[Federal Register Volume 89, Number 131 (Tuesday, July 9, 2024)]
[Proposed Rules]
[Pages 56237-56250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14695]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2024-0228; FRL-11830-01-R9]


Federal Implementation Plan for Nonattainment New Source Review 
Program; Mojave Desert Air Quality Management District, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
promulgate a Federal Implementation Plan (FIP) under the Clean Air Act 
(CAA) that consists of Nonattainment New Source Review (NNSR) rules for 
areas within the jurisdiction of the Mojave Desert Air Quality 
Management District (MDAQMD or ``District'') in which air pollutant 
concentrations are above specific National Ambient Air Quality 
Standards (NAAQS). The NNSR rules would apply to construction of new 
major stationary sources and major modifications at existing major 
stationary sources of air pollution. The proposed FIP, if finalized, 
would be implemented by the EPA, unless and until it is replaced by an 
EPA-approved state implementation plan (SIP).

DATES: Comments must be received on or before August 23, 2024. The EPA 
will hold a virtual public hearing on July 24, 2024.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-R09-
OAR-2024-0228 via the Federal eRulemaking Portal at https://www.regulations.gov/ (our preferred method). Follow the online 
instructions for submitting comments.
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending

[[Page 56238]]

comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    You may register for the hearing at https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0. Please refer to the SUPPLEMENTARY 
INFORMATION section for additional information on the public hearing.

FOR FURTHER INFORMATION CONTACT: Tanya Abrahamian, Air and Radiation 
Division, Rules Office (AIR-3-2), Environmental Protection Agency, 
Region IX, telephone number: (213) 244-1849; email address: 
[email protected].

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

Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2024-
0228 at https://www.regulations.gov (our preferred method). Once 
submitted, comments cannot be edited or removed from the docket. The 
EPA may publish any comment received to its public docket. Do not 
submit to the EPA's docket at https://www.regulations.gov 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, 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.

B. Participation in Virtual Public Hearing

    The EPA will begin pre-registering speakers for the hearing no 
later than 1 business day after publication of this document in the 
Federal Register. To register to speak at the virtual hearing, please 
visit https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0 for 
online registration. The last day to pre-register to speak at the 
hearing will be July 22, 2024. The EPA will post a general agenda for 
the hearing that will list pre-registered speakers in approximate order 
at: https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0.
    The virtual public hearing will be held via teleconference on July 
24, 2024. The virtual public hearing will convene at 4 p.m. Pacific 
Time (PT) and will conclude at 7 p.m. PT. The EPA may close the session 
15 minutes after the last pre-registered speaker has testified if there 
are no additional speakers. For information or questions about the 
public hearing, please contact Tanya Abrahamian, per the FOR FURTHER 
INFORMATION CONTACT section of this document. The EPA will announce 
further details at https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0.
    The EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearings to run either ahead of schedule or behind schedule. Each 
commenter will have 5 minutes to provide oral testimony. The EPA 
encourages commenters to provide the EPA with a copy of their oral 
testimony electronically (via email) by emailing it to 
[email protected]. The EPA also recommends submitting the text 
of your oral comments as written comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations, 
but the EPA will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral comments and 
supporting information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing will 
be posted online at https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0. 
While the EPA expects the hearing to go forward as set forth above, 
please monitor our website or contact [email protected], per the 
FOR FURTHER INFORMATION CONTACT section of this document, to determine 
if there are any updates. The EPA does not intend to publish a document 
in the Federal Register announcing updates.
    If you require the services of a translator or special 
accommodations such as audio description, please pre-register for the 
hearing and describe your needs by July 22, 2024. The EPA may not be 
able to arrange accommodations without advance notice.

Policy on Children's Health

    In 2021, EPA updated its Policy on Children's Health to reflect 
that ``children's environmental health refers to the effect of 
environmental exposure during early life: from conception, infancy, 
early childhood and through adolescence until 21 years of age.'' In 
addition, the policy applies to ``effects of early life exposures 
[that] may also arise in adulthood or in later generations.'' In this 
action, the EPA is proposing to implement our Federal regulations in 
the nonattainment areas under the MDAQMD. In so far as there is an 
impact from this action, it will be positive since the deficiencies in 
the District's program it is meant to rectify would likely result in 
increased emissions as compared to this FIP and our Federal NNSR 
regulations.
    The information presented in this preamble is organized as follows:

Table of Contents

I. Purpose of This Action
II. Background
    A. Standards, Designations, and Classifications
    B. Findings and Disapprovals
    C. Scope of the EPA's Proposed FIP
III. Proposed FIP Requirements
    A. Plan Overview
    B. Definitions
    C. Applicability
    D. Permit Approval Criteria
    E. Public Participation Requirements
    F. Final Permit Issuance and Administrative and Judicial Review
    G. Administration and Delegation of the Major NSR Plan for the 
MDAQMD
    H. SIP Replacement of All or Any Part of This FIP
    I. Severability
IV. Environmental Justice Considerations
V. Proposed Action and Request for Public Comment
VI. Statutory and Executive Order Reviews

I. Purpose of This Action

    The EPA is proposing an NNSR FIP that will apply to construction of 
new major sources and major modifications at existing major sources 
that are located within areas that are designated as not in attainment 
with specific NAAQS. These are the San Bernardino County portion of the 
West Mojave Desert ozone nonattainment area and the San Bernardino 
County and Trona Planning Area PM10 nonattainment areas.\1\
---------------------------------------------------------------------------

    \1\ See 40 CFR 81.305. The PM10 nonattainment areas 
together consist of all of the MDAQMD portion of San Bernardino 
County; they are the Trona Planning Area and the portion of San 
Bernardino County that excludes both the Trona Planning Area and the 
portion of San Bernardino County that is located in the South Coast 
Air Basin. A map of this area is available in the docket for this 
action.

---------------------------------------------------------------------------

[[Page 56239]]

II. Background

    The following sections describe the basis for the EPA's 
determination that an NNSR FIP is necessary for the portion of the West 
Mojave Desert ozone nonattainment area and the San Bernardino County 
and Trona Planning Area PM10 nonattainment areas that are 
located within the jurisdiction of the MDAQMD. The MDAQMD is currently 
the agency responsible for issuing permits required under the CAA to 
construct new and modified major stationary sources of air pollution in 
San Bernardino County and the Palo Verde Valley portion of Riverside 
County.\2\
---------------------------------------------------------------------------

    \2\ California Health and Safety Code section 41210(b).
---------------------------------------------------------------------------

A. Standards, Designations, and Classifications

    The CAA requires the EPA to set NAAQS for ``criteria pollutants.'' 
States are then responsible for developing state implementation plans 
(SIPs) that contain regulatory measures to prevent air pollution from 
exceeding those standards, or to bring areas that do not meet those 
standards into attainment.
    Currently, ozone and related photochemical oxidants and particulate 
matter with an aerodynamic diameter less than or equal to a nominal ten 
micrometers, or ``PM10,'' as well as five other major 
pollutants, are listed as criteria pollutants.\3\ On July 1, 1987, the 
EPA promulgated two primary standards for PM10.\4\ Effective 
December 18, 2006, the EPA revoked the annual PM10 NAAQS but 
retained the 24-hour PM10 NAAQS.\5\ On March 27, 2008, the 
EPA revised the NAAQS for ozone to strengthen the 8-hour primary and 
secondary standards (``2008 ozone NAAQS'').\6\ On March 6, 2015, the 
EPA issued an implementation rule for the 2008 ozone NAAQS (``2008 
Ozone SIP Requirements Rule'').\7\ That action amended state planning 
requirements applicable to ozone nonattainment areas and provided 
specific deadlines for additional SIP submittals.
---------------------------------------------------------------------------

    \3\ See 40 CFR part 50.
    \4\ 52 FR 24634 (July 1, 1987).
    \5\ 71 FR 61144 (October 17, 2006).
    \6\ 73 FR 16436 (March 27, 2008).
    \7\ 80 FR 12264 (March 6, 2015).
---------------------------------------------------------------------------

    As part of their SIPs, states designated as nonattainment for a 
NAAQS criteria pollutant are required to develop and submit to the EPA 
for approval NNSR preconstruction permit programs that meet the 
requirements in CAA sections 172, 173, and 182, as applicable. These 
permits limit increased emissions from construction of new and modified 
major stationary sources locating in, or located in, areas designated 
nonattainment for the NAAQS. The statutory and regulatory NNSR 
requirements for the 2008 ozone NAAQS are found in CAA sections 
172(c)(5), 173, 182, and 40 CFR 51.160 through 51.165. The 2008 Ozone 
NAAQS SIP Requirements Rule required states to submit an NNSR plan or 
plan revision no later than three years from the effective date of the 
nonattainment designation for the 2008 ozone NAAQS, or by July 20, 
2015.\8\ The EPA later revised the ozone NAAQS in 2015 (``2015 ozone 
NAAQS''), and thereafter \9\ promulgated a similar requirement for NNSR 
preconstruction permitting for the 2015 ozone NAAQS.\10\
---------------------------------------------------------------------------

