[Federal Register Volume 80, Number 167 (Friday, August 28, 2015)]
[Proposed Rules]
[Pages 52236-52244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21401]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0280; FRL-9933-20-Region 9]


Revisions to California State Implementation Plan; Bay Area Air 
Quality Management District; Stationary Sources Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing a 
limited approval and limited disapproval of Regulation 2, Rules 1 and 2 
for the Bay Area Air Quality Management District (BAAQMD or District) 
portion of the California State Implementation Plan (SIP) submitted on 
April 22, 2013. These revisions consist of significant updates to rules 
governing the issuance of permits for stationary sources, including 
review and permitting of major sources and major modifications under 
parts C and D of title I of the Clean Air Act (CAA). The intended 
effect of this proposed limited approval and limited disapproval action 
is to update the applicable SIP with current BAAQMD permitting rules 
and to set the stage for remedying certain deficiencies in these rules. 
If finalized as proposed, this limited disapproval action would trigger 
an obligation for EPA to promulgate a Federal Implementation Plan 
unless California submits and we approve SIP revisions that correct the 
deficiencies within two years of the final action, and for certain 
deficiencies the limited disapproval would also trigger sanctions under 
section 179 of the CAA unless California submits and we approve SIP 
revisions that correct the deficiencies within 18 months of final 
action.

[[Page 52237]]


DATES: Any comments must arrive by September 28, 2015.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2015-0280, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the 
online instructions.
    2. Email: [email protected].
    3. Mail or deliver: Gerardo Rios (Air-3), U.S. Environmental 
Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 
94105-3901. Deliveries are only accepted during the Regional Office's 
normal hours of operation.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at 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 www.regulations.gov or email. 
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 email directly to EPA, your email 
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. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    Docket: Generally, documents in the docket for this action are 
available electronically at www.regulations.gov and in hard copy at EPA 
Region 9, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps), 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: Shaheerah Kelly, EPA Region 9, (415) 
947-4156, [email protected].

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

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. What are the existing BAAQMD rules governing stationary 
source permits in the California SIP?
    C. What is the purpose of this proposed rule?
II. EPA's Evaluation
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    1. Minor New Source Review Requirements
    2. Prevention of Significant Deterioration (PSD) Requirements
    3. Nonattainment New Source Review Requirements
    4. Section 110(l) of the Act
    5. Section 189(e) of the Act
    6. Section 193 of the Act
III. Proposed Action and Public Comment
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
     The word or initials Act or CAA mean or refer to the Clean 
Air Act, unless the context indicates otherwise.
     The word or initials BAAQMD or District mean or refer to 
the Bay Area Air Quality Management District.
     The initials BACT mean or refer to Best Available Control 
Technology.
     The words Bay Area mean or refer to the San Francisco Bay 
Area.
     The initials CARB mean or refer to the California Air 
Resources Board.
     The initials CFR mean or refer to Code of Federal 
Regulations.
     The initials CO mean or refer to carbon monoxide.
     The initials or words EPA, we, us or our mean or refer to 
the United States Environmental Protection Agency.
     The initials ERC mean or refer to Emission Reduction 
Credit.
     The initials FIP mean or refer to Federal Implementation 
Plan.
     The initials FR mean or refer to Federal Register.
     The initials GHG mean or refer to greenhouse gases.
     The initials IBR mean or refer to incorporation by 
reference.
     The initials LAER mean or refer to Lowest Achievable 
Emission Rate.
     The initials NAAQS mean or refer to National Ambient Air 
Quality Standards.
     The initials NOX mean or refer to oxides of nitrogen.
     The initials NPOC mean or refer to non-precursor organic 
compound.
     The initials NSR mean or refer to New Source Review.
     The initials PM10 mean or refer to particulate matter with 
an aerodynamic diameter of less than or equal to 10 micrometers (coarse 
particulate matter).
     The initials PM2.5 mean or refer to particulate matter 
with an aerodynamic diameter of less than or equal to 2.5 micrometers 
(fine particulate matter).
     The initials PSD mean or refer to Prevention of 
Significant Deterioration.
     The initials PTE mean or refer to potential to emit
     The initials SIP mean or refer to State Implementation 
Plan.
     The initials SO2 mean or refer to sulfur dioxide.
     The initials TSD mean or refer to the technical support 
document for this action.
     The initials VOC mean or refer to volatile organic 
compound.

I. The State's Submittal

A. What rules did the State submit?

    On April 22, 2013, CARB submitted amended rules, BAAQMD Regulation 
2, Rules 1 and 2 for approval as a revision to the BAAQMD portion of 
the California SIP under the CAA. Regulation 2 contains the District's 
air quality permitting programs. Regulation 2, Rule 1 contains general 
requirements that apply to all District air quality permitting 
programs. Regulation 2, Rule 2 contains the District's New Source 
Review (NSR) permit programs for both attainment and nonattainment 
pollutants. This SIP revision submittal represents a comprehensive 
revision to BAAQMD's preconstruction review and permitting program and 
is intended to satisfy the requirements of part C (PSD) and part D 
(nonattainment NSR) of title I of the Act as well as the general 
preconstruction review requirements for minor sources \1\ under section 
110(a)(2)(C) of the Act.\2\ These preconstruction review and permitting 
programs are often collectively referred to as NSR.
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    \1\ We note that any references to the term ``source'' in 
Regulation 2, Rules 1 and 2, as well as in the District's other SIP 
rules, refer to the ``emission unit'' rather than the ``stationary 
source.''
    \2\ Parts C and D of the federal Clean Air Act regulate the 
construction of new major stationary sources and major 
modifications. BAAQMD's NSR rules do not distinguish between major 
sources and major modifications in the same way as the federal Clean 
Air Act. Throughout this document, any references to major sources 
or major modifications means those new sources and modifications 
exceeding the major source and modification thresholds specified in 
the federal Clean Air Act.
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    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by BAAQMD and submitted to EPA by CARB, which is

[[Page 52238]]

the governor's designee for California SIP submittals.

