Proposed Rule2023-01500
Air Plan Approval and Limited Approval-Limited Disapproval; California; Antelope Valley Air Quality Management District; Stationary Source Permits; New Source Review
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
January 30, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing approval, and a limited approval and limited disapproval of a revision to the Antelope Valley Air Quality Management District (AVAQMD or "District") portion of the California State Implementation Plan (SIP). The EPA is proposing to take action on nine rules submitted on August 3, 2021. We are proposing approval of three rules, and limited approval and limited disapproval of six rules. These revisions concern the District's New Source Review (NSR) permitting program for new and modified sources of air pollution under part D of title I of the Clean Air Act (CAA or "Act"). If finalized, this action will update the AVAQMD's current SIP with nine revised rules. We are taking comments on this proposal and plan to follow with a final action.
Full Text
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<title>Federal Register, Volume 88 Issue 19 (Monday, January 30, 2023)</title>
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[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Proposed Rules]
[Pages 5826-5833]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01500]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2022-0427; FRL-10165-01-R9]
Air Plan Approval and Limited Approval-Limited Disapproval;
California; Antelope Valley Air Quality Management District; Stationary
Source Permits; New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
approval, and a limited approval and limited disapproval of a revision
to the Antelope Valley Air Quality Management District (AVAQMD or
``District'') portion of the California State Implementation Plan
(SIP). The EPA is proposing to take action on nine rules submitted on
August 3, 2021. We are proposing approval of three rules, and limited
approval and limited disapproval of six rules. These revisions concern
the District's New Source Review (NSR) permitting program for new and
modified sources of air pollution under part D of title I of the Clean
Air Act (CAA or ``Act''). If finalized, this action will update the
AVAQMD's current SIP with nine revised rules. We are taking comments on
this proposal and plan to follow with a final action.
DATES: Comments must be received on or before March 1, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0427 at <a href="https://www.regulations.gov">https://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 to be
Confidential Business Information (CBI) or other information whose
disclosure 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="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. If you need 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: Shaheerah Kelly, Permits Office (Air-
3-1), U.S. Environmental Protection Agency, Region IX, (415) 947-4156,
<a href="/cdn-cgi/l/email-protection#4f242a232336613c272e272a2a3d2e270f2a3f2e61282039"><span class="__cf_email__" data-cfemail="204b454c4c590e534841484545524148604550410e474f56">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
[[Page 5827]]
Table of Contents
I. The State's Submittal
A. What rules are in the current SIP?
B. What rules did the State submit?
C. What is the purpose of the submitted rule revisions?
II. The EPA's Evaluation
A. What is the background for this proposal?
B. How is the EPA evaluating the rules?
C. Do the rules meet the evaluation criteria?
D. What are the rule deficiencies?
III. Proposed Action and Public Comment
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The word or initials AVAQMD or District mean or refer to the
Antelope Valley Air Quality Management District.
(ii) The word or initials CAA or Act mean or refer to the Clean
Air Act, unless the context indicates otherwise.
(iii) The word or initials CARB mean or refer to the California
Air Resources Board.
(iv) The initials CFR mean or refer to Code of Federal
Regulations.
(v) The initials or words EPA, we, us or our mean or refer to
the United States Environmental Protection Agency.
(vi) The initials NA mean or refer to nonattainment.
(vii) The initials NAAQS mean or refer to the National Ambient
Air Quality Standards.
(viii) The initials NSR mean or refer to New Source Review.
(ix) The initials NNSR mean or refer to nonattainment New Source
Review.
(x) The initials SIP mean or refer to State Implementation Plan.
(xi) The word State means or refers to the State of California.
(xii) The word TSD means or refers to the Technical Support
Document.
I. The State's Submittal
A. What rules are in the current SIP?
Table 1 lists the rules in the current SIP with the dates they were
adopted or amended by AVAQMD, submitted by the California Air Resources
Board (CARB), the governor's designee for California SIP submittals,
and approved by the EPA.
Table 1--Current SIP Rules
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Amendment or EPA action
Rule Rule title adoption date Submittal date date FR citation
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Regulation II (Permits)
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Rule 206..................... Posting of 2/21/1976 4/21/1976 11/9/1978 43 FR 52237.
Permit to
Operate.
Rule 219..................... Equipment Not 9/4/1981 10/23/1981 7/6/1982 47 FR 29231.
Requiring a
Written Permit
Pursuant to
Regulation II.