    \8\ 80 FR 12264 (March 6, 2015); 40 CFR 51.1114.
    \9\ 80 FR 65292 (October 26, 2015).
    \10\ 40 CFR 51.1314; 83 FR 62998 (December 6, 2018).
---------------------------------------------------------------------------

    Within the MDAQMD, the ``Los Angeles-San Bernardino Counties (West 
Mojave Desert), CA'' area (``West Mojave Desert'') is currently 
designated to be in Severe nonattainment for the 2008 and 2015 ozone 
NAAQS.\11\ The Trona Planning Area and the remainder of San Bernardino 
County that is within the MDAQMD's jurisdiction are each designated as 
Moderate nonattainment areas for the 1987 PM10 NAAQS.\12\ 
The MDAQMD's jurisdiction is designated Attainment/Unclassifiable for 
all other criteria pollutants.\13\ Therefore, the designation of 
portions of the MDAQMD as Federal ozone and PM10 
nonattainment areas triggered the requirement for the District to 
develop and submit an NNSR program to the EPA for approval into the 
California SIP.
---------------------------------------------------------------------------

    \11\ 40 CFR 81.305.
    \12\ Id.
    \13\ Id.
---------------------------------------------------------------------------

B. Findings and Disapprovals

    On February 3, 2017, the EPA found that the State of California had 
failed to submit a SIP revision for NNSR rules that apply to a Severe 
classification for the 2008 ozone NAAQS, as required under subpart 2 of 
part D of title 1 of the CAA and the 2008 Ozone SIP Requirements 
Rule.\14\ Consistent with the CAA and the EPA regulations, the EPA's 
finding of failure to submit in February 2017 established deadlines for 
the imposition of sanctions for the affected ozone nonattainment area. 
The EPA's finding of failure to submit also triggered an obligation 
under CAA section 110(c) for the EPA to promulgate a Federal 
Implementation Plan (FIP) no later than two years from the finding of 
failure to submit a complete SIP (i.e., by March 6, 2019).\15\ 
Specifically, the finding stated that if the state did not make the 
required SIP submission and the EPA did not take final action to 
approve the submission within two years of the effective date of these 
findings, the EPA would be required to promulgate a FIP for the 
affected nonattainment area.\16\
---------------------------------------------------------------------------

    \14\ 82 FR 9158 (February 3, 2017).
    \15\ Id. at 9161. The effective date was March 6, 2019, because 
the 30-day period fell on a Sunday.
    \16\ Id.
---------------------------------------------------------------------------

    The 2015 Ozone NAAQS Implementation Rule required the MDAQMD to 
submit an updated NNSR rule to the EPA by August 1, 2021, no later than 
three years from the effective date of its nonattainment 
designation.\17\ On July 23, 2021, the California Air Resources Board 
submitted to the EPA the MDAQMD's revised NNSR rules for the 2015 ozone 
NAAQS, which the MDAQMD adopted in March 2021.\18\ On June 30, 2023, 
the EPA finalized a limited approval and limited disapproval (``LA/LD 
action'') of the District's NNSR rules.\19\ The EPA evaluated the SIP 
submission to determine its compliance with NNSR requirements for the 
2008 and 2015 ozone NAAQS and the 1987 PM10 NAAQS due to the 
MDAQMD's nonattainment status for those three NAAQS. The EPA's 
rulemaking for the submitted rules explained that the EPA had 
determined that the submitted rules contained six deficiencies that did 
not fully satisfy the relevant requirements for preconstruction review 
and permitting in nonattainment areas under section 110 and part D of 
title I of the Act, which therefore prevented full approval.\20\ As 
noted in that final action, this disapproval imposed an obligation for 
the EPA to promulgate a FIP pursuant to CAA section 110(c) within 24 
months of the effective date of the action (i.e., July 31, 2023, which 
would make the EPA's deadline to promulgate a FIP no later than July 
31, 2025) unless the EPA approved a subsequent SIP revision that 
corrects the deficiencies. The 2023 final action also noted that the 
EPA had an existing obligation to promulgate a FIP for any new source 
review (NSR) SIP elements that the Agency had not taken final action to 
approve.\21\ The EPA is proposing this FIP for the NNSR program in the 
MDAQMD to fulfill the EPA's statutory duty by the deadline established 
under

[[Page 56240]]

a consent decree in a lawsuit brought against the EPA to compel 
promulgation of a FIP arising from the finding of failure to 
submit.\22\
---------------------------------------------------------------------------

    \17\ 83 FR 62998.
    \18\ 88 FR 42258 (June 30, 2023).
    \19\ Id.
    \20\ Id.
    \21\ Id. at 42268.
    \22\ Center for Biological Diversity et al., v. Regan, No. 3:22-
cv-03309-RS (N.D. Cal.). This consent decree is also available in 
the docket of this action.
---------------------------------------------------------------------------

    Accordingly, the EPA is proposing this FIP to address the 
deficiencies identified in the LA/LD action of MDAQMD Rules 1301, 1302, 
1303, 1304, and 1305.\23\ These rules contain essential components of 
the MDAQMD's amended NNSR program. Although the EPA is aware that the 
MDAQMD intends to submit revisions to its NNSR program that would 
address all but one of the deficiencies in the 2023 LA/LD action,\24\ 
the EPA has not approved into the SIP any corrections that resolve the 
deficiencies identified in that rulemaking. Therefore, the EPA is 
proposing the FIP in this action to address the deficiencies identified 
in the June 30, 2023, LA/LD action.\25\
---------------------------------------------------------------------------

    \23\ 88 FR 42258.
    \24\ Id.
    \25\ The EPA's review of any SIP submission submitted by the 
MDAQMD to address the deficiencies identified in the June 2023 final 
action will proceed as with any other SIP submission review.
---------------------------------------------------------------------------

    In that rulemaking, the EPA determined that the MDAQMD program did 
not satisfy the requirement that permit applicants obtain corresponding 
reductions in emissions to offset increased emissions from construction 
at stationary sources. The EPA observed that the calculation procedure 
used in the District's rules to determine the amount of offsets 
required in certain situations does not comply with CAA section 
173(c)(1) nor the regulations at 40 CFR 51.165(a)(3)(ii)(J) and 
(a)(1)(vi)(E).\26\ Under CAA section 173(c)(1), the SIP must contain 
provisions to ensure that ``the total tonnage of increased emissions of 
the air pollutant from the new or modified source shall be offset by an 
equal or greater reduction . . . in the actual emissions of such air 
pollutant. . . .'' \27\ The EPA found the MDAQMD's Rule 1304 to be 
deficient because it allows offsets for each modification at a major 
source to be calculated as the difference between the pre- and post-
modification allowable emissions (also referred to as ``potential to 
emit'' or PTE) of a pollutant as opposed to requiring offsets for these 
modifications based on the difference between pre-modification actual 
emissions and post-modification allowable emissions.\28\ In other 
words, the MDAQMD's Rule 1304 applies an allowables-to-allowables test 
(also referred to as a PTE-to-PTE test) for calculating the quantity of 
``simultaneous emission reductions'' (SERs) \29\ for offsetting 
emissions increases from a ``Modified Major Facility.'' \30\ Because 
SERs calculated using the post-modification PTE to pre-modification PTE 
test at a Modified Major Facility are calculated using the pre-
modification PTE instead of the pre-modification Historic Actual 
Emissions (HAE) as the baseline, the EPA determined that the District's 
approach for calculating offsets does not meet minimum SIP 
requirements.\31\ Using actual emissions as the pre-project baseline 
(as required by the EPA's regulations) would show a higher net 
emissions increase than a calculation that uses allowable (i.e., 
potential) emissions as the pre-project baseline.\32\ Consequently, 
calculating emissions decreases using potential emissions as the 
baseline allows reductions ``on paper'' that do not represent real 
emissions reductions. The EPA determined that this deficiency in the 
calculation procedures of Rule 1304 also results in deficiencies in 
Rules 1301, 1302, 1303, and 1305 because those rules contain cross-
references to Rule 1304.\33\
---------------------------------------------------------------------------

