[Federal Register Volume 88, Number 62 (Friday, March 31, 2023)]
[Proposed Rules]
[Pages 19233-19236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06563]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0910; FRL-10564-01-R9]


Air Quality Implementation Plan; CA; El Dorado County Air Quality 
Management District; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the El Dorado County Air Quality Management 
District (EDCAQMD) portion of the California State Implementation Plan 
(SIP). In this action, we are proposing to approve a rule submitted by 
the EDCAQMD governing the issuance of permits for stationary sources, 
focusing 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 May 1, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0910 at https://www.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 to be 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 https://www2.epa.gov/dockets/commenting-epa-dockets. 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.

FOR FURTHER INFORMATION CONTACT: Camille Cassar, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105; by phone: (415)-947-4164; 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. Is there any other version of this rule?
    C. What is the purpose of the submitted rule?
II. The EPA's Evaluation
    A. What is the background for this action?
    B. How is the EPA evaluating this rule?
    C. Does this rule meet the evaluation criteria?
III. Proposed Action and Public Comment
IV. Incorporation by Reference
V. 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'').

                                             Table 1--Submitted Rule
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          Rule No.                      Rule title                     Adopted                  Submitted
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Rule 523-1..................  Federal Non-Attainment New      December 7, 2021........  March 9, 2022.
                               Source Review.
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    For areas designated nonattainment for one or more National Ambient 
Air Quality Standards (NAAQS), the applicable SIP must include 
preconstruction review and permitting requirements for new or modified 
major stationary sources of such nonattainment pollutant(s) under part 
D of title I of the Act, commonly referred to as Nonattainment New 
Source Review (NNSR). The rule listed in Table 1 contains the 
District's NNSR permit program applicable to new and modified major 
sources located in areas designated nonattainment for the ozone and/or 
PM2.5 NAAQS.
    On September 9, 2022, the submittal for Rule 523-1 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.\1\
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    \1\ The submittal was transmitted to the EPA via a letter from 
CARB dated March 9, 2022.
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B. Is there any other version of this rule?

    There is no previous version of Rule 523-1 in the California SIP. 
There are other New Source Review (NSR) rules in the California SIP 
that apply to the sources to which Rule 523-1 also applies, including 
Rule 523, ``New Source Review,'' which was adopted by the District on 
April 26, 1994. Rule 523-1 is intended to satisfy current federal NNSR 
requirements applicable to ozone and PM2.5, as well as 
related visibility program requirements. Other existing SIP-approved 
NSR rules such as the SIP-approved version of Rule 523 will also remain 
in the SIP to continue to impose certain requirements for stationary 
sources that are beyond the scope of Rule 523-1. Rule 523-1 provides 
that for purposes of its implementation and enforcement, its provisions 
take precedence over the provisions and requirements in other District 
rules and regulations (see Rule 523-1, Section 1.1, paragraph (a)).

C. What is the purpose of the submitted rule?

    Rule 523-1 is intended to address the CAA's statutory and 
regulatory requirements for NNSR permit programs for major sources 
emitting nonattainment air pollutants and their precursors located in 
the areas within the District that are designated nonattainment for one 
or more National Ambient Air Quality Standards (NAAQS).

