[Federal Register Volume 87, Number 8 (Wednesday, January 12, 2022)]
[Rules and Regulations]
[Pages 1683-1685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00385]



40 CFR Part 52

[EPA-R09-OAR-2021-0438; FRL-8773-02-R9]

Limited Approval and Limited Disapproval of California Air 
Quality Implementation Plan Revisions; Amador Air District; Stationary 
Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is finalizing 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 
``Act''). Under the authority of the CAA, this action simultaneously 
approves a local rule that regulates these emission sources and directs 
the District to correct rule deficiencies.

DATES: This rule is effective February 11, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R09-OAR-2021-0438. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information. If you need 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.

Hawthorne St., San Francisco, CA 94105; by phone: (415) 947-4174, or by 
email to [email protected]v.

[[Page 1684]]

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

Table of Contents

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

I. Proposed Action

    On August 23, 2021 (86 FR 47046), the EPA proposed a limited 
approval and limited disapproval of the following rule that was 
submitted for incorporation into the California SIP.

    \1\ The submittal was transmitted to the EPA via a letter from 
the California Air Resources Board dated October 31, 2019.

                                             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.

    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions do not fully satisfy the relevant requirements for 
preconstruction review and permitting under section 110 and part D of 
the Act. First, Section 4.5 of Rule 400 allows 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 Nonattainment New Source Review (NSR) 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 

    \2\ We note that the EPA recently adopted a rule known as the 
NSR Error Corrections Rule, effective August 18, 2021, which 
corrected minor, inadvertent, and non-substantive errors in 40 CFR 
parts 51 and 52, which govern NSR permitting programs, and updated 
the regulatory text to reflect statutory changes and certain court 
decisions vacating elements of the regulatory text, but did not 
change the requirements within these programs. See 86 FR 37918 (July 
19, 2021). States have discretion as to when to make the changes in 
this rule and may choose to combine them with other SIP submittals. 
See 86 FR 37918, 37923-24. Accordingly, this recent rulemaking does 
not affect our final action.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, no comments were submitted on our proposal.

III. EPA Action

    No comments were submitted on our proposal. Therefore, as 
authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is 
finalizing a limited approval of the submitted rule. This action 
incorporates the submitted rule into the California SIP, including 
those provisions identified as deficient. As authorized under section 
110(k)(3) and 301(a), the EPA is simultaneously finalizing a limited 
disapproval of the rule.
    As a result, the EPA must promulgate a federal implementation plan 
(FIP) under section 110(c) unless we approve subsequent SIP revisions 
that correct the rule deficiencies within 24 months.
    In addition, the offset sanction in CAA section 179(b)(2) will be 
imposed 18 months after the effective date of this action, and the 
highway funding sanction in CAA section 179(b)(1) six months after the 
offset sanction is imposed. Sanctions will not be imposed if the EPA 
determines that a subsequent SIP submission corrects the identified 
deficiencies before the applicable deadline.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the rule 
listed in Table 1 of this preamble. The EPA has made, and will continue 
to make, these documents available through https://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).

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://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.

[[Page 1685]]

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 Populations

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 14, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    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: January 6, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.

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


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

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

Subpart F--California

2. Section 52.220 is amended by adding paragraph (c)(568) to read as 

Sec.  52.220  Identification of plan-in part.

* * * * *
    (c) * * *
    (568) The following new regulation was submitted on November 5, 
2019 by the Governor's designee as an attachment to a letter dated 
October 31, 2019.
    (i) Incorporation by reference. (A) Amador Air District.
    (1) Rule 400, ``NSR Requirements for New and Modified Major Sources 
in Nonattainment Areas,'' adopted on August 20, 2019.
    (B) [Reserved]
    (ii) [Reserved]
* * * * *
[FR Doc. 2022-00385 Filed 1-11-22; 8:45 am]