[Federal Register Volume 76, Number 152 (Monday, August 8, 2011)]
[Rules and Regulations]
[Pages 48006-48009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19897]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0211; FRL-9448-5]


Limited Federal Implementation Plan; Prevention of Significant 
Deterioration; California; North Coast Unified Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited Federal Implementation Plan (FIP) 
for the North Coast Unified Air Quality Management District (NCUAQMD) 
portion of the California State Implementation Plan (SIP). We proposed 
this action simultaneously with our proposed limited approval and 
limited disapproval of a SIP revision submitted by California to 
address the ``transport SIP'' provisions of Clean Air Act (CAA) section 
110(a)(2)(D)(i) for the 1997 8-hour ozone National Ambient Air Quality 
Standards (NAAQS or standards) and the 1997 fine particulate matter 
(PM2.5) NAAQS (2007 Transport SIP) (76 FR 31263, May 31, 
2011). This limited FIP establishes Federal Prevention of Significant 
Deterioration (PSD) permitting requirements for nitrogen oxides 
(NOX) emission sources only in the NCUAQMD.

DATES: Effective Date: This rule is effective on September 7, 2011.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0211 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., 
Confidential Business Information). 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: Rory Mays, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227, 
[email protected].

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

Table of Contents

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

I. Proposed Action

    On May 31, 2011 (76 FR 31263), EPA proposed a limited approval and 
limited disapproval of California's 2007 Transport SIP with respect to 
the requirement in CAA section 110(a)(2)(D)(i)(II) that each SIP 
contain adequate measures prohibiting emissions of air pollutants in 
amounts which will interfere with other States' measures required under 
title I, part C of the CAA to prevent significant deterioration of air 
quality. We refer to this requirement as ``element (3)'' of section 
110(a)(2)(D)(i). Simultaneously, EPA proposed a limited FIP for the 
NCUAQMD to address certain requirements of ``element (3)'' of section 
110(a)(2)(D)(i) that California's 2007 Transport SIP failed to satisfy. 
EPA proposed this limited FIP because of a statutory duty that we were 
obligated under the terms of a Consent Decree to meet by July 10, 2011, 
unless we approved a SIP meeting the applicable requirements by that 
date.\1\ This Consent Decree deadline has been extended by stipulation 
to July 29, 2011.\2\
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    \1\ See WildEarth Guardians v. U.S. EPA (Case No. 4:09-CV-02453-
CW), Consent Decree dated November 10, 2009, as amended by Notice of 
Stipulated Extensions to Consent Decree Deadlines, dated April 28, 
2011, and Notice of Stipulated Extension to Consent Decree Deadline, 
dated July 7, 2011.
    \2\ See ibid.
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    Specifically, for the NCUAQMD, we proposed to disapprove 
California's

[[Page 48007]]

2007 Transport SIP with respect to element (3) of CAA section 
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS because the NCUAQMD's 
SIP-approved PSD permit program does not explicitly identify 
NOX as an ozone precursor. Although California recently 
submitted a PSD SIP revision to EPA for the NCUAQMD to address this 
requirement,\3\ we noted in our proposed rule that we would not be able 
to act on this SIP revision in time to meet our July 10, 2011 consent 
decree deadline. We proposed, therefore, to promulgate a limited PSD 
FIP for the NCUAQMD based on the provisions of 40 CFR 52.21 regulating 
NOX as an ozone precursor. We noted that EPA would retain 
authority to implement the applicable requirements of 40 CFR 52.21 for 
NOX emission sources in NCUAQMD (unless and until EPA 
delegates such authority to the District), while the District would 
retain authority to continue implementing any existing SIP-approved PSD 
requirements. We also noted that this limited FIP would apply only 
until EPA approves a PSD SIP revision for the NCUAQMD addressing this 
requirement.
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    \3\ By letter dated February 28, 2011, California submitted a 
revised NSD/PSD rule (Rule 110, New Source Review (NSR) and 
Prevention of Significant Deterioration (PSD)) for approval into the 
NCUAQMD portion of the California SIP. The NCUAQMD adopted this 
amended rule on December 9, 2010.
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II. Public Comments

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

III. EPA Action

    Under CAA section 110(c)(1) and for the reasons discussed in our 
May 31, 2011 proposed rule, we are finalizing the limited PSD FIP for 
the NCUAQMD as proposed. The CAA authority for EPA to promulgate a FIP 
is found in CAA section 110(c)(1), which provides--

    The Administrator shall promulgate a Federal implementation plan 
at any time within 2 years after the Administrator--(B) disapproves 
a State implementation plan submission in whole or in part * * * 
unless the State corrects the deficiency, and [EPA] approves the 
plan or plan revision, before the Administrator promulgates such 
[FIP].