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Regulation XIII (New Source Review)
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Rule 1301.................... General........ 12/7/1995 8/28/1996 12/4/1996 61 FR 64291.
Rule 1302.................... Definitions.... 12/7/1995 8/28/1996 12/4/1996 61 FR 64291.
Rule 1303.................... Requirements... 5/10/1996 8/28/1996 12/4/1996 61 FR 64291.
Rule 1304.................... Exemptions..... 6/14/1996 8/28/1996 12/4/1996 61 FR 64291.
Rule 1306.................... Emission 6/14/1996 8/28/1996 12/4/1996 61 FR 64291.
Calculations.
Rule 1309.................... Emission 12/7/1995 8/28/1996 12/4/1996 61 FR 64291.
reduction
Credits.
Rule 1309.1.................. Priority 12/7/1995 8/28/1996 12/4/1996 61 FR 64291.
Reserve.
Rule 1310.................... Analysis and 12/7/1995 8/28/1996 12/4/1996 61 FR 64291.
Reporting.
Rule 1311.................... Power Plants... 2/25/1980 4/3/1980 1/21/1981 46 FR 5965.
Rule 1313.................... Permits to 12/7/1995 8/28/1996 12/4/1996 61 FR 64291.
Operate.
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B. What rules did the State submit?
The CARB provided submittals to the EPA on October 30, 2001, April
22, 2020, and August 3, 2021 (hereafter referred to as the ``2001
Submittal,'' ``2020 Submittal,'' and ``2021 Submittal,'' respectively),
for revisions to the AVAQMD's NSR permitting program in the California
SIP.
The CARB's 2021 Submittal provided the amended NSR permitting
program rules listed in Table 2 that were adopted by the AVAQMD and
submitted by the CARB for inclusion in the SIP. The submitted rules
listed in Table 2 would replace the current EPA-approved SIP rules that
are listed in Table 1. The rule subsections 1302(C)(5) and
1302(C)(7)(c) are not submitted for inclusion in the California SIP
because they are requirements for regulating toxic air contaminants
(TAC) and hazardous air pollutants (HAP) under the AVAQMD Rule 1401
(New Source Review for Toxic Air Contaminants).\1\
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\1\ Subsections 1302(C)(5)(d) and 1302(C)(7)(c)(iii) of Rule
1302 specifically state that subsections 1302(C)(5) and
1302(C)(7)(c) are not submitted to the EPA and are not intended to
be included as part of the California SIP.
[[Page 5828]]
Table 2--Submitted Rules
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Adoption or Submittal date
Rule Rule title amendment date \a\
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Regulation II (Permits)
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Rule 219................................... Equipment not Requiring a Permit... 6/15/2021 8/3/2021
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Regulation XIII (New Source Review)
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Rule 1300.................................. New Source Review General.......... 7/20/2021 8/3/2021
Rule 1301.................................. New Source Review Definitions...... 7/20/2021 8/3/2021
Rule 1302 (except 1302(C)(5) and New Source Review Procedure........ 7/20/2021 8/3/2021
1302(C)(7)(c)).
Rule 1303.................................. New Source Review Requirements..... 7/20/2021 8/3/2021
Rule 1304.................................. New Source Review Emissions 7/20/2021 8/3/2021
Calculations.
Rule 1305.................................. New Source Review Emissions Offsets 7/20/2021 8/3/2021
Rule 1306.................................. New Source Review for Electric 7/20/2021 8/3/2021
Energy Generating Facilities.
Rule 1309.................................. Emission Reduction Credit Banking.. 7/20/2021 8/3/2021
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\a\ The submittal for Rules 219, 1300, 1301, 1302, 1303, 1304, 1305, 1306, 1309, and 1700 was transmitted to the
EPA via a letter from CARB dated August 3, 2021.
The CARB's 2001 and 2020 Submittals requested removal of the rules
listed in Table 3 from the District's portion of the California SIP
because they were locally rescinded.
Table 3--Rescinded Rules
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EPA approval date (FR Rescission
Rule Rule title citation) date Submittal date
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Regulation II (Permits)
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Rule 206.......................... Posting of Permit to 11/9/1978 (43 FR 1/21/2020 4/22/2020
Operate. 52237).
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Regulation XIII (New Source Review)
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Rule 1309.1....................... Priority Reserve..... 12/4/1996 (61 FR 3/20/2001 10/30/2001
64291).
