Rule2023-14132
Air Plan Revisions; California; San Joaquin Valley Air Pollution Control District; Stationary Source Permits
Primary source
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Published
July 10, 2023
Effective
August 9, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action on a permitting rule submitted as a revision to the San Joaquin Valley Air Pollution Control District (SJVAPCD or "District") portion of the California state implementation plan (SIP). We are finalizing a limited approval and limited disapproval of the rule. This revision concerns the District's new source review (NSR) permitting program for new and modified sources of air pollution under section 110(a)(2)(C) and part D of title I of the Clean Air Act (CAA or "Act").
Full Text
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<title>Federal Register, Volume 88 Issue 130 (Monday, July 10, 2023)</title>
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[Federal Register Volume 88, Number 130 (Monday, July 10, 2023)]
[Rules and Regulations]
[Pages 43434-43440]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-14132]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2022-0420; FRL-9970-02-R9]
Air Plan Revisions; California; San Joaquin Valley Air Pollution
Control District; Stationary Source Permits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action on a permitting rule submitted as a revision to the San Joaquin
Valley Air Pollution Control District (SJVAPCD or ``District'') portion
of the California state implementation plan (SIP). We are finalizing a
limited approval and limited disapproval of the rule. This revision
concerns the District's new source review (NSR) permitting program for
new and modified sources of air pollution under section 110(a)(2)(C)
and part D of title I of the Clean Air Act (CAA or ``Act'').
DATES: This rule is effective on August 9, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2022-0420. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly
[[Page 43435]]
available, e.g., confidential business information (CBI) or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information. If you need assistance in a language other than English or
if you are a person with a disability 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: Laura Yannayon, EPA Region IX, Air-3-
2, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3534
or by email at <a href="/cdn-cgi/l/email-protection#b7ced6d9d9d6ced8d999dbd6c2c5d6f7d2c7d699d0d8c1"><span class="__cf_email__" data-cfemail="83fae2edede2faecedadefe2f6f1e2c3e6f3e2ade4ecf5">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to the EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Proposed Action
On July 29, 2022, the EPA proposed a limited approval and limited
disapproval of the following SJVAPCD rule into the California SIP.\1\
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\1\ 87 FR 45730.
Table 1--Submitted Rule
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Rule No. Rule title Amended date Submitted date
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2201....................................... New and Modified Stationary Source 08/15/19 11/20/19
Review Rule.
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In our July 29, 2022 action, we proposed a limited approval of Rule
2201 because we determined that it generally satisfies the applicable
CAA and regulatory requirements for sources subject to nonattainment
NSR permit program requirements for Extreme ozone nonattainment areas
and Serious PM<INF>2.5</INF> nonattainment areas.\2\ However, we also
determined that Rule 2201 does not fully satisfy all these
requirements, and identified the following deficiencies in the rule:
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\2\ The District submitted the revised Rule 2201 to address
requirements applicable following the EPA's reclassifications of the
San Joaquin Valley to Serious nonattainment for the 1997, 2006, and
2012 PM<INF>2.5</INF> NAAQS. The submittal also generally satisfies
applicable requirements for the 2015 ozone NAAQS.
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1. Missing definitions related to the definition of the term
``major modification,'' and deficiencies in the definitions for the
terms: Major Source; Routine Maintenance, Repair and Replacement;
PM<INF>10</INF> Emissions; Secondary Emissions; and Volatile Organic
Compounds.
2. Provisions allowing the use of interprecursor trading (IPT) of
ozone precursors to satisfy emission offset requirements, which are no
longer permissible due to a 2021 D.C. Circuit Court of Appeals
decision.
3. Exemptions from otherwise applicable offset requirements for the
relocation of emission units or stationary sources, if certain
conditions are met, and for the installation or modification of
required control equipment.
4. The lack of public notice requirements for minor source permits
addressing emissions of ozone precursors.
5. Failure of the federal offset equivalency tracking system to
ensure equivalency with federal offset requirements.
6. Missing provisions for Temporary Replacement Units and Routine
Replacement Emission Units.