    \26\ 88 FR 42258, 42261-6.
    \27\ Offsets represent real reductions in real pollutants. A 
source that is permitted to emit 100 tpy but actually emits 90 tpy 
must reduce its actual emissions to below 90 tpy for offset credit.
    \28\ 40 CFR 51.165(a)(3)(ii)(J).
    \29\ ``SER'' is the MDAQMD's term for offsets.
    \30\ 88 FR 42261-6. The MDAQMD's rules equate ``allowable 
emissions'' and PTE.
    \31\ Id. The MDAQMD Regulation XIII, Rule 1301(HH) defines 
Historic Actual Emissions (HAE) as ``the Actual Emissions of an 
existing Emissions Unit or combination of Emissions Units, including 
Fugitive Emissions directly related to the Emissions Unit(s), if the 
Facility belongs to one of the Facility categories as listed in 40 
CFR 51.165(a)(1)(iv)(C), calculated in pounds per year and 
determined pursuant to the provisions of District Rule 1304(D)(2).''
    \32\ As the EPA wrote in the June 2023 limited approval and 
limited disapproval action, ``Allowable emissions are generally set 
higher than anticipated actual emissions to allow for normal 
fluctuations in emissions to occur without violating the permit 
conditions. The use of allowable emissions as the pre-project 
baseline means that the difference between pre-project and post-
project emissions will be smaller than a calculation applying the 
EPA's requirement to use actual emissions as the pre-project 
baseline.''
    \33\ Id. at 42263.
---------------------------------------------------------------------------

    The EPA also determined that the definitions for ``Major 
Modification'' and ``Modification (Modified)'' in Rule 1301(NN) and 
1301(JJ), respectively, are deficient because they allow permit 
applicants to calculate a net emissions increase using allowable (i.e., 
potential) emissions as the pre-project baseline, rather than actual 
emissions, as required by the EPA's NNSR regulations.\34\ More 
specifically, Rule 1304(B)(2) allows SERs calculated and verified 
pursuant to the PTE-to-PTE test under Rule 1304(C)(2) to be subtracted 
from the total of all ``net emissions increases'' at any given 
facility. Due to the same deficiency identified in Rule 1304, the EPA 
determined that the MDAQMD's approach does not meet minimum SIP 
requirements because determining the amount of a net emissions increase 
(by calculating the difference between pre-project and post-project 
emissions) using actual emissions as the pre-project baseline (as 
required by the EPA's regulations) will show a higher net emissions 
increase than a calculation that uses allowable (i.e., potential) 
emissions as the pre-project baseline.\35\ The MDAQMD definitions of 
``major modification'' and ``modification (modified)'' in Rules 
1301(NN) and 1301(JJ), respectively, are therefore not in compliance 
with the Federal regulations in 40 CFR 51.165(a)(1)(v)(A)(1); the 
calculation procedures for determining offsets pursuant to 40 CFR 
51.165(a)(3)(ii)(J); and the criteria for determining the emission 
decreases that are creditable as offsets pursuant to 40 CFR 
51.165(a)(1)(vi)(E)(1).
---------------------------------------------------------------------------

    \34\ Id. at 42264-65.
    \35\ Id. at 42265.
---------------------------------------------------------------------------

    Next, the District rules do not include a requirement in CAA 
section 182(c)(6) that applies to nonattainment areas classified as 
Serious and above. The CAA provides that increases of ozone precursor 
emissions (volatile organic compound (VOC) and oxides of nitrogen 
(NOX)) \36\ resulting from a modification ``shall not be 
considered de minimis for the purposes of determining (NNSR) 
applicability unless the increases in net emissions . . . from such 
source does not exceed 25 tons when aggregated with all other net 
increases in emissions from the source over any period of five 
consecutive calendar years which includes the calendar year in which 
such increase occurred.'' \37\ The EPA found the MDAQMD provisions to 
be deficient because they did not include this provision.\38\
---------------------------------------------------------------------------

    \36\ While CAA section 182(c)(6) refers only to VOC emissions, 
CAA section 182(f) extends to NOX emissions all 
requirements related to VOC emissions unless the Administrator 
determines that there is a disbenefit to NOX reductions.
    \37\ CAA section 182(c)(6).
    \38\ 88 FR 42266-67.
---------------------------------------------------------------------------

    In addition to the deficiencies described above, the EPA identified 
deficiencies stemming from the MDAQMD's use of incorrect or undefined 
words. First, MDAQMD Rule 1304(D)(2)(a)(i) uses the word ``proceeds'' 
where the word ``precedes'' should be used, changing the meaning

[[Page 56241]]

of the provision.\39\ Second, the MDAQMD's rules allow the word 
``contract,'' an undefined term, to act as a substitute for the word 
``permit.'' \40\ The EPA found that where it is not clear that permit 
requirements must be met to obtain such a contract, regulated sources 
may not need to adhere to SIP requirements they would otherwise have to 
meet to obtain a permit.
---------------------------------------------------------------------------

    \39\ Id.
    \40\ Id. at 42262.
---------------------------------------------------------------------------

    Finally, MDAQMD Rule 1305 allows for interprecursor trading of 
ozone precursors, whereas the EPA's rules no longer allow 
interprecursor trading.\41\ Except for the deficiencies regarding the 
missing applicability threshold provision and ozone interprecursor 
trading, which only apply to the emission of ozone precursors, the 
deficiencies identified in this section are relevant for both ozone and 
PM10 nonattainment in the MDAQMD-administered portion of San 
Bernardino County.
---------------------------------------------------------------------------

    \41\ Id. at 42266. On January 29, 2021, the D.C. Circuit Court 
of Appeals issued a decision in Sierra Club v. U.S. EPA, which 
vacated an EPA regulation that allowed the use of reductions of an 
ozone precursor to offset increases in a different ozone precursor, 
i.e., ``interprecursor trading.'' Sierra Club v. EPA, 21 F.4th 815, 
819-823 (D.C. Cir. 2021). On July 19, 2021, the EPA removed the 
ozone interprecursor trading provisions in 40 CFR 51.165(a)(11). 86 
FR 37918 (July 19, 2021).
---------------------------------------------------------------------------

C. Scope of the EPA's Proposed FIP

    The FIP proposed in this action would authorize the EPA to directly 
implement the NNSR program for construction of new major stationary 
sources and major modifications at existing stationary sources within 
(1) the San Bernardino County portion of the West Mojave Desert ozone 
nonattainment area for the 2008 and 2015 ozone NAAQS and (2) the 
portions of the San Bernardino County and Trona Planning Area 
PM10 nonattainment areas, all of which are within the 
MDAQMD's jurisdiction. The EPA would directly implement the NNSR 
program in these areas until such time as the EPA approves a SIP 
submission from the MDAQMD that fully resolves the deficiencies 
identified in the EPA's June 30, 2023, LA/LD action on the MDAQMD's 
NNSR program and identifies no new deficiencies.\42\
---------------------------------------------------------------------------

    \42\ 88 FR 42258.
---------------------------------------------------------------------------

    The proposed FIP requirements are designed to meet the statutory 
requirements for SIPs and NNSR programs in CAA sections 110(c)(1), 
172(c)(5), 173, 182(c) and (d), 189(a)(1)(A) and (e), 301(a), and 302. 
The provisions of the FIP are also designed to meet the requirements 
for state plans in the EPA regulations at 40 CFR 51.165, 51.1114, and 
51.1314.
    The FIP addresses the deficiencies the EPA identified in the 
MDAQMD's NNSR program by incorporating requirements from 40 CFR part 
51, appendix S (``appendix S''), which was developed by the EPA as a 
transitional program for areas lacking an EPA-approved NNSR program. 
The deficiencies in the MDAQMD's NNSR program that the EPA identified 
in the 2023 LA/LD action are broad and affect multiple aspects of the 
program.\43\ For example, the MDAQMD's definition of what constitutes a 
modification could enable sources that should be subject to NNSR to 
avoid it, and the undefined term ``contract'' is potentially 
unenforceable. These deficiencies create issues at the outset as to 
whether a source is subject to NNSR. Because of these and the other 
deficiencies in the MDAQMD's NNSR program (e.g., the offset calculation 
deficiencies), the EPA determined that it is most appropriate to 
propose a FIP that implements all of appendix S until the MDAQMD 
submits a fully approvable SIP.
---------------------------------------------------------------------------

    \43\ Id.
---------------------------------------------------------------------------