Rule 1310......................... Analysis and 12/4/1996 (61 FR 3/20/2001 10/30/2001
Reporting. 64291).
Rule 1311 \a\..................... Power Plants......... 1/21/1981 (46 FR 3/20/2001 10/30/2001
5965).
Rule 1313......................... Permits to Operate... 12/4/1996 (61 FR 3/20/2001 10/30/2001
64291).
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\a\ Rule 1311 was rescinded by South Coast AQMD on June 28, 1990 and submitted to the EPA for removal from the
SIP on January 28, 1992 (see 64 FR 71660, December 22, 1999). Rule 1311 was rescinded by AVAQMD on March 20,
2001 and submitted to the EPA for removal from the SIP on October 30, 2001.
The CARB's 2021 Submittal also requested that all previous versions
of Rule 219 and the rules under Regulation XIII codified in 40 CFR
52.220 prior to July 1, 1997, as listed in Table 4, which are in effect
within the jurisdiction of the AVAQMD be removed from the California
SIP. These rules will be superseded by the submitted versions of Rule
219 as amended on June 15, 2021, and Rules 1300 through 1306, and 1309
as amended on July 20, 2021, upon the EPA's approval of these rules
into the California SIP.
The District was officially formed on July 1, 1997, as the agency
with jurisdiction over the Los Angeles County portion of the Mojave
Desert Air Basin. Prior to that time, the jurisdiction of the Antelope
Valley area was part of the Los Angeles County Air Pollution Control
District (APCD), the Southern California APCD, and the South Coast
AQMD.
Table 4--Codified Rules in 40 CFR 52.220 Prior to July 1, 1997
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EPA approval date (FR
Rule Submittal agency Submittal date citation)
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Regulation II (Permits)
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Rule 11 (Exemptions).................... Los Angeles County APCD... 6/30/1972 9/22/1972 (37 FR 19812).
Rule 219................................ Southern California APCD.. 4/21/1976 11/9/1978 (43 FR 52237).
Rule 219................................ Southern California APCD.. 8/2/1976 11/9/1978 (43 FR 52237).
Rule 219................................ Los Angeles County APCD... 6/6/1977 11/9/1978 (43 FR 52237).
Rule 219................................ South Coast AQMD.......... 10/23/1981 7/6/1982 (47 FR 29231).
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[[Page 5829]]
Regulation XIII (New Source Review)
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Rules 1301, 1303, 1304, 1305, 1306, South Coast AQMD.......... 4/3/1980 1/21/1981 (46 FR 5965).
1307, 1310, 1311, and 1313.
Rules 1302 and 1308..................... South Coast AQMD.......... 8/15/1980 1/21/1981 (46 FR 5965).
Rules 1301, 1302, 1303, 1304, 1305, Los Angeles County APCD... 9/5/1980 6/9/1982 (47 FR 25013).
1306, 1307, 1308, 1310, 1311, and 1313.
Rules 1301, 1302, 1309, 1309.1, 1310, South Coast AQMD.......... 8/28/1996 12/4/1996 (61 FR 64291).
and 1313, adopted on 12/7/1995; Rule
1303 adopted on 5/10/1996; and Rules
1304 and 1306 adopted on 6/14/1996.
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On February 3, 2021, the amended Rules 219, 1300, 1301, 1302
(except 1302(C)(5) and 1302(C)(7)(c)), 1303, 1304, 1305, 1306, and 1309
were deemed complete by operation of law to meet the completeness
criteria in 40 CFR part 51, appendix V, which must be met before formal
EPA review. Additionally, on October 22, 2020, rescinded Rule 206 was
deemed complete by operation of law, and on April 30, 2002, rescinded
Rules 1309.1, 1310, 1311, and 1313 were deemed complete by operation of
law to meet the completeness criteria in 40 CFR part 51, appendix V.
C. What is the purpose of the submitted rule revisions?
The rules listed in Table 2 are intended to replace the rules
currently in the SIP as listed in Table 1. The submitted rules are also
intended to satisfy the minor NSR and nonattainment NSR (NNSR)
requirements of section 110(a)(2)(C) and part D of title I of the Act,
and the EPA's implementing regulations at title 40 of the Code of
Federal Regulations (CFR) part 51.\2\ Minor NSR requirements are
generally applicable for SIPs in all areas, while NNSR requirements
apply only in areas designated as nonattainment for one or more
National Ambient Air Quality Standards (NAAQS). The AVAQMD is currently
designated Severe nonattainment for the 2015 ozone NAAQS. See 40 CFR
81.305. Therefore, the designation of AVAQMD as a federal ozone
nonattainment area triggered the requirement for the District to
develop and submit an NNSR program to the EPA for approval into the
California SIP.