                                            Table 1--Submitted Rules
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                                                                                     Adopted/
             Regulation & Rule No.                         Rule title                 Amended        Submitted
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Regulation 2, Rule 1 (2-1)....................  Permits, General Requirements...        12/19/12         4/22/13
Regulation 2, Rule 2 (2-2)....................  Permits, New Source Review......        12/19/12         4/22/13
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    On June 26, 2013, the April 22, 2013 submittal of Regulation 2, 
Rules 1 and 2 was deemed to meet the completeness criteria in 40 CFR 
part 51, appendix V, which must be met before formal EPA review. The 
submittal includes evidence of public notice and adoption of the 
amended rules. While we can act only on the most recently submitted 
version of each regulation (which supersedes earlier submitted 
versions), we have reviewed materials provided with previous 
submittals. Our TSD provides additional background information on our 
evaluation of Regulation 2, Rules 1 and 2.

B. What are the existing BAAQMD rules governing stationary source 
permits in the California SIP?

    The existing SIP-approved NSR program for new or modified 
stationary sources in the Bay Area consists of the rules identified 
below in Table 2. Collectively, these rules establish the NSR 
requirements for both major and minor stationary sources under BAAQMD 
jurisdiction in California, including requirements for the generation 
and use of emission reduction credits in nonattainment areas.
    Consistent with the District's stated intent to have the submitted 
NSR rules replace the existing SIP-approved NSR program in its 
entirety, EPA's approval of the regulations identified above in Table 1 
would have the effect of entirely superseding our prior approval of 
these two rules (including a prior approval of a single subsection) in 
the current SIP-approved program. Table 2 lists the existing rules in 
the California SIP governing NSR for stationary sources under BAAQMD 
jurisdiction.

           Table 2--Existing SIP Rules Governing NSR for Stationary Sources Under BAAQMD Jurisdiction
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                                                                                                      Federal
  Regulation & Rule No. & Section No.          Rule title             BAAQMD       EPA approval      Register
                                                                   adoption date       date          citation
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2-1...................................  Permits, General               11/1/1989       1/26/1999      64 FR 3850
                                         Requirements.
2-1-429...............................  Permits, General               6/15/1994        4/3/1995     60 FR 16799
                                         Requirements; Federal
                                         Emissions Statement.
2-2...................................  Permits, New Source            6/15/1994       1/26/1999      64 FR 3850
                                         Review.
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C. What is the purpose of this proposed rule?

    The purpose of this proposed rule is to present our evaluation 
under the CAA and EPA's regulations of the amended NSR rules submitted 
by CARB on April 22, 2013, as identified in Table 1. We provide our 
reasoning in general terms below but provide a more detailed analysis 
in our TSD, which is available in the docket for this proposed 
rulemaking.

II. EPA's Evaluation

A. How is EPA evaluating the rules?

    EPA has reviewed BAAQMD Regulation 2, Rules 1 and 2 for compliance 
with the CAA's general requirements for SIPs in CAA section 110(a)(2), 
part C of title I (sections 160 through 169) for the PSD program, and 
part D of title I (sections 172, 173, 182(a) and 189(e)) for the 
nonattainment NSR program. EPA also evaluated the rules for compliance 
with the CAA requirements for SIP revisions in CAA sections 110(l), 193 
and 302(z). In addition, EPA evaluated the submitted rules for 
consistency with the regulatory provisions of 40 CFR part 51, subpart I 
(Review of New Sources and Modifications) (i.e., 40 CFR 51.160-51.166) 
and 40 CFR 51.307.
    Among other things, section 110 of the Act requires that SIP rules 
be enforceable, and provides that EPA may not approve a SIP revision if 
it would interfere with any applicable requirements concerning 
attainment and reasonable further progress or any other requirement of 
the CAA. Section 110(a)(2) and section 110(l) of the Act require that 
each SIP or revision to a SIP submitted by a State must be adopted 
after reasonable notice and public hearing.
    Section 110(a)(2)(C) of the Act requires each SIP to include a 
program to regulate the modification and construction of any stationary 
source within the areas covered by the SIP as necessary to assure 
attainment and maintenance of the NAAQS. In addition to the permit 
programs required under parts C and D of title I of the Act for PSD and 
nonattainment NSR sources, respectively, EPA's regulations at 40 CFR 
51.160-51.164 provide general programmatic requirements to implement 
this statutory mandate commonly referred to as the ``minor NSR 
program.''
    Part C of title I of the Act establishes the general statutory 
requirements for a PSD permit program. Additionally, 40 CFR 51.166 sets 
forth EPA's regulatory requirements for a SIP-approved PSD program. 40 
CFR 52.21 is EPA's FIP containing regulatory requirements to implement 
a PSD program and its provisions may be incorporated by reference into 
a SIP-approved PSD program.
    Part D of title I of the Act contains certain procedural 
requirements for developing and revising SIPs, and establishes general 
statutory requirements for a nonattainment NSR permit program. Subpart 
4 of part D of title I of the Act includes section 189(e), which 
requires the control of major stationary sources of PM10 
precursors (and hence PM2.5 precursors) ``except where the 
Administrator determines that such sources do not contribute 
significantly to PM10 [and PM2.5] levels

[[Page 52239]]

which exceed the standard in the area.'' Additionally, 40 CFR 51.165 
sets forth EPA's regulatory requirements for SIP-approval of a 
nonattainment NSR permit program.
    Our TSD, which can be found in the docket for this rule, contains a 
more detailed evaluation and discussion of the approval criteria. As 
described below, EPA is proposing a limited approval and limited 
disapproval of the submitted NSR rules.