    The EPA has not, however, applied appendix S as a standalone FIP, 
so additional requirements are needed for this FIP rule. While appendix 
S and 40 CFR 51.165 have elements of a FIP that can be readily 
incorporated into rules applicable to specific jurisdictions, they do 
not include the application submission requirements and other 
requirements necessary to make the program administrable. Absent such 
specific administration requirements in the EPA's Federal NSR 
regulation, the EPA has looked to other resources to develop the 
content for this FIP, including the EPA regulations at 40 CFR part 49, 
which contain a Federal NNSR program for Indian Country.
    The NNSR program only applies to pollutants for which an area is 
designated nonattainment; therefore, this proposed action would apply 
only in the areas within MDAQMD's jurisdiction that are designated 
nonattainment. Application of this FIP does not relieve source owners 
or operators or permit applicants from their obligation to comply with 
all applicable EPA-approved implementation plan requirements for 
sources within the jurisdiction of the MDAQMD. As discussed in section 
II.B of this document, the 2023 LA/LD action disapproved elements of 
the MDAQMD's NNSR program that the EPA identified as deficient; 
however, those disapproved elements remain in the SIP.\44\ Upon 
finalization of this FIP, permit applicants would still be required to 
comply with the MDAQMD SIP and therefore must still submit permit 
applications to the MDAQMD as that SIP requires, among other 
requirements. Permit applicants would therefore need to obtain two 
permits--one permit from the EPA under this FIP and one permit from the 
MDAQMD under the rules in the SIP. Applicants would not be allowed to 
begin actual construction until both the EPA and MDAQMD issue the 
respective permits under this FIP and the SIP; therefore, applicants 
would be advised to submit applications to each agency simultaneously 
to ensure parallel processing.
---------------------------------------------------------------------------

    \44\ 88 FR 42258, 42268.
---------------------------------------------------------------------------

    Where permit approval criteria between the MDAQMD's SIP and this 
FIP conflict--for example, the procedures to determine the quantity of 
offsets at a major modification, a deficiency in the MDAQMD's NNSR 
program--permit applicants would need to demonstrate compliance with 
the requirements of this FIP, since this FIP fills the gaps in the 
MDAQMD's NNSR program. The EPA does not anticipate that permit 
requirements in the EPA-issued FIP would be more stringent than the 
requirements in the SIP except for those that address the deficiencies 
the EPA identified in the 2023 LA/LD action. To the extent that there 
are any differences in the required application materials under the FIP 
versus the SIP, the applicant would need to comply with both 
requirements when submitting its application.
    The EPA would directly implement and enforce the FIP. Enforcement 
authority is provided under CAA section 113(a), which authorizes the 
EPA to impose penalties including requiring compliance with the 
applicable implementation plan within a specified amount of time, 
payment of a civil penalties or enforcing through a civil judicial 
action.

III. Proposed FIP Requirements

    The proposed FIP would apply to construction of new major sources 
and major modifications at existing major sources located within ozone 
and PM10 nonattainment areas in the MDAQMD's jurisdiction. 
The proposed FIP includes the following sections: Plan Overview, 
Definitions, Applicability, Permit Approval Criteria, Public 
Participation Requirements, Final Permit Issuance and Administrative 
and Judicial Review, and Administration and Delegation of the Major NSR 
Plan for the MDAQMD. The following sections

[[Page 56242]]

summarize the requirements of the proposed FIP. As explained in section 
II.C. of this document, the content of this proposed FIP is generally 
based on appendix S, which is the EPA's transitional program for areas 
that lack an approved program. This FIP also includes, however, 
elements of the EPA's Federal Major New Source Review Program for 
Nonattainment Areas in Indian Country at 40 CFR part 49.

A. Plan Overview

    The plan overview paragraph (paragraph (a)) establishes the purpose 
of the FIP and where it applies, and it sets forth the general 
provisions that apply to the FIP. The purpose of the FIP is to 
establish preconstruction permitting requirements for new major 
stationary sources and major modifications at existing major stationary 
sources located in the MDAQMD portion of the Los Angeles-San Bernardino 
County (West Mojave Desert) ozone nonattainment area and the San 
Bernardino County and Trona Planning Area PM10 nonattainment 
areas. The FIP would apply until such time as MDAQMD submits a revised 
SIP that resolves all the deficiencies identified by the EPA and the 
EPA fully approves the MDAQMD's NNSR SIP.
    If the EPA fully approves the MDAQMD's NNSR SIP, the EPA will 
transition its authority to the MDAQMD. This may include suspending the 
issuance of Federal NNSR permit decisions under this FIP for permit 
actions that are pending upon the effective date of the EPA's approval 
of the MDAQMD's NNSR SIP. The EPA may retain jurisdiction over Federal 
NNSR permit applications for which the EPA has issued a proposed permit 
decision, but for which final agency action or the exhaustion of all 
administrative and judicial appeals processes (including any associated 
remand actions), or both, have not yet been concluded or completed by 
the effective date of such approval. The EPA would address these 
details of the transition in the approval of the MDAQMD's NNSR SIP 
submission.
    If the EPA fully approves the MDAQMD's NNSR SIP, permits issued 
under this FIP will remain in effect and will be enforceable by the 
EPA. The EPA will continue to conduct the general administration of 
such permits and will retain authority to process and issue any and all 
subsequent NNSR permit actions relating to such permits. The EPA may 
transition this authority to the MDAQMD following a request from MDAQMD 
and after the EPA determines under CAA section 110(a)(2)(E)(i) that the 
MDAQMD has the necessary funding, personnel and authority and that the 
plan approval includes the authority for the MDAQMD to conduct general 
administration of such permits, the necessary authority to process and 
issue subsequent permit actions relating to such permits and the 
authority to enforce such permits. This detail of the transition would 
also be addressed in the plan approval action.

B. Definitions

    Unless otherwise stated, the definitions in appendix S apply. 
Paragraph (b) contains additional definitions of the terms ``Actual 
emissions,'' ``Enforceable as a practical matter,'' ``Environmental 
Appeals Board,'' ``Nonattainment pollutant,'' ``Reviewing authority,'' 
and ``Significant.'' The EPA included definitions for these terms to 
ensure that they are adequate and appropriate for implementing this 
specific FIP.
    The definition of ``Actual emissions'' is similar to the definition 
in paragraph II.A.13 of appendix S but does not provide for a reviewing 
authority to presume that source-specific allowable emissions are 
equivalent to the source's actual emissions, since that provision is 
not relevant for the implementation of this FIP.
    The EPA included the definition of ``Enforceable as a practical 
matter'' because the term is used, but is not defined, in appendix S.
    The EPA included the definition of ``Environmental Appeals Board'' 
because it is a necessary term for describing the permit appeals 
process.
    The EPA included the definition of ``Nonattainment pollutant'' to 
simplify the regulatory language in the FIP and ensure that this FIP 
would apply to sources emitting nonattainment pollutants in the MDAQMD.
    The EPA included the definition of ``Reviewing authority'' to 
specify that the EPA administers this FIP unless the EPA has delegated 
its authority to the MDAQMD as specified in paragraph (g)(2) of Sec.  
52.285.
    The EPA modified the definition of ``Significant'' as that term is 
defined in appendix S to also include applicability threshold in CAA 
section 182(c)(6), which applies in nonattainment areas classified 
Serious and above for ozone. Section 182(c)(6) says that a change to 
the method of operation of a stationary source or a physical change to 
the source itself cannot be considered de minimis for purposes of 
determining the applicability of NNSR permitting requirements unless 
the increase in net emissions of NOX or VOC from the source 
does not exceed 25 tons when aggregated with all other net increases in 
emissions from the source over any period of five consecutive calendar 
years, which includes the calendar year in which the increase occurred.

C. Applicability

    This applicability paragraph (paragraph (c)) is titled ``Does the 
plan apply to me?'' This paragraph provides the criteria that a source 
is required to use for determining whether the FIP applies to the 
source. It states that the FIP applies to a source that will propose to 
construct a new major source (as defined in paragraph II.A.4 of 
appendix S) or a major modification at the permit applicant's existing 
major source (as defined in paragraph II.A.5 of appendix S). This 
paragraph also provides requirements concerning any source or 
modification that becomes a major stationary source or major 
modification solely by virtue of a relaxation in any enforceable 
limitation that was established after August 7, 1980.

D. Permit Approval Criteria

    The permit approval criteria paragraph (paragraph (d)) provides the 
criteria the EPA will use in reviewing a permitting application and in 
granting or denying an NNSR permit. The criteria include the 
requirements specified in CAA section 173 and appendix S. With specific 
regard to one deficiency that the EPA identified in MDAQMD's NNSR rules 
as explained in the June 30, 2023, final rule, CAA section 173(c)(1) 
and 40 CFR 51.165 requires that state permit programs must ensure that 
emission increases from new or modified major stationary sources are 
offset by real reductions in actual emissions. These requirements are 
included in paragraph (d)(2) of Sec.  52.285.
    This paragraph also adopts by reference requirements from 40 CFR 
part 51, appendix S. Major new sources or major modifications locating 
in areas designated as nonattainment for a pollutant for which the 
source or modification would be major may be allowed to construct only 
if the conditions set forth in appendix S are met. These requirements 
are incorporated in section (d) of the proposed FIP.
    In addition to these requirements, the proposed paragraph also 
requires an applicant to submit certain information in its permit 
application to ensure that the information necessary to process the 
permit application is provided to the reviewing authority, consistent 
with the CAA requirements. This paragraph also requires the submission 
of information necessary for determining the potential effects on 
federally listed endangered or

[[Page 56243]]

threatened species or designated critical habitats, and on historic 
properties. Additionally, the paragraph provides instructions for 
submitting a permit application to the EPA. Finally, the proposed 
paragraph specifies that the reviewing authority shall require 
monitoring, recordkeeping, and reporting conditions in a permit as 
necessary to facilitate compliance with the terms of a permit and make 
them enforceable as a practical matter.