7. Other minor deficiencies, including issues relating to stack
height requirements at 40 CFR 51.164; enforceable procedures as
provided at 40 CFR 51.165(a)(5)(i) and (ii); and permit issuance
restrictions based on inadequate SIP implementation at CAA section
173(a)(4).
These deficiencies are the basis for the EPA's final limited
approval and limited disapproval of Rule 2201. Our proposed action and
the associated technical support document (TSD) contain more
information on the basis for this rulemaking and on our evaluation of
the submittal, including a detailed discussion of each deficiency.
II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received two comment letters, both of which are
included in the docket for this action. The first is from an
individual; it appears to be generally supportive of the action and
does not raise any discernable issues that are adverse to our action as
proposed. The second comment letter was submitted by the Central Valley
Air Quality Coalition, Medical Advocates for Healthy Air, and Little
Manila Rising. Issues raised in this comment are summarized with
responses below.
Comment 1: The commenters express support for the EPA's proposed
disapproval of the District's offset equivalency system, and for
strengthening Rule 2201's automatic remedies for equivalency failure
that would require the District to quantify and restore negative
balances in the offset equivalency system. The commenters include
information regarding the severity of ozone and PM<INF>2.5</INF>
pollution in the San Joaquin Valley, the sources and conditions
contributing to this pollution, and the health effects associated with
exposure to these pollutants. The commenters also describe their
previous work to raise concerns associated with the District's ERC
system and offset equivalency demonstration tracking system.
Response: The EPA appreciates the commenters' interest and
involvement in issues surrounding the District's use of ERCs and
offsets in its equivalency demonstration tracking system, and their
support for this action. As explained elsewhere in this notice, we are
finalizing our proposed limited approval and limited disapproval of
Rule 2201 for the reasons articulated in our proposed rule.
Comment 2: Notwithstanding their general support for the EPA's
proposed action, including disapproval of the equivalency system, the
commenters disagree with a statement in the EPA's proposed action that
the Rule 2201 remedies do not provide a mechanism to require the
District to quantify or restore a negative balance in the equivalency
system, and therefore fail to ensure full federal offset equivalency in
the event of a shortfall. The commenters state that the EPA has
neglected to recognize the automatic remedies for a
[[Page 43436]]
failure to submit annual reports meeting the Rule 2201 requirements,
which they say can correct historical equivalency system failures.
Citing Rule 2201 and statements from the preamble to the EPA's 2004
approval of the rule, the commenters argue that sections 7.4.1.3 and
7.4.2.3 of the rule provide an enforceable mechanism to require the
District to quantify and correct negative balances in the equivalency
system. These provisions apply when the District fails to submit a
report meeting the annual demonstration requirements of sections 7.2.1
or 7.2.2 (respectively), and require the District to apply specified
federal offset requirements until it submits a report that meets the
applicable requirements. According to the commenters, ``[u]pon
submission of corrected reports, automatic remedies for the period the
system failed equivalency--the negative balance--would apply and those
permits in that period would have to meet federal standards, thus
correcting the negative balance.''
The commenters request that the EPA clarify that this remedial
scheme applies and not foreclose potential action to enforce the
existing SIP-approved rule to remedy asserted violations of Rule 2201.
Response: While we agree that Rule 2201 provides automatic
enforceable remedies if the District fails to submit a required annual
report containing the required information, we cannot provide the
clarification requested by the commenters because we do not agree that
these remedies are adequate to correct historical offset equivalency
system failures as described by the commenter. As stated in our
proposed action and cited by the commenters, even when the Rule 2201
remedies are fully implemented in response to an equivalency failure,
the equivalency system will retain a historic deficit relative to the
federal program, which is not made whole under the rule.\3\ As the
commenters note, the rule also applies federal offset requirement
remedies when the District fails to submit a compliant annual
equivalency report. In that case, the District would be required to
adopt federal offset requirements as prescribed by section 7.4.1.3 or
7.4.2.3 (as applicable), which would remain in place until the District
submits a report complying with the applicable requirements in section
7.2.1 or 7.2.2. Critically, however, the rule contains no requirement
for the District to submit a corrected report or to restore any
negative balance in the equivalency system. Should the District
subsequently submit corrected reports showing an equivalency shortfall,
the applicable federal offset requirements would remain in place, but
the rule would not require the District to restore the negative
balance.
