[Federal Register Volume 86, Number 160 (Monday, August 23, 2021)]
[Proposed Rules]
[Pages 47046-47049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17312]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0438; FRL-8773-01-Region 9]


Limited Approval and Limited Disapproval of California Air 
Quality Implementation Plan Revisions; Amador Air District; Stationary 
Source 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 a revision to the Amador 
Air District's (AAD or ``District'') portion of the California State 
Implementation Plan (SIP). This revision governs the District's 
issuance of permits for stationary sources, and focuses on the 
preconstruction review and permitting of major sources and major 
modifications under part D of title I of the Clean Air Act (CAA or 
``the Act''). We are taking comments on this proposal and plan to 
follow with a final action.

DATES: Comments must be received on or before September 22, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0438 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 any comment received to its public 
docket. Do not submit electronically any information you consider 
Confidential Business Information (CBI) or other information the 
disclosure of which 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. If you need

[[Page 47047]]

assistance in a language other than English or if you are a person with 
disabilities who needs a reasonable accommodation at no cost to you, 
please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Amber Batchelder, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105; by phone: (415) 947-4174, or by 
email to [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 rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule?
II. The EPA's Evaluation and Action
    A. What is the background for this proposal?
    B. How is the EPA evaluating the rule?
    C. Does the rule meet the evaluation criteria?
    D. What are the rule deficiencies?
    E. EPA Recommendations To Further Improve the Rule
    F. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule addressed by this proposal, including the 
date on which it was adopted by the District and the date on which it 
was submitted to the EPA by the California Air Resources Board (CARB or 
``the State''). The AAD is the air pollution control agency for Amador 
County in California.

                                             Table 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
             Local agency                  Rule No.            Rule title             Adopted      Submitted \1\
----------------------------------------------------------------------------------------------------------------
AAD...................................             400  NSR Requirements for New        08/20/19        11/05/19
                                                         and Modified Major
                                                         Sources in
                                                         Nonattainment Areas.
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\1\ The submittal was transmitted to the EPA via a letter from CARB dated October 31, 2019.

    On May 5, 2020, the submittal for AAD Rule 400 was deemed by 
operation of law to meet the completeness criteria in 40 CFR part 51 
Appendix V, which must be met before formal EPA review.

B. Are there other versions of this rule?

    There are no previous versions of Rule 400 in the SIP.

C. What is the purpose of the submitted rule?

    Rule 400 is intended to address the CAA's statutory and regulatory 
requirements for Nonattainment New Source Review (NNSR) permit programs 
for major sources emitting nonattainment air pollutants and their 
precursors.

II. The EPA's Evaluation and Action

A. What is the background for this proposal?

    The EPA's April 2004 designation of Amador County as a 
nonattainment area for the 1997 8-hour ozone National Ambient Air 
Quality Standards (NAAQS) triggered the requirement for the AAD to 
develop and submit an NNSR program to the EPA for SIP approval.\2\ 
Although the EPA revoked the 1997 8-hour ozone NAAQS effective April 6, 
2015,\3\ the NNSR requirements applicable to Amador County based on its 
designation and classification for the revoked 1997 8-hour ozone NAAQS 
remain applicable in order to prevent future emissions from new and 
modified major stationary sources from increasing beyond the levels 
allowed, based on the area's prior designation and classification for 
the 1997 ozone NAAQS. Thus, because Amador County was designated and 
classified as Moderate nonattainment for the 1997 8-hour ozone NAAQS, 
the District's NNSR program must satisfy the NNSR requirements 
applicable to Moderate ozone nonattainment areas, including the offset 
ratios identified in CAA section 182(b)(5).\4\ Amador County is also 
designated and classified as Marginal nonattainment for the 2015 8-hour 
ozone NAAQS and, therefore, subject to the NNSR requirements applicable 
to Marginal ozone nonattainment areas.\5\ Submission of an NNSR program 
that satisfies the requirements of the Act and the EPA's regulations 
for Moderate ozone nonattainment areas, however, would satisfy the NNSR 
program requirements for Marginal ozone nonattainment areas.\6\
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    \2\ CAA section 172(b) and 40 CFR 51.914.
    \3\ 80 FR 12264, 12265 (March 6, 2015).
    \4\ The EPA's determination that the Amador County area had 
attained the 1997 8-hour ozone NAAQS by the applicable attainment 
date suspended the requirements to submit those SIP elements related 
to attainment of these NAAQS for so long as the area continues to 
attain but did not suspend the requirement to submit an NNSR 
program. 40 CFR 51.918; see also 77 FR 71551, 71553-71554 (Dec. 3, 
2012) (noting that the EPA's attainment determination does not 
redesignate the area to attainment or relax control requirements).
    \5\ 40 CFR 51.1314.
    \6\ The NNSR requirements applicable to Moderate ozone 
nonattainment areas are identical to those that apply to Marginal 
ozone nonattainment areas, except that Moderate nonattainment areas 
are subject to a more stringent offset ratio than Marginal 
nonattainment areas. CAA sections 182(a)(2)(C) (requiring permit 
programs consistent with CAA sections 172(c)(5) and 173 for ozone 
nonattainment areas), 182(a)(4) (establishing 1.1 to 1 offset ratio 
for Marginal nonattainment areas), and 182(b)(5) (establishing 1.15 
to 1 offset ratio for Moderate nonattainment areas) and 40 CFR 
51.165.
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    Additional information regarding the District's nonattainment 
status for each pollutant is included in our Technical Support Document 
(TSD), which may be found in the docket for this rule.

