[Federal Register Volume 85, Number 95 (Friday, May 15, 2020)]
[Proposed Rules]
[Pages 29377-29381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09734]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2019-0449; FRL-10008-59-Region 9]
Approval and Limited Approval and Limited Disapproval of
California Air Plan Revisions; San Diego County Air Pollution Control
District; Stationary Source Permits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing action
on four permitting rules submitted as a revision to the San Diego
County Air Pollution Control District (SDAPCD or ``District'') portion
of the California State Implementation Plan (SIP). We are proposing a
limited approval and limited disapproval of one rule and proposing
approval of the remaining three rules. These revisions concern the
District's New Source Review (NSR) permitting program for new and
modified sources of air pollution under section 110(a)(2)(C) and part D
of title I of the Clean Air Act (CAA). This action updates the SDAPCD's
applicable SIP with revised rules that the District has amended to
address deficiencies identified in a previous conditional approval
action. We are taking comments on this proposal and plan to follow with
a final action.
DATES: Comments must be received on or before June 15, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2019-0449 at http://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish
[[Page 29378]]
any comment received to its public docket. Do not submit electronically
any information you consider to be Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Sheila Tsai, EPA Region IX, Air-3-1,
75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3328 or
by email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted rule revisions?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rules?
B. Do the rules meet the evaluation criteria?
C. Proposed action and public comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What rules did the State submit?
Table 1 lists the rules addressed by this proposal with the dates
when they were adopted by the SDAPCD and submitted by the California
Air Resources Board (CARB), which is the governor's designee for
California SIP submittals. These rules constitute part of the SDAPCD's
current program for preconstruction review and permitting of new or
modified stationary sources under its jurisdiction. The rule revisions
that are the subject of this action represent an update to the SDAPCD's
preconstruction review and permitting program and are intended to
satisfy the requirements under part D of title I of the Act
(``nonattainment NSR'' or ``NNSR'') as well as the general
preconstruction review requirements under section 110(a)(2)(C) of the
Act (``minor NSR'').
Table 1--Submitted Rules
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Rule No. Rule title Adopted date Submitted date
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20.1................................... New Source Review--General 06/26/2019 07/19/2019
Provisions.
20.2 *................................. New Source Review--Non-Major 06/26/2019 07/19/2019
Stationary Sources.
20.3 *................................. New Source Review--Major 06/26/2019 07/19/2019
Stationary Sources and PSD
Stationary Sources.
20.4 *................................. New Source Review--Portable 06/26/2019 07/19/2019
Emission Units.
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* The following paragraphs of the Rules 20.2-20.4 were not submitted to the EPA for inclusion in the San Diego
SIP: Rule 20.2 paragraphs (d)(2)(i)(B), (d)(2)(v), (d)(2)(vi)(B) and (d)(3); Rule 20.3 paragraphs (d)(1)(vi),
(d)(2)(i)(B), (d)(2)(v), (d)(2)(vi)(B) and (d)(3); and Rule 20.4 paragraphs (b)(2), (b)(3), (d)(1)(iii),
(d)(2)(i)(B), (d)(2)(iv), (d)(2)(v)(B), (d)(3) and (d)(5).
On August 6, 2019, the EPA determined that the submittal of the
revised Rules 20.1, 20.2, 20.3, and 20.4 meets the completeness
criteria in 40 CFR part 51 appendix V, which must be met before formal
EPA review.
B. Are there other versions of these rules?
The EPA conditionally approved Rules 20.1-20.4 into the SDAPCD
portion of the California SIP in 2018, based on the District's
commitment to adopt and submit revisions to address identified
deficiencies within one year, consistent with the requirements at CAA
section 110(k)(4) for conditional approval. 83 FR 50007 (October 4,
2018). That action also included a conditional approval of Rule 20.6,
and a full approval of Rules 11, 20, and 24. The conditionally approved
versions of Rules 20.1-20.4 are identified below in Table 2.
Table 2--SIP Approved Rules
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Federal Register
Rule No. Rule title SIP approval date Citation
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20.1................................... New Source Review--General 10/4/2018 83 FR 50007
Provisions.
20.2................................... New Source Review--Non-Major 10/4/2018 83 FR 50007
Stationary Sources.
20.3................................... New Source Review--Major 10/4/2018 83 FR 50007
Stationary Sources and PSD
Stationary Sources.
20.4................................... New Source Review--Portable 10/4/2018 83 FR 50007
Emission Units.
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If the EPA finalizes the action proposed herein, these rules will
be replaced in the SIP by the submitted set of rules listed in Table 1.
Additionally, as described below, the EPA's final approval of Rules
20.1-20.4 will resolve our conditional approval of Rule 20.6.