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\3\ 87 FR 45730, 45734/2 (July 29, 2022).
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As we explained in our proposed action, the Rule 2201 remedies are
inadequate to ensure equivalency once available carryover offsets and
additional creditable emission reductions are exhausted.\4\ Our 2004
approval of the rule acknowledged that a deficit could remain even
after all available emission reductions were exhausted, in which case
the District would be required to implement federal offsetting
requirements:
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\4\ Id. at 45734/1.
Should the District allow too many non-surplus emission
reductions to be used as offsets, the remedy is outlined in section
7.4. The District will retire additional creditable reductions that
have not been used as offsets and have been banked or generated as a
result of enforceable permitting actions. If a deficit remains, the
District must implement the requirements specified in the federal
rules.\5\ (Emphasis added.)
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\5\ 69 FR 27837, 27839 (May 17, 2004).
These federal offsetting requirements do not apply retroactively.
Rule 2201 clearly establishes that the remedy shall be implemented
prospectively through subsequent permitting actions, specifying that
``all ATCs issued after the report deadline for that year shall
comply'' with the federal offsetting requirements.\6\ Similar language
appears in the rule's other federal offset remedy provisions.\7\ Once
the District has exhausted all creditable offsets and additional
creditable emissions reductions under section 7.4.1.1 and implemented
the federal offset remedies for new permitting actions under section
7.4.1.2, the rule provides no further corrective mechanisms to restore
a prior shortfall. Specifically, there is no requirement for the
District to collect any additional offsets from a source that was
previously issued a permit under the rule.\8\ Accordingly, as noted in
our proposed action, the equivalency system may retain a historical
deficit relative to the federal program even after all applicable
remedies are fully implemented.
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\6\ Rule 2201, section 7.4.1.2.
\7\ See id. at section 7.4.1.3; 7.4.2.1; 7.4.2.3 (implementing
remedies through conditions of subsequent ATCs).
\8\ See 69 FR at 27839 (specifying that ``a source that complies
with the applicable District SIP-approved NSR rule would be in
compliance with the provisions of the Clean Air Act that the
District SIP rule implements,'' and that the District would not be
required ``to withdraw a permit issued in reliance on an emission
reduction credit that is of lesser surplus value at the time of use
under federal criteria'').
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In reviewing the Rule 2201 text, we fail to see any provisions that
would provide a mechanism to require the District to quantify and
correct any negative balance in the equivalency system, as claimed by
the commentors. In particular, we see nothing in the rule that would
require the District to submit a corrected report once the remedies
from sections 7.4.1.3 and 7.4.2.3 of the rule are imposed, as the
commenters appear to suggest. As noted above, these remedies apply
``until'' the District submits a report that complies with the
applicable requirements. But if the District does not submit any such
correction, the federal offset remedy remains in place, and the
District is not otherwise compelled to take any further action.
Comment 3: The commenters recount concerns associated with the
creditability of emissions reductions from agricultural engine
electrification (``Ag-ICE'') projects and orphan shutdowns, and argue
that the District's provisional withdrawal of these reductions from the
equivalency system means that all reports that relied on these
reductions to show equivalency (beginning with the 2007-2008 report)
violate sections 7.2.1 and 7.2.2 of the rule. Therefore, according to
the commenters, the automatic remedies in sections 7.4.1.3 and 7.4.2.3
should apply until the District submits corrected annual reports for
these periods. If the District corrects these reports and quantifies
the equivalency system deficit, the commenters state, the corrected
reports will indicate when the District first had negative balances in
its equivalency system, and the automatic remedies for equivalency
failure would take effect upon the due date for the first corrected
annual report to show system failure, meaning that all permits issued
from that date forward would need to meet the appropriate federal
offset requirements.
Response: As explained in our response to the prior comment, we
disagree that the Rule 2201 remedies would require the District to
submit corrected reports or to retroactively apply federal offset
requirements to permitting actions completed in prior reporting years.