E. Public Participation Requirements

    The public participation paragraph (paragraph (e)) identifies the 
information for a project that must be made publicly available. It also 
describes how the public will be notified of a draft permit and how the 
public can comment and request a public hearing. These requirements are 
necessary to ensure that the FIP meets the requirements of the CAA and 
the EPA regulations, which require reviewing authorities to afford 
adequate opportunities for public participation in agency decision-
making.

F. Final Permit Issuance and Administrative and Judicial Review

    Paragraph (f) specifies when the final permit will be effective and 
addresses opportunities for administrative and judicial review of 
permitting decisions. Generally, a final permit becomes effective 30 
days after service of the final permit decision, unless (1) a later 
effective date is specified in the permit; (2) review of the final 
permit is requested according to the appeal procedures in 40 CFR 
124.19; \45\ or (3) no comments requested a change in the draft permit 
or a denial of the permit, in which case the reviewing authority may 
make the permit effective immediately upon issuance.
---------------------------------------------------------------------------

    \45\ 40 CFR 124.19 establishes the appeal process for 
petitioning for review of a permit decision, including how to 
initiate an appeal, the deadline for filing a petition, and what to 
include in a petition.
---------------------------------------------------------------------------

    This paragraph also provides general requirements concerning the 
administrative record for the final permit decision, explaining the 
required contents of the administrative record, which is the basis for 
permit decisions by the reviewing authority. This paragraph also 
includes the requirements for permit reopenings and rescissions. Permit 
reopenings must provide for public notice and an opportunity for public 
comment, except for reopenings that do not increase emission 
limitations. Permit rescissions, which the reviewing authority may 
grant at the source's request if an application for rescission shows 
that the provisions of this paragraph would not apply to the source or 
modification, require public notice.

G. Administration and Delegation of the Major NSR Plan for the MDAQMD

    Paragraph (g) specifies that the EPA is the reviewing authority for 
the FIP. It also provides a process for delegating the administration 
of the FIP to the MDAQMD, publication of notice of a delegation 
agreement, and revision or revocation of a delegation agreement.

H. SIP Replacement of All or Any Part of This FIP

    The MDAQMD may submit revisions to its SIP at any time to address 
deficiencies identified by the EPA and the CAA requirements that are 
covered by the FIP. If the EPA approves such a SIP submittal, the 
approved MDAQMD rules would apply rather than the FIP, in whole or in 
part, as appropriate. SIP replacement of part of this FIP would still 
require the permit applicant to comply with the portion of the FIP that 
has not been replaced by the approved SIP. For the EPA to remove all 
FIP provisions, the MDAQMD would need to address of the deficiencies 
identified in the EPA's June 2023 final rulemaking action.\46\ As 
mentioned earlier in this document, the EPA is aware that the MDAQMD 
intends to submit revised rules to partially correct the deficiencies 
the EPA identified in the June 2023 final rulemaking action, which, if 
approved, could replace the corresponding requirements of this FIP. 
Until such time, permit applicants would be required, upon finalization 
of this FIP action, to comply with the FIP as well as the MDAQMD's SIP-
approved NNSR regulation. As explained in section II.C of this 
document, this means permit applicants would need to submit permit 
application materials to both the EPA for review under the FIP and, 
separately, to the MDAQMD.
---------------------------------------------------------------------------

    \46\ 88 FR 42258.
---------------------------------------------------------------------------

I. Severability

    This FIP is a multifaceted regulatory instrument that addresses 
different NNSR requirements under the CAA, as detailed in the specific 
sections of this document that focus on the discrete contents of this 
FIP. The EPA intends the portions of this FIP to be severable from 
other portions, though the EPA took the approach of including all the 
parts in one rulemaking rather than promulgating multiple rules.
    For example, the permit approval criteria state that the reviewing 
authority shall not approve a permit application unless it meets 
criteria required under the CAA and appendix S. Those criteria include:

--the lowest achievable emission rate requirement;
--the certification that all existing major sources owned or operated 
in California are in compliance or on a schedule for compliance with 
all applicable emission limitations and standards under the CAA;
--the requirement to obtain offsets from existing sources in the area 
of the proposed source such that there will be reasonable progress 
toward attainment of the applicable NAAQS;
--the requirement to demonstrate that the offsets will provide a net 
air quality benefit in the affected area as required under part 51, 
appendix S, paragraph IV.A, Condition 4;
--the requirement to demonstrate that emissions reductions otherwise 
required by the CAA are not credited for purposes of satisfying the 
offset requirements of the FIP; and
--the analysis of alternative sites, sizes, production processes, and 
environmental control techniques to demonstrate that the benefits of 
the source or modification significantly outweigh the environmental and 
social costs imposed as a result of the source's location, 
construction, or modification.

    Each of these requirements is independent and may be severable. 
Should the MDAQMD submit a SIP revision that corrects some, but not 
all, of the deficiencies identified in our June 30, 2023 rulemaking, 
the permit approval criteria for this FIP could be limited to the 
remaining deficiencies the EPA identified.\47\ As described in section 
II.C of this document, permit applicants would still need to comply 
with any portions of the FIP that remain after the EPA approves the 
MDAQMD's revised rules in the SIP. Likewise, if a court invalidates any 
one of these elements of the FIP, the EPA intends the remainder of this 
action to remain effective, as the EPA finds each portion of it to be 
appropriate even if one or more parts of it have been set aside.
---------------------------------------------------------------------------

    \47\ 88 FR 42264-42266; See also 87 FR 72434, 72438 (November 
25, 2022).
---------------------------------------------------------------------------

IV. Environmental Justice Considerations

    This section summarizes environmental justice data for areas that 
would be impacted by this proposed action for informational and 
transparency purposes only. The EPA notes that the following discussion 
about environmental justice data is not a basis for this action and is 
distinct

[[Page 56244]]

from the statutory obligations discussed in this proposal under the 
CAA. The CAA and applicable implementing regulations neither prohibit 
nor require an evaluation of environmental justice and consideration of 
environmental justice did not inform the regulatory requirements 
included in this proposal. The EPA identified environmental burdens and 
susceptible populations in communities with potential environmental 
justice concerns in the MDAQMD portion of the West Mojave Desert ozone 
nonattainment area and the San Bernardino County and Trona Planning 
Area PM10 nonattainment areas using a screening-level 
analysis for ozone and PM10 in the West Mojave Desert using 
the EPA's environmental justice screening and mapping tool 
(``EJSCREEN'').\48\ The EJSCREEN information and related supporting 
documentation for this action are available in the public docket for 
this action.
---------------------------------------------------------------------------

    \48\ EJSCREEN provides a nationally consistent dataset and 
approach for combining environmental and demographic indicators. 
EJSCREEN is available at: https://www.epa.gov/ejscreen/what-ejscreen. The EPA used EJSCREEN to obtain environmental and 
demographic indicators. These indicators are included in EJSCREEN 
reports that are available in the rulemaking docket for this action. 
However, EJSCREEN is not a detailed risk analysis. It is a screening 
tool that examines some of the relevant issues related to 
environmental justice, and there is uncertainty in the data 
included.
---------------------------------------------------------------------------

    The area in which the FIP would apply is a large portion of San 
Bernardino County, California (all but the southwest portion of the 
County). The EPA used EJSCREEN to look at existing major stationary 
sources located in the 15 cities in the portion of San Bernardino 
County that is in the MDAQMD's jurisdiction.\49\ EJSCREEN shows that 
the population of San Bernardino County, California is 2,192,817, 
although a significant portion of the population lives in the area that 
is outside the jurisdiction of the MDAQMD and therefore outside of the 
geographic area that would be subject to this proposed FIP. The 15 
cities (and their populations as provided in EJSCREEN) are Daggett 
(553), Oro Grande (4,899), Ivanpah (1), Hinkley (436), Barstow 
(27,835), Victorville (94,380), Trona (1,546), Adelanto (19,567), Kelso 
(1), Newberry Springs (488), Needles (7,844), Lucerne Valley (2,778), 
Edwards Air Force Base (6,579), Hesperia (60,788), and China Lake 
(32,020).
---------------------------------------------------------------------------

    \49\ Information about the existing major stationary sources is 
available on the MDAQMD's website. See https://www.mdaqmd.ca.gov/.
---------------------------------------------------------------------------

