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Proposed Rule2024-14695

Federal Implementation Plan for Nonattainment New Source Review Program; Mojave Desert Air Quality Management District, California

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Published

July 9, 2024

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA) is proposing to promulgate a Federal Implementation Plan (FIP) under the Clean Air Act (CAA) that consists of Nonattainment New Source Review (NNSR) rules for areas within the jurisdiction of the Mojave Desert Air Quality Management District (MDAQMD or "District") in which air pollutant concentrations are above specific National Ambient Air Quality Standards (NAAQS). The NNSR rules would apply to construction of new major stationary sources and major modifications at existing major stationary sources of air pollution. The proposed FIP, if finalized, would be implemented by the EPA, unless and until it is replaced by an EPA-approved state implementation plan (SIP).

Full Text

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<title>Federal Register, Volume 89 Issue 131 (Tuesday, July 9, 2024)</title>
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[Federal Register Volume 89, Number 131 (Tuesday, July 9, 2024)]
[Proposed Rules]
[Pages 56237-56250]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14695]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2024-0228; FRL-11830-01-R9]

Federal Implementation Plan for Nonattainment New Source Review
Program; Mojave Desert Air Quality Management District, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
promulgate a Federal Implementation Plan (FIP) under the Clean Air Act
(CAA) that consists of Nonattainment New Source Review (NNSR) rules for
areas within the jurisdiction of the Mojave Desert Air Quality
Management District (MDAQMD or ``District'') in which air pollutant
concentrations are above specific National Ambient Air Quality
Standards (NAAQS). The NNSR rules would apply to construction of new
major stationary sources and major modifications at existing major
stationary sources of air pollution. The proposed FIP, if finalized,
would be implemented by the EPA, unless and until it is replaced by an
EPA-approved state implementation plan (SIP).

DATES: Comments must be received on or before August 23, 2024. The EPA
will hold a virtual public hearing on July 24, 2024.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-R09-
OAR-2024-0228 via the Federal eRulemaking Portal at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> (our preferred method). Follow the online
instructions for submitting comments.
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending

[[Page 56238]]

comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
You may register for the hearing at <a href="https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0">https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0</a>. Please refer to the SUPPLEMENTARY
INFORMATION section for additional information on the public hearing.

FOR FURTHER INFORMATION CONTACT: Tanya Abrahamian, Air and Radiation
Division, Rules Office (AIR-3-2), Environmental Protection Agency,
Region IX, telephone number: (213) 244-1849; email address:
<a href="/cdn-cgi/l/email-protection#e8a98a9a89808985818986c6bc89869189a88d9889c68f879e"><span class="__cf_email__" data-cfemail="6e2f0c1c0f060f03070f00403a0f00170f2e0b1e0f40090118">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.

Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-R09-OAR-2024-
0228 at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method). Once
submitted, comments cannot be edited or removed from the docket. The
EPA may publish any comment received to its public docket. Do not
submit to the EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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, 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>.

B. Participation in Virtual Public Hearing

The EPA will begin pre-registering speakers for the hearing no
later than 1 business day after publication of this document in the
Federal Register. To register to speak at the virtual hearing, please
visit <a href="https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0">https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0</a> for
online registration. The last day to pre-register to speak at the
hearing will be July 22, 2024. The EPA will post a general agenda for
the hearing that will list pre-registered speakers in approximate order
at: <a href="https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0">https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0</a>.
The virtual public hearing will be held via teleconference on July
24, 2024. The virtual public hearing will convene at 4 p.m. Pacific
Time (PT) and will conclude at 7 p.m. PT. The EPA may close the session
15 minutes after the last pre-registered speaker has testified if there
are no additional speakers. For information or questions about the
public hearing, please contact Tanya Abrahamian, per the FOR FURTHER
INFORMATION CONTACT section of this document. The EPA will announce
further details at <a href="https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0">https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0</a>.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule. Each
commenter will have 5 minutes to provide oral testimony. The EPA
encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) by emailing it to
<a href="/cdn-cgi/l/email-protection#efae8d9d8e878e82868e81c1bb8e81968eaf8a9f8ec1888099"><span class="__cf_email__" data-cfemail="6c2d0e1e0d040d01050d0242380d02150d2c091c0d420b031a">[email&#160;protected]</span></a>. The EPA also recommends submitting the text
of your oral comments as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations,
but the EPA will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral comments and
supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at <a href="https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0">https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0</a>.
While the EPA expects the hearing to go forward as set forth above,
please monitor our website or contact <a href="/cdn-cgi/l/email-protection#47062535262f262a2e2629691326293e260722372669202831"><span class="__cf_email__" data-cfemail="06476474676e676b6f6768285267687f674663766728616970">[email&#160;protected]</span></a>, per the
FOR FURTHER INFORMATION CONTACT section of this document, to determine
if there are any updates. The EPA does not intend to publish a document
in the Federal Register announcing updates.
If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearing and describe your needs by July 22, 2024. The EPA may not be
able to arrange accommodations without advance notice.

Policy on Children's Health

In 2021, EPA updated its Policy on Children's Health to reflect
that ``children's environmental health refers to the effect of
environmental exposure during early life: from conception, infancy,
early childhood and through adolescence until 21 years of age.'' In
addition, the policy applies to ``effects of early life exposures
[that] may also arise in adulthood or in later generations.'' In this
action, the EPA is proposing to implement our Federal regulations in
the nonattainment areas under the MDAQMD. In so far as there is an
impact from this action, it will be positive since the deficiencies in
the District's program it is meant to rectify would likely result in
increased emissions as compared to this FIP and our Federal NNSR
regulations.
The information presented in this preamble is organized as follows:

Table of Contents

I. Purpose of This Action
II. Background
A. Standards, Designations, and Classifications
B. Findings and Disapprovals
C. Scope of the EPA's Proposed FIP
III. Proposed FIP Requirements
A. Plan Overview
B. Definitions
C. Applicability
D. Permit Approval Criteria
E. Public Participation Requirements
F. Final Permit Issuance and Administrative and Judicial Review
G. Administration and Delegation of the Major NSR Plan for the
MDAQMD
H. SIP Replacement of All or Any Part of This FIP
I. Severability
IV. Environmental Justice Considerations
V. Proposed Action and Request for Public Comment
VI. Statutory and Executive Order Reviews

I. Purpose of This Action

The EPA is proposing an NNSR FIP that will apply to construction of
new major sources and major modifications at existing major sources
that are located within areas that are designated as not in attainment
with specific NAAQS. These are the San Bernardino County portion of the
West Mojave Desert ozone nonattainment area and the San Bernardino
County and Trona Planning Area PM<INF>10</INF> nonattainment areas.\1\
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\1\ See 40 CFR 81.305. The PM<INF>10</INF> nonattainment areas
together consist of all of the MDAQMD portion of San Bernardino
County; they are the Trona Planning Area and the portion of San
Bernardino County that excludes both the Trona Planning Area and the
portion of San Bernardino County that is located in the South Coast
Air Basin. A map of this area is available in the docket for this
action.

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[[Page 56239]]

II. Background

The following sections describe the basis for the EPA's
determination that an NNSR FIP is necessary for the portion of the West
Mojave Desert ozone nonattainment area and the San Bernardino County
and Trona Planning Area PM<INF>10</INF> nonattainment areas that are
located within the jurisdiction of the MDAQMD. The MDAQMD is currently
the agency responsible for issuing permits required under the CAA to
construct new and modified major stationary sources of air pollution in
San Bernardino County and the Palo Verde Valley portion of Riverside
County.\2\
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\2\ California Health and Safety Code section 41210(b).
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A. Standards, Designations, and Classifications