Further, while we acknowledge the commenters' concerns about the
creditability of emissions reductions from Ag-ICE projects and orphan
shutdowns, a determination of whether prior annual equivalency reports
complied with the applicable requirements of the SIP-approved version
of Rule 2201 is outside the scope of this rulemaking action.
[[Page 43437]]
Comment 4: The commenters state that the EPA should revisit the
technical basis for our proposed approval of the District's
nonattainment area NSR precursor demonstration for ammonia. The
commenters assert that the EPA has failed to consider two significant
issues related to the 2025 NO<INF>X</INF> inventory used to assess the
contribution of major sources of ammonia on ambient air quality. In
particular, the commenters say that the 50% reduction in NO<INF>X</INF>
emissions between 2013 and 2025 cited in the TSD may be overstated
because the EPA has not yet approved several of the strategies to
achieve over 33 tons per day (tpd) of reductions in CARB's ``aggregate
commitment'' in the 2018 San Joaquin Valley PM<INF>2.5</INF> Plan. In
addition, the commenters say that the NO<INF>X</INF> emissions
inventory used in the modeling fails to fully account for
NO<INF>X</INF> emissions from soil. The commenters cite Almarez et al.
(2018) and Sha et al. (2021), which they say show that including
NO<INF>X</INF> emissions from soil could increase total NO<INF>X</INF>
in the emissions inventory by 50%.
The commenters request that the EPA require the District to perform
a precursor demonstration without the 2025 NO<INF>X</INF> inventory
which relies on reductions from the aggregate commitments, suggesting
that it would be more appropriate to use the current year inventory
adjusted to conservatively account for soil NO<INF>X</INF> data.
Response: The EPA does not agree that the technical basis for the
NSR precursor demonstration is improper for the reasons suggested by
the commenter. The projected 50% emissions reduction between 2013 and
2025, cited in the TSD \9\ and precursor demonstration,\10\ comes from
the 2018 San Joaquin Valley PM<INF>2.5</INF> Plan.\11\ Table B-2 of the
Plan's Appendix B shows the baseline emissions inventory for
NO<INF>X</INF>, which projects emissions reductions expected due to
existing control measures. This baseline inventory does not include
additional reductions from new control measures or aggregate
commitments in the Plan. During the 2013 to 2025 period, baseline
annual average NO<INF>X</INF> emissions are projected to decrease from
317.2 tons per day (tpd) to 143.7 tpd, a decrease of 54.7%. Similarly,
for the same time period, baseline winter season emissions are
projected to decrease from 300.5 tpd to 134.5 tpd, a decrease of 55.2%.
Over 90% of the decrease is due to NO<INF>X</INF> emissions reductions
from the existing motor vehicle control program.\12\ Thus,
NO<INF>X</INF> emissions are projected to decrease by over 50%,
independent of any NO<INF>X</INF> reductions required for District's
attainment plan for the 2012 annual PM<INF>2.5</INF> NAAQS.
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\9\ TSD Attachment 2, ``Evaluation of NNSR Precursor
Demonstration for NH<INF>3</INF> for the San Joaquin Valley Unified
Air Pollution Control District,'' Memorandum from Scott Bohning, EPA
Region 9, to Docket EPA-R09-OAR-2022-0420, San Joaquin Valley NSR
Rule 2201, p. 9.
\10\ SJVAPCD, ``Final Draft Staff Report: Rules 2201, 2301, and
2520'' July 15, 2019, Appendix E, ``Demonstration of Contribution of
Hypothetical Increased Ammonia Emissions to PM<INF>2.5</INF>
Concentrations in the San Joaquin Valley,'' p. 59.
\11\ SJVAPCD, ``2018 Plan for the 1997, 2006, and 2012 p.m.2.5
Standards,'' November 15, 2018, Appendix B, Table B-2 (``2018 San
Joaquin Valley PM<INF>2.5</INF> Plan'').
\12\ Id. Baseline motor vehicle program NO<INF>X</INF> emissions
decrease from 270.5 tpd to 108.6, a reduction of 161.9, which is
93.3% of the total NO<INF>X</INF> decrease of 317.2 - 143.7 = 173.5
tpd.