B. Do the rules meet the evaluation criteria?

    With respect to procedural requirements, CAA sections 110(a)(2) and 
110(l) require that revisions to a SIP be adopted by the State after 
reasonable notice and public hearing. EPA has promulgated specific 
procedural requirements for SIP revisions in 40 CFR part 51, subpart F. 
These requirements include publication of notices, by prominent 
advertisement in the relevant geographic area, of a public hearing or 
notice of an opportunity for a public hearing on the proposed 
revisions, and a public comment period of at least 30 days.
    Based on our review of the public process documentation included in 
the April 22, 2013 submittal, we find that the BAAQMD has provided 
sufficient evidence of public notice, and an opportunity for comment 
and a public hearing prior to adoption and submittal of these rules to 
EPA.
    With respect to substantive requirements, we have evaluated 
Regulation 2, Rules 1 and 2, in accordance with the CAA and regulatory 
requirements that apply to: (1) General preconstruction review programs 
for minor sources under section 110(a)(2)(C) of the Act, (2) PSD permit 
programs under part C of title I of the Act, and (3) nonattainment NSR 
permit programs under part D of title I of the Act. For the most part, 
the submitted NSR rules satisfy the applicable requirements for these 
three permit programs and will strengthen the applicable SIP by 
updating the rules and adding requirements to address new or revised 
NSR permitting provisions promulgated by EPA in the last several years. 
However, the submitted NSR rules also contain a few deficiencies which 
prevent full approval. Below, we discuss generally our evaluation of 
BAAQMD's submitted rules and the deficiencies that are the basis for 
our proposed limited disapproval of these rules. Our TSD contains a 
more detailed evaluation and recommendations for program improvements.
1. Minor New Source Review Requirements
    Section 110(a)(2)(C) of the Act requires that each SIP include a 
program to provide for ``regulation of the modification and 
construction of any stationary source within the areas covered by the 
plan as necessary to assure that national ambient air quality standards 
are achieved, including a permit program as required in parts C and D'' 
of title I of the Act. Thus, in addition to the permit programs 
required in parts C and D of title I of the Act, which apply to new or 
modified major stationary sources of pollutants, each SIP must include 
a program to regulate the construction and modification of any 
stationary source within the area as necessary to assure that the NAAQS 
are achieved. These general pre-construction requirements are commonly 
referred to as ``minor NSR'' and are subject to EPA's implementing 
regulations in 40 CFR 51.160-51.164. Regulation 2, Rules 1 and 2 
satisfy most of the statutory and regulatory requirements for minor NSR 
programs, but we have identified the following three deficiencies that 
form part of the basis for our proposed limited disapproval.
    First, the definition of ``Agricultural Source'' in section 2-1-239 
and the provision concerning the loss of an exemption in section 2-1-
424 cross-reference and rely on requirements in other District rules 
that are not approved in the SIP. Specifically, subsection 2-1-239.1 
and section 2-1-424 rely on requirements in Regulation 2, Rule 10 
(Large Confined Animal Facility Operations). In addition, subsection 2-
1-239.3 relies on requirements in Regulation 2, Rule 6 (Major 
Facility),\3\ which is also not approved in the SIP. The District may 
resolve this deficiency by incorporating the specific threshold(s) or 
requirement(s) from these District rules into Regulation 2, Rule 1.
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    \3\ Regulation 2, Rule 6 (Major Facility) contains the District 
Title V operating permit program.
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    Second, section 2-2-308 specifies that the District's APCO shall 
not issue an Authority to Construct (ATC) for a new or modified 
emission unit or stationary source that will result in a ``significant 
net increase'' (i.e., a major modification) in emissions of any NAAQS 
pollutant unless the APCO determines that such increase will not cause 
or contribute to an exceedance of any NAAQS for that pollutant. Because 
this provision only prohibits issuance of an ATC for a source or 
project that will result in a ``significant net increase'' rather than 
any projects (i.e., both minor or major modifications) that would cause 
or contribute to a NAAQS violation, this provision does not satisfy the 
requirements of 40 CFR 51.160(a) and is therefore deficient.
    Lastly, the rule submittal is deficient because it does not contain 
a prohibition on the issuance of an ATC if the project does not meet 
all applicable requirements of the control strategy as required in 40 
CFR 51.160(a).
    Compared to the provisions in the existing SIP that are used to 
implement the minor NSR program, the submitted rule revisions represent 
an overall strengthening of BAAQMD's minor NSR program. For example, 
the rule revisions include: (1) more specific criteria for permit 
applications and conditions for permit issuance, (2) new provisions to 
prevent emissions from new or modified sources from causing or 
contributing to a violation of a NAAQS, (3) new provisions for public 
notification and comment for minor NSR projects that result in a 
significant net emission increase, and (4) new and revised provisions 
that clarify what new and modified sources are exempt from obtaining an 
ATC permit. Overall, we expect the submitted revisions will allow for 
more effective implementation and enforcement of the requirements 
applicable to minor stationary sources in the Bay Area.
2. Prevention of Significant Deterioration (PSD) Requirements
    Part C of title I of the Act contains the provisions for the 
prevention of significant deterioration of air quality in areas 
designated ``attainment'' or ``unclassifiable'' for the NAAQS, 
including preconstruction permit requirements for new major sources or 
major modifications proposing to construct in such areas. EPA's 
regulations for PSD permit programs are found in 40 CFR 51.166. EPA's 
FIP implementing the PSD program in areas without a SIP-approved 
program is found at 40 CFR 52.21. BAAQMD is currently designated as 
``attainment'' or ``unclassifiable/attainment'' for all NAAQS 
pollutants, except for the 2008 8-hour ozone (marginal) and 2006 24-
hour PM2.5 (moderate) NAAQS.
    Regulation 2, Rules 1 and 2 contain the requirements for review and 
permitting of PSD sources. Regulation 2, Rule 1 contains some general 
NSR definitions, the major modification applicability determination 
procedures, and certain administrative requirements that apply to the 
issuance of all permits covered under Regulation 2, including PSD 
permits. Regulation 2, Rule 2 contains most of the NSR and PSD 
definitions, and all of the substantive