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\2\ The CARB also submitted a PSD rule for SIP inclusion (AVAQMD
Rule 1700, `Prevention of Significant Deterioration (PSD)'). We
intend to take action on the District's PSD rule in a subsequent
rulemaking.
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II. The EPA's Evaluation
A. What is the background for this proposal?
Section 110(a) of the CAA requires states to submit regulations
that include a pre-construction permit program for new or modified
stationary sources of pollutants, including a permit program as
required by part D of title I of the CAA.
On October 26, 2015, the EPA finalized a revised 8-hour NAAQS for
ozone, which was lowered from 0.75 parts per billion (ppb) to 0.70
ppb.\3\ On June 4, 2018, the Los Angeles County portion of the Mojave
Desert Air Basin, under the jurisdiction of the AVAQMD, was designated
as nonattainment for 2015 8-hour ozone NAAQS and classified Severe-
15.<SUP>4 5</SUP> (40 CFR 81.305.) This designation became effective on
August 3, 2018. On December 6, 2018, the EPA finalized the
implementation rule for the 2015 ozone NAAQS, which required the AVAQMD
to submit an NSR certification to the EPA by August 3, 2021 (83 FR
62998). On August 3, 2021, the CARB submitted to the EPA the amended
NSR rules listed in Table 2 and requested to remove the rescinded rules
listed in Table 3 and the rules listed in Table 4. The 2021 Submittal
from the CARB is intended to satisfy this NSR requirement.
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\3\ 80 FR 65291 (October 26, 2015).
\4\ 83 FR 25776 (June 4, 2018). A classification of Severe-15
under the 2015 ozone NAAQS is an area with a design value of 0.105
ppm up to but not including 0.111 ppm.
\5\ 40 CFR 51.1105 provides anti-backsliding requirements for
areas that were nonattainment for standards that were revoked. The
AVAQMD has the same designation of Severe for the 1997 8-hour, 2008
8-hour, and the 2015 8-hour ozone NAAQS. Therefore, the
nonattainment NSR requirements are the same, and have not changed.
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The NSR rules contain the District's preconstruction permit program
for new and modified major stationary sources for areas designated
nonattainment for at least one NAAQS. They also include the District's
minor NSR permit program. We provide a more detailed analysis in our
technical support document (TSD), which is available in the docket for
this proposed action.
B. How is the EPA evaluating the rules?
The EPA has reviewed the AVAQMD rules listed in Table 2 for
compliance with the CAA requirements as follows: (1) the general SIP
requirements as set forth in CAA section 110(a)(2), including
110(a)(2)(A) and 110(a)(2)(E)(i); (2) the stationary source
preconstruction permitting program requirements as set forth in CAA
part D of title I, including CAA sections 172(c)(5), 173, and 182; (3)
the requirements for the review and modification of major sources in
accordance with 40 CFR 51.160-51.165 as applicable in Severe ozone
nonattainment areas; (4) the requirements for 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; (5) the SIP revision
requirements as set forth in CAA sections 110(l) and 193; and (6) the
provisions of CAA section 302(z).
Sections 110(a)(2) and 110(l) of the Act require that each SIP or
revision to a SIP submitted by the State must be adopted after
reasonable notice and public hearing. In addition, section 110 of the
Act requires that SIP rules be enforceable. Section 110(a)(2)(C) of the
Act requires each SIP to include a program to regulate the modification
and construction of any stationary source within the areas covered by
the SIP as necessary to assure attainment and maintenance of the NAAQS.
Section 110(a)(2)(E)(i) of the Act requires that each SIP provide
necessary assurances that the state will have
[[Page 5830]]
adequate personnel, funding, and authority under state (and, as
appropriate, local) law to carry out such implementation plan.
Part D of title I of the Act contains the general requirements for
areas designated nonattainment for a NAAQS (section 172), referred to
as nonattainment NSR (NNSR), including preconstruction permit
requirements for new major sources and major modifications proposing to
construct in nonattainment areas (section 173) and the de minimis SIP
requirements for Severe nonattainment areas (sections 182(c)(6) and
182(d)).