The CAA requires the EPA to set NAAQS for ``criteria pollutants.''
States are then responsible for developing state implementation plans
(SIPs) that contain regulatory measures to prevent air pollution from
exceeding those standards, or to bring areas that do not meet those
standards into attainment.
Currently, ozone and related photochemical oxidants and particulate
matter with an aerodynamic diameter less than or equal to a nominal ten
micrometers, or ``PM<INF>10</INF>,'' as well as five other major
pollutants, are listed as criteria pollutants.\3\ On July 1, 1987, the
EPA promulgated two primary standards for PM<INF>10</INF>.\4\ Effective
December 18, 2006, the EPA revoked the annual PM<INF>10</INF> NAAQS but
retained the 24-hour PM<INF>10</INF> NAAQS.\5\ On March 27, 2008, the
EPA revised the NAAQS for ozone to strengthen the 8-hour primary and
secondary standards (``2008 ozone NAAQS'').\6\ On March 6, 2015, the
EPA issued an implementation rule for the 2008 ozone NAAQS (``2008
Ozone SIP Requirements Rule'').\7\ That action amended state planning
requirements applicable to ozone nonattainment areas and provided
specific deadlines for additional SIP submittals.
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\3\ See 40 CFR part 50.
\4\ 52 FR 24634 (July 1, 1987).
\5\ 71 FR 61144 (October 17, 2006).
\6\ 73 FR 16436 (March 27, 2008).
\7\ 80 FR 12264 (March 6, 2015).
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As part of their SIPs, states designated as nonattainment for a
NAAQS criteria pollutant are required to develop and submit to the EPA
for approval NNSR preconstruction permit programs that meet the
requirements in CAA sections 172, 173, and 182, as applicable. These
permits limit increased emissions from construction of new and modified
major stationary sources locating in, or located in, areas designated
nonattainment for the NAAQS. The statutory and regulatory NNSR
requirements for the 2008 ozone NAAQS are found in CAA sections
172(c)(5), 173, 182, and 40 CFR 51.160 through 51.165. The 2008 Ozone
NAAQS SIP Requirements Rule required states to submit an NNSR plan or
plan revision no later than three years from the effective date of the
nonattainment designation for the 2008 ozone NAAQS, or by July 20,
2015.\8\ The EPA later revised the ozone NAAQS in 2015 (``2015 ozone
NAAQS''), and thereafter \9\ promulgated a similar requirement for NNSR
preconstruction permitting for the 2015 ozone NAAQS.\10\
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\8\ 80 FR 12264 (March 6, 2015); 40 CFR 51.1114.
\9\ 80 FR 65292 (October 26, 2015).
\10\ 40 CFR 51.1314; 83 FR 62998 (December 6, 2018).
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Within the MDAQMD, the ``Los Angeles-San Bernardino Counties (West
Mojave Desert), CA'' area (``West Mojave Desert'') is currently
designated to be in Severe nonattainment for the 2008 and 2015 ozone
NAAQS.\11\ The Trona Planning Area and the remainder of San Bernardino
County that is within the MDAQMD's jurisdiction are each designated as
Moderate nonattainment areas for the 1987 PM<INF>10</INF> NAAQS.\12\
The MDAQMD's jurisdiction is designated Attainment/Unclassifiable for
all other criteria pollutants.\13\ Therefore, the designation of
portions of the MDAQMD as Federal ozone and PM<INF>10</INF>
nonattainment areas 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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\11\ 40 CFR 81.305.
\12\ Id.
\13\ Id.
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B. Findings and Disapprovals

On February 3, 2017, the EPA found that the State of California had
failed to submit a SIP revision for NNSR rules that apply to a Severe
classification for the 2008 ozone NAAQS, as required under subpart 2 of
part D of title 1 of the CAA and the 2008 Ozone SIP Requirements
Rule.\14\ Consistent with the CAA and the EPA regulations, the EPA's
finding of failure to submit in February 2017 established deadlines for
the imposition of sanctions for the affected ozone nonattainment area.
The EPA's finding of failure to submit also triggered an obligation
under CAA section 110(c) for the EPA to promulgate a Federal
Implementation Plan (FIP) no later than two years from the finding of
failure to submit a complete SIP (i.e., by March 6, 2019).\15\
Specifically, the finding stated that if the state did not make the
required SIP submission and the EPA did not take final action to
approve the submission within two years of the effective date of these
findings, the EPA would be required to promulgate a FIP for the
affected nonattainment area.\16\
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\14\ 82 FR 9158 (February 3, 2017).
\15\ Id. at 9161. The effective date was March 6, 2019, because
the 30-day period fell on a Sunday.
\16\ Id.
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The 2015 Ozone NAAQS Implementation Rule required the MDAQMD to
submit an updated NNSR rule to the EPA by August 1, 2021, no later than
three years from the effective date of its nonattainment
designation.\17\ On July 23, 2021, the California Air Resources Board
submitted to the EPA the MDAQMD's revised NNSR rules for the 2015 ozone
NAAQS, which the MDAQMD adopted in March 2021.\18\ On June 30, 2023,
the EPA finalized a limited approval and limited disapproval (``LA/LD
action'') of the District's NNSR rules.\19\ The EPA evaluated the SIP
submission to determine its compliance with NNSR requirements for the
2008 and 2015 ozone NAAQS and the 1987 PM<INF>10</INF> NAAQS due to the
MDAQMD's nonattainment status for those three NAAQS. The EPA's
rulemaking for the submitted rules explained that the EPA had
determined that the submitted rules contained six deficiencies that did
not fully satisfy the relevant requirements for preconstruction review
and permitting in nonattainment areas under section 110 and part D of
title I of the Act, which therefore prevented full approval.\20\ As
noted in that final action, this disapproval imposed an obligation for
the EPA to promulgate a FIP pursuant to CAA section 110(c) within 24
months of the effective date of the action (i.e., July 31, 2023, which
would make the EPA's deadline to promulgate a FIP no later than July
31, 2025) unless the EPA approved a subsequent SIP revision that
corrects the deficiencies. The 2023 final action also noted that the
EPA had an existing obligation to promulgate a FIP for any new source
review (NSR) SIP elements that the Agency had not taken final action to
approve.\21\ The EPA is proposing this FIP for the NNSR program in the
MDAQMD to fulfill the EPA's statutory duty by the deadline established
under

[[Page 56240]]

a consent decree in a lawsuit brought against the EPA to compel
promulgation of a FIP arising from the finding of failure to
submit.\22\
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\17\ 83 FR 62998.
\18\ 88 FR 42258 (June 30, 2023).
\19\ Id.
\20\ Id.
\21\ Id. at 42268.
\22\ Center for Biological Diversity et al., v. Regan, No. 3:22-
cv-03309-RS (N.D. Cal.). This consent decree is also available in
the docket of this action.
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Accordingly, the EPA is proposing this FIP to address the
deficiencies identified in the LA/LD action of MDAQMD Rules 1301, 1302,
1303, 1304, and 1305.\23\ These rules contain essential components of
the MDAQMD's amended NNSR program. Although the EPA is aware that the
MDAQMD intends to submit revisions to its NNSR program that would
address all but one of the deficiencies in the 2023 LA/LD action,\24\
the EPA has not approved into the SIP any corrections that resolve the
deficiencies identified in that rulemaking. Therefore, the EPA is
proposing the FIP in this action to address the deficiencies identified
in the June 30, 2023, LA/LD action.\25\
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\23\ 88 FR 42258.
\24\ Id.
\25\ The EPA's review of any SIP submission submitted by the
MDAQMD to address the deficiencies identified in the June 2023 final
action will proceed as with any other SIP submission review.
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In that rulemaking, the EPA determined that the MDAQMD program did
not satisfy the requirement that permit applicants obtain corresponding
reductions in emissions to offset increased emissions from construction
at stationary sources. The EPA observed that the calculation procedure
used in the District's rules to determine the amount of offsets
required in certain situations does not comply with CAA section
173(c)(1) nor the regulations at 40 CFR 51.165(a)(3)(ii)(J) and
(a)(1)(vi)(E).\26\ Under CAA section 173(c)(1), the SIP must contain
provisions to ensure that ``the total tonnage of increased emissions of
the air pollutant from the new or modified source shall be offset by an
equal or greater reduction . . . in the actual emissions of such air
pollutant. . . .'' \27\ The EPA found the MDAQMD's Rule 1304 to be
deficient because it allows offsets for each modification at a major
source to be calculated as the difference between the pre- and post-
modification allowable emissions (also referred to as ``potential to
emit'' or PTE) of a pollutant as opposed to requiring offsets for these
modifications based on the difference between pre-modification actual
emissions and post-modification allowable emissions.\28\ In other
words, the MDAQMD's Rule 1304 applies an allowables-to-allowables test
(also referred to as a PTE-to-PTE test) for calculating the quantity of
``simultaneous emission reductions'' (SERs) \29\ for offsetting
emissions increases from a ``Modified Major Facility.'' \30\ Because
SERs calculated using the post-modification PTE to pre-modification PTE
test at a Modified Major Facility are calculated using the pre-
modification PTE instead of the pre-modification Historic Actual
Emissions (HAE) as the baseline, the EPA determined that the District's
approach for calculating offsets does not meet minimum SIP
requirements.\31\ Using actual emissions as the pre-project baseline
(as required by the EPA's regulations) would show a higher net
emissions increase than a calculation that uses allowable (i.e.,
potential) emissions as the pre-project baseline.\32\ Consequently,
calculating emissions decreases using potential emissions as the
baseline allows reductions ``on paper'' that do not represent real
emissions reductions. The EPA determined that this deficiency in the
calculation procedures of Rule 1304 also results in deficiencies in
Rules 1301, 1302, 1303, and 1305 because those rules contain cross-
references to Rule 1304.\33\
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\26\ 88 FR 42258, 42261-6.
\27\ Offsets represent real reductions in real pollutants. A
source that is permitted to emit 100 tpy but actually emits 90 tpy
must reduce its actual emissions to below 90 tpy for offset credit.
\28\ 40 CFR 51.165(a)(3)(ii)(J).
\29\ ``SER'' is the MDAQMD's term for offsets.
\30\ 88 FR 42261-6. The MDAQMD's rules equate ``allowable
emissions'' and PTE.
\31\ Id. The MDAQMD Regulation XIII, Rule 1301(HH) defines
Historic Actual Emissions (HAE) as ``the Actual Emissions of an
existing Emissions Unit or combination of Emissions Units, including
Fugitive Emissions directly related to the Emissions Unit(s), if the
Facility belongs to one of the Facility categories as listed in 40
CFR 51.165(a)(1)(iv)(C), calculated in pounds per year and
determined pursuant to the provisions of District Rule 1304(D)(2).''
\32\ As the EPA wrote in the June 2023 limited approval and
limited disapproval action, ``Allowable emissions are generally set
higher than anticipated actual emissions to allow for normal
fluctuations in emissions to occur without violating the permit
conditions. The use of allowable emissions as the pre-project
baseline means that the difference between pre-project and post-
project emissions will be smaller than a calculation applying the
EPA's requirement to use actual emissions as the pre-project
baseline.''
\33\ Id. at 42263.
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The EPA also determined that the definitions for ``Major
Modification'' and ``Modification (Modified)'' in Rule 1301(NN) and
1301(JJ), respectively, are deficient because they allow permit
applicants to calculate a net emissions increase using allowable (i.e.,
potential) emissions as the pre-project baseline, rather than actual
emissions, as required by the EPA's NNSR regulations.\34\ More
specifically, Rule 1304(B)(2) allows SERs calculated and verified
pursuant to the PTE-to-PTE test under Rule 1304(C)(2) to be subtracted
from the total of all ``net emissions increases'' at any given
facility. Due to the same deficiency identified in Rule 1304, the EPA
determined that the MDAQMD's approach does not meet minimum SIP
requirements because determining the amount of a net emissions increase
(by calculating the difference between pre-project and post-project
emissions) using actual emissions as the pre-project baseline (as
required by the EPA's regulations) will show a higher net emissions
increase than a calculation that uses allowable (i.e., potential)
emissions as the pre-project baseline.\35\ The MDAQMD definitions of
``major modification'' and ``modification (modified)'' in Rules
1301(NN) and 1301(JJ), respectively, are therefore not in compliance
with the Federal regulations in 40 CFR 51.165(a)(1)(v)(A)(1); the
calculation procedures for determining offsets pursuant to 40 CFR
51.165(a)(3)(ii)(J); and the criteria for determining the emission
decreases that are creditable as offsets pursuant to 40 CFR
51.165(a)(1)(vi)(E)(1).
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\34\ Id. at 42264-65.
\35\ Id. at 42265.
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Next, the District rules do not include a requirement in CAA
section 182(c)(6) that applies to nonattainment areas classified as
Serious and above. The CAA provides that increases of ozone precursor
emissions (volatile organic compound (VOC) and oxides of nitrogen
(NO<INF>X</INF>)) \36\ resulting from a modification ``shall not be
considered de minimis for the purposes of determining (NNSR)
applicability unless the increases in net emissions . . . from such
source does not exceed 25 tons when aggregated with all other net
increases in emissions from the source over any period of five
consecutive calendar years which includes the calendar year in which
such increase occurred.'' \37\ The EPA found the MDAQMD provisions to
be deficient because they did not include this provision.\38\
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\36\ While CAA section 182(c)(6) refers only to VOC emissions,
CAA section 182(f) extends to NO<INF>X</INF> emissions all
requirements related to VOC emissions unless the Administrator
determines that there is a disbenefit to NO<INF>X</INF> reductions.
\37\ CAA section 182(c)(6).
\38\ 88 FR 42266-67.
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In addition to the deficiencies described above, the EPA identified
deficiencies stemming from the MDAQMD's use of incorrect or undefined
words. First, MDAQMD Rule 1304(D)(2)(a)(i) uses the word ``proceeds''
where the word ``precedes'' should be used, changing the meaning