[[Page 52240]]

and administrative requirements for review of PSD permit applications 
and for the approval of PSD permits. These rules satisfy most of the 
statutory and regulatory requirements for PSD permit programs, thus 
forming part of the basis for our limited approval. However, these 
rules also contain four deficiencies that form part of the basis for 
our proposed limited disapproval, as discussed below.
    First, subsection 2-1-234.2.2 provides an adequate definition of 
major modification by incorporating 40 CFR 51.166(b)(2) by reference. 
However, the second sentence of section 2-1-234.2 attempts to satisfy 
these requirements by incorporating by reference the substantive 
requirements of the PSD applicability procedures for determining if a 
project will result in a major modification. (See 40 CFR 51.166(a)(7)) 
The BAAQMD rules cannot incorporate 40 CFR 51.166(a)(7) by reference 
because it consists of instructions to the State and not requirements 
for an applicant seeking a PSD permit. When provisions are incorporated 
by reference, the exact wording of the provision is read into the text 
of the rule. Therefore, the text of 40 CFR 51.166(a)(7) does not 
contain the necessary wording to require a source to perform the 
calculations required by the PSD applicability procedures in 40 CFR 
51.166(a)(7). Similarly, the recordkeeping provisions required when 
projected actual emissions are used to determine emission increases are 
set forth in 40 CFR 51.166(r)(6) and (r)(7). For the same reason, these 
provisions cannot be incorporated by reference. These deficiencies may 
be resolved by incorporating by reference the provisions contained in 
40 CFR 52.21 for specifying the applicability procedures, applicable 
definitions, and recordkeeping requirements.
    Second, the definition of ``PSD Pollutant'' in section 2-2-223 
begins by referencing EPA's definition of a regulated NSR pollutant in 
40 CFR 52.21(b)(50). However, section 2-2-223 then excludes from the 
definition any pollutants for which the Bay Area has been designated as 
nonattainment for a NAAQS. Excluding nonattainment pollutants conflicts 
with the federal definition of ``regulated NSR pollutant'' in 40 CFR 
52.21(b)(50) which includes all NAAQS pollutants, regardless of 
attainment status. Because this definition is used for determining 
whether a source is a ``Major PSD Facility,'' as defined in subsection 
2-2-224.1, the rule is deficient for PSD applicability purposes. A 
stationary source is considered a major stationary source if any 
pollutant emitted by the source exceeds the applicable major source 
thresholds (100 or 250 tpy), regardless of the area's designation.\4\ 
Additionally, since the definition of ``PSD Pollutant'' is used for 
determining whether a modification to a stationary source is a ``PSD 
Project'' pursuant to section 2-2-224, we also find that section 2-2-
224 is deficient. To resolve this deficiency, the District may remove 
the exclusion of nonattainment pollutants from the definition of ``PSD 
Pollutant'' or address applicability as it relates to nonattainment 
pollutants in determining whether a source is a ``Major PSD Facility'' 
in subsection 2-2-224.1.
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    \4\ While 40 CFR 51.166(i)(2) provides that the PSD program 
requirements contained in paragraphs (j) through (r) need not apply 
to nonattainment pollutants, PSD major source applicability must be 
determined for all regulated NSR pollutants, as defined in 
51.166(b)(49), which includes all pollutants for which a NAAQS has 
been promulgated.
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    Third, the air quality analysis and modeling requirements in 
subsection 2-2-305.3 provide that where an air quality model specified 
in 40 CFR part 51, appendix W (Guideline on Air Quality Models) is 
inappropriate, the model may be modified or another model substituted 
upon written approval by the Air Pollution Control Officer (APCO) after 