The EPA's regulations at 40 CFR 51.160-51.164 provide general
programmatic requirements to implement the statutory mandate under
section 110(a)(2)(C) of the Act that is commonly referred to as the
``general'' or ``minor'' NSR program. These NSR program regulations
impose requirements for approval of state and local programs that are
more general in nature as compared to the specific statutory and
regulatory requirements for NSR permitting programs under part D of
title I of the Act.
The EPA's regulations at 40 CFR 51.165 set forth the EPA's
regulatory requirements for SIP-approval of a nonattainment NSR permit
program. Our review also evaluated the submittal for compliance with
the NNSR requirements applicable to Severe ozone nonattainment areas
and ensured that the submittal addressed the NNSR requirements for the
2015 ozone NAAQS.
The EPA's regulations at 40 CFR 51.307 set forth the protection of
visibility requirements that apply to NSR programs. This provision
requires that certain actions be taken in consultation with the local
Federal Land Manager if a new major source or major modification may
have an impact on visibility in any mandatory Federal Class I Area.
Section 110(l) of the Act prohibits the EPA from approving any SIP
revisions that would interfere with any applicable requirement
concerning attainment and reasonable further progress (RFP) or any
other applicable requirement of the CAA.
Section 193 of the Act, which only applies in nonattainment areas,
prohibits the modification of a SIP-approved control requirement in
effect before November 15, 1990, in any manner unless the modification
insures equivalent or greater emission reductions of such air
pollutant.
Section 302(z) of the Act defines the term ``Stationary Source'' as
generally any source of an air pollutant except those emissions
resulting directly from an internal combustion engine for
transportation purposes or from a nonroad engine or nonroad vehicle as
defined in title II of the Act.
Our TSD, which can be found in the docket for this rule, contains a
more detailed discussion of the approval criteria.
C. Do the rules meet the evaluation criteria?
The EPA has reviewed the submitted rules listed in Table 2 in
accordance with the rule evaluation criteria described in Section II.B
of this notice.
With respect to procedural requirements, CAA sections 110(a)(2) and
110(l) require SIP revisions to be adopted by the state after
reasonable notice and public hearing. Based on our review of the public
process documentation included in the 2021 Submittal for the amended
rules listed in Table 2 and included in the 2001 and 2020 Submittals
for the rescinded rules listed in Tables 3 and 4, we find that the
AVAQMD has provided sufficient evidence of public notice, opportunity
for comment, and a public hearing prior to the adoption, rescission,
and submittal of these rules to the EPA.
We have determined that while the submitted rules mostly satisfy
the statutory and regulatory requirements in parts C and D of the Act
(including sections 172, 173, 182(c)(6) and 182(d)), section 110(a)(2)
(including 110(a)(2)(A) and 110(a)(2)(E)(i)) and 302(z) of the Act, and
40 CFR 51.160-51.165 and 51.307, and strengthen the SIP, they also
contain deficiencies that prevent full approval. We describe these
identified deficiencies in Section II.D of this notice. Our TSD
contains a more detailed evaluation of the deficiencies, as well as
recommendations for program improvements.
D. What are the rule deficiencies?
The EPA identified the following deficiencies in the rules proposed
for inclusion in the SIP. Our TSD, which can be found in the docket for
this proposed action, contains a more detailed discussion for our
proposed action.
1. Simultaneous Emission Reductions (SERs) Calculation Methodology
SERs, as defined in 1301(UUU), are a ``Federally Enforceable
reduction in the emissions of an existing Emissions Unit(s), calculated
pursuant to the provisions of District Rule 1304(C).'' As the name
suggests, these are emission reductions that are proposed to occur in
conjunction with emission increases from a proposed project. SERs
calculated pursuant to 1304(C)(2)(d) are required to be based on real
emissions reductions pursuant to 1301(A), 1301(LLL), and 1304(C)(1).\6\
SERs are used for the following purposes under the District's NSR
rules: (1) as Offsets pursuant to 1301(AAA) and 1305(C)(2),\7\ (2) to
determine the Net Emission Increase (NEI) for determining whether a
project at a Modified Major Facility is a Major Modification pursuant
to 1301(UU) and the related provisions in 1301(MM), 1301(RR),
1301(TTT), and 1304(B)(2); \8\ and (3) to determine the amount of
Offsets required at a new or Modified Facility pursuant to 1302(C)(3)
and 1303(B)(1).\9\
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\6\ Rule 1301(A) is the definition for Actual Emissions,
1301(LLL) is the definition for Real, and 1304(C)(1) states that
``SERs as defined in District Rule 1301(UUU) may result from the
Modification or shut down of Existing Emission Unit(s) so long as
the resulting reductions are Federally Enforceable, Real, Surplus,
Permanent, Quantifiable and Enforceable, and are reductions in of
the Emissions Unit(s).''