[[Page 56241]]

of the provision.\39\ Second, the MDAQMD's rules allow the word
``contract,'' an undefined term, to act as a substitute for the word
``permit.'' \40\ The EPA found that where it is not clear that permit
requirements must be met to obtain such a contract, regulated sources
may not need to adhere to SIP requirements they would otherwise have to
meet to obtain a permit.
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\39\ Id.
\40\ Id. at 42262.
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Finally, MDAQMD Rule 1305 allows for interprecursor trading of
ozone precursors, whereas the EPA's rules no longer allow
interprecursor trading.\41\ Except for the deficiencies regarding the
missing applicability threshold provision and ozone interprecursor
trading, which only apply to the emission of ozone precursors, the
deficiencies identified in this section are relevant for both ozone and
PM<INF>10</INF> nonattainment in the MDAQMD-administered portion of San
Bernardino County.
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\41\ Id. at 42266. On January 29, 2021, the D.C. Circuit Court
of Appeals issued a decision in Sierra Club v. U.S. EPA, which
vacated an EPA regulation that allowed the use of reductions of an
ozone precursor to offset increases in a different ozone precursor,
i.e., ``interprecursor trading.'' Sierra Club v. EPA, 21 F.4th 815,
819-823 (D.C. Cir. 2021). On July 19, 2021, the EPA removed the
ozone interprecursor trading provisions in 40 CFR 51.165(a)(11). 86
FR 37918 (July 19, 2021).
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C. Scope of the EPA's Proposed FIP

The FIP proposed in this action would authorize the EPA to directly
implement the NNSR program for construction of new major stationary
sources and major modifications at existing stationary sources within
(1) the San Bernardino County portion of the West Mojave Desert ozone
nonattainment area for the 2008 and 2015 ozone NAAQS and (2) the
portions of the San Bernardino County and Trona Planning Area
PM<INF>10</INF> nonattainment areas, all of which are within the
MDAQMD's jurisdiction. The EPA would directly implement the NNSR
program in these areas until such time as the EPA approves a SIP
submission from the MDAQMD that fully resolves the deficiencies
identified in the EPA's June 30, 2023, LA/LD action on the MDAQMD's
NNSR program and identifies no new deficiencies.\42\
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\42\ 88 FR 42258.
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The proposed FIP requirements are designed to meet the statutory
requirements for SIPs and NNSR programs in CAA sections 110(c)(1),
172(c)(5), 173, 182(c) and (d), 189(a)(1)(A) and (e), 301(a), and 302.
The provisions of the FIP are also designed to meet the requirements
for state plans in the EPA regulations at 40 CFR 51.165, 51.1114, and
51.1314.
The FIP addresses the deficiencies the EPA identified in the
MDAQMD's NNSR program by incorporating requirements from 40 CFR part
51, appendix S (``appendix S''), which was developed by the EPA as a
transitional program for areas lacking an EPA-approved NNSR program.
The deficiencies in the MDAQMD's NNSR program that the EPA identified
in the 2023 LA/LD action are broad and affect multiple aspects of the
program.\43\ For example, the MDAQMD's definition of what constitutes a
modification could enable sources that should be subject to NNSR to
avoid it, and the undefined term ``contract'' is potentially
unenforceable. These deficiencies create issues at the outset as to
whether a source is subject to NNSR. Because of these and the other
deficiencies in the MDAQMD's NNSR program (e.g., the offset calculation
deficiencies), the EPA determined that it is most appropriate to
propose a FIP that implements all of appendix S until the MDAQMD
submits a fully approvable SIP.
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\43\ Id.
---------------------------------------------------------------------------

The EPA has not, however, applied appendix S as a standalone FIP,
so additional requirements are needed for this FIP rule. While appendix
S and 40 CFR 51.165 have elements of a FIP that can be readily
incorporated into rules applicable to specific jurisdictions, they do
not include the application submission requirements and other
requirements necessary to make the program administrable. Absent such
specific administration requirements in the EPA's Federal NSR
regulation, the EPA has looked to other resources to develop the
content for this FIP, including the EPA regulations at 40 CFR part 49,
which contain a Federal NNSR program for Indian Country.
The NNSR program only applies to pollutants for which an area is
designated nonattainment; therefore, this proposed action would apply
only in the areas within MDAQMD's jurisdiction that are designated
nonattainment. Application of this FIP does not relieve source owners
or operators or permit applicants from their obligation to comply with
all applicable EPA-approved implementation plan requirements for
sources within the jurisdiction of the MDAQMD. As discussed in section
II.B of this document, the 2023 LA/LD action disapproved elements of
the MDAQMD's NNSR program that the EPA identified as deficient;
however, those disapproved elements remain in the SIP.\44\ Upon
finalization of this FIP, permit applicants would still be required to
comply with the MDAQMD SIP and therefore must still submit permit
applications to the MDAQMD as that SIP requires, among other
requirements. Permit applicants would therefore need to obtain two
permits--one permit from the EPA under this FIP and one permit from the
MDAQMD under the rules in the SIP. Applicants would not be allowed to
begin actual construction until both the EPA and MDAQMD issue the
respective permits under this FIP and the SIP; therefore, applicants
would be advised to submit applications to each agency simultaneously
to ensure parallel processing.
---------------------------------------------------------------------------

\44\ 88 FR 42258, 42268.
---------------------------------------------------------------------------

Where permit approval criteria between the MDAQMD's SIP and this
FIP conflict--for example, the procedures to determine the quantity of
offsets at a major modification, a deficiency in the MDAQMD's NNSR
program--permit applicants would need to demonstrate compliance with
the requirements of this FIP, since this FIP fills the gaps in the
MDAQMD's NNSR program. The EPA does not anticipate that permit
requirements in the EPA-issued FIP would be more stringent than the
requirements in the SIP except for those that address the deficiencies
the EPA identified in the 2023 LA/LD action. To the extent that there
are any differences in the required application materials under the FIP
versus the SIP, the applicant would need to comply with both
requirements when submitting its application.
The EPA would directly implement and enforce the FIP. Enforcement
authority is provided under CAA section 113(a), which authorizes the
EPA to impose penalties including requiring compliance with the
applicable implementation plan within a specified amount of time,
payment of a civil penalties or enforcing through a civil judicial
action.