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The precursor demonstration's 2025 modeling includes reductions
from the aggregate commitments, and therefore shows lower
NO<INF>X</INF> emissions than the 2025 baseline. With these lower
NO<INF>X</INF> emissions, modeling of PM<INF>2.5</INF> formation would
tend to be more NO<INF>X</INF>-limited and less ammonia-limited than
the higher baseline inventories, and therefore less responsive to the
addition of hypothetical new ammonia point sources. With or without the
aggregate commitment reductions, the model response to adding
hypothetical new ammonia sources is small enough to sustain the
conclusion that these sources would not contribute significantly to
PM<INF>2.5</INF> levels exceeding the NAAQS. As we noted in our
evaluation of the precursor demonstration:
For the 24-hour average, the maximum modeled contribution is
0.394 [micro]g/m\3\, well below the recommended contribution
threshold of 1.5 [micro]g/m3. For the annual average, the maximum
impact of 0.038 [micro]g/m\3\ is also well below the threshold of
0.2 [micro]g/m\3\. The District notes that the contributions are 26%
and 20%, respectively, of the 24-hour and annual thresholds, despite
the very conservative assumptions used for the hypothetical sources
and the source modifications.\13\
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\13\ TSD Attachment 2, p.12.
Thus, without the aggregate commitment NO<INF>X</INF> reductions,
the atmosphere would have to be nearly four times as sensitive to
ammonia increases for the model responses to exceed the contribution
thresholds. The EPA does not believe that is credible. As an
approximate check, the EPA estimated the effect of including the
aggregate commitments; that is, the effect of increasing the model
emissions input by 33.88 tpd of NO<INF>X</INF>.\14\ The aggregate
commitments represent a reduction of 23.6% from 2025 baseline emissions
of 143.7 tpd. For comparison, baseline annual NO<INF>X</INF> emissions
decreased by 26.8% between 2020 and 2024 (203.3 tpd down to 148.9
tpd).\15\ The comprehensive ammonia precursor demonstration in the 2018
San Joaquin Valley PM<INF>2.5</INF> Plan \16\ estimates the effect of a
30% reduction in ammonia emissions for both 2020 and 2024 baseline
emissions, using the same underlying 2013 base case as the NSR
precursor demonstration. In going from the 2024 to the 2020 results,
the response increased by 100%, a factor of two, for the Bakersfield-
Planz site (0.12 up to 0.24 [micro]g/m\3\), which is the most
responsive site, and by an average of 62% over all sites. This shows
that a NO<INF>X</INF> emissions increase comparable to that from the
aggregate commitments increased the sensitivity to ammonia by at most a
factor of two. That is far less than the factor of four increase that
would be needed for hypothetical new ammonia sources to exceed the
contribution threshold. Therefore, the NSR precursor demonstration
results support the conclusion that new major sources and major
modifications would not contribute significantly to PM<INF>2.5</INF>
levels exceeding the NAAQS even when NO<INF>X</INF> reductions from the
aggregate commitments are included.
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\14\ These aggregate commitments are described and summed in the
EPA's proposed action on the 2018 San Joaquin Valley
PM<INF>2.5</INF> Plan at 86 FR 74310, 74331 (December 29, 2021).
\15\ 2018 San Joaquin Valley PM<INF>2.5</INF> Plan at Appendix
B, Table B-2.
\16\ Id. at Appendix G. The EPA approved this precursor
demonstration with its accompanying modeling for the 2006 24-hour
PM<INF>2.5</INF> NAAQS, 85 FR 44192, July 22, 2020.
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With respect to the amount of NO<INF>X</INF> emitted by soil in the
San Joaquin Valley, there is conflicting research. The commenters cite
conclusions of Almaraz et al. (2018) and Sha et al. (2021) that soil
NO<INF>X</INF> emissions are underestimated in the CARB emissions
inventory system,\17\ and that they comprise 30-40% of total
NO<INF>X</INF> emissions in California. While higher levels of soil
NO<INF>X</INF> (or NO<INF>X</INF> more generally) would tend to
increase the modeled sensitivity of ambient PM<INF>2.5</INF> to
ammonia, we maintain that there is not a sufficient basis to conclude
that higher soil NO<INF>X</INF> emissions should be used in the air
quality modeling for the San Joaquin Valley.\18\ In contrast to the
studies cited
[[Page 43438]]
by the commenters, Guo et al. (2020) \19\ does not find such a
discrepancy in emissions estimates, concluding that soil NO<INF>X</INF>
is about 1% of anthropogenic NO<INF>X</INF> emissions. Almaraz et al.