\7\ Rule 1301(AAA) is the definition of Offset Emission
Reductions (Offsets), and 1305(C)(2) provides the eligibility
requirements for SERs used as offsets.
\8\ Rule 1301(MM) is the definition for Major Modification,
1301(RR) is the definition for Modification (Modified), 1301(TTT) is
the definition for Significant, and 1304(B)(2) provides the NEI
calculation procedures.
\9\ Rule 1302(C)(3) provides the District's procedures for the
determination of offsets, and Rule 1303(B)(1) states the District's
procedures for determining the amount of offsets required.
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The EPA has identified deficiencies in how the District calculates
and applies SERs. Rule 1304(C)(2)(d) allows SERs to be calculated using
a potential-to-emit (PTE)-to-PTE calculation method rather than an
actuals-to-PTE calculation method. Specifically, 1304(C)(2)(d) states
that, in the case of a Modified Major Facility, the historic actual
emissions (HAE) for a specific Emission Unit may in some circumstances
be equal to the Potential to Emit for that Emission Unit if the
particular Emission Unit has been previously offset in a documented
prior permitting action.
CAA section 173(c)(1) requires that the SIP must contain provisions
to assure that emission increases from new or modified major stationary
sources are offset by real reductions in actual emissions. In addition,
40 CFR 51.165(a)(3)(i) specifies that the baseline for determining
credit for emissions reductions shall be the ``actual'' emissions of
the source from which the offset credit is obtained where the
demonstration of reasonable further progress (RFP) and attainment of
the NAAQS is based upon the actual emissions of sources located within
the nonattainment area. The District's attainment plan and
demonstration of RFP are based on actual emissions. SERs
[[Page 5831]]
calculated pursuant to 1304(C)(2)(d) and used as offsets pursuant to
1301(AAA) and 1305(C)(2) may not be real reductions in actual emissions
as required by CAA section 173(c)(1) because the provision allows an
Emission Unit's potential to emit, rather than historic actual
emissions to be used as the baseline for the calculations. Calculating
emissions decreases using a potential emissions baseline allows
reductions ``on paper'' that do not represent real emissions
reductions. Under the CAA, such paper reductions cannot be used to
offset actual emission increases. Moreover, since SERs calculated using
a potential to emit baseline are not based on real reductions in actual
emissions as required in CAA section 173(c)(1), it makes offsets that
rely on the use of such SERs deficient.
As discussed in the preceding paragraph, SERs calculated pursuant
to 1304(C)(2)(d) may not represent real reductions in actual emissions
because the provision allows an Emission Unit's potential to emit,
rather than historic actual emissions, to be used as the baseline for
calculating emission decreases. This provision is inconsistent with the
plain language of the definition of ``net emissions increase'' (NEI)
found in 40 CFR 51.165(a)(1)(vi)(E)(1), which states that: ``A decrease
in actual emissions is creditable only to the extent that the old level
of actual emission or the old level of allowable emissions whichever is
lower, exceeds the new level of actual emissions.'' Therefore, we find
the definition of NEI in 1301(UU) and all related provisions in
1301(MM), 1301(RR), 1301(TTT), and 1304(B)(2) are deficient.
40 CFR 51.165(a)(3)(ii)(J) requires that the increased emissions,
in tons per year, resulting from a major modification that must be
offset in accordance with section 173(c)(1) of the Act shall be
determined by summing the difference between the allowable emissions
after the modification and the actual emissions before the modification
for each emissions unit. SERs calculated pursuant to 1304(C)(2)(d) and
used to determine the quantity of offsets required at a new or Modified
Facility pursuant to 1303(B)(1) may not be based on the difference
between the allowable emissions after the modification and the actual
emissions before the modification for each emissions unit as required
by 40 CFR 51.165(a)(3)(ii)(J). Therefore, because 1303(B)(1) allows
SERs to be used to calculate the quantity of offsets required, we find
this provision to be deficient, as well as 1302(C)(3).