III. Proposed FIP Requirements

The proposed FIP would apply to construction of new major sources
and major modifications at existing major sources located within ozone
and PM<INF>10</INF> nonattainment areas in the MDAQMD's jurisdiction.
The proposed FIP includes the following sections: Plan Overview,
Definitions, Applicability, Permit Approval Criteria, Public
Participation Requirements, Final Permit Issuance and Administrative
and Judicial Review, and Administration and Delegation of the Major NSR
Plan for the MDAQMD. The following sections

[[Page 56242]]

summarize the requirements of the proposed FIP. As explained in section
II.C. of this document, the content of this proposed FIP is generally
based on appendix S, which is the EPA's transitional program for areas
that lack an approved program. This FIP also includes, however,
elements of the EPA's Federal Major New Source Review Program for
Nonattainment Areas in Indian Country at 40 CFR part 49.

A. Plan Overview

The plan overview paragraph (paragraph (a)) establishes the purpose
of the FIP and where it applies, and it sets forth the general
provisions that apply to the FIP. The purpose of the FIP is to
establish preconstruction permitting requirements for new major
stationary sources and major modifications at existing major stationary
sources located in the MDAQMD portion of the Los Angeles-San Bernardino
County (West Mojave Desert) ozone nonattainment area and the San
Bernardino County and Trona Planning Area PM<INF>10</INF> nonattainment
areas. The FIP would apply until such time as MDAQMD submits a revised
SIP that resolves all the deficiencies identified by the EPA and the
EPA fully approves the MDAQMD's NNSR SIP.
If the EPA fully approves the MDAQMD's NNSR SIP, the EPA will
transition its authority to the MDAQMD. This may include suspending the
issuance of Federal NNSR permit decisions under this FIP for permit
actions that are pending upon the effective date of the EPA's approval
of the MDAQMD's NNSR SIP. The EPA may retain jurisdiction over Federal
NNSR permit applications for which the EPA has issued a proposed permit
decision, but for which final agency action or the exhaustion of all
administrative and judicial appeals processes (including any associated
remand actions), or both, have not yet been concluded or completed by
the effective date of such approval. The EPA would address these
details of the transition in the approval of the MDAQMD's NNSR SIP
submission.
If the EPA fully approves the MDAQMD's NNSR SIP, permits issued
under this FIP will remain in effect and will be enforceable by the
EPA. The EPA will continue to conduct the general administration of
such permits and will retain authority to process and issue any and all
subsequent NNSR permit actions relating to such permits. The EPA may
transition this authority to the MDAQMD following a request from MDAQMD
and after the EPA determines under CAA section 110(a)(2)(E)(i) that the
MDAQMD has the necessary funding, personnel and authority and that the
plan approval includes the authority for the MDAQMD to conduct general
administration of such permits, the necessary authority to process and
issue subsequent permit actions relating to such permits and the
authority to enforce such permits. This detail of the transition would
also be addressed in the plan approval action.

B. Definitions

Unless otherwise stated, the definitions in appendix S apply.
Paragraph (b) contains additional definitions of the terms ``Actual
emissions,'' ``Enforceable as a practical matter,'' ``Environmental
Appeals Board,'' ``Nonattainment pollutant,'' ``Reviewing authority,''
and ``Significant.'' The EPA included definitions for these terms to
ensure that they are adequate and appropriate for implementing this
specific FIP.
The definition of ``Actual emissions'' is similar to the definition
in paragraph II.A.13 of appendix S but does not provide for a reviewing
authority to presume that source-specific allowable emissions are
equivalent to the source's actual emissions, since that provision is
not relevant for the implementation of this FIP.
The EPA included the definition of ``Enforceable as a practical
matter'' because the term is used, but is not defined, in appendix S.
The EPA included the definition of ``Environmental Appeals Board''
because it is a necessary term for describing the permit appeals
process.
The EPA included the definition of ``Nonattainment pollutant'' to
simplify the regulatory language in the FIP and ensure that this FIP
would apply to sources emitting nonattainment pollutants in the MDAQMD.
The EPA included the definition of ``Reviewing authority'' to
specify that the EPA administers this FIP unless the EPA has delegated
its authority to the MDAQMD as specified in paragraph (g)(2) of Sec.
52.285.
The EPA modified the definition of ``Significant'' as that term is
defined in appendix S to also include applicability threshold in CAA
section 182(c)(6), which applies in nonattainment areas classified
Serious and above for ozone. Section 182(c)(6) says that a change to
the method of operation of a stationary source or a physical change to
the source itself cannot be considered de minimis for purposes of
determining the applicability of NNSR permitting requirements unless
the increase in net emissions of NO<INF>X</INF> or VOC from the source
does not exceed 25 tons when aggregated with all other net increases in
emissions from the source over any period of five consecutive calendar
years, which includes the calendar year in which the increase occurred.

C. Applicability

This applicability paragraph (paragraph (c)) is titled ``Does the
plan apply to me?'' This paragraph provides the criteria that a source
is required to use for determining whether the FIP applies to the
source. It states that the FIP applies to a source that will propose to
construct a new major source (as defined in paragraph II.A.4 of
appendix S) or a major modification at the permit applicant's existing
major source (as defined in paragraph II.A.5 of appendix S). This
paragraph also provides requirements concerning any source or
modification that becomes a major stationary source or major
modification solely by virtue of a relaxation in any enforceable
limitation that was established after August 7, 1980.

D. Permit Approval Criteria

The permit approval criteria paragraph (paragraph (d)) provides the
criteria the EPA will use in reviewing a permitting application and in
granting or denying an NNSR permit. The criteria include the
requirements specified in CAA section 173 and appendix S. With specific
regard to one deficiency that the EPA identified in MDAQMD's NNSR rules
as explained in the June 30, 2023, final rule, CAA section 173(c)(1)
and 40 CFR 51.165 requires that state permit programs must ensure that
emission increases from new or modified major stationary sources are
offset by real reductions in actual emissions. These requirements are
included in paragraph (d)(2) of Sec. 52.285.
This paragraph also adopts by reference requirements from 40 CFR
part 51, appendix S. Major new sources or major modifications locating
in areas designated as nonattainment for a pollutant for which the
source or modification would be major may be allowed to construct only
if the conditions set forth in appendix S are met. These requirements
are incorporated in section (d) of the proposed FIP.
In addition to these requirements, the proposed paragraph also
requires an applicant to submit certain information in its permit
application to ensure that the information necessary to process the
permit application is provided to the reviewing authority, consistent
with the CAA requirements. This paragraph also requires the submission
of information necessary for determining the potential effects on
federally listed endangered or

[[Page 56243]]

threatened species or designated critical habitats, and on historic
properties. Additionally, the paragraph provides instructions for
submitting a permit application to the EPA. Finally, the proposed
paragraph specifies that the reviewing authority shall require
monitoring, recordkeeping, and reporting conditions in a permit as
necessary to facilitate compliance with the terms of a permit and make
them enforceable as a practical matter.

E. Public Participation Requirements

The public participation paragraph (paragraph (e)) identifies the
information for a project that must be made publicly available. It also
describes how the public will be notified of a draft permit and how the
public can comment and request a public hearing. These requirements are
necessary to ensure that the FIP meets the requirements of the CAA and
the EPA regulations, which require reviewing authorities to afford
adequate opportunities for public participation in agency decision-
making.

F. Final Permit Issuance and Administrative and Judicial Review

Paragraph (f) specifies when the final permit will be effective and
addresses opportunities for administrative and judicial review of
permitting decisions. Generally, a final permit becomes effective 30
days after service of the final permit decision, unless (1) a later
effective date is specified in the permit; (2) review of the final
permit is requested according to the appeal procedures in 40 CFR
124.19; \45\ or (3) no comments requested a change in the draft permit
or a denial of the permit, in which case the reviewing authority may
make the permit effective immediately upon issuance.
---------------------------------------------------------------------------

\45\ 40 CFR 124.19 establishes the appeal process for
petitioning for review of a permit decision, including how to
initiate an appeal, the deadline for filing a petition, and what to
include in a petition.
---------------------------------------------------------------------------

This paragraph also provides general requirements concerning the
administrative record for the final permit decision, explaining the
required contents of the administrative record, which is the basis for
permit decisions by the reviewing authority. This paragraph also
includes the requirements for permit reopenings and rescissions. Permit
reopenings must provide for public notice and an opportunity for public
comment, except for reopenings that do not increase emission
limitations. Permit rescissions, which the reviewing authority may
grant at the source's request if an application for rescission shows
that the provisions of this paragraph would not apply to the source or
modification, require public notice.

G. Administration and Delegation of the Major NSR Plan for the MDAQMD

Paragraph (g) specifies that the EPA is the reviewing authority for
the FIP. It also provides a process for delegating the administration
of the FIP to the MDAQMD, publication of notice of a delegation
agreement, and revision or revocation of a delegation agreement.