B. How is the EPA evaluating the rule?

    The EPA reviewed Rule 400 for compliance with CAA requirements for: 
(1) Stationary source preconstruction permitting programs as set forth 
in CAA part D, including CAA sections 172(c)(5) and 173; (2) the review 
and modification of major sources in accordance with 40 CFR 51.160-
51.165 as applicable in Moderate ozone nonattainment areas; (3) the 
review of new major stationary sources or major modifications in a 
designated nonattainment area that may have an impact on visibility in 
any mandatory Class I Federal Area in accordance with 40 CFR 51.307; 
(4) SIPs in general as set forth in CAA section 110(a)(2), including 
110(a)(2)(A) and 110(a)(2)(E)(i); \7\ and (5) SIP revisions as set 
forth in CAA section 110(l) \8\ and 193.\9\ Our review evaluated the

[[Page 47048]]

submittal for compliance with the NNSR requirements applicable to 
Moderate ozone nonattainment areas, and ensured that the submittal 
addressed the NNSR requirements for the 1997 and 2015 ozone NAAQS.
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    \7\ CAA section 110(a)(2)(A) requires that regulations submitted 
to the EPA for SIP approval be clear and legally enforceable, and 
CAA section 110(a)(2)(E)(i) requires that states have adequate 
personnel, funding, and authority under state law to carry out their 
proposed SIP revisions.
    \8\ Per CAA section 110(l), SIP revisions are subject to 
reasonable notice and public hearing prior to adoption and submittal 
by states to the EPA. Additionally, CAA section 110(l) prohibits the 
EPA from approving any SIP revision that would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the CAA.
    \9\ CAA section 193 prohibits the modification of any 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 pollutants.
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C. Does the rule 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. Based on our review of the public 
process documentation included in the November 5, 2019 submittal of 
Rule 400, we find that the AAD has provided sufficient evidence of 
public notice, opportunity for comment and a public hearing prior to 
adoption and submittal of these rules to the EPA.
    With respect to the substantive requirements found in CAA sections 
172(c)(5) and 173, and 40 CFR 51.160-51.165, we have evaluated Rule 400 
in accordance with the applicable CAA and regulatory requirements that 
apply to NNSR permit programs under part D of title I of the Act for 
all relevant ozone NAAQS, including the 2015 ozone NAAQS. With the 
exceptions noted below in Section II.D, we find that Rule 400 satisfies 
these requirements as they apply to sources subject to the NNSR permit 
program requirements applicable to Moderate ozone nonattainment areas. 
We have also determined that this rule satisfies the related visibility 
requirements in 40 CFR 51.307. In addition, we have determined that 
Rule 400 satisfies the requirement in CAA section 110(a)(2)(A) that 
regulations submitted to the EPA for SIP approval be clear and legally 
enforceable, and have determined that the submittal demonstrates, in 
accordance with CAA section 110(a)(2)(E)(i), that the District has 
adequate personnel, funding, and authority under state law to carry out 
these proposed SIP revisions.
    Regarding the additional substantive requirements of CAA sections 
110(l) and 193, our action will result in a more stringent SIP, while 
not relaxing any existing provision contained in the SIP. We have 
concluded that our action would comply with section 110(l) because our 
limited approval of Rule 400 will not interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other CAA applicable requirement. In addition, our limited approval 
of Rule 400 will not relax any pre-November 15, 1990 requirement in the 
SIP, and therefore changes to the SIP resulting from this action ensure 
greater or equivalent emission reductions of ozone and its precursors 
in the District. Accordingly, we have concluded that our action is 
consistent with the requirements of CAA section 193.