These three deficiencies identified in the preceding paragraphs
make portions of Rules 1301, 1302, 1303, 1304, and 1305 not fully
approvable. Deviations from federal definitions and requirements are
generally approvable only if a state specifically demonstrates that the
submitted provisions are more stringent, or at least as stringent, in
all respects as the corresponding federal provisions and definitions.
See 40 CFR 51.165(a)(1) and 51.165(a)(2)(ii). These deficiencies may be
corrected by revising 1304(C)(2)(d) to require HAE or actual emissions,
rather than PTE, to always be used when calculating SERs, regardless of
whether ``the particular Emissions Unit ha[s] been previously offset''
in a past NSR permit action. The District may also correct the
deficiencies by providing a revised calculation method that meets or is
at least as stringent as the requirements in CAA section 173(c)(1), 40
CFR 51.165(a)(3)(i), 40 CFR 51.165(a)(1)(vi)(E)(1), and 40 CFR
51.165(a)(3)(ii)(J).
2. Calculation Method for Determining HAE
Rule 1304(E)(2) defines the calculation method for determining the
HAE as it relates to emission changes at a Facility pursuant to 1304.
Rule 1304(E)(2) states that HAE, in pounds per year, is the actual
emissions of an emission unit, ``(i) . . . averaged from the 2-year
period which immediately proceeds the date of application and which is
representative of Facility operations; or (ii) averaged for any 2 years
of the 5-year period which immediately precedes the date of application
which the APCO has determined is more representative of Facility
operations. . . .''
The provision contains a typographical error making the provision
deficient. The actual emissions must be based on emissions emitted
preceding the date of application. This deficiency may be corrected by
replacing the word ``proceeds'' with ``precedes'' in Rule
1304(E)(2)(i).
3. Use of Contracts
The District rule provisions 1302(D)(6)(a)(iii), 1304(C)(4)(c),
1309(D)(3)(c), and 1309(E)(6) are used to meet requirements in CAA
section 173(c)(1), and 40 CFR 51.165(a)(3)(ii)(G) and 40 CFR
51.165(a)(3)(ii)(J). The provisions allow an owner and/or operator to
obtain a valid District permit or ``contract'' enforceable by the
District. The terms ``Authority to Construct (ATC)'' and ``Permit to
Operate (PTO)'' are defined in Rule 1301(H) and 1301(CCC),
respectively. SIP-approved Rules 201, 203, and 204 provide additional
requirements for ATCs and PTOs. However, neither the NSR rules
submitted for approval nor any other SIP-approved NSR rules define the
term ``contract'' or provide requirements for how a contract is an
enforceable mechanism that may be used in the same way as an ATC or
PTO. For this reason, rule sections 1302(D)(6)(a)(iii), 1304(C)(4)(c),
1309(D)(3)(c), and 1309(E)(6) are deficient and therefore are not fully
approvable. This deficiency may be corrected by either removing the
term ``contract'' or adding provisions that define and delineate how a
contract is a federally enforceable mechanism that may be used in the
same way as an ATC or a PTO.
4. Interprecursor Trading
Rule 1305(C)(6) allows interprecursor trading (IPT) between
nonattainment pollutants and their precursors on a case-by-case basis.
A footnote to this section states: ``Use of this subsection [is]
subject to the Ruling in Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir.
2021) and subsequent guidance as issued by USEPA.'' This footnote
appears to reference the D.C. Circuit Court of Appeals decision issued
on January 29, 2021,\10\ vacating the provisions of the 2018
Implementation Rule that allowed IPT for the ozone precursors volatile
organic compounds (VOCs) and nitrogen oxides (NO<INF>X</INF>).\11\ On
July 19, 2021, the EPA issued a final rulemaking that removed the IPT
provisions found in 40 CFR 51.165(a)(11) pertaining to ozone
precursors, consistent with the D.C. Circuit Court decision.\12\
Therefore, the provision in Rule 1305(C)(6) allowing IPT for ozone
precursors is no longer permissible under EPA regulations. Accordingly,
we find Rule 1305 deficient in this regard. We acknowledge the
District's attempt to address the D.C. Circuit Court decision, but with
the EPA's revisions to the NSR regulations, the District must revise
Rule 1305(C)(6) to make clear that IPT is not permissible for ozone
precursors.
---------------------------------------------------------------------------
\10\ Sierra Club v. EPA, 21 F.4th 815 (D.C. Cir. 2021). This is
the same D.C. Circuit Court decision cited in Rule 1305; the Court
simply updated the citation.