H. SIP Replacement of All or Any Part of This FIP

The MDAQMD may submit revisions to its SIP at any time to address
deficiencies identified by the EPA and the CAA requirements that are
covered by the FIP. If the EPA approves such a SIP submittal, the
approved MDAQMD rules would apply rather than the FIP, in whole or in
part, as appropriate. SIP replacement of part of this FIP would still
require the permit applicant to comply with the portion of the FIP that
has not been replaced by the approved SIP. For the EPA to remove all
FIP provisions, the MDAQMD would need to address of the deficiencies
identified in the EPA's June 2023 final rulemaking action.\46\ As
mentioned earlier in this document, the EPA is aware that the MDAQMD
intends to submit revised rules to partially correct the deficiencies
the EPA identified in the June 2023 final rulemaking action, which, if
approved, could replace the corresponding requirements of this FIP.
Until such time, permit applicants would be required, upon finalization
of this FIP action, to comply with the FIP as well as the MDAQMD's SIP-
approved NNSR regulation. As explained in section II.C of this
document, this means permit applicants would need to submit permit
application materials to both the EPA for review under the FIP and,
separately, to the MDAQMD.
---------------------------------------------------------------------------

\46\ 88 FR 42258.
---------------------------------------------------------------------------

I. Severability

This FIP is a multifaceted regulatory instrument that addresses
different NNSR requirements under the CAA, as detailed in the specific
sections of this document that focus on the discrete contents of this
FIP. The EPA intends the portions of this FIP to be severable from
other portions, though the EPA took the approach of including all the
parts in one rulemaking rather than promulgating multiple rules.
For example, the permit approval criteria state that the reviewing
authority shall not approve a permit application unless it meets
criteria required under the CAA and appendix S. Those criteria include:

--the lowest achievable emission rate requirement;
--the certification that all existing major sources owned or operated
in California are in compliance or on a schedule for compliance with
all applicable emission limitations and standards under the CAA;
--the requirement to obtain offsets from existing sources in the area
of the proposed source such that there will be reasonable progress
toward attainment of the applicable NAAQS;
--the requirement to demonstrate that the offsets will provide a net
air quality benefit in the affected area as required under part 51,
appendix S, paragraph IV.A, Condition 4;
--the requirement to demonstrate that emissions reductions otherwise
required by the CAA are not credited for purposes of satisfying the
offset requirements of the FIP; and
--the analysis of alternative sites, sizes, production processes, and
environmental control techniques to demonstrate that the benefits of
the source or modification significantly outweigh the environmental and
social costs imposed as a result of the source's location,
construction, or modification.

Each of these requirements is independent and may be severable.
Should the MDAQMD submit a SIP revision that corrects some, but not
all, of the deficiencies identified in our June 30, 2023 rulemaking,
the permit approval criteria for this FIP could be limited to the
remaining deficiencies the EPA identified.\47\ As described in section
II.C of this document, permit applicants would still need to comply
with any portions of the FIP that remain after the EPA approves the
MDAQMD's revised rules in the SIP. Likewise, if a court invalidates any
one of these elements of the FIP, the EPA intends the remainder of this
action to remain effective, as the EPA finds each portion of it to be
appropriate even if one or more parts of it have been set aside.
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\47\ 88 FR 42264-42266; See also 87 FR 72434, 72438 (November
25, 2022).
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IV. Environmental Justice Considerations

This section summarizes environmental justice data for areas that
would be impacted by this proposed action for informational and
transparency purposes only. The EPA notes that the following discussion
about environmental justice data is not a basis for this action and is
distinct

[[Page 56244]]

from the statutory obligations discussed in this proposal under the
CAA. The CAA and applicable implementing regulations neither prohibit
nor require an evaluation of environmental justice and consideration of
environmental justice did not inform the regulatory requirements
included in this proposal. The EPA identified environmental burdens and
susceptible populations in communities with potential environmental
justice concerns in the MDAQMD portion of the West Mojave Desert ozone
nonattainment area and the San Bernardino County and Trona Planning
Area PM<INF>10</INF> nonattainment areas using a screening-level
analysis for ozone and PM<INF>10</INF> in the West Mojave Desert using
the EPA's environmental justice screening and mapping tool
(``EJSCREEN'').\48\ The EJSCREEN information and related supporting
documentation for this action are available in the public docket for
this action.
---------------------------------------------------------------------------

\48\ EJSCREEN provides a nationally consistent dataset and
approach for combining environmental and demographic indicators.
EJSCREEN is available at: <a href="https://www.epa.gov/ejscreen/what-ejscreen">https://www.epa.gov/ejscreen/what-ejscreen</a>. The EPA used EJSCREEN to obtain environmental and
demographic indicators. These indicators are included in EJSCREEN
reports that are available in the rulemaking docket for this action.
However, EJSCREEN is not a detailed risk analysis. It is a screening
tool that examines some of the relevant issues related to
environmental justice, and there is uncertainty in the data
included.
---------------------------------------------------------------------------

The area in which the FIP would apply is a large portion of San
Bernardino County, California (all but the southwest portion of the
County). The EPA used EJSCREEN to look at existing major stationary
sources located in the 15 cities in the portion of San Bernardino
County that is in the MDAQMD's jurisdiction.\49\ EJSCREEN shows that
the population of San Bernardino County, California is 2,192,817,
although a significant portion of the population lives in the area that
is outside the jurisdiction of the MDAQMD and therefore outside of the
geographic area that would be subject to this proposed FIP. The 15
cities (and their populations as provided in EJSCREEN) are Daggett
(553), Oro Grande (4,899), Ivanpah (1), Hinkley (436), Barstow
(27,835), Victorville (94,380), Trona (1,546), Adelanto (19,567), Kelso
(1), Newberry Springs (488), Needles (7,844), Lucerne Valley (2,778),
Edwards Air Force Base (6,579), Hesperia (60,788), and China Lake
(32,020).
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\49\ Information about the existing major stationary sources is
available on the MDAQMD's website. See <a href="https://www.mdaqmd.ca.gov/">https://www.mdaqmd.ca.gov/</a>.
---------------------------------------------------------------------------

The EJSCREEN results show 13 of the 15 cities (except for the
cities of Needles and Oro Grande) have percentiles above the general
80th percentile nationally \50\ for the ozone EJ index or the
supplemental ozone EJ index. None of the cities exceeds the general
80th percentile nationally for the PM EJ index or the supplemental PM
EJ index.
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\50\ The EPA has provided that, if any of the EJ indices for the
areas under consideration are at or above the 80th percentile
nationally, then further review may be appropriate. However, it is
important to note that an area with any EJ indices at or above the
80th percentile nationally does not necessarily mean that the area
is an ``EJ Community.'' As stated previously, EJSCREEN provides
screening-level indicators, not a determination of the existence or
absence of EJ concerns. See: <a href="https://www.epa.gov/ejscreen/how-interpret-ejscreen-data">https://www.epa.gov/ejscreen/how-interpret-ejscreen-data</a>.
---------------------------------------------------------------------------

The EPA also looked at the EJSCREEN's socioeconomic indicators
called ``demographic index,'' ``limited English-speaking households,''
and ``less than high school education.'' For the ``demographic index,''
the results show that 7 or the 15 cities have percentiles that exceed
the general 80th percentile nationally. These cities are Daggett,
Ivanpah, Barstow, Victorville, Adelanto, Kelso, and Hesperia. The
``demographic index'' is generally the average of an area's percent
minority and percent low-income population.
For the ``limited English-speaking households'' socioeconomic
indicator, the results show that 4 of the 15 cities exceed the general
80th percentile nationally; these cities are Ivanpah, Hinkley, Kelso,
and Lucerne Valley. For the ``less than high school education''
socioeconomic indicator, the results show that 8 of the 15 cities
exceeded the general 80th percentile nationally; these cities are
Hinkley, Adelanto, Lucerne Valley, Ivanpah, Victorville, Kelso, and
Hesperia.
The EPA intends to address any potential EJ-related concerns that
may be associated with the socioeconomic indicators for the
``demographic index,'' ``limited English-speaking households,'' and
``less than high school education'' through outreach and public
participation for the permits issued under the FIP. This work includes
announcing the opportunity to comment on each permit and making
proposed permit actions available to the public during the public
comment period with an opportunity for a public hearing. Given that the
implementation and public participation methods are similar to those in
the District's currently applicable permit program, the EPA does not
anticipate any change to these requirements resulting from the
finalization of this FIP as proposed.

V. Proposed Action and Request for Public Comment

In accordance with CAA sections 110(c) and 301(a),\51\ the EPA is
proposing to promulgate a FIP for the NNSR program for the MDAQMD
portion of the West Mojave Desert ozone nonattainment area and the San
Bernardino County and Trona Planning Area PM<INF>10</INF> nonattainment
areas. The FIP would apply only to construction of new major stationary
sources and major modifications at existing major stationary source in
these nonattainment areas. The proposed FIP implements statutory
requirements in CAA sections 110(c)(1), 172(c)(5), 173, 179(b), 182(c)
and (d), 189(a)(1)(A) and (e), 301(a), and 302.
---------------------------------------------------------------------------

\51\ Under CAA section 301(a), the EPA is authorized to
prescribe such regulations as are necessary to carry out its
functions under this chapter.
---------------------------------------------------------------------------

The FIP will be directly implemented and enforced by the EPA. The
proposed FIP authorizes the EPA to delegate implementation of the FIP
to the MDAQMD if the District requests such delegation. The FIP would
apply until the MDAQMD revises its SIP to address deficiencies
identified by the EPA and the EPA fully approves the MDAQMD's NNSR SIP.
The EPA will accept comments from the public on this proposed FIP
for the next 45 days. The deadline and instructions for submission of
comments are provided in the DATES and ADDRESSES sections at the
beginning of this proposed rule.