    The EJSCREEN results show 13 of the 15 cities (except for the 
cities of Needles and Oro Grande) have percentiles above the general 
80th percentile nationally \50\ for the ozone EJ index or the 
supplemental ozone EJ index. None of the cities exceeds the general 
80th percentile nationally for the PM EJ index or the supplemental PM 
EJ index.
---------------------------------------------------------------------------

    \50\ The EPA has provided that, if any of the EJ indices for the 
areas under consideration are at or above the 80th percentile 
nationally, then further review may be appropriate. However, it is 
important to note that an area with any EJ indices at or above the 
80th percentile nationally does not necessarily mean that the area 
is an ``EJ Community.'' As stated previously, EJSCREEN provides 
screening-level indicators, not a determination of the existence or 
absence of EJ concerns. See: https://www.epa.gov/ejscreen/how-interpret-ejscreen-data.
---------------------------------------------------------------------------

    The EPA also looked at the EJSCREEN's socioeconomic indicators 
called ``demographic index,'' ``limited English-speaking households,'' 
and ``less than high school education.'' For the ``demographic index,'' 
the results show that 7 or the 15 cities have percentiles that exceed 
the general 80th percentile nationally. These cities are Daggett, 
Ivanpah, Barstow, Victorville, Adelanto, Kelso, and Hesperia. The 
``demographic index'' is generally the average of an area's percent 
minority and percent low-income population.
    For the ``limited English-speaking households'' socioeconomic 
indicator, the results show that 4 of the 15 cities exceed the general 
80th percentile nationally; these cities are Ivanpah, Hinkley, Kelso, 
and Lucerne Valley. For the ``less than high school education'' 
socioeconomic indicator, the results show that 8 of the 15 cities 
exceeded the general 80th percentile nationally; these cities are 
Hinkley, Adelanto, Lucerne Valley, Ivanpah, Victorville, Kelso, and 
Hesperia.
    The EPA intends to address any potential EJ-related concerns that 
may be associated with the socioeconomic indicators for the 
``demographic index,'' ``limited English-speaking households,'' and 
``less than high school education'' through outreach and public 
participation for the permits issued under the FIP. This work includes 
announcing the opportunity to comment on each permit and making 
proposed permit actions available to the public during the public 
comment period with an opportunity for a public hearing. Given that the 
implementation and public participation methods are similar to those in 
the District's currently applicable permit program, the EPA does not 
anticipate any change to these requirements resulting from the 
finalization of this FIP as proposed.

V. Proposed Action and Request for Public Comment

    In accordance with CAA sections 110(c) and 301(a),\51\ the EPA is 
proposing to promulgate a FIP for the NNSR program for the MDAQMD 
portion of the West Mojave Desert ozone nonattainment area and the San 
Bernardino County and Trona Planning Area PM10 nonattainment 
areas. The FIP would apply only to construction of new major stationary 
sources and major modifications at existing major stationary source in 
these nonattainment areas. The proposed FIP implements statutory 
requirements in CAA sections 110(c)(1), 172(c)(5), 173, 179(b), 182(c) 
and (d), 189(a)(1)(A) and (e), 301(a), and 302.
---------------------------------------------------------------------------

    \51\ Under CAA section 301(a), the EPA is authorized to 
prescribe such regulations as are necessary to carry out its 
functions under this chapter.
---------------------------------------------------------------------------

    The FIP will be directly implemented and enforced by the EPA. The 
proposed FIP authorizes the EPA to delegate implementation of the FIP 
to the MDAQMD if the District requests such delegation. The FIP would 
apply until the MDAQMD revises its SIP to address deficiencies 
identified by the EPA and the EPA fully approves the MDAQMD's NNSR SIP.
    The EPA will accept comments from the public on this proposed FIP 
for the next 45 days. The deadline and instructions for submission of 
comments are provided in the DATES and ADDRESSES sections at the 
beginning of this proposed rule.

VI. 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 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866 (58 FR 51735, October 1993), as amended by 
Executive Order 14094 (88 FR 21879, April 11, 2023), and was, 
therefore, not subject to a requirement for Executive Order 12866 
review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) 
because the proposed rule implements existing requirements under the 
CAA and 40

[[Page 56245]]

CFR 51.160 through 51.165. The Office of Management and Budget (OMB) 
has previously approved the information collection activities in the 
existing prevention of significant deterioration (PSD) and NNSR 
regulations under OMB control number 2060-0003. The burden associated 
with obtaining an NNSR permit for a major stationary source undergoing 
a major modification is already accounted for under the approved 
information collection requests. Thus, the EPA is not conducting an 
information collection request for this action.

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 is unlikely to impact small entities because the permitting 
requirements implemented through this action are applicable only to 
construction or modification of major stationary sources of air 
pollution. In the MDAQMD, major sources are those that emit, or have 
the potential to emit 25 tons per year or more of NOX, 
SOX, or VOC; or 15 tons per year or more of PM10. 
To the extent that any small entities would own or operate sources 
capable of emitting this much air pollution, the requirements of this 
action apply only to construction of new major sources, or major 
modifications to existing major sources, located in the portions of the 
MDAQMD that are subject to the requirements of this action. The EPA 
does not have information to suggest that there currently are a 
substantial number of major stationary sources located in the MDAQMD 
that are owned or operated by small entities. The Agency also does not 
have any information on future modifications that any such existing 
major sources may engage in after finalization of this FIP. Further, 
the Agency does not have information that suggests one or more small 
entities will seek to construct a new major stationary source in the 
MDAQMD.
    Even if the Federal permitting requirements established in this FIP 
could be applicable to one or more small entities, these requirements 
would not have significant economic impact on such a small entity. 
Furthermore, any impact would not affect a substantial number of small 
entities. This proposed FIP ensures that such small entities and other 
sources subject to the FIP requirements meet CAA requirements to which 
these sources should have already been subject. Upon finalization of 
this action, sources applying for a permit will be required to submit 
application materials to the EPA in compliance with the proposed FIP. 
These sources are already subject to NNSR requirements under the 
District's SIP, including, the requirements to submit applications, to 
obtain offsets, and to install pollution control technology that 
satisfies Federal standards. Consequently, the incremental impact 
associated with application of the specific requirements of the NNSR 
regulations for certain sources emitting nonattainment criteria 
pollutants or its precursors is expected to be de minimis, primarily 
pertaining to the amount of offsets needed.

D. Unfunded Mandates Reform Act (UMRA)

    This proposed action does not contain an unfunded mandate of $100 
million or more, as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. This action imposes 
no enforceable duty on any state, local, or tribal governments or the 
private sector.

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: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because this proposed rule would not apply on 
any Indian reservation land or in any other area where the EPA or an 
Indian tribe has demonstrated that the tribe has jurisdiction, and it 
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

    Executive Order 13045 directs Federal agencies to include an 
evaluation of the health and safety effects of the planned regulation 
on children in Federal health and safety standards and explain why the 
regulation is preferable to potentially effective and reasonably 
feasible alternatives. This action is not subject to Executive Order 
13045 because it is not a significant regulatory action under section 
3(f)(1) of Executive Order 12866. The EPA does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children because it implements specific 
standards established by Congress in statutes.
    However, EPA's Policy on Children's Health applies to this action. 
Information on how the Policy was applied is available under 
``Children's Environmental Health'' in the Supplementary Information 
section of this preamble.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing our Nation's Commitment to 
Environmental Justice for All

    The EPA believes that it is not practicable to assess whether the 
human health or environmental conditions that exist prior to this 
action result in disproportionate and adverse effects on communities 
with environmental justice concerns. While the EPA can identify the 
existing major sources in the nonattainment areas that would be 
impacted by this action, the EPA cannot quantify the number or types of 
sources that will undertake major modifications in the future. 
Additionally, the EPA cannot know whether new major sources will locate 
in the nonattainment area and what emissions these sources may have. 
The impacts of the proposal on are likely to vary greatly depending on 
the source category, number and location of facilities, and the 
pollutants and potential controls addressed. Therefore, while the EPA 
cannot quantify the precise baseline conditions and impacts, to the 
extent that this action will have impacts, it will not result in 
disproportionate and adverse effects on communities with EJ concerns as 
compared with baseline human health and environmental conditions.
    Upon finalization of this action, the EPA would replace the MDAQMD 
in implementation of the District's NNSR program through the FIP. 
Therefore, the EPA does not anticipate that this action,

[[Page 56246]]

upon finalization, will result in any negative impacts to human health 
and the environment negative impacts. If this action has any impact on 
human health or the environment it will be beneficial in so far as the 
FIP action will address deficiencies associated with the calculation of 
emission offsets in the NNSR program. As explained in section II of 
this NPRM, this FIP is being promulgated to address several 
deficiencies with the MDAQMD's NNSR program. While the EPA has not 
analyzed the health impacts nor the emissions impacts from these 
deficiencies, the deficient provisions are less stringent than the 
Federal NNSR requirements that the EPA will be applying if this 
proposed FIP is finalized. Therefore, in so far as the EPA can 
qualitatively identify impacts to human health and the environment, the 
EPA expects this action, if finalized, would ensure the protections 
provided by the CAA and EPA's implementing regulations will be fully 
realized.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ammonia, 
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.

