised in 1987 and more recent studies
needed to be addressed.
Response: The purpose of the 2003 PM-10 Plan is to achieve the PM-
10 standards in the SJV. Evaluation of the PM-10 standards is outside
the scope of the 2003 PM-10 Plan and this rulemaking. In addition to
the PM-10 standards, EPA has promulgated standards for PM-2.5 (40 CFR
50.7) and is currently developing guidance for their implementation.
Comment 3: CRPE comments that the 2003 PM-10 Plan fails to comply
with the requirements of the CAA and that EPA's approval of the Plan is
nothing more than an attempt to avoid promulgating a Federal
Implementation Plan (FIP).
Response: EPA's proposed approval provides detailed discussions of
how each of the CAA requirements are adequately addressed by the 2003
PM-10 Plan. When possible, EPA prefers approving a State's plan
requirements in lieu of promulgating a FIP. We have expedited our
rulemaking to avoid a FIP for the SJV, but we do not believe that we
proposed to approve an unapprovable plan.
Comment 4: EPA received comments (LaSalle) that the public comment
period does not meet the requirements of due process. Given the
complexity and technicality of the 2003 PM-10 Plan, comment suggests
180 days as a more appropriate timeframe for public review and comment.
Response: EPA provided a 30-day comment period which was extended
for an additional 2 weeks, until March 19, 2004. The 2003 PM-10 Plan is
a complicated document; however, prior to the publication of EPA's
proposed rule, the District and State held public processes to discuss
the Plan with the public. Numerous workshops were held prior to the
SJV's Board's adoption of the 2003 PM-10 Plan in June 2003. Following
that adoption, the State also provided a comment and response period
before its adoption of the Plan and submittal to EPA.
Comment 5: EPA received comments (Jones) complaining about
pollution from a cement plan in Tehachapi, California. Commenter wanted
controls found in SJV's Regulation VIII applied to the source.
Response: Tehachapi, California is located in Eastern Kern County,
outside of the SJV PM-10 nonattainment area. EPA Region 9 Enforcement
Office and the Kern County Air Pollution Control Office has been
notified of the complaint.
[[Page 30035]]
III. EPA Action
EPA is finalizing its approval pursuant to CAA section 110(k)(3)
the following elements of the 2003 PM-10 Plan as meeting the CAA
requirements applicable to serious PM-10 nonattainment areas that have
failed to meet their attainment date:
(1) EPA is approving the emissions inventories as meeting the
requirements of section 172(c)(3).
(2) EPA is approving the RACM/BACM demonstration for all
significant PM-10 and NOX sources in the SJV as meeting the
requirements of sections 189(a)(1)(C) and 189(b)(1)(B). Approval of
this demonstration with respect to fugitive dust sources regulated by
SJVUAPCD Regulation VIII terminates all sanction, FIP, and rule
disapproval implications of our February 26, 2003 action. 68 FR 8830.
(3) EPA is approving, as meeting the requirements of sections
179(d)(3) and 189(d), (a) the attainment demonstration, associated
motor vehicle budgets and trading mechanism; (b) commitments to adopt
and implement new, identified stationary, area and mobile source BACM
to reduce PM-10 and NOX emissions; (c) a commitment for the
Indirect Source Mitigation Program; (d) a commitment for 10 tpd of
NOX and 0.5 tpd of PM-10 reductions from State mobile source
measures; (e) and the commitment to submit a SIP revision by March 31,
2006 based on a mid-course review that will include an evaluation of
the modeling from the CRPAQS and the latest technical information
(inventory data, monitoring, etc.) to determine whether the level of
emission reductions in the 2003 PM-10 Plan is sufficient to attain the
PM-10 standards.
(4) EPA is approving under section 110(k)(3) and 301(a) as
strengthening the SIP the commitments to adopt and implement VOC and
SOx measures.
(5) EPA is approving the NOX and PM-10 emissions levels
necessary to meet the 5% annual reduction requirement in section 189(d).
(6) EPA is approving the reasonable further progress demonstration
as meeting the requirements of section 172(c)(2) and 189(c)(1).
(7) EPA is approving the Plan as meeting the quantitative
milestones requirement in section 189(c)(1).
(8) EPA is approving the PM-10 and NOX motor vehicle
emission budgets for purposes of transportation conformity for 2005,
2008, and 2010 and the associated trading mechanism for demonstrating
conformity for years after 2010, under CAA section 176(c)(2)(A). These
budgets are reproduced in EPA's proposed rule on the 2003 PM-10 Plan in
a table printed at 69 FR 5416. As proposed, we are limiting this
approval to last only until the effective date of our adequacy findings
for new replacement budgets.\55\ The trading mechanism is discussed in
EPA's proposed rule at 69 FR 5416.
---------------------------------------------------------------------------
\55\ For further discussion of the rationale for, and effect of,
this limitation, please see the proposed rule at 69 FR 5415, and
EPA's promulgation of a limitation on motor vehicle emission budgets
associated with various California SIPs, at 67 FR 69139 (November
15, 2002).
---------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175
(59 FR 22951, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 26, 2004. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
[[Page 30036]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Particulate
matter, Reporting and recordkeeping requirements, Volatile organic
compounds.
Dated: April 28, 2004.
Deborah Jordan,
Acting Regional Administrator, Region IX.
? Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
? 1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
? 2. Section 52.220 is amended by revising paragraph (c)(317) and adding
paragraph (c)(327) to read as follows:
Sec. 52.220 Identification of plan.
(c) * * *
(317) The plan and amended regulation for the following APCD were
submitted on August 19, 2003, by the Governor's designee.
(i) Incorporation by reference.
(A) San Joaquin Valley Unified Air Pollution Control District.
(1) Rule 4901, adopted on July 15, 1993 and amended on July 17, 2003.
(2) 2003 PM10 Plan, San Joaquin Valley Plan to Attain Federal
Standards for Particulate Matter 10 Microns and Smaller (all except
``Contingency Control Measures'' section, pages 4-53 to 4-55), adopted
on June 19, 2003, and ``Regional Transportation Planning Agency
Commitments for Implementation,'' dated April 2003 (Volume 3).
* * * * *
(327) The following plan was submitted on December 30, 2003 by the
Governor's designee.
(i) Incorporation by reference.
(A) San Joaquin Valley Unified Air Pollution Control District.
(1) Amendments to the 2003 San Joaquin Valley Plan to Attain
Federal Standards for Particulate Matter 10 Microns and Smaller,
adopted December 18, 2003.
* * * * *
[FR Doc. 04-11667 Filed 5-25-04; 8:45 am]
BILLING CODE 6560-50-P
![[logo] US EPA](https://webarchive.library.unt.edu/eot2008/20090510210610im_/http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}