Proposed Rule2021-17312
Limited Approval and Limited Disapproval of California Air Quality Implementation Plan Revisions; Amador Air District; Stationary Source Permits
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 23, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing a limited approval and limited disapproval of a revision to the Amador Air District's (AAD or "District") portion of the California State Implementation Plan (SIP). This revision governs the District's issuance of permits for stationary sources, and focuses on the preconstruction review and permitting of major sources and major modifications under part D of title I of the Clean Air Act (CAA or "the Act"). We are taking comments on this proposal and plan to follow with a final action.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 160 (Monday, August 23, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 160 (Monday, August 23, 2021)]
[Proposed Rules]
[Pages 47046-47049]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17312]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2021-0438; FRL-8773-01-Region 9]
Limited Approval and Limited Disapproval of California Air
Quality Implementation Plan Revisions; Amador Air District; Stationary
Source Permits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing a
limited approval and limited disapproval of a revision to the Amador
Air District's (AAD or ``District'') portion of the California State
Implementation Plan (SIP). This revision governs the District's
issuance of permits for stationary sources, and focuses on the
preconstruction review and permitting of major sources and major
modifications under part D of title I of the Clean Air Act (CAA or
``the Act''). We are taking comments on this proposal and plan to
follow with a final action.
DATES: Comments must be received on or before September 22, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0438 at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Multimedia submissions
(audio, video, etc.) must be accompanied by a written comment. The
written comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit <a href="http://www.epa.gov/dockets/commenting-epa-dockets">http://www.epa.gov/dockets/commenting-epa-dockets</a>. If you need
[[Page 47047]]
assistance in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.
FOR FURTHER INFORMATION CONTACT: Amber Batchelder, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105; by phone: (415) 947-4174, or by
email to <a href="/cdn-cgi/l/email-protection#6c0e0d180f04090008091e420d010e091e2c091c0d420b031a"><span class="__cf_email__" data-cfemail="dfbdbeabbcb7bab3bbbaadf1beb2bdbaad9fbaafbef1b8b0a9">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What rule did the State submit?
B. Are there other versions of this rule?
C. What is the purpose of the submitted rule?
II. The EPA's Evaluation and Action
A. What is the background for this proposal?
B. How is the EPA evaluating the rule?
C. Does the rule meet the evaluation criteria?
D. What are the rule deficiencies?
E. EPA Recommendations To Further Improve the Rule
F. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What rule did the State submit?
Table 1 lists the rule addressed by this proposal, including the
date on which it was adopted by the District and the date on which it
was submitted to the EPA by the California Air Resources Board (CARB or
``the State''). The AAD is the air pollution control agency for Amador
County in California.
Table 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
Local agency Rule No. Rule title Adopted Submitted \1\
----------------------------------------------------------------------------------------------------------------
AAD................................... 400 NSR Requirements for New 08/20/19 11/05/19
and Modified Major
Sources in
Nonattainment Areas.
----------------------------------------------------------------------------------------------------------------
\1\ The submittal was transmitted to the EPA via a letter from CARB dated October 31, 2019.
On May 5, 2020, the submittal for AAD Rule 400 was deemed by
operation of law to meet the completeness criteria in 40 CFR part 51
Appendix V, which must be met before formal EPA review.
B. Are there other versions of this rule?
There are no previous versions of Rule 400 in the SIP.
C. What is the purpose of the submitted rule?
Rule 400 is intended to address the CAA's statutory and regulatory
requirements for Nonattainment New Source Review (NNSR) permit programs
for major sources emitting nonattainment air pollutants and their
precursors.
II. The EPA's Evaluation and Action
A. What is the background for this proposal?
The EPA's April 2004 designation of Amador County as a
nonattainment area for the 1997 8-hour ozone National Ambient Air
Quality Standards (NAAQS) triggered the requirement for the AAD to
develop and submit an NNSR program to the EPA for SIP approval.\2\
Although the EPA revoked the 1997 8-hour ozone NAAQS effective April 6,
2015,\3\ the NNSR requirements applicable to Amador County based on its
designation and classification for the revoked 1997 8-hour ozone NAAQS
remain applicable in order to prevent future emissions from new and
modified major stationary sources from increasing beyond the levels
allowed, based on the area's prior designation and classification for
the 1997 ozone NAAQS. Thus, because Amador County was designated and
classified as Moderate nonattainment for the 1997 8-hour ozone NAAQS,
the District's NNSR program must satisfy the NNSR requirements
applicable to Moderate ozone nonattainment areas, including the offset
ratios identified in CAA section 182(b)(5).\4\ Amador County is also
designated and classified as Marginal nonattainment for the 2015 8-hour
ozone NAAQS and, therefore, subject to the NNSR requirements applicable
to Marginal ozone nonattainment areas.\5\ Submission of an NNSR program
that satisfies the requirements of the Act and the EPA's regulations
for Moderate ozone nonattainment areas, however, would satisfy the NNSR
program requirements for Marginal ozone nonattainment areas.\6\
---------------------------------------------------------------------------
\2\ CAA section 172(b) and 40 CFR 51.914.