    In a separate action published in today's Federal Register, EPA 
finalized the limited approval and limited disapproval of California's 
2007 Transport SIP, including the disapproval with respect to the 
NCUAQMD because of the identified deficiency in its SIP-approved PSD 
program. Accordingly, under CAA sections 110(c)(1) and for the reasons 
set forth in our May 31, 2011 proposed rule, we are finalizing a 
limited PSD FIP for the NCUAQMD. This action incorporates the 
provisions of EPA's Federal PSD program at 40 CFR 52.21, as they apply 
to new or modified major sources of NOX as precursors to 
ozone, into the NCUAQMD portion of the California SIP.
    EPA currently implements a partial PSD FIP for certain types of 
projects located in the NCUAQMD. See 40 CFR 52.270(b)(2). The limited 
PSD FIP promulgated today adds new and modified major sources of 
NOX emissions to the list of projects that are already 
subject to the Federal PSD Program as provided in 40 CFR 52.270(b)(2). 
Thus, EPA will implement the applicable requirements of 40 CFR 52.21 
for major NOX emission sources in North Coast, unless and 
until EPA delegates such authority to the District pursuant to 40 CFR 
52.21(u). The District, however, retains authority to continue 
implementing any existing SIP-approved PSD requirements.
    This limited PSD FIP will apply only until EPA approves a PSD SIP 
revision for NCUAQMD meeting the PSD requirements applicable to 
NOX emissions as precursors to ozone, at which time EPA will 
rescind this limited FIP.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This final action is not a ``significant regulatory action'' under 
the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under Executive Order 12866 and 
13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This final 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 prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this action on small 
entities, small entity is defined as: (1) A small business that is a 
small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards (see 13 CFR 121.201); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; or (3) a small organization that is any not-for-profit 
enterprise that is independently owned and operated and is not dominant 
in its field.
    In the case of North Coast, EPA has not yet proposed to approve the 
SIP revision necessary to make NOX a precursor to ozone in 
the context of PSD permitting. For this area, EPA is establishing a 
narrow FIP to fill the gap with respect to the PSD requirement to 
address NOX as a precursor to ozone. To EPA's knowledge, in 
the past ten years there has been no more than one small entity in this 
area subject to PSD permitting requirements for NOX 
emissions, and this is not a substantial number of entities. EPA does 
not anticipate that there will be additional sources that would require 
such a permit in the future, and EPA is not required to analyze 
theoretical future impacts. It would be speculative to estimate 
potential impacts on sources based solely on theoretical future 
sources.
    After considering the economic impacts of this rule on small 
entities, I certify that this final action will not have a significant 
economic impact on a substantial number of small entities. Although 
this rule establishes Federal permitting requirements that may apply to 
a small number of sources, EPA believes that in such an event, there 
will not be a significant economic impact on the potentially affected 
sources and that any such impacts would not affect a substantial number 
of sources, regardless of size.

D. Unfunded Mandates Reform Act

    This final action contains no federal mandates under the provisions 
of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 
1531-1538) for state, local or tribal governments or the private 
sector. The action imposes no enforceable duty on any state, local or 
tribal governments or the private sector. This action merely prescribes 
EPA's action in an area for which EPA has disapproved the 2007 
Transport SIP in part and not yet approved a corrective SIP revision.

[[Page 48008]]

Thus, this rule is not subject to the requirements of sections 202 or 
205 of UMRA.
    This final action is also not subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments. This action 
merely prescribes EPA's action in an area for which EPA has disapproved 
the 2007 Transport SIP in part and not yet approved a corrective SIP 
revision.

E. Executive Order 13132: Federalism

    This final 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, 
as specified in Executive Order 13132. This action merely prescribes 
EPA's action in an area for which EPA has disapproved the 2007 
Transport SIP in part and not yet approved a corrective SIP revision. 
Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This final action does not have tribal implications, as specified 
in Executive Order 13175 (65 FR 67249, November 9, 2000). This action 
does not impose a FIP in any tribal area. Thus, Executive Order 13175 
does not apply to this action.

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

    EPA interprets EO 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 EO has the 
potential to influence the regulation. This final action is not subject 
to EO 13045 because it merely prescribes EPA's action in an area for 
which EPA has disapproved the 2007 Transport SIP in part and not yet 
approved a corrective SIP revision.

H. Executive Order 13211: Actions 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

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This rulemaking 
does not involve technical standards. Therefore, EPA did not consider 
the use of any voluntary consensus standards.

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

    Executive Order 12898 (59 FR 7629, February 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 has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This rule merely prescribes EPA's action in an area for 
which EPA has disapproved the 2007 Transport SIP in part and not yet 
approved a corrective SIP revision.

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 final action is not a ``major rule'' as defined by 5 
U.S.C. section 804(2). This rule will be effective on September 7, 
2011.

L. Determination Under Section 307(d)

    Pursuant to section 307(d)(1)(B) of the CAA, this action is subject 
to the provisions of section 307(d). Section 307(d)(1)(B) provides that 
the provisions of section 307(d) apply to ``the promulgation or 
revision of an implementation plan by the Administrator under section 
110(c) of this Act.''

M. 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 October 7, 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.

    Dated: July 29, 2011.
Lisa P. Jackson,
Administrator.

    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 52.270 is amended by adding paragraph (b)(2)(iv) to read as 
follows:


Sec.  52.270  Significant deterioration of air quality.

* * * * *
    (b) * * *
    (2) * * *
    (iv) Those projects which are major stationary sources or major

[[Page 48009]]

modifications for nitrogen oxides as precursors to ozone under Sec.  
52.21.
* * * * *
[FR Doc. 2011-19897 Filed 8-5-11; 8:45 am]
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