Michael Regan,
Administrator.

    For the reasons stated in the preamble, part 52 of title 40 of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.285 is added to read as follows:


Sec.  52.285   Review of new sources and modifications--Mojave Desert 
Air Quality Management District.

    (a) Plan overview--(1) What is the purpose of the Federal 
Implementation Plan (FIP or ``plan'')? The FIP has the following 
purposes:
    (i) It establishes the Federal preconstruction permitting 
requirements for new major sources and major modifications located in 
nonattainment areas within the Mojave Desert Air Quality Management 
District (MDAQMD or ``District'') that are major for a nonattainment 
pollutant.
    (ii) The plan serves as the Federal nonattainment new source review 
(NNSR or ``nonattainment major NSR'') plan for the area described in 
paragraph (a)(1)(i) of this section, which the EPA has determined does 
not meet all of the Clean Air Act (CAA or ``Act'') title I part D 
requirements for NNSR programs. Sources subject to the plan must comply 
with the provisions and requirements of 40 CFR part 51, appendix S. The 
FIP also sets forth the criteria and procedures that the reviewing 
authority (as defined in paragraph (b)(1)(v) of this section) must use 
to issue permits under the plan. For the purposes of the plan, the term 
SIP means any EPA-approved implementation plan for the area 
administered by the MDAQMD.
    (iii) Paragraph (f)(3) of this section sets forth procedures for 
appealing a permit decision issued under the plan.
    (iv) The plan does not apply in Indian country, as defined in 18 
U.S.C. 1151 and 40 CFR 49.167, located within the MDAQMD.
    (2) Where does the plan apply? (i) The provisions of the plan apply 
to the proposed construction of any new major stationary source or 
major modification in the MDAQMD that is major for a nonattainment 
pollutant, if the stationary source or modification is located anywhere 
in the designated nonattainment area.
    (3) What general provisions apply under the plan? The following 
general provisions apply to you as an owner or operator of a source:
    (i) If you propose to construct a new major source or a major 
modification in a nonattainment area in the MDAQMD, you must obtain a 
Federal NNSR permit (``permit'') under the plan before beginning actual 
construction. You may not begin actual construction after the effective 
date of the plan without applying for and receiving a Federal NNSR 
permit that authorizes construction pursuant to the plan.
    (ii) You must construct and operate your source or modification in 
accordance with the terms of your permit issued under the plan.
    (iii) Issuance of a permit under the plan does not relieve you of 
the responsibility to fully comply with applicable provisions of any 
EPA-approved implementation plan or FIP, and any other requirements 
under applicable law. This includes obligations to comply with any EPA-
approved SIP provisions that satisfy Federal new source review (NSR) 
requirements.
    (b) Definitions. For the purposes of the plan, the definitions in 
40 CFR part 51, appendix S, paragraph II.A, and 40 CFR 51.100 apply, 
except for paragraphs (b)(1) through (6) of this section, which replace 
the corresponding definitions found in part 51, appendix S:
    (1) Actual emissions means the actual rate of emissions of a 
regulated NSR pollutant from an emissions unit, as determined in 
accordance with paragraphs (b)(1)(i) and (ii) of this section, except 
that this paragraph (b)(1) shall not apply for calculating whether a 
significant emissions increase has occurred. Instead, 40 CFR part 51, 
appendix S, paragraphs II.A.24 and 30, shall apply for those purposes.
    (i) In general, actual emissions as of a particular date shall 
equal the average rate, in tons per year, at which the unit actually 
emitted the pollutant during a consecutive 24-month period that 
precedes the particular date and that is representative of normal 
source operation. The reviewing authority shall allow the use of a 
different time period upon a determination that it is more 
representative of normal source operation. Actual emissions shall be 
calculated using the unit's actual operating hours, production rates, 
and types of materials processed, stored, or combusted during the 
selected time period.
    (ii) For any emissions unit that has not begun normal operations on 
the particular date, actual emissions shall equal the potential to emit 
of the unit on that date.
    (2) Enforceable as a practical matter means that an emission 
limitation or other standard is both legally and practicably 
enforceable as follows:
    (i) An emission limitation or other standard is legally enforceable 
if the reviewing authority has the legal power to enforce it.
    (ii) Practical enforceability for an emission limitation or for 
other standards (design standards, equipment standards, work practices, 
operational standards, pollution prevention techniques) in a permit for 
a source is achieved if the permit's provisions specify:
    (A) A limitation or standard and the emissions units or activities 
at the source subject to the limitation or standard;
    (B) The time period for the limitation or standard (e.g., hourly, 
daily, monthly and/or annual limits such as rolling annual limits); and
    (C) The method to determine compliance, including appropriate 
monitoring, recordkeeping, reporting, and testing.

[[Page 56247]]

    (3) Environmental Appeals Board means the Board within the EPA 
described in 40 CFR 1.25(e).
    (4) Nonattainment pollutant means any regulated NSR pollutant for 
which the MDAQMD, or portion of the MDAQMD, has been designated as 
nonattainment, as codified in 40 CFR 81.305, as well as any precursor 
of such regulated NSR pollutant specified in 40 CFR part 51, appendix 
S, paragraph II.A.31.(ii)(b).
    (5) Reviewing authority means the Administrator of EPA Region IX, 
but it may include the MDAQMD if the Administrator delegates the power 
to administer the FIP under paragraph (g) of this section.
    (6) Significant means, in reference to an emissions increase or a 
net emissions increase, and notwithstanding the definition of 
``significant'' in 40 CFR part 51, appendix S, paragraph II.A.10, any 
increase in actual emissions of volatile organic compounds or oxides of 
nitrogen that would result from any physical change in, or change in 
the method of operation of, a major stationary source locating in a 
serious or severe ozone nonattainment area if such emissions increase 
of volatile organic compounds or oxides of nitrogen exceeds 25 tons per 
year when aggregated with all other net emissions increases from the 
source over any period of 5 consecutive calendar years that includes 
the calendar year in which such increase occurred.
    (c) Does the plan apply to me? (1) In any MDAQMD nonattainment 
area, the requirements of the plan apply to you under the following 
circumstances:
    (i) If you propose to construct a new major stationary source and 
your source is a major source of nonattainment pollutant(s).
    (ii) If you own or operate a major stationary source and propose to 
construct a major modification, where your source is a major source of 
nonattainment pollutant(s) and the proposed modification is a major 
modification for the nonattainment pollutant.
    (2) At such time that a particular source or modification becomes a 
major stationary source or major modification solely by virtue of a 
relaxation in any enforceable limitation that was established after 
August 7, 1980, on the capacity of the source or modification otherwise 
to emit a pollutant, such as a restriction on hours of operation, then 
the requirements of the plan shall apply to the source or modification 
as though construction had not yet commenced on the source or 
modification.
    (d) Permit approval criteria--(1) What are the general criteria for 
permit approval? The criteria for approval of applications for permits 
submitted pursuant to the plan are provided in part D of title I of the 
Act and in 40 CFR 51.160 through 51.165 and 40 CFR part 51, appendix S.
    (2) What are the plan-specific criteria for permit approval? 
Consistent with the requirements in 40 CFR part 51, appendix S, the 
reviewing authority shall not approve a permit application unless it 
meets the following criteria:
    (i) The lowest achievable emission rate (LAER) requirement for any 
NSR pollutant subject to the plan and monitoring, recordkeeping, 
reporting, and testing as necessary to assure compliance with LAER.
    (ii) Certification that all existing major sources owned or 
operated by the applicant in California are in compliance or, on a 
schedule for compliance, with all applicable emission limitations and 
standards under the Act.
    (iii) Any source or modification subject to the plan must obtain 
emission reductions (offsets) from existing sources in the area of the 
proposed source (whether or not under the same ownership) such that 
there will be reasonable progress toward attainment of the applicable 
NAAQS. Notwithstanding 40 CFR part 51, appendix S, paragraph IV.G.5, 
interprecursor offsetting is not permitted between precursors of ozone. 
A demonstration of reasonable progress toward attainment shall include:
    (A) A demonstration that the emission offsets will provide a net 
air quality benefit in the affected area, as required under 40 CFR part 
51, appendix S, paragraph IV.A, Condition 4.
    (B) A demonstration that emissions reductions otherwise required by 
the Act are not credited for purposes of satisfying the offset 
requirements in this paragraph (d)(2)(iii) and part D of title I of the 
Act.
    (iv) An analysis of alternative sites, sizes, production processes 
and environmental control techniques for such proposed major source or 
major modification that demonstrates that the benefits of the proposed 
major source or major modification significantly outweigh the 
environmental and social costs imposed as a result of its location, 
construction, or modification.
    (3) What are the application requirements? The owner or operator of 
any proposed new major stationary source or major modification shall 
submit a complete application using EPA Region IX's electronic system, 
which is described in paragraph (d)(3)(ii) of this section. The 
application must include the information listed in this paragraph 
(d)(3) as well as the demonstrations to show compliance with paragraphs 
(d)(2)(i) through (iv) of this section. The reviewing authority's 
designation that an application is complete for purposes of permit 
processing does not preclude the reviewing authority from requesting or 
accepting any additional information.
    (i) Application content requirements. (A) Identification of the 
permit applicant, including contact information.
    (B) Address and location of the new or modified source.
    (C) Identification and description of all emission points, 
including information regarding all nonattainment pollutants emitted by 
all emissions units included in the new source or modification.
    (D) A process description of all activities, including design 
capacity, that may generate emissions of nonattainment pollutants, in 
sufficient detail to establish the basis for the applicability of 
standards.
    (E) A projected schedule for commencing construction and operation 
for all emissions units included in the new source or modification.
    (F) A projected operating schedule for each emissions unit included 
in the new source or modification.
    (G) A determination as to whether the new source or modification 
will result in any secondary emissions.
    (H) The emission rates of all regulated NSR pollutants, including 
fugitive and secondary emission rates, if applicable. The emission 
rates must be described in tons per year (tpy). If necessary, shorter-
term rates must be described to allow for compliance using the 
applicable standard reference test method or other methodology 
specified (i.e., grams/liter, parts per million volume (ppmv) or parts 
per million weight (ppmw), lbs/MMBtu).
    (I) The calculations on which the emission rate information is 
based, including fuel specifications, if applicable, and any other 
assumptions used to determine the emission rates (e.g., higher heating 
value (HHV), sulfur content of natural gas, VOC content).
    (J) The calculations, pursuant to 40 CFR part 51, appendix S, 
paragraph IV.I and IV.J, that are used to determine applicability of 
the plan, including the emission calculations (increases or decreases) 
for each project that occurred during the contemporaneous period, as 
applicable.
    (K) The calculations, pursuant to 40 CFR part 51, appendix S, 
paragraph IV.A, used to determine the quantity of offsets required for 
the new source or modification.