estimates the fraction of nitrogen applied as fertilizer and released
as NO<INF>X</INF> to the atmosphere to be 15%, while seven other
studies reviewed by Guo et al. estimate it to be 2% or less. Almaraz et
al., Sha et al., and Guo et al. all report high agreement between their
modeled and observed soil NO<INF>X</INF> emissions. Almaraz et al.
acknowledges the limited number of surface measurements that were
available for purposes of comparing the model results and the
difficulty in comparing the model results to the observations and notes
the need for more field measurements. Guo et al. states that obtaining
an emission factor correlating NO<INF>X</INF> emissions to fertilizer
application from the data available in various studies (including
Almaraz et al.) would be ``difficult or impossible'' due to the
sparsity of data collected in terms of sampling length, sampling
frequency, and the episodic nature of nitrogen gas emissions from soil.
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\17\ Almarez et al. discuss a comparison to NO<INF>X</INF> in
the California Emissions Projection Analysis Model (CEPAM), the
basis for CARB planning and modeling.
\18\ See EPA Region IX, ``Response to Comments Document for the
EPA's Final Action on the San Joaquin Valley Serious Area Plan for
the 2006 PM<INF>2.5</INF> NAAQS,'' June 2020, pp. 148 and 158. This
document accompanies the EPA's final rule published at 85 FR 44192
(July 22, 2022).
\19\ Guo et al. (2020), ``Assessment of Nitrogen Oxide Emissions
and San Joaquin Valley PM<INF>2.5</INF> Impacts From Soils in
California,'' Journal of Geophysical Research: Atmospheres, 125(24),
doi:10.1029/2020JD033304; available at <a href="https://doi.org/10.1029/2020JD033304">https://doi.org/10.1029/2020JD033304</a>.
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In light of the uncertainties and disagreements among studies, at
this time the EPA does not believe that available research provides
sufficient certainty about the magnitude and proportion of soil
NO<INF>X</INF> emissions attributable to agricultural fertilizer
application to require substantial revisions in either the
NO<INF>X</INF> emissions inventory or the PM<INF>2.5</INF> modeling at
this time.
In summary, the EPA disagrees with the commenters that the
District's ammonia precursor demonstration is insufficient. The EPA
believes that the modeling in the precursor demonstration adequately
shows that new and modified major sources of ammonia would not
contribute significantly to PM<INF>2.5</INF> levels above the NAAQS.
The EPA therefore affirms our approval of the District's nonattainment
area NSR precursor demonstration for ammonia, and our approval of Rule
2201 without including ammonia as a PM<INF>2.5</INF> precursor.\20\
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\20\ For the 2012 PM<INF>2.5</INF> NAAQS, the EPA recently
proposed to disapprove the comprehensive precursor demonstration for
ammonia in the 2018 Plan for the 1997, 2006, and 2012
PM<INF>2.5</INF> Standards. 87 FR 60494 (October 5, 2022). That
demonstration modeled ammonia emissions reductions of 30%-70% of the
total inventory and compared the response at monitor locations, as
recommended in EPA's ``PM<INF>2.5</INF> Precursor Demonstration
Guidance,'' EPA-454/R-19-004, US EPA OAQPS, May 2019, available at
<a href="https://www.epa.gov/pm-pollution/pm25-precursor-demonstration-guidance">https://www.epa.gov/pm-pollution/pm25-precursor-demonstration-guidance</a>. The proposed disapproval focused on some responses above
the recommended contribution threshold, and the reliance on
reduction of no more than 30%. in the plan's precursor
demonstration. In contrast, for the nonattainment area new source
review precursor demonstration considered here the same guidance
recommends modeling ammonia emissions increases, from a variety of
hypothetical new sources. The two precursor demonstrations have
different requirements and follow different procedures for assessing
ammonia's contribution to PM<INF>2.5</INF>. This is appropriate for
the different regulatory requirements and source types covered by
the two types of demonstrations, and the EPA's conclusion on the two
may also be different.