C. What is the purpose of the submitted rule revisions?
As noted above and described in further detail below, the submitted
rules are intended to satisfy aspects of the minor NSR and NNSR
requirements of section 110(a)(2)(C) and part D of title I of the Act,
and related EPA regulations. Minor NSR requirements are generally
applicable for SIPs in all areas, while NNSR requirements apply only
for areas designated as nonattainment for one or more National Ambient
Air Quality Standards (NAAQS). San Diego County is classified as a
serious nonattainment area for the 2008 ozone standard and a moderate
nonattainment area for the 2015 8-hour ozone standard. San Diego County
is designated attainment or unclassifiable for all other NAAQS. See 40
CFR 81.305. Therefore, in addition to
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being subject to the requirements for minor NSR at section 110(a)(2)(C)
of the Act, California is required to adopt and implement a SIP-
approved NNSR permitting program that applies to new or modified major
stationary sources of ozone and ozone precursors within the San Diego
County nonattainment area, under part D of title I of the Act.
These rules were submitted to address deficiencies identified in
the EPA's 2018 action to approve and conditionally approve updates to
the SDAPCD's SIP-approved NSR permitting program. See 83 FR 50007
(October 4, 2018). Additionally, the rules have been revised to include
NOX and VOC applicability thresholds and offset ratios
applicable to severe and extreme ozone nonattainment areas, and to
incorporate federal requirements for interprecursor offsetting that
were added in the EPA's Implementation Rule for the 2015 Ozone NAAQS.
See 83 FR 62998 (December 6, 2018).
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rules?
The EPA evaluated the submitted rules to determine whether they
address the deficiencies identified in our 2018 conditional approval,
and for compliance with applicable requirements of section 110(a)(2)(C)
and part D of title I of the CAA and associated regulations at 40 CFR
51.160-165, consistent with the District's current classification as a
serious nonattainment area for the 2008 ozone standard and a moderate
nonattainment area for the 2015 8-hour ozone standard. We have also
reviewed the rules for consistency with other CAA general requirements
for SIP submittals, including requirements at section 110(a)(2)
regarding rule enforceability, and requirements at sections 110(l) and
193 for SIP revisions.
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. The EPA's regulations at 40
CFR 51.160-51.164 provide general programmatic requirements to
implement this statutory mandate. These requirements, commonly referred
to as the ``minor NSR'' or ``general NSR'' program, apply to both major
and non-major stationary sources and modifications and in both
attainment and nonattainment areas, in contrast to the specific
statutory and regulatory requirements for the prevention of significant
deterioration (PSD) \1\ and NNSR permitting programs under parts C and
D of title I of the Act that apply to major sources in attainment and
nonattainment areas, respectively.
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\1\ The SDAPCD has elected not to submit rules to satisfy
requirements of the PSD program under part C of title I of the Act
for major stationary sources in attainment areas at this time.
Accordingly, the EPA is not evaluating whether this SIP submittal
satisfies PSD program requirements at 40 CFR 51.166, and some
portions of Rules 20.2-20.4 addressing major sources in attainment
areas are excluded from the submittal. See Table 1. The EPA remains
the PSD permitting authority in San Diego County.
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Part D of title I of the Act, and the implementing regulations at
40 CFR 51.165, contain the NNSR program requirements for major
stationary sources and major modifications (as those terms are defined
at 40 CFR 51.165) at facilities that are located in a nonattainment
area and are major sources for the pollutants for which the area has
been designated nonattainment.
Section 110(a)(2)(A) of the Act requires that regulations submitted
to the EPA for SIP approval must be clear and legally enforceable.
Section 110(l) of the Act prohibits the EPA from approving any SIP
revisions that would interfere with any applicable requirement
concerning attainment and reasonable further progress (RFP) or any
other applicable requirement of the CAA. Section 193 of the Act
prohibits the modification of a SIP-approved control requirement in
effect before November 15, 1990 in a nonattainment area, unless the
modification ensures equivalent or greater emission reductions of the
relevant pollutant(s). With respect to procedures, CAA sections 110(a)
and 110(l) require that a state conduct reasonable notice and hearing
before adopting a SIP revision.
B. Do the rules meet the evaluation criteria?
With the exception noted below, the EPA finds that the submitted
rules generally satisfy the applicable CAA and regulatory requirements.
Accordingly, we are proposing a full approval of Rules 20.2-20.4 and a
limited approval and limited disapproval of Rule 20.1 under CAA section
110(k)(3) and 301(a). Below, we discuss generally our evaluation of the
submitted rules. The technical support document (TSD) included in the
docket for this proposed rulemaking contains a more detailed analysis.
We find that the submitted rules generally satisfy the NNSR and
minor NSR requirements. The rules clearly identify the kinds of
projects subject to review under the District's program, include
legally enforceable procedures to ensure that construction will not
violate the state's control strategy or interfere with attainment or
maintenance of the NAAQS, provide for public availability of relevant
information, and meet other requirements of the minor NSR regulations
at 40 CFR 51.160-164. In addition, the rules include the definitions,
applicability procedures, and requirements for sources in nonattainment
areas to obtain emission reduction offsets and comply with the lowest
achievable emissions rate, as required by the NNSR regulations at 40
CFR 51.165. Rule 20.1 incorporates general regulatory requirements of
the minor NSR program and definitions, applicability procedures, and
requirements of the minor NSR and NNSR programs, while Rules 20.2,
20.3, and 20.4 apply applicable elements of the program to minor
stationary sources, major stationary sources, and portable emission
units, respectively. For more information about how the rules satisfy
these requirements, see our 2018 conditional approval of the District's
minor NSR and NNSR program at 83 FR 50007 (October 4, 2018).
