[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43183-43185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18152]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0460; FRL-9438-6]


Revisions to the California State Implementation Plan, Sacramento 
Metropolitan Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing both an approval and a limited approval and 
limited disapproval of permitting rules submitted for the Sacramento 
Metropolitan Air Quality Management District (SMAQMD or District) 
portion of the California State Implementation Plan (SIP). These 
revisions were proposed in the Federal Register on May 19, 2011 and 
concern New Source Review (NSR) and Prevention of Significant 
Deterioration (PSD) permit programs for new and modified major 
stationary sources of air pollution. We are approving local rules that 
regulate these emission sources under the Clean Air Act as amended in 
1990 (CAA).

DATES: Effective Date: This rule is effective on August 19, 2011.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0460 for 
this action. Generally, documents in the docket for this action are 
available electronically at http://www.regulations.gov or in hard copy 
at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While 
all documents are listed at http://www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps, multi-volume reports), 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: Laura Yannayon, EPA Region IX, (415) 
972-3534, [email protected].

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

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On May 19, 2011 (76 FR 28942), EPA proposed to approve the 
following rule that was submitted for incorporation into the California 
SIP.

----------------------------------------------------------------------------------------------------------------
           Local agency                Rule No.              Rule title               Amended        Submitted
----------------------------------------------------------------------------------------------------------------
SMAQMD............................             203  Prevention of Significant            1/27/11         1/28/11
                                                     Deterioration.
----------------------------------------------------------------------------------------------------------------

    We proposed to approve this rule because we determined that it 
complied with the applicable CAA requirements. Our proposed rule and 
related Technical Support Document (TSD) contain more information on 
the basis for this rulemaking and on our evaluation of the submittal.
    On May 19, 2011 (76 FR 28942), EPA also proposed a limited approval 
and limited disapproval of the following rule that was submitted for 
incorporation into the California SIP.

----------------------------------------------------------------------------------------------------------------
           Local agency                Rule No.              Rule title               Amended        Submitted
----------------------------------------------------------------------------------------------------------------
SMAQMD............................             214  Federal New Source Review...        10/28/10        12/07/10
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the applicable CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions do not satisfy the requirements of section 110 and 
part D of the CAA.
    Specifically:
     The rule is missing definitions for the terms ``begin 
actual construction,'' ``federally enforceable'' and ``necessary 
preconstruction approvals or permits.''
     The rule is missing adequate public notice requirements 
for minor sources.
     The rule is missing provisions meeting the requirements of 
40 CFR 51.165(a)(5)(ii) and 40 CFR 51.307(b)(2).
     The rule contains a cross reference to Rule 207--Title V--
Federal Operating Permit Program, which is not SIP approved.
    Our proposed rule and related TSD contain more information on the 
basis for this rulemaking and on our evaluation of the submittal.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received no comments.

III. EPA Action

    No comments were submitted that change our assessment that the 
submitted SMAQMD Rule 203 complies with the applicable CAA 
requirements. Therefore, under CAA section 110(k)(3) and for the 
reasons set forth in our May 19, 2011 proposed rule, we are finalizing 
a full approval of Rule 203.

[[Page 43184]]

Additionally, no comments were submitted that change our basis for 
proposing a limited approval and limited disapproval of submitted 
SMAQMD Rule 214. Therefore, under CAA sections 110(k)(3) and 301(a), we 
are finalizing a limited approval and limited disapproval of Rule 214. 
We are finalizing a limited approval of the submitted rule because we 
continue to believe that the rule improves the SIP and is largely 
consistent with relevant CAA requirements. This action incorporates the 
submitted rule into the District portion of the California SIP, 
including those provisions identified as deficient. As authorized under 
sections 110(k)(3) and 301(a), EPA is simultaneously finalizing a 
limited disapproval of Rule 214. As a result, sanctions will be imposed 
unless EPA approves subsequent SIP revisions that correct the rule 
deficiencies within 18 months of the effective date of this action. 
These sanctions will be imposed under section 179 of the Act according 
to 40 CFR 52.31. In addition, EPA must promulgate a federal 
implementation plan (FIP) under section 110(c) unless we approve 
subsequent SIP revisions that correct the rule deficiencies within 24 
months. Note that the submitted rule has been adopted by the SMAQMD, 
and EPA's final limited disapproval does not prevent the local agency 
from enforcing it. The limited disapproval also does not prevent any 
portion of the rule from being incorporated by reference into the 
federally enforceable SIP, as discussed in a July 9, 1992 EPA memo 
found at: http://www.epa.gov/nsr/ttnnsr01/gen/pdf/memo-s.pdf.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and 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. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals and limited approvals/
limited disapprovals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because 
this limited approval/limited disapproval action does not create any 
new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the limited approval/limited disapproval 
action promulgated does not include a Federal mandate that may result 
in estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector. This 
Federal action approves pre-existing requirements under State or local 
law, and imposes no new requirements. Accordingly, no additional costs 
to State, local, or tribal governments, or to the private sector, 
result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule 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, as specified in Executive Order 13132, because it 
merely approves a State rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have

[[Page 43185]]

substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves a 
State rule implementing a Federal standard.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (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

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective on August 19, 2011.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 19, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

    Dated: June 30, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(389) and (390) to 
read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (389) New and amended regulations were submitted on December 7, 
2010, by the Governor's Designee.
    (i) Incorporation by Reference.
    (A) Sacramento Metropolitan Air Quality Management District.
    (1) Rule 214, ``Federal New Source Review,'' as adopted on October 
28, 2010.
    (390) Amended regulations were submitted on January 28, 2011, by 
the Governor's Designee.
    (i) Incorporation by Reference.
    (A) Sacramento Metropolitan Air Quality Management District.
    (1) Rule 203, ``Prevention of Significant Deterioration,'' as 
amended on January 27, 2011.
* * * * *
[FR Doc. 2011-18152 Filed 7-19-11; 8:45 am]
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