D. What are the rule deficiencies?

    The EPA identified five deficiencies in Rule 400. First, Section 
4.5 of Rule 400 allows for the District to approve interprecursor 
trading (IPT) of ozone precursors to satisfy emission offset 
requirements, provided certain conditions are satisfied. However, on 
January 29, 2021, the D.C. Circuit Court of Appeals in Sierra Club v. 
EPA, 984 F.3d 1055, issued a decision holding that the CAA does not 
allow IPT for ozone precursors and vacating the provisions in the EPA's 
NNSR regulations allowing IPT for ozone precursors. In light of the 
Court's decision, the provision in Section 4.5 allowing for IPT for 
ozone precursors is no longer permissible. Second, Section 9.1(b)(iii) 
of Rule 400 fails to reference Section 7.4 (Relaxation in Enforceable 
Limitations). This apparent typographical error creates a deficiency in 
Section 9.1(b)(iii) of the rule, because it suggests that the source 
and the District need not adhere to the General requirements for 
establishing Plant-wide Applicability Limitations (PALs) in Section 
9.4, which are required by 40 CFR 51.165(f)(4). Third, due to an 
apparent typographical error, Section 9.5 of the rule does not require 
the District to implement the public participation provisions of 
Section 8 for purposes of processing a request for a PAL to be 
established, renewed or increased in accordance with 40 CFR 
51.165(f)(5). Therefore, the provisions of Section 9.5 are deficient. 
This error also causes a related deficiency in Sections 9.4(a)(ii), 
9.8(b)(iii), 9.10(a), and 9.11(c), because these rule sections cross-
reference Section 9.5, which refers to the wrong section of the rule 
for public participation requirements. Fourth, Section 9.10(d)(i) 
references Section 9.5 when it should reference Section 9.6. This error 
appears typographical in nature. However, this error creates a 
deficiency because it does not provide the correct reference for how to 
perform the emissions level calculation in accordance with 40 CFR 
51.165(f)(10)(iv)(A). Fifth, Section 9.12(a)(iii) includes a reference 
to Section 7.12 of the rule (which does not exist), instead of Section 
9.12. This apparent typographical error creates a deficiency in Section 
9.12(a)(iii), because it does not include the requirement to comply 
with the provisions of Section 9.12 in accordance with 40 CFR 
51.165(f)(12)(i)(C).
    Our TSD, which can be found in the docket for this rule, contains a 
more detailed discussion of our analysis of Rule 400.

E. EPA Recommendations To Further Improve the Rule

    The TSD also includes recommendations for additional clarifying 
revisions to consider for adoption when the AAD next modifies Rule 400.

F. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA 
is proposing a limited approval and limited disapproval of the 
submitted rule because it fulfills most of the relevant CAA 
requirements, and strengthens the SIP, but also contains five 
deficiencies. We have concluded that our limited approval of the 
submitted rule would comply with the relevant provisions of CAA 
sections 110(a)(2), 110(l), 172(c)(5), 173, and 193, 40 CFR 51.160-
51.165, and 40 CFR 51.307.
    If we finalize this action as proposed, our action will be codified 
through revisions to 40 CFR 52.220a (Identification of plan--in part). 
This action would incorporate the submitted rule into the SIP, 
including those provisions identified as deficient. This approval is 
limited because the EPA is simultaneously proposing a limited 
disapproval of the rule under CAA 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 deficiencies relate to NNSR 
requirements under part D of title I of the Act, the offset sanction in 
CAA section 179(b)(2) would apply in Amador 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. Section 179 sanctions will not 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 
deficiencies that we identify in our final action. The EPA intends to 
work with the District to correct the deficiencies in a timely manner.

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    We will accept comments from the public on this proposal until 
September 22, 2021.

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 AAD rule described in Table 1 of this preamble. The EPA 
has made, and will continue to make, these materials available through 
www.regulations.gov and in hard copy 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://www.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. 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.

C. 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.

D. 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.

E. 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.

F. 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 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.

G. 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.

H. 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.

I. 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.

J. 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

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

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

    Dated: August 9, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-17312 Filed 8-20-21; 8:45 am]
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