II. The EPA's Evaluation

A. What is the background for this action?

    Because parts of El Dorado County are designated as federal ozone 
and PM2.5 nonattainment areas, the CAA requires the District 
to have a SIP-approved NNSR program for new and modified major sources 
located in the ozone and PM2.5 nonattainment areas that are 
under its jurisdiction. Most recently, the designation of parts of El 
Dorado County as a federal ozone nonattainment area for the 2008 and 
2015 ozone NAAQS, and the 2006 PM2.5 NAAQS, triggered the 
requirement for the District to develop and submit an updated NNSR 
program to the EPA for SIP approval.
    The District's NNSR program must address NNSR requirements for the 
1979, 1997, 2008, and the 2015 ozone NAAQS, as well as the 2006 
PM2.5 NAAQS.\2\
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    \2\ The relevant nonattainment designation and classification 
history for the ozone and PM2.5 NAAQS for El Dorado 
County is provided in our Technical Support Document (TSD) for this 
action, which can be found in the docket for this rule. Information 
regarding the District's attainment/nonattainment status for other 
criteria pollutants is also included in our TSD.
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    The District's NNSR program must meet the NNSR requirements for 
areas classified as Severe nonattainment. The ozone nonattainment area 
within the District is currently classified as Severe nonattainment for 
the 2008 ozone NAAQS and as Serious nonattainment for the 2015 ozone 
NAAQS. In addition, although the EPA revoked the 1979 ozone NAAQS in El 
Dorado County effective June 15, 2005,\3\ and revoked the 1997 ozone 
NAAQS effective April 6, 2015,\4\ the NNSR requirements applicable to 
the nonattainment area in El Dorado County based on its designation and 
classification as Severe for these revoked NAAQS remain 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 these NAAQS.\5\ Submission of an 
NNSR program that satisfies the requirements of the Act and EPA's 
regulations for Severe ozone nonattainment areas would also satisfy the 
NNSR program requirements for Serious ozone nonattainment areas.\6\ The 
District's NNSR program must also satisfy the NNSR requirements 
applicable to Moderate PM2.5 nonattainment areas.\7\
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    \3\ See 70 FR 44470, 44475 (Aug. 3, 2005).
    \4\ 80 FR 12264, 12265 (March 6, 2015).
    \5\ The EPA determined in 2012 that the ozone nonattainment area 
in El Dorado County had attained the 1979 ozone NAAQS, which 
suspended the requirement 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. 77 FR 64036 (Oct. 18, 2012); 40 CFR 51.1118.
    \6\ The NNSR requirements applicable to Severe ozone 
nonattainment areas include the same requirements that apply to 
Serious ozone nonattainment areas, but Severe ozone nonattainment 
areas are also subject to certain additional and more stringent 
requirements. See generally CAA sections 182(c) and 182(d) and 40 
CFR 51.165.
    \7\ The EPA determined in 2017 that the PM2.5 
nonattainment area in El Dorado County had attained the 2006 24-hr 
PM2.5 NAAQS by the applicable attainment date. 82 FR 
21711, 21713 (May 10, 2017). The EPA's determination that the 
PM2.5 nonattainment area in El Dorado County had attained 
the 2006 PM2.5 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 51.1015.
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    We note that, in 2000, the EPA issued a limited approval and 
limited disapproval of District Rule 523, adopted on April 26, 1994, 
which was intended to address the then-applicable NNSR program 
requirements, and which incorporated Rule 523 into the California 
SIP.\8\ The District's current NNSR rule, Rule 523-1, which is the 
subject of our current action, is intended to meet the currently 
applicable NNSR program requirements for the District, which would also 
resolve all the deficiencies with the District's NNSR program that 
formed the basis for the EPA's limited disapproval in 2000 in its 
action on Rule 523.
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    \8\ (Feb. 2, 2000); see also 64 FR 53973 (Oct. 5, 1999) (notice 
of proposed rulemaking).
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    In addition, to implement CAA section 169A, 40 CFR 51.307(b) 
requires that NNSR programs provide for review of any major stationary 
source or major modification that may have an impact on visibility in 
any mandatory Class I Federal area.\9\
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    \9\ Such sources are required to perform a visibility impact 
analysis consistent with the provisions of 40 CFR 51.307(a)-(c) and 
40 CFR 51.166(o), (p)(1) through (2) and (q). 40 CFR 51.307(d) also 
provides for states to require monitoring of visibility in any 
Federal Class I area near the proposed new major stationary source 
or major modification.
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B. How is the EPA evaluating this rule?

    The EPA reviewed Rule 523-1 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), 173, 182, and 
189; (2) the review and modification of major sources in accordance 
with 40 CFR 51.160-51.165 as applicable in Severe ozone nonattainment 
areas as well as Moderate PM2.5 nonattainment areas; (3) the 
review of new major stationary sources or major modifications in a 
designated nonattainment area that may