The EPA has identified one deficiency in Rule 20.1(a) related to 40
CFR 51.160(a) and (b) and CAA section 173(a). The District revised Rule
20.1(a) to specify that the rule applies to a permit application based
on the requirements in the rule as in effect on the date that the
application is determined to be complete. By specifying the rule's
applicability based on the date of application completeness, this
language may limit the APCO's ability to ensure a source will comply
with applicable NSR programs requirements at the time the permit is
issued. Because of this deficiency, and our determination that other
revisions to the rule conform to federal requirements, we are proposing
a limited approval and limited disapproval of Rule 20.1. In order to
correct this deficiency, we recommend that SDAPCD remove or revise the
language added in the revised Rule 20.1(a). The TSD for this action
contains additional detail regarding our determination and
recommendation.
The submitted rules comply with the substantive and procedural
requirements of CAA section 110(l). With respect to the procedural
requirements, based on our review of the public process documentation
included with the submitted rules, we find that the SDAPCD has provided
sufficient evidence of public notice and opportunity for comment and
public hearings prior to submittal of this SIP revision and has
satisfied these
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procedural requirements under CAA section 110(l).
With respect to the substantive requirements of CAA section 110(l),
we have determined that our approval of the submitted rules would
strengthen the applicable SIP. The addition of public noticing
requirement revisions, updates to the interpollutant offset procedures,
and other changes to Rules 20.1-20.4 will not interfere with any
applicable requirements of the CAA. Overall, the changes to Rules 20.1-
20.4 better conform to the federal requirements. These changes will not
interfere with the area's ability to attain or maintain the NAAQS and
will better align SDAPCD's NSR program to the federal requirements.
Accordingly, we are proposing to find that the revisions to Rules 20.1-
20.4 are approvable under section 110(l).
Similarly, we find that the submitted rules are approvable under
section 193 of the Act because they do not modify any control
requirement in effect before November 15, 1990 without ensuring
equivalent or greater emission reductions.
The submitted rules are otherwise consistent with criteria for the
EPA's approval of regulations submitted for inclusion in the SIP,
including the requirement at CAA section 110(c)(2)(A) that submitted
regulations be clear and legally enforceable.
For the reasons stated above and explained further in our TSD, we
find that the submitted NSR rules generally satisfy the applicable CAA
and regulatory requirements for minor NSR and NNSR permit programs
under CAA section 110(a)(2)(C) and part D of title I of the Act and
other applicable requirements, subject to the one exception noted above
where the EPA has identified a deficiency. This submittal also corrects
the deficiencies described in our 2018 conditional approval of Rules
20.1-20.4 and Rule 20.6. If we finalize this action as proposed, our
action will resolve the conditional approval of these rules, and will
be codified through revisions to 40 CFR 52.220 (Identification of
plan--in part) and 40 CFR 52.248 (Identification of plan--conditional
approval). As described below, a final limited disapproval would also
trigger a timeline for the State to submit a revised SIP, or else face
sanctions under the CAA.
C. Proposed Action and Public Comment
As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA
is proposing full approval of Rules 20.2-20.4, and a limited approval
and limited disapproval of Rule 20.1. We will accept comments from the
public on this proposal until June 15, 2020. If finalized, this action
would incorporate the submitted rules into the SIP, including those
provisions identified as deficient. This approval is limited because
EPA is simultaneously proposing a limited disapproval of the rule under
section 110(k)(3).
If finalized as proposed, our limited disapproval action would
trigger an obligation on the EPA to promulgate a Federal Implementation
Plan (FIP) unless the State corrects the deficiencies, and the EPA
approves the related plan revisions, within two years of the final
action. Additionally, because the deficiency relates to NNSR
requirements under part D of title I of the Act, the offset sanction in
CAA section 179(b)(2) would apply in San Diego County 18 months after
the effective date of a final limited disapproval, and the highway
funding sanctions in CAA section 179(b)(1) would apply in the area six
months after the offset sanction is imposed. Neither sanction will be
imposed under the CAA if the State submits and we approve, prior to the
implementation of the sanctions, a SIP revision that corrects the
deficiency that we identify in our final action. The EPA intends to
work with the SDAPCD to correct the deficiency in a timely manner.
Note that the submitted rule has been adopted by the SDAPCD, and
the EPA's final limited disapproval would not prevent the local agency
from enforcing it. The limited disapproval would also 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: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.
III. 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 the SDAPCD rules described in Table 1 of this preamble. The
EPA has made, and will continue to make, these materials available
through www.regulations.gov and at the EPA Region IX Office (please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section of this preamble for more information).
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has
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jurisdiction, and will not impose substantial direct costs on tribal
governments or preempt tribal law. Thus, Executive Order 13175 does not
apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
List of Subjects in 40 CFR Part 52
Administrative practice and procedure, Environmental protection,
Air pollution control, Carbon monoxide, Incorporation by reference,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxide,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 1, 2020.
John Busterud,
Regional Administrator, Region IX.
[FR Doc. 2020-09734 Filed 5-14-20; 8:45 am]
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