VI. 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 14094: Modernizing Regulatory Review

This action is not a significant regulatory action as defined in
Executive Order 12866 (58 FR 51735, October 1993), as amended by
Executive Order 14094 (88 FR 21879, April 11, 2023), and was,
therefore, not subject to a requirement for Executive Order 12866
review.

B. Paperwork Reduction Act

This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
because the proposed rule implements existing requirements under the
CAA and 40

[[Page 56245]]

CFR 51.160 through 51.165. The Office of Management and Budget (OMB)
has previously approved the information collection activities in the
existing prevention of significant deterioration (PSD) and NNSR
regulations under OMB control number 2060-0003. The burden associated
with obtaining an NNSR permit for a major stationary source undergoing
a major modification is already accounted for under the approved
information collection requests. Thus, the EPA is not conducting an
information collection request for this action.

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 is unlikely to impact small entities because the permitting
requirements implemented through this action are applicable only to
construction or modification of major stationary sources of air
pollution. In the MDAQMD, major sources are those that emit, or have
the potential to emit 25 tons per year or more of NO<INF>X</INF>,
SO<INF>X</INF>, or VOC; or 15 tons per year or more of PM<INF>10</INF>.
To the extent that any small entities would own or operate sources
capable of emitting this much air pollution, the requirements of this
action apply only to construction of new major sources, or major
modifications to existing major sources, located in the portions of the
MDAQMD that are subject to the requirements of this action. The EPA
does not have information to suggest that there currently are a
substantial number of major stationary sources located in the MDAQMD
that are owned or operated by small entities. The Agency also does not
have any information on future modifications that any such existing
major sources may engage in after finalization of this FIP. Further,
the Agency does not have information that suggests one or more small
entities will seek to construct a new major stationary source in the
MDAQMD.
Even if the Federal permitting requirements established in this FIP
could be applicable to one or more small entities, these requirements
would not have significant economic impact on such a small entity.
Furthermore, any impact would not affect a substantial number of small
entities. This proposed FIP ensures that such small entities and other
sources subject to the FIP requirements meet CAA requirements to which
these sources should have already been subject. Upon finalization of
this action, sources applying for a permit will be required to submit
application materials to the EPA in compliance with the proposed FIP.
These sources are already subject to NNSR requirements under the
District's SIP, including, the requirements to submit applications, to
obtain offsets, and to install pollution control technology that
satisfies Federal standards. Consequently, the incremental impact
associated with application of the specific requirements of the NNSR
regulations for certain sources emitting nonattainment criteria
pollutants or its precursors is expected to be de minimis, primarily
pertaining to the amount of offsets needed.

D. Unfunded Mandates Reform Act (UMRA)

This proposed action does not contain an unfunded mandate of $100
million or more, as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector.

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: Consultation and Coordination With Indian
Tribal Governments

This action does not have tribal implications, as specified in
Executive Order 13175, because this proposed rule would not apply on
any Indian reservation land or in any other area where the EPA or an
Indian tribe has demonstrated that the tribe has jurisdiction, and it
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

Executive Order 13045 directs Federal agencies to include an
evaluation of the health and safety effects of the planned regulation
on children in Federal health and safety standards and explain why the
regulation is preferable to potentially effective and reasonably
feasible alternatives. This action is not subject to Executive Order
13045 because it is not a significant regulatory action under section
3(f)(1) of Executive Order 12866. The EPA does not believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children because it implements specific
standards established by Congress in statutes.
However, EPA's Policy on Children's Health applies to this action.
Information on how the Policy was applied is available under
``Children's Environmental Health'' in the Supplementary Information
section of this preamble.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing our Nation's Commitment to
Environmental Justice for All

The EPA believes that it is not practicable to assess whether the
human health or environmental conditions that exist prior to this
action result in disproportionate and adverse effects on communities
with environmental justice concerns. While the EPA can identify the
existing major sources in the nonattainment areas that would be
impacted by this action, the EPA cannot quantify the number or types of
sources that will undertake major modifications in the future.
Additionally, the EPA cannot know whether new major sources will locate
in the nonattainment area and what emissions these sources may have.
The impacts of the proposal on are likely to vary greatly depending on
the source category, number and location of facilities, and the
pollutants and potential controls addressed. Therefore, while the EPA
cannot quantify the precise baseline conditions and impacts, to the
extent that this action will have impacts, it will not result in
disproportionate and adverse effects on communities with EJ concerns as
compared with baseline human health and environmental conditions.
Upon finalization of this action, the EPA would replace the MDAQMD
in implementation of the District's NNSR program through the FIP.
Therefore, the EPA does not anticipate that this action,

[[Page 56246]]

upon finalization, will result in any negative impacts to human health
and the environment negative impacts. If this action has any impact on
human health or the environment it will be beneficial in so far as the
FIP action will address deficiencies associated with the calculation of
emission offsets in the NNSR program. As explained in section II of
this NPRM, this FIP is being promulgated to address several
deficiencies with the MDAQMD's NNSR program. While the EPA has not
analyzed the health impacts nor the emissions impacts from these
deficiencies, the deficient provisions are less stringent than the
Federal NNSR requirements that the EPA will be applying if this
proposed FIP is finalized. Therefore, in so far as the EPA can
qualitatively identify impacts to human health and the environment, the
EPA expects this action, if finalized, would ensure the protections
provided by the CAA and EPA's implementing regulations will be fully
realized.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Ammonia,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.

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

Michael Regan,
Administrator.

For the reasons stated in the preamble, part 52 of title 40 of the
Code of Federal Regulations is proposed to be 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 52.285 is added to read as follows:

Sec. 52.285 Review of new sources and modifications--Mojave Desert
Air Quality Management District.

(a) Plan overview--(1) What is the purpose of the Federal
Implementation Plan (FIP or ``plan'')? The FIP has the following
purposes:
(i) It establishes the Federal preconstruction permitting
requirements for new major sources and major modifications located in
nonattainment areas within the Mojave Desert Air Quality Management
District (MDAQMD or ``District'') that are major for a nonattainment
pollutant.
(ii) The plan serves as the Federal nonattainment new source review
(NNSR or ``nonattainment major NSR'') plan for the area described in
paragraph (a)(1)(i) of this section, which the EPA has determined does
not meet all of the Clean Air Act (CAA or ``Act'') title I part D
requirements for NNSR programs. Sources subject to the plan must comply
with the provisions and requirements of 40 CFR part 51, appendix S. The
FIP also sets forth the criteria and procedures that the reviewing
authority (as defined in paragraph (b)(1)(v) of this section) must use
to issue permits under the plan. For the purposes of the plan, the term
SIP means any EPA-approved implementation plan for the area
administered by the MDAQMD.
(iii) Paragraph (f)(3) of this section sets forth procedures for
appealing a permit decision issued under the plan.
(iv) The plan does not apply in Indian country, as defined in 18
U.S.C. 1151 and 40 CFR 49.167, located within the MDAQMD.
(2) Where does the plan apply? (i) The provisions of the plan apply
to the proposed construction of any new major stationary source or
major modification in the MDAQMD that is major for a nonattainment
pollutant, if the stationary source or modification is located anywhere
in the designated nonattainment area.
(3) What general provisions apply under the plan? The following
general provisions apply to you as an owner or operator of a source:
(i) If you propose to construct a new major source or a major
modification in a nonattainment area in the MDAQMD, you must obtain a
Federal NNSR permit (``permit'') under the plan before beginning actual
construction. You may not begin actual construction after the effective
date of the plan without applying for and receiving a Federal NNSR
permit that authorizes construction pursuant to the plan.
(ii) You must construct and operate your source or modification in
accordance with the terms of your permit issued under the plan.
(iii) Issuance of a permit under the plan does not relieve you of
the responsibility to fully comply with applicable provisions of any
EPA-approved implementation plan or FIP, and any other requirements
under applicable law. This includes obligations to comply with any EPA-
approved SIP provisions that satisfy Federal new source review (NSR)
requirements.
(b) Definitions. For the purposes of the plan, the definitions in
40 CFR part 51, appendix S, paragraph II.A, and 40 CFR 51.100 apply,
except for paragraphs (b)(1) through (6) of this section, which replace
the corresponding definitions found in part 51, appendix S:
(1) Actual emissions means the actual rate of emissions of a
regulated NSR pollutant from an emissions unit, as determined in
accordance with paragraphs (b)(1)(i) and (ii) of this section, except
that this paragraph (b)(1) shall not apply for calculating whether a
significant emissions increase has occurred. Instead, 40 CFR part 51,
appendix S, paragraphs II.A.24 and 30, shall apply for those purposes.
(i) In general, actual emissions as of a particular date shall
equal the average rate, in tons per year, at which the unit actually
emitted the pollutant during a consecutive 24-month period that
precedes the particular date and that is representative of normal
source operation. The reviewing authority shall allow the use of a
different time period upon a determination that it is more
representative of normal source operation. Actual emissions shall be
calculated using the unit's actual operating hours, production rates,
and types of materials processed, stored, or combusted during the
selected time period.
(ii) For any emissions unit that has not begun normal operations on
the particular date, actual emissions shall equal the potential to emit
of the unit on that date.
(2) Enforceable as a practical matter means that an emission
limitation or other standard is both legally and practicably
enforceable as follows:
(i) An emission limitation or other standard is legally enforceable
if the reviewing authority has the legal power to enforce it.
(ii) Practical enforceability for an emission limitation or for
other standards (design standards, equipment standards, work practices,
operational standards, pollution prevention techniques) in a permit for
a source is achieved if the permit's provisions specify:
(A) A limitation or standard and the emissions units or activities
at the source subject to the limitation or standard;
(B) The time period for the limitation or standard (e.g., hourly,
daily, monthly and/or annual limits such as rolling annual limits); and
(C) The method to determine compliance, including appropriate
monitoring, recordkeeping, reporting, and testing.