public notice and opportunity for public comment under the procedures 
set forth in section 2-2-404. This provision is deficient because 
subsection 3.2.2 of 40 CFR 51, appendix W, regarding the use of 
alternative models, requires written approval by the Administrator 
prior to using any modification or substitution of a model, and 
subsection 2-2-305.3 does not require this approval. The District may 
resolve this deficiency by revising subsection 2-2-305.3 such that it 
requires approval by the EPA, as well as the APCO.
    Finally, the fugitive emission calculation procedure in Section 2-
2-611 provides that fugitive emissions shall be included only if the 
facility is in one of the 28 source categories listed in section 169(1) 
of the Act. However, 40 CFR 51.166(b)(1)(iii)(aa) includes an 
additional source category: ``any other stationary source category 
which, as of August 7, 1980, is being regulated under section 111 or 
112 of the Act.'' Therefore, we find that Regulation 2, Rule 2 is 
deficient for PSD purposes because it does not require fugitive 
emissions from all listed source categories.
    Although BAAQMD's existing SIP rules in Regulation 2, Rule 2 
contained certain PSD-related provisions, the District has never had a 
SIP-approved PSD permitting program. The BAAQMD has been conducting PSD 
evaluations and issuing PSD permits under a delegation agreement 
between the District and the EPA pursuant to 40 CFR 52.21(u).\5\ 
Accordingly, the applicable requirements governing the issuance of PSD 
permits in the BAAQMD are currently the FIP implementing the PSD 
program at 40 CFR 52.21. The EPA's approval of Regulation 2, Rules 1 
and 2 into the California SIP, if finalized, will give the District a 
SIP-approved PSD permit program.
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    \5\ On June 21, 2004, the EPA issued a PSD delegation agreement, 
which was updated on January 20, 2006, February 4, 2008, and March 
9, 2011.
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    Approval of Regulation 2, Rules 1 and 2 represents an overall 
strengthening of BAAQMD's SIP rules because it includes updated PSD 
provisions, is mostly consistent with EPA's requirements in the CAA and 
40 CFR 51.166, and results in a SIP-approved PSD program to regulate 
new or modified major stationary sources of attainment or 
unclassifiable NAAQS pollutants.
3. Nonattainment New Source Review Requirements
    Part D of title I of the Act contains the general requirements for 
areas designated ``nonattainment'' for a NAAQS, including 
preconstruction permit requirements for new major sources or major 
modifications proposing to construct in such nonattainment areas, 
commonly referred to as ``Nonattainment New Source Review'' or ``NSR.'' 
EPA's regulations for NSR permit programs are found in 40 CFR 51.165. 
BAAQMD is currently designated nonattainment for the 2008 8-hour ozone 
(marginal) and 2006 24-hour PM2.5 (moderate) NAAQS.\6\ (See 
40 CFR 81.305.)
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    \6\ The BAAQMD was designated nonattainment of both the 1-hour 
ozone (moderate) and 1997 8-hour ozone (marginal) NAAQS at the time 
those standards were revoked. While BAAQMD is no longer 
``designated'' nonattainment for these two revoked standards, 
certain requirements based on these previous designations may still 
apply if those requirements are more stringent than those imposed 
under the current nonattainment designations.
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    Regulation 2, Rules 1 and 2 contain the NSR requirements for review 
and permitting of major sources and major modifications located in the 
Bay Area. Similar to the District's PSD program, Regulation 2, Rule 1 
contains some general NSR definitions, the major modification 
applicability procedures, and certain administrative requirements that 
apply to the issuance of all permits covered under Regulation 2, 
including major nonattainment NSR permits. Regulation 2, Rule 2 
contains most of the NSR-specific definitions, and most

