[Federal Register Volume 88, Number 199 (Tuesday, October 17, 2023)]
[Proposed Rules]
[Pages 71518-71520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22372]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0422; FRL-11353-01-R9]


Air Plan Revisions; California; Butte County Air Quality 
Management District; Nonattainment New Source Review Requirements for 
the 2015 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve state implementation plan (SIP) revisions submitted by the 
State of California addressing the nonattainment new source review 
(NNSR) requirements for the 2015 8-hour ozone national ambient air 
quality standards (NAAQS or ``standard''). This SIP revision addresses 
the Butte County Air Quality Management District (``District'') portion 
of the California SIP. This action is being taken pursuant to the Clean 
Air Act (CAA or ``Act'') and its implementing regulations.

DATES: Comments must be received on or before November 16, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0422 at https://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 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 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: Shaheerah Kelly, EPA Region IX, 75 
Hawthorne Street (AIR-3-2), San Francisco, CA 94105. By phone: (415) 
947-4156 or by email at [email protected].

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

Table of Contents

I. Background and Purpose
II. The State's Submittal
    A. What did the State submit?
    B. What is the purpose of the submitted rule?
III. Analysis of Nonattainment New Source Review Requirements
IV. Proposed Action and Public Comment
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background and Purpose

    On October 26, 2015, the EPA promulgated a revised 8-hour ozone 
NAAQS of 0.070 parts per million (ppm).\1\ Upon promulgation of a new 
or revised NAAQS, the CAA requires the EPA to designate as 
nonattainment any area that is violating the NAAQS based on the three 
most recent years of ambient air quality data. Butte County was 
classified as a ``Marginal'' ozone nonattainment area.\2\
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    \1\ 80 FR 65292 (October 26, 2015).
    \2\ 83 FR 25776 (June 4, 2018).
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    On December 6, 2018, the EPA issued a final rule entitled, 
``Implementation of the 2015 National Ambient Air Quality Standards for 
Ozone: Nonattainment Area State Implementation Plan Requirements'' 
(``SIP Requirements Rule''), which establishes the requirements and 
deadlines that state, tribal, and local air quality management agencies 
must meet as they develop implementation plans for areas where ozone 
concentrations exceed the 2015 ozone NAAQS.\3\ Based on the initial 
nonattainment designation for the 2015 ozone standard, the District was 
required to make a SIP revision addressing NNSR no later than August 3, 
2021. See 40 CFR 51.1314. This requirement may be met by submitting a 
SIP revision consisting of a new or revised NNSR permit program.
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    \3\ 83 FR 62998 (December 6, 2018). The SIP Requirements Rule 
addresses a range of nonattainment area SIP requirements for the 
2015 ozone NAAQS, including requirements pertaining to attainment 
demonstrations, reasonable further progress (RFP), reasonably 
available control technology, reasonably available control measures, 
major new source review, emission inventories, and the timing of SIP 
submissions and of compliance with emission control measures in the 
SIP.
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II. The State's Submittal

A. What did the State submit?

    Table 1 lists the dates the submitted rule addressed by this 
proposal was amended by the District and submitted by the California 
Air Resources Board (CARB), the agency that serves as the governor's 
designee for California SIP submittals.

[[Page 71519]]



                                             Table 1--Submitted Rule
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                                                                                                   Cover letter
               Rule                             Title             Amendment date  Submittal date       date
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Rule 432..........................  Federal New Source Review          4/22/2021        8/3/2021        8/3/2021
                                     (FNSR).
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    On February 3, 2022, CARB's August 3, 2021 submittal was deemed to 
be complete by operation of law in 40 CFR part 51, appendix V, which 
must be met before formal EPA review.

B. What is the purpose of the submitted rule?

    The submittal from the District is intended to satisfy the SIP 
Requirements Rule that requires states to make a SIP revision 
addressing NNSR. The SIP for the District currently contains an 
approved NNSR permit program based on their nonattainment 
classification for the 2008 8-hour ozone NAAQS. This submittal is 
intended to satisfy the 40 CFR 51.1314 submittal requirements based on 
the District's 2015 ozone nonattainment designation. The EPA's analysis 
of how these SIP revisions address the NNSR requirements for the 2015 
ozone NAAQS is provided below.