\3\ 80 FR 12264, 12265 (March 6, 2015).
\4\ The EPA's determination that the Amador County area had
attained the 1997 8-hour ozone NAAQS by the applicable attainment
date suspended the requirements to submit those SIP elements related
to attainment of these NAAQS for so long as the area continues to
attain but did not suspend the requirement to submit an NNSR
program. 40 CFR 51.918; see also 77 FR 71551, 71553-71554 (Dec. 3,
2012) (noting that the EPA's attainment determination does not
redesignate the area to attainment or relax control requirements).
\5\ 40 CFR 51.1314.
\6\ The NNSR requirements applicable to Moderate ozone
nonattainment areas are identical to those that apply to Marginal
ozone nonattainment areas, except that Moderate nonattainment areas
are subject to a more stringent offset ratio than Marginal
nonattainment areas. CAA sections 182(a)(2)(C) (requiring permit
programs consistent with CAA sections 172(c)(5) and 173 for ozone
nonattainment areas), 182(a)(4) (establishing 1.1 to 1 offset ratio
for Marginal nonattainment areas), and 182(b)(5) (establishing 1.15
to 1 offset ratio for Moderate nonattainment areas) and 40 CFR
51.165.
---------------------------------------------------------------------------
Additional information regarding the District's nonattainment
status for each pollutant is included in our Technical Support Document
(TSD), which may be found in the docket for this rule.
B. How is the EPA evaluating the rule?
The EPA reviewed Rule 400 for compliance with CAA requirements for:
(1) Stationary source preconstruction permitting programs as set forth
in CAA part D, including CAA sections 172(c)(5) and 173; (2) the review
and modification of major sources in accordance with 40 CFR 51.160-
51.165 as applicable in Moderate ozone nonattainment areas; (3) the
review of new major stationary sources or major modifications in a
designated nonattainment area that may have an impact on visibility in
any mandatory Class I Federal Area in accordance with 40 CFR 51.307;
(4) SIPs in general as set forth in CAA section 110(a)(2), including
110(a)(2)(A) and 110(a)(2)(E)(i); \7\ and (5) SIP revisions as set
forth in CAA section 110(l) \8\ and 193.\9\ Our review evaluated the
[[Page 47048]]
submittal for compliance with the NNSR requirements applicable to
Moderate ozone nonattainment areas, and ensured that the submittal
addressed the NNSR requirements for the 1997 and 2015 ozone NAAQS.
---------------------------------------------------------------------------
\7\ CAA section 110(a)(2)(A) requires that regulations submitted
to the EPA for SIP approval be clear and legally enforceable, and
CAA section 110(a)(2)(E)(i) requires that states have adequate
personnel, funding, and authority under state law to carry out their
proposed SIP revisions.
\8\ Per CAA section 110(l), SIP revisions are subject to
reasonable notice and public hearing prior to adoption and submittal
by states to the EPA. Additionally, CAA section 110(l) prohibits the
EPA from approving any SIP revision that would interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the CAA.
\9\ CAA section 193 prohibits the modification of any SIP-
approved control requirement in effect before November 15, 1990 in a
nonattainment area unless the modification ensures equivalent or
greater emission reductions of the relevant pollutants.
---------------------------------------------------------------------------
C. Does the rule meet the evaluation criteria?
With respect to procedural requirements, CAA sections 110(a)(2) and
110(l) require that revisions to a SIP be adopted by the state after
reasonable notice and public hearing. Based on our review of the public
process documentation included in the November 5, 2019 submittal of
Rule 400, we find that the AAD has provided sufficient evidence of
public notice, opportunity for comment and a public hearing prior to
adoption and submittal of these rules to the EPA.
With respect to the substantive requirements found in CAA sections
172(c)(5) and 173, and 40 CFR 51.160-51.165, we have evaluated Rule 400
in accordance with the applicable CAA and regulatory requirements that
apply to NNSR permit programs under part D of title I of the Act for
all relevant ozone NAAQS, including the 2015 ozone NAAQS. With the
exceptions noted below in Section II.D, we find that Rule 400 satisfies
these requirements as they apply to sources subject to the NNSR permit
program requirements applicable to Moderate ozone nonattainment areas.
We have also determined that this rule satisfies the related visibility
requirements in 40 CFR 51.307. In addition, we have determined that
Rule 400 satisfies the requirement in CAA section 110(a)(2)(A) that
regulations submitted to the EPA for SIP approval be clear and legally
enforceable, and have determined that the submittal demonstrates, in
accordance with CAA section 110(a)(2)(E)(i), that the District has
adequate personnel, funding, and authority under state law to carry out
these proposed SIP revisions.