[[Page 52241]]

of the substantive and administrative requirements for review of major 
nonattainment NSR applications and for the approval of these permits. 
These rules satisfy most of the statutory and regulatory requirements 
for NSR permit programs, thus forming part of the basis for our limited 
approval. However, these rules also contain seven deficiencies that 
form part of the basis for our proposed limited disapproval, as 
discussed below.
    First, the language in subsection 2-1-234.2.1 for nonattainment 
pollutants fails for the same reasons discussed above for the PSD 
program. Specifically, while it is appropriate to incorporate 40 CFR 
51.165(a)(1)(v) by reference, the second sentence of this subsection 
cannot incorporate the applicability procedures in 40 CFR 51.165(a)(2) 
by reference because it provides direction to States rather than to 
applicants seeking a nonattainment NSR permit. For the same reason, the 
recordkeeping requirements of 40 CFR 51.165(a)(6) and (a)(7) cannot be 
incorporated by reference. These deficiencies may be resolved by 
including the specific requirements contained in 40 CFR 51.165(a)(2), 
as well as (a)(6), and (a)(7). Our TSD has a further discussion of this 
issue and potential remedies.
    Second, subsection 2-2-401.4 requires any application for a new 
major stationary source or major modification located in or within 100 
km of a Class I area, to provide an analysis of potential impacts to 
air quality related values (including visibility) for each affected 
Class I area. However, Regulation 2, Rule 2 is deficient because it 
only requires a visibility analysis for sources that are located within 
100 km of a Class I area, rather than for any source that ``may have an 
impact on visibility in any mandatory Class I Federal Area,'' as 
required by 40 CFR 51.307(b)(2). The NSR program must include this 
requirement as it pertains to any new major stationary source or major 
modification subject to nonattainment NSR permitting.
    Third, subsection 2-2-411.2, pertaining to offset refunds, allows 
the District to provide an ``offset refund'' to a stationary source if 
excess offsets were provided at the time of permit issuance or for an 
emission unit that has not been constructed (or is constructed but 
never operated) and for which offsets have been provided. The provision 
does not specify a time after which a stationary source can no longer 
obtain an offset refund. It would not be appropriate to allow a source 
to request such a refund years after the project has been completed or 
canceled. To correct this deficiency, BAAQMD must remove this provision 
or amend the rule to provide an appropriate timeframe for obtaining an 
offset refund.
    Fourth, the ``Demonstration of NOX and POC Offset 
Program Equivalence'' required by section 2-2-412 is deficient because 
it does not provide a remedy if the District fails to make the required 
demonstration. BAAQMD must add a remedy provision, and identify a 
deadline to eliminate any offset shortfall if the District's Small 
Facility Banking Account does not contain sufficient surplus emission 
reductions to demonstrate that Rule 2 provides offset program 
equivalence. Such a remedy, at a minimum must provide that the offsets 
for any new or modified major stationary source must comply with all 
federal offset criteria, rather than the offset criteria provided in 
the rule, until equivalence is re-established.
    Fifth, subsection 2-2-605.2 is deficient because it allows existing 
``fully-offset'' sources to generate ERCs based on the difference 
between the post-modification PTE and the surplus adjusted pre-
modification PTE. ERCs intended to be used as offsets for emissions 
from new major sources or major modifications are only creditable if 
they are reductions of actual emissions, consistent with the 
requirement in CAA section 173(c)(1), not reductions in the PTE of the 
source. To resolve this deficiency, BAAQMD may revise the calculation 
method for ``fully offset'' sources to be the same as for sources that 
are not ``fully offset''. Alternatively, BAAQMD may add provisions to 
differentiate between state and federally compliant ERCs (i.e., ERCs 
based on actual emission reductions) and provide that new major sources 
and major modifications must use federally compliant ERCs.
    Sixth, subsection 2-2-606.2 is deficient as it applies to major 
modifications because it allows ``fully-offset'' sources to calculate 
the emission increases from a proposed modification based on the 
difference between the post-modification PTE and pre-modification 
adjusted PTE. 40 CFR 51.165(a)(3)(ii)(J) requires that offsets must be 
provided for the actual increase in emissions from a major modification 
based on an actual to PTE emissions increase test. BAAQMD may resolve 
this deficiency by developing separate procedures based on the 
difference between the allowable emissions (i.e. PTE) after the 
modification and the actual emissions before the modification for 
calculating the quantity of offsets required for an emission unit or 
modification subject to the major NSR preconstruction review 
requirements. Alternatively, BAAQMD may revise the offset equivalency 
provisions of Section 2-2-412 to track the difference in the quantity 
of offsets required under the rule and as required by the CAA, and 
demonstrate that in the aggregate, an equivalent amount of offsets are 
provided. We note that if the District addresses this deficiency in 
section 2-2-412, offsets must be addressed for PM2.5 and the 
PM2.5 precursors (NOX and SO2) in 
addition to the ozone precursors already addressed in this provision.
    Finally, for the same reasons stated above in our evaluation of the 
PSD program, we find that section 2-2-611 of Regulation 2, Rule 2 is 
deficient because it does not require fugitive emissions from all 
listed source categories to be included when determining major source 
applicability for major nonattainment NSR review.
    Compared to the provisions in the existing SIP, the submitted rule 
revisions represent an overall strengthening of BAAQMD's nonattainment 
NSR program. For example, the rule revisions include: (1) Incorporation 
of new requirements (e.g., District BACT (equivalent to federal LAER), 
offsets, and emissions measurement methods for regulating 
PM2.5 emissions and the applicable PM2.5 
precursors,\7\ (2) new requirements for ensuring protection of air 
quality related values in Class I areas, (3) specific calculation 
procedures for determining if a project will result in a major 
modification, and (4) several minor revisions that clarify definitions 
of important NSR terms, and substantive and administrative procedures 
consistent with EPA's requirements in 40 CFR 51.165.
---------------------------------------------------------------------------

    \7\ As discussed below in section II.B.5 and in our TSD, with 
respect to the PM2.5 precursors applicable to the Bay 
Area, the District's current SIP-approved rule already included BACT 
provisions in section 2-2-302 for VOC, NOX and 
SO2. Additionally, the rule already included offset 
requirements for VOC and NOX, and the District 
incorporated new offset provisions in section 2-2-303 for 
SO2.
---------------------------------------------------------------------------

4. Section 110(l) of the Act
    We are proposing to find that Regulation 2, Rules 1 and 2 satisfy 
the requirements of section 110(a)(2)(C) and parts C and D of title I 
of the Act. Section 110(l) of the CAA states that each SIP revision 
submitted by a State shall be adopted by such State after reasonable 
notice and public hearing. It also states that the Administrator shall 
not approve a SIP revision if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other CAA applicable requirement.

[[Page 52242]]

