[Federal Register Volume 88, Number 249 (Friday, December 29, 2023)]
[Proposed Rules]
[Pages 90138-90141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28750]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0449; FRL-11378-01-R9]


Air Quality Plans; California; San Luis Obispo County Air 
Pollution Control District; New Source Review

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 San Luis Obispo County Air Pollution Control 
District (SLOCAPCD or ``District'') portion of the California State 
Implementation Plan (SIP). In this action, we are proposing to approve 
a rule submitted by the SLOCAPCD 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''). This action also 
proposes to revise regulatory text to clarify that the District is not 
subject to the Federal Implementation Plan related to the protection of 
visibility. We are taking comments on this proposal and plan to follow 
with a final action.

DATES: Comments must be received on or before January 29, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0449 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 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://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with a disability 
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: Manny Aquitania, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3977, or by 
email at [email protected].

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

[[Page 90139]]

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. How is the EPA evaluating the rule?
    B. Does the rule 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 rule did the State submit?

    Table 1 lists the rule addressed by this proposal with the dates on 
which it was adopted by the local air agency and submitted by the 
California Air Resources Board (CARB or ``the State'').

                                             Table 1--Submitted Rule
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             Agency                    Rule #               Rule title              Adopted       Submitted \1\
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SLOCAPCD........................             224   Federal Requirements for           01/26/22         07/05/22
                                                    New and Modified Major
                                                    Sources in Non-Attainment
                                                    Areas.
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    On January 5, 2023, the submittal for Rule 224 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.
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    \1\ The submittal was transmitted to the EPA via a letter from 
CARB dated July 5, 2022.
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B. Are there other versions of this rule?

    There are no previous versions of Rule 224 in the SIP.

C. What is the purpose of the submitted rule?

    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). 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. Because the 
eastern portion of San Luis Obispo County is designated as a federal 
ozone nonattainment area for the 2008 and 2015 ozone NAAQS, with a 
Marginal classification, the CAA requires the District to have a SIP-
approved NNSR program for new and modified major sources located in the 
ozone nonattainment area that are under its jurisdiction.\2\
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    \2\ The relevant nonattainment designation and classification 
history for the ozone NAAQS for the eastern portion of San Luis 
Obispo 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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    Rule 224 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 in the areas within 
the District that are designated nonattainment for the NAAQS, including 
the implementing regulations at 40 CFR 51.160-51.165, and the relevant 
regulatory requirements at 40 CFR 51.307.

II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rule?

    The EPA reviewed Rule 224 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 a Marginal ozone nonattainment area; (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 sections 110(a)(2), including 
110(a)(2)(A) and 110(a)(2)(E)(i); \3\ and (5) SIP revisions as set 
forth in CAA section 110(l) \4\ and 193.\5\ Our review evaluated the 
submittal for compliance with the NNSR requirements applicable to ozone 
nonattainment areas classified as Marginal, and ensured that the 
submittal addressed the NNSR requirements for the 2008 and 2015 ozone 
NAAQS.
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    \3\ 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.
    \4\ CAA section 110(l) requires SIP revisions to be subject to 
reasonable notice and public hearing prior to adoption and submittal 
by states to the EPA and 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.
    \5\ 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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B. 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 July 5, 2022 submittal of Rule 
224, 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 the rule 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 224 
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. We find that Rule 224 satisfies these 
requirements as they apply to sources subject to NNSR permit program 
requirements for ozone nonattainment areas classified as Marginal. We 
have also determined that these rules satisfy the related visibility 
requirements in 40 CFR 51.307. In addition, we have determined that the 
Rule 224 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 
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

[[Page 90140]]

existing provision contained in the SIP. We have concluded that our 
action would comply with section 110(l) because our approval of this 
rule will not interfere with any applicable requirement concerning 
attainment and reasonable further progress, or any other CAA applicable 
requirement. In addition, our approval of this rule 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, which can be found in the docket for this rule, contains a 
more detailed discussion of our analysis of Rule 224.

C. Proposed Action and Public Comment

    As authorized in section 110(k)(3) of the Act, the EPA proposes to 
fully approve the submitted rule because it fulfills all relevant 
requirements.
    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, 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 
January 29, 2024.

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 Rule 224, ``Federal Requirements for New and Modified Major 
Sources in Non-Attainment Areas,'' adopted on January 26, 2022. Rule 
224 is intended to address the CAA's statutory and regulatory 
requirements for Nonattainment New Source Review permit programs for 
major sources emitting nonattainment air pollutants and their 
precursors under part D of title I of the CAA. The EPA has made, and 
will continue to make, these materials 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).

IV. 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 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 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 Clean Air 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. 
The 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.'' The 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 State 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.

List of Subjects in 40 CFR Part 52

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


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    Dated: December 21, 2023.
Cheree Peterson,
Acting Regional Administrator, Region IX.
[FR Doc. 2023-28750 Filed 12-28-23; 8:45 am]
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