[Federal Register Volume 75, Number 98 (Friday, May 21, 2010)]
[Proposed Rules]
[Pages 28509-28511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12281]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0430; FRL-9154-1]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the San Joaquin 
Valley Unified Air Pollution Control District (SJVUAPCD) portion of the 
California State Implementation Plan (SIP). These revisions concern 
oxides of nitrogen (NOX) and particulate matter (PM) 
emissions primarily from indirect sources associated with new 
development projects as well as NOX and PM emissions from 
certain transportation and transit projects. We are approving a local 
rule that regulates these emission sources under the Clean Air Act as 
amended in 1990 (CAA or the Act). We are taking comments on this 
proposal and plan to follow with a final action.

DATES: Any comments must arrive by July 6, 2010.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0430, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the 
online instructions.
    2. E-mail: [email protected].
    3. Mail or Deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through  http://www.regulations.gov or e-mail. http://www.regulations.gov is an 
``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard

[[Page 28510]]

copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. 
While all documents in the docket are listed in the index, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material), and some may not be publicly available in 
either location (e.g., CBI). To inspect the hard copy materials, please 
schedule an appointment during normal business hours with the contact 
listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Lily Wong, EPA Region IX, (415) 947-
4114, [email protected].

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule?
    II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What action is EPA proposing and why?
    D. EPA Recommendations to Address Deficiencies
    E. Public Comment and Final Action
    III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the state submit?

    Table 1 lists the rule addressed by this proposal with the dates 
that it was adopted by the local air agency and submitted by the 
California Air Resources Board.

                                             Table 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
              Local agency                  Rule No.            Rule title            Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD...............................            9510  Indirect Source Review         12/15/05        12/29/06
                                                          (ISR).
----------------------------------------------------------------------------------------------------------------

    On June 29, 2007, the submittal for SJVUAPCD Rule 9510 was deemed 
by operation of law to meet the completeness criteria in 40 CFR part 51 
appendix V, which must be met before formal EPA review.

B. Are there other versions of this rule?

    There are no previous versions of Rule 9510 in the SIP.

C. What is the purpose of the submitted rule?

    NOX helps produce ground-level ozone, smog and 
particulate matter, which harm human health and the environment. PM 
contributes to effects that are harmful to human health and the 
environment, including premature mortality, aggravation of respiratory 
and cardiovascular disease, decreased lung function, visibility 
impairment, and damage to vegetation and ecosystems. Section 110(a) of 
the CAA requires States to submit regulations that control 
NOX and PM emissions.
    Rule 9510 establishes limitations on NOX and PM. 
Development projects indirectly result in new emissions from mobile, 
stationary, and area sources, including those from new vehicle trips, 
fuel combustion from stationary and area sources, use of consumer 
products, landscaping maintenance, and construction activities. The 
purpose of Rule 9510 is to achieve emission reductions from new 
development projects, as well as transportation and transit projects 
where construction exhaust emissions are equal to or greater than 2 
tons of NOX or 2 tons of PM10.
    Rule 9510 requires applicants of new development projects to reduce 
construction equipment emissions and operational emissions by a 
specified percentage. The reductions can be achieved through any number 
of on-site measures implemented by the applicant or by paying a fee to 
SJVUAPCD for all emissions in excess of the requirements. SJVUAPCD 
would utilize the fees to fund off-site projects to reduce 
NOX and PM emissions.
    Rule 9510 requires the submittal and approval of an application 
which identifies, through the use of a computer model, the projected 
air impacts of the development project and on-site mitigation measures, 
and the amount of fees to be paid. EPA's technical support document 
(TSD) has more information about this rule.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rule?

    The CAA (see section 110(a)(2)(E)) requires the State and 
responsible local agencies (e.g., SJVUAPCD) to have adequate personnel, 
funding, and authority to carry out the SIP, including Rule 9510.
    SIP rules must be enforceable (see section 110(a) of the Act) and 
must not relax existing requirements (see sections 110(l) and 193 of 
the Act). Guidance and policy documents that we use to evaluate 
enforceability consistently include the following:
    1. ``State Implementation Plans; Nitrogen Oxides Supplement to the 
General Preamble; Clean Air Act Amendments of 1990 Implementation of 
Title I; Proposed Rule,'' (the NOX Supplement), 57 FR 55620, 
November 25, 1992.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. ``Improving Air Quality with Economic Incentive Programs,'' EPA-
452/R-01-001, January 2001.

B. Does the rule meet the evaluation criteria?

    EPA believes that California and SJVUAPCD have demonstrated that 
they have adequate personnel, funding, and authority to carry out the 
overall SIP. EPA is aware of ongoing legal challenge by the National 
Association of Home Builders (NAHB) to SJVUAPCD's legal authority to 
implement Rule 9510. (See National Association of Home Builders v. San 
Joaquin Valley Unified Air Pollution Control District, No. 08-17309 
(9th Circuit)). In that case, NAHB asserts that the SJVUAPCD, through 
Rule 9510, is attempting to establish and enforce an emissions standard 
for new nonroad engines without first having received a waiver as 
required by CAA section 209, 42 U.S.C. 7543. Based on the information 
before EPA for Rule 9510, we believe that the SJVUAPCD has the 
authority to adopt and implement Rule 9510 without such a waiver. The 
TSD has more information on this issue.
    We believe this rule is consistent with the relevant requirements, 
policy and guidance regarding SIP relaxations since this rule does not 
replace any SIP rule. However, we believe this rule is not consistent 
with the relevant requirements, policy and guidance on enforceability. 
The TSD has more information on this issue.

C. What action is EPA Proposing and why?

    While Rule 9510 does not meet the evaluation criteria for 
enforceability, EPA is proposing to fully approve the

[[Page 28511]]

rule because it is directionally sound and would generally strengthen 
the SIP. Rule 9510 is an important effort by SJVUAPCD to reduce 
NOX and PM emissions from a sector that has not been 
generally regulated and could also result in significant co-benefits by 
reducing emissions of green house gases. For these reasons, EPA 
recommends full SIP approval, but in light of the deficiencies also 
recommends that the projected emission reductions from the rule should 
not be credited in any attainment and rate of progress/reasonable 
further progress demonstrations. The TSD has more information on this 
recommendation.

D. EPA Recommendations to Address Deficiencies

    EPA recommendations on how to address the enforceability 
deficiencies are described in the TSD.

E. Public Comment and Final Action

    EPA is proposing to fully approve it as described in section 
110(k)(3) of the Act. We will accept comments from the public on this 
proposal for the next 45 days. Unless we receive convincing new 
information during the comment period, we intend to publish a final 
approval action that will incorporate this rule into the federally 
enforceable SIP.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements.

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

    Dated: May 10, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2010-12281 Filed 5-20-10; 8:45 am]
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