Regarding the additional substantive requirements of CAA sections
110(l) and 193, our action will result in a more stringent SIP, while
not relaxing any existing provision contained in the SIP. We have
concluded that our action would comply with section 110(l) because our
limited approval of Rule 400 will not interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other CAA applicable requirement. In addition, our limited approval
of Rule 400 will not relax any pre-November 15, 1990 requirement in the
SIP, and therefore changes to the SIP resulting from this action ensure
greater or equivalent emission reductions of ozone and its precursors
in the District. Accordingly, we have concluded that our action is
consistent with the requirements of CAA section 193.
D. What are the rule deficiencies?
The EPA identified five deficiencies in Rule 400. First, Section
4.5 of Rule 400 allows for the District to approve interprecursor
trading (IPT) of ozone precursors to satisfy emission offset
requirements, provided certain conditions are satisfied. However, on
January 29, 2021, the D.C. Circuit Court of Appeals in Sierra Club v.
EPA, 984 F.3d 1055, issued a decision holding that the CAA does not
allow IPT for ozone precursors and vacating the provisions in the EPA's
NNSR regulations allowing IPT for ozone precursors. In light of the
Court's decision, the provision in Section 4.5 allowing for IPT for
ozone precursors is no longer permissible. Second, Section 9.1(b)(iii)
of Rule 400 fails to reference Section 7.4 (Relaxation in Enforceable
Limitations). This apparent typographical error creates a deficiency in
Section 9.1(b)(iii) of the rule, because it suggests that the source
and the District need not adhere to the General requirements for
establishing Plant-wide Applicability Limitations (PALs) in Section
9.4, which are required by 40 CFR 51.165(f)(4). Third, due to an
apparent typographical error, Section 9.5 of the rule does not require
the District to implement the public participation provisions of
Section 8 for purposes of processing a request for a PAL to be
established, renewed or increased in accordance with 40 CFR
51.165(f)(5). Therefore, the provisions of Section 9.5 are deficient.
This error also causes a related deficiency in Sections 9.4(a)(ii),
9.8(b)(iii), 9.10(a), and 9.11(c), because these rule sections cross-
reference Section 9.5, which refers to the wrong section of the rule
for public participation requirements. Fourth, Section 9.10(d)(i)
references Section 9.5 when it should reference Section 9.6. This error
appears typographical in nature. However, this error creates a
deficiency because it does not provide the correct reference for how to
perform the emissions level calculation in accordance with 40 CFR
51.165(f)(10)(iv)(A). Fifth, Section 9.12(a)(iii) includes a reference
to Section 7.12 of the rule (which does not exist), instead of Section
9.12. This apparent typographical error creates a deficiency in Section
9.12(a)(iii), because it does not include the requirement to comply
with the provisions of Section 9.12 in accordance with 40 CFR
51.165(f)(12)(i)(C).
Our TSD, which can be found in the docket for this rule, contains a
more detailed discussion of our analysis of Rule 400.
E. EPA Recommendations To Further Improve the Rule
The TSD also includes recommendations for additional clarifying
revisions to consider for adoption when the AAD next modifies Rule 400.
F. Proposed Action and Public Comment
As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA
is proposing a limited approval and limited disapproval of the
submitted rule because it fulfills most of the relevant CAA
requirements, and strengthens the SIP, but also contains five
deficiencies. We have concluded that our limited approval of the
submitted rule would comply with the relevant provisions of CAA
sections 110(a)(2), 110(l), 172(c)(5), 173, and 193, 40 CFR 51.160-
51.165, and 40 CFR 51.307.
If we finalize this action as proposed, our action will be codified
through revisions to 40 CFR 52.220a (Identification of plan--in part).
This action would incorporate the submitted rule into the SIP,
including those provisions identified as deficient. This approval is
limited because the EPA is simultaneously proposing a limited
disapproval of the rule under CAA section 110(k)(3).
If finalized as proposed, our limited disapproval action would
trigger an obligation on the EPA to promulgate a Federal Implementation
Plan (FIP) unless the State corrects the deficiencies, and the EPA
approves the related plan revisions, within two years of the final
action. Additionally, because the deficiencies relate to NNSR
requirements under part D of title I of the Act, the offset sanction in
CAA section 179(b)(2) would apply in Amador County 18 months after the
effective date of a final limited disapproval, and the highway funding
sanctions in CAA section 179(b)(1) would apply in the area six months
after the offset sanction is imposed. Section 179 sanctions will not be
imposed under the CAA if the State submits, and we approve, prior to
the implementation of the sanctions, a SIP revision that corrects the
deficiencies that we identify in our final action. The EPA intends to
work with the District to correct the deficiencies in a timely manner.
[[Page 47049]]
We will accept comments from the public on this proposal until
September 22, 2021.
III. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the AAD rule described in Table 1 of this preamble. The EPA
has made, and will continue to make, these materials available through
<a href="http://www.regulations.gov">www.regulations.gov</a> and in hard copy at the EPA Region IX Office
(please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section of this preamble for more information).
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="http://www.epa.gov/laws-regulations/laws-and-executive-orders">http://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will 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.
F. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 9, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-17312 Filed 8-20-21; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 23, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.