III. Analysis of Nonattainment New Source Review Requirements

    The minimum SIP requirements for NNSR permitting programs for the 
2015 8-hour ozone NAAQS are contained in 40 CFR 51.165. These NNSR 
program requirements include those promulgated in the SIP Requirements 
Rule implementing the 2015 ozone NAAQS. The SIP for each ozone 
nonattainment area must contain NNSR provisions that: (1) set major 
source thresholds for nitrogen oxides (NOX) and volatile 
organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-
(iv) and (2); (2) classify physical changes as a major source if the 
change would constitute a major source by itself pursuant to 40 CFR 
51.165(a)(1)(iv)(A)(3); (3) consider any significant net emissions 
increase of NOX as a significant net emissions increase for 
ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); (4) consider any increase 
of VOC emissions in extreme ozone nonattainment areas as significant 
net emissions increases and major modifications for ozone pursuant to 
40 CFR 51.165(a)(1)(v)(F); (5) set significant emissions rates for VOC 
and NOX as ozone precursors pursuant to 40 CFR 
51.165(a)(1)(x)(A)-(C) and (E); (6) contain provisions for emissions 
reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2); (7) 
provide that the requirements applicable to VOC also apply to 
NOX pursuant to 40 CFR 51.165(a)(8); (8) set offset ratios 
for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(ii)-(iv); 
and (9) require public participation procedures complaint with 40 CFR 
51.165(i).
    The District's SIP-approved NNSR program, established in Rule 432, 
``Federal New Source Review (FNSR)'' (amended March 23, 2017) (``Rule 
432''), applies to the construction and modification of stationary 
sources, including major stationary sources in nonattainment areas 
under its jurisdiction.\4\ The only change from the SIP-approved NNSR 
program is the removal of provisions related to interpollutant trading, 
due to a recent court decision that vacated the interpollutant trading 
program.\5\ The District's submitted SIP revision includes a compliance 
demonstration, consisting of a table listing each of the 2015 ozone 
NAAQS NNSR SIP requirements from 40 CFR 51.165 and a citation to the 
specific provision of Rule 432 satisfying the requirement. These 
documents are available in the docket for this action. The EPA has 
reviewed the demonstration and cited program elements intended to meet 
the federal NNSR requirements and is proposing to approve the 
District's submittal because the current SIP-approved NNSR program 
contains all the SIP Requirements Rule NNSR program requirements 
applicable to the Butte County nonattainment area as a Marginal ozone 
nonattainment area.
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    \4\ 81 FR 93820 (December 22, 2016), and 83 FR 26222 (June 6, 
2018).
    \5\ Sierra Club v. EPA, 21 F.4th 815 (D.C. Cir. 2021) and 86 FR 
37918 (July 19, 2021).
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IV. Proposed Action and Public Comment

    The EPA is proposing to approve SIP revisions addressing the NNSR 
requirements for the 2015 ozone NAAQS for the District. In support of 
this proposed action, we have concluded that our approval of Rule 432 
would comply with section 110(l) of the Act because the submittal will 
not interfere with continued attainment of the NAAQS in the District. 
The EPA has concluded that the State's submission fulfills the 40 CFR 
51.1314 revision requirements and meets the requirements of CAA section 
110 and the minimum SIP requirements of 40 CFR 51.165. If we finalize 
this action as proposed, our action will incorporate submitted Rule 432 
into the federally enforceable SIP and be codified through revisions to 
40 CFR 52.220 (Identification of plan-in part).
    We will accept comments from the public on this proposal until 
November 16, 2023.

V. 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 District's Rule 432, ``Federal New Source Review 
(FNSR),'' amended on April 22, 2021, which contains an NNSR program 
that meets federal permitting requirements. The EPA has made, and will 
continue to make, these materials available 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).

VI. Statutory and Executive Order Reviews

    Under the CAA, 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 CAA. 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 14094 (88 FR 21879, April 11, 2023);
     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 substantial number of small entities

[[Page 71520]]

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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it proposes to approve a state program;
     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 Act.
    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).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) 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 air agency 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. EPA did not perform an EJ analysis and did not consider EJ 
in this action. 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.

List of Subjects in 40 CFR Part 52

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

    Dated: October 3, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-22372 Filed 10-16-23; 8:45 am]
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