\11\ 83 FR 62998 (December 6, 2018).
\12\ 86 FR 37918 (July 19, 2021).
---------------------------------------------------------------------------
5. De Minimis Rule
Pursuant to section 182(c) and (d) of the CAA, the SIP requirements
for Severe nonattainment areas must include all the provisions under
section 182(c) for Serious nonattainment areas as well as the SIP
requirements in section 182(d) for Severe ozone nonattainment areas.
CAA section 182(c)(6) requires that the NSR provisions in the SIP
``shall ensure
[[Page 5832]]
increased emissions of volatile organic compounds resulting from any
physical change in, or change in the method of operation of, a
stationary source located in the area shall not be considered de
minimis for purposes of determining the applicability of the permit
requirements established by this Act unless the increase in net
emissions of such air pollutant from such source does not exceed 25
tons when aggregated with all other net increases in emissions from the
source over any period of 5 consecutive calendar years which includes
the calendar year in which such increase occurred.'' The de minimis SIP
requirements in CAA section 182(c)(6) are not provided in AVAQMD's
submitted nonattainment NSR rules. Therefore, the District rules are
deficient and not fully approvable with respect to CAA section
182(c)(6) or purposes of determining the applicability of the NSR
permit requirements. This deficiency may be corrected by incorporating
the de minimis SIP requirements in CAA section 182(c)(6) in the
Regulation XIII nonattainment NSR rules.
Our TSD, which can be found in the docket for this proposed action,
contains a more detailed discussion of the rule deficiencies as well as
a complete analysis of the District's submitted rules that form the
basis for our proposed action.
III. Proposed Action and Public Comment
The EPA is proposing approval of AVAQMD Rules 219, 1300, and 1306
as authorized in section 110(k)(3) of the Act. If a portion of a plan
revision meets all the applicable CAA requirements, CAA sections
110(k)(3) and 301(a) authorize the EPA to approve the plan revision in
part and disapprove the plan revision in part. The EPA is proposing a
limited approval and limited disapproval of Rules 1301, 1302, 1303,
1304, 1305, and 1309 as authorized in sections 110(k)(3) and 301(a) of
the Act because although they fulfill most of the relevant CAA
requirements and strengthen the SIP, they also contain six deficiencies
as discussed in Section II.D of this notice.
Regarding the additional substantive requirements of CAA sections
110(l) and 193, our proposed 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
it will not interfere with any applicable requirement concerning
attainment and reasonable further progress, or any other applicable CAA
requirement. In addition, our proposed action will not relax any pre-
November 15, 1990 requirement in the SIP, 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.
If we finalize this action as proposed, our action will be codified
through revisions to 40 CFR 52.220 (Identification of plan--in part).
This action would incorporate the submitted rules into the SIP,
including those provisions identified as deficient. This approval is
limited because the EPA is simultaneously proposing a limited
disapproval of Rules 1301, 1302, 1303, 1304, 1305, and 1309 under CAA
sections 110(k)(3) and 301(a).
In conjunction with our SIP approval of the District's visibility
provisions for major sources subject to review under the NNSR program,
we also propose to revise 40 CFR 52.281(d) regarding applicability of
the visibility Federal Implementation Plan (FIP) at 40 CFR 52.28 as it
pertains to California. Approval of the District's visibility
provisions under 40 CFR 51.307 would mean that this FIP is not needed
to satisfy the CAA visibility requirements at 40 CFR 51.307 for sources
subject to the District's NNSR program. This revision will clarify the
application of this FIP in California following our final action.
If finalized as proposed, our limited disapproval action would
trigger an obligation on the EPA to promulgate a 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
the AVAQMD's jurisdiction 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.
We will accept comments from the public on this proposal until
March 1, 2023.
IV. 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 AVAQMD rules listed in Table 2 of this preamble, which
contain the District's NSR permitting program for new and modified
sources of air pollution under part D of title I of the CAA. The EPA
has made, and will continue to make, these materials available through
<a href="https://www.regulations.gov">https://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).
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www2.epa.gov/laws-regulations/laws-and-executive-orders">https://www2.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.
[[Page 5833]]
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 State did not evaluate environmental justice considerations as
part of its SIP submittal. There is no information in the record
inconsistent with the stated goals of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon oxides, Incorporation by reference,
Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 19, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-01500 Filed 1-27-23; 8:45 am]
BILLING CODE 6560-50-P
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