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III. EPA Action
No comments were submitted that change our assessment of Rule 2201
as described in our proposed action. Therefore, as authorized in
sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a
limited approval and limited disapproval of Rule 2201. This action
incorporates the submitted rule into the California SIP, including
those provisions identified as deficient.
This approval is limited because the EPA is simultaneously
finalizing a limited disapproval of the rule under section 110(k)(3).
Our limited disapproval action triggers an obligation for the EPA to
promulgate a federal implementation plan (FIP) unless we approve
subsequent SIP revisions that correct the rule deficiencies within 24
months of this final action. Additionally, because the deficiency
relates to nonattainment NSR requirements under part D of title I of
the Act, the offset sanction in CAA section 179(b)(2) will be imposed
in the San Joaquin Valley nonattainment area 18 months after the
effective date of this action, and the highway funding sanction in CAA
section 179(b)(1) will be imposed in the area six months after the
offset sanction is imposed, unless the EPA approves subsequent SIP
revisions that correct the rule deficiencies prior to the
implementation of the sanctions. The EPA intends to work with the
District to correct the deficiencies in a timely manner.
Note that Rule 2201 has been adopted by the SJVAPCD, and the EPA's
final limited disapproval does not prevent the local agency from
enforcing it. The limited disapproval would also not prevent any
portion of the rule from being incorporated by reference into the
federally enforceable SIP.\21\
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\21\ Memorandum dated July 9, 1992, from John Calcagni,
Director, Air Quality Management Division, Office of Air Quality
Planning and Standards, U.S. EPA, to EPA Regional Air Directors,
Regions I-X, Subject: ``Processing of State Implementation Plan
(SIP) Submittals.''
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IV. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of SJVAPCD
Rule 2201, ``New and Modified Stationary Source Review Rule,'' amended
on August 15, 2019, which implements the District's NSR permitting
program for new and modified sources of air pollution under section
110(a)(2)(C) and part D of title I of the CAA. The EPA has made, and
will continue to make, these materials available through
<a href="http://www.regulations.gov">www.regulations.gov</a> and 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://www.epa.gov/laws-regulations/laws-and-executive-orders">https://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.
[[Page 43439]]
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 Populations
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this action is finalizing a limited approval and limited
disapproval of Rule 2201 as meeting federal requirements and does not
impose additional requirements beyond those imposed by state law.
The State did not evaluate environmental justice considerations as
part of its SIP submittal; the CAA and applicable implementing
regulations neither prohibit nor require such an evaluation. The EPA
did not perform an EJ analysis and did not consider EJ in this action.
Due to the nature of the action being taken here, this action is
expected to have a neutral to positive impact on the air quality of the
affected area. Consideration of EJ is not required as part of this
action, and there is no information in the record inconsistent with the
stated goal of E.O. 12898 of achieving environmental justice for people
of color, low-income populations, and Indigenous peoples.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Petitions for Judicial Review
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 September 8, 2023. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 28, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraphs (c)(400)(i)(A)(2) and
(c)(598) to read as follows:
Sec. 52.220 Identification of plan-in part.
* * * * *
(c) * * *
(400) * * *
(i) * * *
(A) * * *
(2) Previously approved on September 17, 2014, in paragraph
(c)(400)(i)(A)(1) of this section and now deleted with replacement in
(c)(598)(i)(A)(1), Rule 2201, ``New and Modified Stationary Source
Review Rule,'' amended on April 21, 2011.
* * * * *
(598) The following regulations were submitted on November 20,
2019, by the Governor's designee as an attachment to a letter dated
November 15, 2019.
[[Page 43440]]
(i) Incorporation by reference. (A) San Joaquin Valley Unified Air
Pollution Control District.
(1) Rule 2201, ``New and Modified Stationary Source Review Rule,''
amended on August 15, 2019.
(2) [Reserved]
(B) [Reserved]
(ii) [Reserved]
* * * * *
[FR Doc. 2023-14132 Filed 7-7-23; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on July 10, 2023.
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.