[[Page 56247]]

(3) Environmental Appeals Board means the Board within the EPA
described in 40 CFR 1.25(e).
(4) Nonattainment pollutant means any regulated NSR pollutant for
which the MDAQMD, or portion of the MDAQMD, has been designated as
nonattainment, as codified in 40 CFR 81.305, as well as any precursor
of such regulated NSR pollutant specified in 40 CFR part 51, appendix
S, paragraph II.A.31.(ii)(b).
(5) Reviewing authority means the Administrator of EPA Region IX,
but it may include the MDAQMD if the Administrator delegates the power
to administer the FIP under paragraph (g) of this section.
(6) Significant means, in reference to an emissions increase or a
net emissions increase, and notwithstanding the definition of
``significant'' in 40 CFR part 51, appendix S, paragraph II.A.10, any
increase in actual emissions of volatile organic compounds or oxides of
nitrogen that would result from any physical change in, or change in
the method of operation of, a major stationary source locating in a
serious or severe ozone nonattainment area if such emissions increase
of volatile organic compounds or oxides of nitrogen exceeds 25 tons per
year when aggregated with all other net emissions increases from the
source over any period of 5 consecutive calendar years that includes
the calendar year in which such increase occurred.
(c) Does the plan apply to me? (1) In any MDAQMD nonattainment
area, the requirements of the plan apply to you under the following
circumstances:
(i) If you propose to construct a new major stationary source and
your source is a major source of nonattainment pollutant(s).
(ii) If you own or operate a major stationary source and propose to
construct a major modification, where your source is a major source of
nonattainment pollutant(s) and the proposed modification is a major
modification for the nonattainment pollutant.
(2) At such time that a particular source or modification becomes a
major stationary source or major modification solely by virtue of a
relaxation in any enforceable limitation that was established after
August 7, 1980, on the capacity of the source or modification otherwise
to emit a pollutant, such as a restriction on hours of operation, then
the requirements of the plan shall apply to the source or modification
as though construction had not yet commenced on the source or
modification.
(d) Permit approval criteria--(1) What are the general criteria for
permit approval? The criteria for approval of applications for permits
submitted pursuant to the plan are provided in part D of title I of the
Act and in 40 CFR 51.160 through 51.165 and 40 CFR part 51, appendix S.
(2) What are the plan-specific criteria for permit approval?
Consistent with the requirements in 40 CFR part 51, appendix S, the
reviewing authority shall not approve a permit application unless it
meets the following criteria:
(i) The lowest achievable emission rate (LAER) requirement for any
NSR pollutant subject to the plan and monitoring, recordkeeping,
reporting, and testing as necessary to assure compliance with LAER.
(ii) Certification that all existing major sources owned or
operated by the applicant in California are in compliance or, on a
schedule for compliance, with all applicable emission limitations and
standards under the Act.
(iii) Any source or modification subject to the plan must obtain
emission reductions (offsets) from existing sources in the area of the
proposed source (whether or not under the same ownership) such that
there will be reasonable progress toward attainment of the applicable
NAAQS. Notwithstanding 40 CFR part 51, appendix S, paragraph IV.G.5,
interprecursor offsetting is not permitted between precursors of ozone.
A demonstration of reasonable progress toward attainment shall include:
(A) A demonstration that the emission offsets will provide a net
air quality benefit in the affected area, as required under 40 CFR part
51, appendix S, paragraph IV.A, Condition 4.
(B) A demonstration that emissions reductions otherwise required by
the Act are not credited for purposes of satisfying the offset
requirements in this paragraph (d)(2)(iii) and part D of title I of the
Act.
(iv) An analysis of alternative sites, sizes, production processes
and environmental control techniques for such proposed major source or
major modification that demonstrates that the benefits of the proposed
major source or major modification significantly outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification.
(3) What are the application requirements? The owner or operator of
any proposed new major stationary source or major modification shall
submit a complete application using EPA Region IX's electronic system,
which is described in paragraph (d)(3)(ii) of this section. The
application must include the information listed in this paragraph
(d)(3) as well as the demonstrations to show compliance with paragraphs
(d)(2)(i) through (iv) of this section. The reviewing authority's
designation that an application is complete for purposes of permit
processing does not preclude the reviewing authority from requesting or
accepting any additional information.
(i) Application content requirements. (A) Identification of the
permit applicant, including contact information.
(B) Address and location of the new or modified source.
(C) Identification and description of all emission points,
including information regarding all nonattainment pollutants emitted by
all emissions units included in the new source or modification.
(D) A process description of all activities, including design
capacity, that may generate emissions of nonattainment pollutants, in
sufficient detail to establish the basis for the applicability of
standards.
(E) A projected schedule for commencing construction and operation
for all emissions units included in the new source or modification.
(F) A projected operating schedule for each emissions unit included
in the new source or modification.
(G) A determination as to whether the new source or modification
will result in any secondary emissions.
(H) The emission rates of all regulated NSR pollutants, including
fugitive and secondary emission rates, if applicable. The emission
rates must be described in tons per year (tpy). If necessary, shorter-
term rates must be described to allow for compliance using the
applicable standard reference test method or other methodology
specified (i.e., grams/liter, parts per million volume (ppmv) or parts
per million weight (ppmw), lbs/MMBtu).
(I) The calculations on which the emission rate information is
based, including fuel specifications, if applicable, and any other
assumptions used to determine the emission rates (e.g., higher heating
value (HHV), sulfur content of natural gas, VOC content).
(J) The calculations, pursuant to 40 CFR part 51, appendix S,
paragraph IV.I and IV.J, that are used to determine applicability of
the plan, including the emission calculations (increases or decreases)
for each project that occurred during the contemporaneous period, as
applicable.
(K) The calculations, pursuant to 40 CFR part 51, appendix S,
paragraph IV.A, used to determine the quantity of offsets required for
the new source or modification.

[[Page 56248]]