    With respect to the procedural requirements of CAA section 110(l), 
based on our review of the public process documentation included in the 
April 22, 2013 SIP submittal package, we find that BAAQMD has provided 
sufficient evidence of public notice and opportunity for comment and 
public hearings prior to adoption and submittal of these rules to EPA. 
See the TSD for additional details.
    With respect to the substantive requirements of section 110(l), we 
have determined that our approval of the BAAQMD NSR SIP submittal, as 
described in more detail in our TSD, represents a strengthening of 
BAAQMD's NSR program as compared to the District's current SIP-approved 
NSR program that was approved on January 26, 1999 (64 FR 3850), and 
that our limited approval of this SIP submittal would not interfere 
with any applicable requirement concerning attainment and RFP or any 
other applicable requirement of the Act. Therefore we are proposing 
limited approval and limited disapproval of the BAAQMD SIP revision 
under section 110(l) of the Act.
5. Section 189(e) of the Act
    CAA title I, Part D, subpart 4 includes section 189(e), which 
requires the control of major stationary sources of PM10 and 
PM2.5 precursors ``except where the Administrator determines 
that such sources do not contribute significantly to PM10 
levels which exceed the standard in the area.'' The provisions of 
subpart 4, do not define the term ``precursor'' for purposes of 
PM2.5, nor does subpart 4 explicitly require the control of 
any specifically identified particulate matter precursor. The statutory 
definition of ``air pollutant,'' however, provides that the term 
``includes any precursors to the formation of any air pollutant, to the 
extent the Administrator has identified such precursor or precursors 
for the particular purpose for which the term ``air pollutant'' is 
used.'' (See CAA section 302(g)) The EPA has identified the main 
precursor gases associated with PM2.5 formation as 
SO2, NOX, VOC, and ammonia. Accordingly, the 
nonattainment NSR permit program for PM2.5 presumptively 
must apply to emissions of all four precursors listed above, and direct 
PM2.5, when emitted from major sources in the Bay Area. The 
BAAQMD's revisions to Regulation 2, Rule 2 regulate SO2, 
NOX and VOC, but not ammonia.
    With respect to VOC and NOX emissions, both new and 
modified sources of these emissions are subject to BAAQMD's BACT 
requirements (equivalent to federal LAER) at a 10 lb/day emission rate 
threshold under its nonattainment NSR program. Also, Section 2-2-302 of 
the District's revised Rule 2 requires VOC and NOX emissions 
to be offset at a 1:1 ratio for any facility with a PTE greater than 10 
tpy but less than 35 tpy of NOX or VOC, and a 1:1.15 ratio 
for any facility with a PTE of 35 tpy or more of NOX or VOC. 
These applicability thresholds are well below the BACT and offset 
thresholds of 100 tpy for new sources and 40 tpy for major 
modifications that would be required under federal requirements for a 
PM2.5 precursor. The offset ratio for sources with a PTE of 
35 tpy or more is also higher than the 1:1 offset ratio required 
federally for PM2.5 precursors. In addition, Regulation 2, 
Rule 2, also requires BACT (equivalent to federal LAER) and offsets for 
major sources and modifications of SO2 in sections 2-2-301 
and 2-2-303.
    Because Regulation 2, Rule 2 contains control and offset 
requirements for VOC, NOX and SO2 that are 
consistent with, or more stringent than, the federal nonattainment NSR 
requirements for those PM2.5 precursors, we are proposing to 
approve Regulation 2, Rule 2 as satisfying the requirements of CAA 
section 189(e) for VOC, NOX and SO2.
    The only PM2.5 precursor that is not regulated by 
Regulation 2 is ammonia, which the BAAQMD has excluded. In reviewing 
any determination of the State (in this case the BAAQMD) to exclude a 
PM2.5 precursor (in this case ammonia) from the required 
evaluation of potential nonattainment NSR applicability and regulation, 
the EPA considers both the magnitude of the precursor's contribution to 
ambient PM2.5 concentrations in the nonattainment area and 
the sensitivity of ambient PM2.5 concentrations in the area 
to reductions in emissions of that precursor.\8\ To determine if the 
District appropriately excluded ammonia emissions from the requirements 
of Regulation 2, Rule 2, EPA is relying primarily on three sources of 
information: (1) The District's December 22, 2014 letter regarding 
compliance with PM2.5 precursor requirements in CAA Title I, 
Part D, Subpart 4 (District 189(e) letter); (2) the District's July 15, 
2015 letter regarding the quantity of ammonia emitted from major 
sources compared to the overall ammonia emission inventory (District EI 
letter); and (3) EPA's PM2.5 Clean Data Determination for 
the BAAQMD, published in the Federal Register on January 9, 2013 (78 FR 
1760) (CDD).
---------------------------------------------------------------------------

    \8\ 80 FR 1816, Approval and Promulgation of Implementation 
Plans; Designation of Areas for Air Quality Planning Purposes; 
California; San Joaquin Valley Moderate Area Plan and 
Reclassification as Serious Nonattainment for the 2006 
PM2.5 NAAQS; (Proposed Rule), January 13, 2015, page 
1822. 80 FR 24281, Approval of Air Quality Implementation Plans; 
California; South Coast Air Quality Management District; Stationary 
Source Permits; May 1, 2015.
---------------------------------------------------------------------------

    First, the District's EI letter indicates that the magnitude of 
actual ammonia emissions from major sources in the San Francisco Bay 
Air Basin is small. There are only three major sources of ammonia 
emissions (i.e., 100 tpy or greater of actual ammonia emissions). These 
three major sources contribute 686 tpy of ammonia emissions while all 
sources of ammonia in the Bay Area Air Basin emit 12,407 tpy. The 
relative contribution of the existing major sources to the overall 
ammonia emissions in the area, therefore, is 5.5 percent.
    Second, the District's 189(e) letter states that the District 
evaluated the impacts that ammonia emissions within the Bay Area may 
have on secondary particulate matter formation. The District conducted 
a modeling study in 2009 to evaluate this issue, and based on that 
study the District concluded that ammonia was not a significant 
contributor to secondary particulate matter formation that warranted 
inclusion in the District's NSR program at the time of the study.\9\ 
This study showed the ammonia emissions are predominately from area 
sources. Modeling results from the study showed that a 20 percent 
reduction in ammonia emissions (around 15 tons per day) would reduce 
secondary PM2.5 levels by an average of 2 percent.
---------------------------------------------------------------------------