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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 
sections 110(a)(2), including 110(a)(2)(A) and 110(a)(2)(E)(i); \10\ 
and (5) SIP revisions as set forth in CAA section 110(l) \11\ and 
193.\12\ Our review evaluated the submittal for compliance with the 
NNSR requirements applicable to nonattainment areas classified as 
Severe for ozone and Moderate for PM2.5, and ensured that 
the submittal addressed the NNSR requirements both the 2008 and 2015 
ozone NAAQS, as well as the 2006 PM2.5 NAAQS. As part of our 
analysis, we reviewed whether Rule 523-1 resolved all the deficiencies 
with the District's NNSR program that formed the basis for the EPA's 
limited disapproval in 2000 in its action on Rule 523.
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    \10\ 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.
    \11\ CAA section 110(l) requires SIP revisions to be subject to 
reasonable notice and public hearing prior to adoption and submittal 
by states to EPA and prohibits 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.
    \12\ 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 this 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 March 9, 2022 submittal of Rule 
523-1, we find that the District has provided sufficient evidence of 
public notice, opportunity for comment and a public hearing prior to 
adoption and submittal of this rule to the EPA.
    With respect to the substantive requirements found in CAA sections 
110(a)(2)(C), 172(c)(5), 173, 182, 189, and 40 CFR 51.160-51.165, we 
have evaluated Rule 523-1 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 as well as the 2006 
PM2.5 NAAQS. We find that Rule 523-1 satisfies these 
requirements as they apply to sources subject to the NNSR permit 
program requirements for ozone nonattainment areas classified as Severe 
and PM2.5 nonattainment areas classified as Moderate. 
Further, we determined that Rule 523-1 resolved all the deficiencies 
with the District's NNSR program that formed the basis for the EPA's 
limited disapproval in 2000 in its action on Rule 523.
    We have also determined that this rule satisfies the related 
visibility requirements in 40 CFR 51.307. In addition, we have 
determined that Rule 523-1 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 submittals 
demonstrate 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 this proposed SIP revision.
    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 
approval of Rule 523-1 will not interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other CAA applicable requirement. In addition, our approval of Rule 
523-1 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 the nonattainment 
pollutants and their precursors in the District; accordingly, we have 
concluded that our action is consistent with the requirements of CAA 
section 193.
    Our TSD contains a more detailed discussion of our analysis of Rule 
523-1.

III. Proposed Action and Public Comment

    As authorized in section 110(k)(3) of the Act, the EPA is proposing 
to approve the submitted rule because it fulfills all relevant CAA 
requirements, and resolves all deficiencies with the District's NNSR 
program that the EPA identified in our limited disapproval action in 
2000. We have concluded that our approval of the submitted rule would 
comply with the relevant provisions of CAA sections 110(a)(2), 110(l), 
172(c)(5), 173, 182, 189 and 193, and 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).
    In conjunction with the EPA's SIP approval of the District's 
visibility provisions for sources subject to the NNSR program as 
meeting the relevant requirements of 40 CFR 51.307, this action would 
also revise the regulatory provision at 40 CFR 52.281(d) concerning the 
applicability of the visibility Federal Implementation Plan (FIP) at 40 
CFR 52.28 as it pertains to California, to provide that this FIP does 
not apply to sources subject to review under the District's SIP-
approved NNSR program.
    We will accept comments from the public on this proposal until May 
1, 2023.

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 the rule listed in Table 1 of this preamble. The rule governs 
the issuance of permits for stationary sources, focusing on the 
preconstruction review and permitting of major sources and major 
modifications under part D of title I of the CAA. The EPA has made, and 
will continue to make, this document available electronically through 
https://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).

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely proposes to approve state law 
as meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a

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substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act.
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) (E.O. 12898) directs Federal agencies to identify and 
address ``disproportionately high and adverse human health or 
environmental effects'' of their actions on minority populations and 
low-income populations to the greatest extent practicable and permitted 
by law. EPA defines environmental justice (EJ) as ``the fair treatment 
and meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The District did not evaluate environmental justice considerations 
as part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. The EPA 
did not perform an EJ analysis and did not consider EJ in this action. 
Due to the nature of the action being taken here, this action is 
expected to have a neutral to positive impact on the air quality of the 
affected area. Consideration of EJ is not required as part of this 
action, and there is no information in the record inconsistent with the 
stated goal of E.O. 12898 of achieving environmental justice for people 
of color, low-income populations, and Indigenous peoples.
    In addition, 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. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: March 24, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-06563 Filed 3-30-23; 8:45 am]
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