(L) Identification of actual emission reductions that meet the
offset integrity criteria of being real, surplus, quantifiable,
permanent and federally enforceable.
(M) If applicable, a description of how performance testing will be
conducted, including test methods and a general description of testing
protocols.
(N) Information necessary to determine whether issuance of such
permit:
(1) May adversely affect federally-listed threatened or endangered
species or the designated critical habitat of such species; or
(2) Has the potential to cause adverse effects on historic
properties.
(ii) Application process requirements. To submit an application
required under the plan, applicants may submit electronically through
the Central Data Exchange (CDX)/Compliance and Emissions Data Reporting
Interface (CEDRI) or submit by mail.
(A) CDX/CEDRI is accessed through <a href="https://cdx.epa.gov">https://cdx.epa.gov</a>. First-time
users will need to register with CDX. The CDX platform will also be
used for any permit reporting requirements.
(B) Applicants that do not apply using CDX/CEDRI shall mail a
signed application using certified mail (do not request signature) to:
Air and Radiation Division, Permits Office (Air-3-1), U.S. EPA, Region
9, 75 Hawthorne Street, San Francisco, CA 94105.
(C) Applicants that apply using certified mail must email a copy of
the application and the certified mail tracking number to provide
notification of delivery receipt to <a href="/cdn-cgi/l/email-protection#16442f577f644673647b7f62655673667738717960"><span class="__cf_email__" data-cfemail="5103681038230134233c382522113421307f363e27">[email&#160;protected]</span></a>.
(4) What are the requirements for monitoring, recordkeeping, and
reporting? The reviewing authority shall require in the conditions of a
permit such monitoring, recordkeeping, and reporting as necessary to
facilitate compliance with the terms of a permit and to make them
enforceable as a practical matter.
(e) Public participation requirements--(1) What permit information
will be publicly available? With the exception of any confidential
information as defined in 40 CFR part 2, subpart B, the reviewing
authority must make available for public inspection the documents
listed in paragraphs (e)(1)(i) through (iv) of this section. The
reviewing authority must make such information available for public
inspection at the appropriate EPA Regional Office and in at least one
location in the area affected by the source, such as the MDAQMD
headquarters location or a local library.
(i) All information submitted as part of your permit application as
required under paragraph (d)(3) of this section.
(ii) Any additional information requested by the reviewing
authority.
(iii) The reviewing authority's analysis of the application and any
additional information submitted by you, including the LAER analysis
and, where applicable, the analysis of your emissions reductions
(offsets), your demonstration of a net air quality benefit in the
affected area and your analysis of alternative sites, sizes, production
processes and environmental control techniques.
(iv) A copy of the draft permit or the draft decision to deny the
permit with the justification for denial.
(2) How will the public be notified and participate? (i) Before
issuing a permit under the plan, the reviewing authority must prepare a
draft permit and provide adequate public notice to ensure that the
affected community and the general public have reasonable access to the
application and draft permit information, as set out in this paragraph
(e)(2)(i) and paragraph (e)(2)(ii) of this section. The public notice
must provide an opportunity for public comment and notice of a public
hearing, if any, on the draft permit.
(A) The reviewing authority must mail a copy of the notice to you
(the permit applicant), the MDAQMD (or the EPA if there is a delegation
under paragraph (g) of this section), and the California Air Resources
Board (CARB).
(B) The reviewing authority must comply with the methods listed in
paragraph (e)(2)(i)(B)(1) or (2) of this section:
(1) The reviewing authority must post the notice on its website.
(2) The reviewing authority must publish the notice in a newspaper
of general circulation in the area affected by the source.
(3) The reviewing authority may also include other forms of notice
as appropriate. This may include posting copies of the notice at one or
more locations in the area affected by the source, such as at post
offices, libraries, community centers or other gathering places in the
community.
(ii) The notices required pursuant to paragraph (c)(2)(i) of this
section must include the following information at a minimum:
(A) Identifying information, including the name and address of the
permit applicant (and the plant name and address if different);
(B) The name and address of the reviewing authority processing the
permit application;
(C) The regulated NSR pollutants to be emitted, and identification
of the emissions unit(s) whose emissions of a regulated NSR pollutant
could be affected by the project, including any emission limitations
for these emissions unit(s);
(D) The emissions change involved in the permit action;
(E) Instructions for requesting a public hearing;
(F) The name, address and telephone number of a contact person in
the reviewing authority's office from whom additional information may
be obtained;
(G) Locations and times of availability of the information, listed
in paragraph (e)(1) of this section, for public inspection; and
(H) A statement that any person may submit written comments, a
written request for a public hearing or both, on the draft permit
action. The reviewing authority must provide a period of at least 30
days from the date of the public notice for comments and for requests
for a public hearing.
(3) How will the public comment and will there be a public hearing?
(i) Any person may submit written comments on the draft permit and may
request a public hearing. The comments must raise any reasonably
ascertainable issue with supporting arguments by the close of the
public comment period (including any public hearing). The reviewing
authority must consider all comments in making the final decision. The
reviewing authority must keep a record of the commenters and of the
issues raised during the public participation process, and such records
must be available to the public.
(ii) The reviewing authority must extend the public comment period
under paragraph (e)(2) of this section to the close of any public
hearing under this section. The hearing officer may also extend the
comment period by so stating at the hearing.
(iii) A request for a public hearing must be in writing and must
state the nature of the issues proposed to be raised at the hearing.
(iv) If requested, the reviewing authority may hold a public
hearing at its discretion to give interested persons an opportunity for
the oral presentation of data, views, or arguments, in addition to an
opportunity to make written statements. The reviewing authority may
also hold a public hearing at its discretion, whenever, for instance,
such a hearing might clarify one or more issues involved in the permit
decision. The reviewing authority must provide notice of any public
hearing at least 30 days prior to the date of the hearing. Public
notice of the hearing may be

[[Page 56249]]

concurrent with that of the draft permit, and the two notices may be
combined. Reasonable limits may be set upon the time allowed for oral
statements at the hearing.
(v) The reviewing authority must make the written transcript of any
hearing available to the public.
(f) Final permit issuance and administrative and judicial review--
(1) How will final action occur and when will my Federal NNSR permit
become effective? After making a decision on a permit application, the
reviewing authority must notify you, the permit applicant, of the
decision in writing, and, if the permit is denied, provide the reasons
for such denial and the procedures for appeal. If the reviewing
authority issues a final permit to you, it must make a copy of the
permit available at any location where the draft permit was made
available. In addition, the reviewing authority must provide adequate
public notice of the final permit decision to ensure that the affected
community, the general public and any individuals who commented on the
draft permit have reasonable access to the decision and supporting
materials. A final permit becomes effective 30 days after service of
the final permit decision, unless:
(i) A later effective date is specified in the permit;
(ii) Review of the final permit is requested under paragraph (f)(3)
of this section; or
(iii) No comments requested a change in the draft permit or a
denial of the permit, in which case the reviewing authority may make
the permit effective immediately upon issuance.
(2) What is the administrative record for each final permit? (i)
The reviewing authority must base final permit decisions on an
administrative record consisting of:
(A) All comments received during any public comment period,
including any extension or reopening;
(B) The tape or transcript of any hearing(s) held;
(C) Any written material submitted at such a hearing;
(D) Any new materials placed in the record as a result of the
reviewing authority's evaluation of public comments;
(E) Other documents in the supporting files for the permit that
were relied upon in the decision-making;
(F) The final Federal NNSR permit;
(G) The application and any supporting data furnished by you, the
permit applicant;
(H) The draft permit or notice of intent to deny the application or
to terminate the permit; and
(I) Other documents in the supporting files for the draft permit
that were relied upon in the decision-making.
(ii) The additional documents required under paragraph (f)(2)(i) of
this section should be added to the record as soon as possible after
their receipt or publication by the reviewing authority. The record
must be complete on the date the final permit is issued.
(iii) Material readily available or published materials that are
generally available and that are included in the administrative record
under the standards of paragraph (f)(2)(i) of this section need not be
physically included in the same file as the rest of the record as long
as it is specifically referred to in that file.
(3) Can permit decisions be appealed? (i) Permit decisions may be
appealed under the permit appeal procedures of 40 CFR 124.19, and the
provisions of that section applicable to prevention of significant
deterioration (PSD) permits shall apply to permit decisions under the
FIP. A petition for review must be filed with the Clerk of the
Environmental Appeals Board within 30 days after the reviewing
authority serves notice of the issuance of a final permit decision
under the plan, in accordance with 40 CFR 124.19.
(ii) An appeal under paragraph (f)(3)(i) of this section is, under
section 307(b) of the Act, a prerequisite to seeking judicial review of
the final agency action.
(4) Can my permit be reopened? The reviewing authority may reopen
an existing, currently-in-effect permit for cause on its own
initiative, such as if it contains a material mistake or fails to
assure compliance with requirements in this section. However, except
for those permit reopenings that do not increase the emission
limitations in the permit, such as permit reopenings that correct
typographical, calculation and other errors, all other permit
reopenings shall be carried out after the opportunity for public notice
and comment and in accordance with one or more of the public
participation requirements under paragraph (e)(2) of this section.
(5) Can my permit be rescinded? (i) Any permit issued under this
section, or a prior version of this section, shall remain in effect
until it is rescinded under this paragraph (f)(5).
(ii) An owner or operator of a stationary source or modification
who holds a permit issued under this section for the construction of a
new source or modification that meets the requirement in paragraph
(f)(5)(iii) of this section may request that the reviewing authority
rescind the permit or a particular portion of the permit.
(iii) The reviewing authority may grant an application for
rescission if the application shows that the provisions of the plan
would not apply to the source or modification.
(iv) If the reviewing authority rescinds a permit under this
paragraph (f), the public shall be given adequate notice of the
rescission determination in accordance with paragraph (e)(2)(i)(B) of
this section.
(g) Administration and delegation of the Federal nonattainment
major NSR plan in the MDAQMD--(1) Who administers the FIP in the
MDAQMD? (i) The Administrator is the reviewing authority and will
directly administer all aspects of the FIP in the MDAQMD under Federal
authority.
(ii) The Administrator may delegate Federal authority to administer
specific portions of the FIP to the MDAQMD upon request, in accordance
with the provisions of paragraph (g)(2) of this section. If the MDAQMD
has been granted such delegation, it will be the reviewing authority
for purposes of the provisions for which it has been granted
delegation.
(2) Delegation of administration of the FIP to the MDAQMD. This
paragraph (g)(2) establishes the process by which the Administrator may
delegate authority to the MDAQMD in accordance with the provisions in
paragraphs (g)(2)(i) through (iv) of this section. Any Federal
requirements under the plan that are administered by the delegate
MDAQMD are enforceable by the EPA under Federal law.
(i) Information to be included in the Administrative Delegation
Request. To be delegated authority to administer the FIP or specific
portions of it, the MDAQMD must submit a request to the Administrator.
(ii) Delegation Agreement. A Delegation Agreement will set forth
the terms and conditions of the delegation, will specify the provisions
that the delegate MDAQMD will be authorized to implement on behalf of
the EPA and will be entered into by the Administrator and the MDAQMD.
The Agreement will become effective upon the date that both the
Administrator and the MDAQMD have signed the Agreement or as otherwise
stated in the Agreement. Once the delegation becomes effective, the
MDAQMD will be responsible, to the extent specified in the Agreement,
for administration of the provisions of the FIP that are subject to the
Agreement.
(iii) Publication of notice of the Agreement. The Administrator
will publish a notice in the Federal Register informing the public of
any Delegation Agreement. The Administrator also will

[[Page 56250]]

publish the notice in a newspaper of general circulation in the MDAQMD.
In addition, the Administrator will mail a copy of the notice to
persons on a mailing list developed by the Administrator consisting of
those persons who have requested to be placed on such a mailing list.
(iv) Revision or revocation of an Agreement. A Delegation Agreement
may be modified, amended or revoked, in part or in whole, by the
Administrator after consultation with the MDAQMD.

[FR Doc. 2024-14695 Filed 7-8-24; 8:45 am]
BILLING CODE 6560-50-P

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