    \9\ See BAAQMD's Fine Particulate Matter Data Analysis and 
Modeling in the Bay Area, Research and Modeling Section Publication 
No. 200910-004-PM, October 2009.
---------------------------------------------------------------------------

    Third, based on EPA's PM2.5 Clean Data Determination, 
EPA has determined that the Bay Area is currently attaining the 2006 
24-hour PM2.5 NAAQS.
    As noted above, section 189(e) of the Act requires nonattainment 
NSR to apply to major stationary sources of PM2.5 precursors 
``except where the Administrator determines that such sources do not 
contribute significantly to [PM2.5] levels which exceed the 
standard in the area.'' Given the relatively small amount of ammonia 
emissions from major point sources, the District's 2009 modeling 
analysis showing that ammonia was not a significant contributor to 
secondary particulate matter formation and the fact that the BAAQMD is 
currently attaining the PM2.5 NAAQS, we are proposing to 
conclude that the PM2.5 impacts from major stationary 
sources of ammonia emissions are insignificant and do not

[[Page 52243]]

contribute significantly to PM2.5 levels that exceed the 
PM2.5 NAAQS in the Bay Area nonattainment area. Therefore, 
this requirement is satisfied.
6. Section 193 of the Act
    Section 193 of the Act, which was added by the Clean Air Act 
Amendments of 1990, includes a savings clause which provides, in 
pertinent part: ``No control requirement in effect, or required to be 
adopted by an order, settlement agreement, or plan in effect before 
November 15, 1990, in any area which is a nonattainment area for any 
air pollutant may be modified after November 15, 1990, in any manner 
unless the modification insures equivalent or greater emission 
reductions of such air pollutant.''
    We have reviewed the provisions included in BAAQMD's NSR SIP 
submittal and find that they would ensure equivalent or greater 
emission reductions compared to the current SIP-approved NSR program. 
The BACT and offset requirements, which are the primary control 
requirements of a NSR program, are equivalent or more stringent in the 
submitted rules as are contained in the existing SIP approved NSR 
rules. Therefore, we can approve the submitted NSR program under 
section 193 of the Act. Our TSD contains a more detailed evaluation.

III. Proposed Action and Public Comment

    Because the rule deficiencies described above are inappropriate for 
inclusion in the SIP, EPA cannot grant full approval of this rule under 
section 110(k)(3) of the Act. Pursuant to section 110(k)(3) of the Act, 
EPA is proposing a limited approval and limited disapproval of the 
submitted rules. We are proposing to approve the submitted rules based 
on our determination that the most of the rules satisfy the applicable 
statutory and regulatory provisions governing regulation of stationary 
sources under CAA section 110(a)(2)(C), including the permitting 
requirements for major stationary sources in parts C and D of title I 
of the Act. In support of this proposed action, we have concluded that 
our limited approval of the submitted rules would comply with sections 
110(l) and 193 of the Act because the amended rules as a whole would 
not interfere with continued attainment of the NAAQS in the Bay Area, 
and do not relax control technology and offset requirements. We 
recommend limited disapproval to correct the deficiencies listed above. 
The intended effect of our proposed limited approval and limited 
disapproval action is to update the applicable SIP with current BAAQMD 
rules and to set the stage for remedying the rule deficiencies. If we 
finalize this action as proposed, our action would be codified through 
revisions to 40 CFR 52.220 (identification of plan).
    If finalized as proposed, our limited disapproval action would 
trigger an obligation on EPA to promulgate a Federal Implementation 
Plan unless the deficiencies are corrected, and EPA approves the 
related plan revisions, within two years of the final action. 
Additionally, for those deficiencies that relate to the nonattainment 
NSR requirements under part D of title I of the Act, the offset 
sanction in CAA section 179(b)(2) would apply in the Bay Area 
nonattainment area 18 months after the effective date of a final 
limited disapproval, and the highway funding sanctions in CAA section 
179(b)(1) would apply six months after the offset sanction is imposed. 
Neither sanction will be imposed under the CAA if California submits 
and we approve, prior to the implementation of the sanctions, SIP 
revisions that correct the deficiencies that we identify in our final 
action.

IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference BAAQMD Regulation 2, Rule 1 (Permits, General Requirements) 
and BAAQMD Regulation 2, Rule 2 (Permits, New Source Review) which are 
discussed in section I.A. of this preamble. The EPA has made, and will 
continue to make, this document generally available electronically 
through www.regulations.gov and in hard copy at the appropriate EPA 
office (see the ADDRESSES section of this preamble for more 
information).

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This 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 the EO.

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 this proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. 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. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 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; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in-and-of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

[[Page 52244]]

D. Unfunded Mandates Reform Act

    This 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. EPA has determined that the proposed disapproval action 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 action proposes to 
disapprove 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

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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.''
    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, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, and EPA notes that 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

    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 action is not subject to EO 
13045 because it is not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997). This proposed SIP disapproval under section 110 
and subchapter I, part D of the Clean Air Act will not in-and-of itself 
create any new regulations but simply disapproves certain State 
requirements for inclusion into the SIP.

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

    This proposed rule 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.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

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

    Executive Order (EO) 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.

List of Subjects in 40 CFR Part 52

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

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

    Dated: August 19, 2015.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2015-21401 Filed 8-27-15; 8:45 am]
BILLING CODE 6560-50-P