[[Page 56248]]

    (L) Identification of actual emission reductions that meet the 
offset integrity criteria of being real, surplus, quantifiable, 
permanent and federally enforceable.
    (M) If applicable, a description of how performance testing will be 
conducted, including test methods and a general description of testing 
protocols.
    (N) Information necessary to determine whether issuance of such 
permit:
    (1) May adversely affect federally-listed threatened or endangered 
species or the designated critical habitat of such species; or
    (2) Has the potential to cause adverse effects on historic 
properties.
    (ii) Application process requirements. To submit an application 
required under the plan, applicants may submit electronically through 
the Central Data Exchange (CDX)/Compliance and Emissions Data Reporting 
Interface (CEDRI) or submit by mail.
    (A) CDX/CEDRI is accessed through https://cdx.epa.gov. First-time 
users will need to register with CDX. The CDX platform will also be 
used for any permit reporting requirements.
    (B) Applicants that do not apply using CDX/CEDRI shall mail a 
signed application using certified mail (do not request signature) to: 
Air and Radiation Division, Permits Office (Air-3-1), U.S. EPA, Region 
9, 75 Hawthorne Street, San Francisco, CA 94105.
    (C) Applicants that apply using certified mail must email a copy of 
the application and the certified mail tracking number to provide 
notification of delivery receipt to [email protected].
    (4) What are the requirements for monitoring, recordkeeping, and 
reporting? The reviewing authority shall require in the conditions of a 
permit such monitoring, recordkeeping, and reporting as necessary to 
facilitate compliance with the terms of a permit and to make them 
enforceable as a practical matter.
    (e) Public participation requirements--(1) What permit information 
will be publicly available? With the exception of any confidential 
information as defined in 40 CFR part 2, subpart B, the reviewing 
authority must make available for public inspection the documents 
listed in paragraphs (e)(1)(i) through (iv) of this section. The 
reviewing authority must make such information available for public 
inspection at the appropriate EPA Regional Office and in at least one 
location in the area affected by the source, such as the MDAQMD 
headquarters location or a local library.
    (i) All information submitted as part of your permit application as 
required under paragraph (d)(3) of this section.
    (ii) Any additional information requested by the reviewing 
authority.
    (iii) The reviewing authority's analysis of the application and any 
additional information submitted by you, including the LAER analysis 
and, where applicable, the analysis of your emissions reductions 
(offsets), your demonstration of a net air quality benefit in the 
affected area and your analysis of alternative sites, sizes, production 
processes and environmental control techniques.
    (iv) A copy of the draft permit or the draft decision to deny the 
permit with the justification for denial.
    (2) How will the public be notified and participate? (i) Before 
issuing a permit under the plan, the reviewing authority must prepare a 
draft permit and provide adequate public notice to ensure that the 
affected community and the general public have reasonable access to the 
application and draft permit information, as set out in this paragraph 
(e)(2)(i) and paragraph (e)(2)(ii) of this section. The public notice 
must provide an opportunity for public comment and notice of a public 
hearing, if any, on the draft permit.
    (A) The reviewing authority must mail a copy of the notice to you 
(the permit applicant), the MDAQMD (or the EPA if there is a delegation 
under paragraph (g) of this section), and the California Air Resources 
Board (CARB).
    (B) The reviewing authority must comply with the methods listed in 
paragraph (e)(2)(i)(B)(1) or (2) of this section:
    (1) The reviewing authority must post the notice on its website.
    (2) The reviewing authority must publish the notice in a newspaper 
of general circulation in the area affected by the source.
    (3) The reviewing authority may also include other forms of notice 
as appropriate. This may include posting copies of the notice at one or 
more locations in the area affected by the source, such as at post 
offices, libraries, community centers or other gathering places in the 
community.
    (ii) The notices required pursuant to paragraph (c)(2)(i) of this 
section must include the following information at a minimum:
    (A) Identifying information, including the name and address of the 
permit applicant (and the plant name and address if different);
    (B) The name and address of the reviewing authority processing the 
permit application;
    (C) The regulated NSR pollutants to be emitted, and identification 
of the emissions unit(s) whose emissions of a regulated NSR pollutant 
could be affected by the project, including any emission limitations 
for these emissions unit(s);
    (D) The emissions change involved in the permit action;
    (E) Instructions for requesting a public hearing;
    (F) The name, address and telephone number of a contact person in 
the reviewing authority's office from whom additional information may 
be obtained;
    (G) Locations and times of availability of the information, listed 
in paragraph (e)(1) of this section, for public inspection; and
    (H) A statement that any person may submit written comments, a 
written request for a public hearing or both, on the draft permit 
action. The reviewing authority must provide a period of at least 30 
days from the date of the public notice for comments and for requests 
for a public hearing.
    (3) How will the public comment and will there be a public hearing? 
(i) Any person may submit written comments on the draft permit and may 
request a public hearing. The comments must raise any reasonably 
ascertainable issue with supporting arguments by the close of the 
public comment period (including any public hearing). The reviewing 
authority must consider all comments in making the final decision. The 
reviewing authority must keep a record of the commenters and of the 
issues raised during the public participation process, and such records 
must be available to the public.
    (ii) The reviewing authority must extend the public comment period 
under paragraph (e)(2) of this section to the close of any public 
hearing under this section. The hearing officer may also extend the 
comment period by so stating at the hearing.
    (iii) A request for a public hearing must be in writing and must 
state the nature of the issues proposed to be raised at the hearing.
    (iv) If requested, the reviewing authority may hold a public 
hearing at its discretion to give interested persons an opportunity for 
the oral presentation of data, views, or arguments, in addition to an 
opportunity to make written statements. The reviewing authority may 
also hold a public hearing at its discretion, whenever, for instance, 
such a hearing might clarify one or more issues involved in the permit 
decision. The reviewing authority must provide notice of any public 
hearing at least 30 days prior to the date of the hearing. Public 
notice of the hearing may be

[[Page 56249]]

concurrent with that of the draft permit, and the two notices may be 
combined. Reasonable limits may be set upon the time allowed for oral 
statements at the hearing.
    (v) The reviewing authority must make the written transcript of any 
hearing available to the public.
    (f) Final permit issuance and administrative and judicial review--
(1) How will final action occur and when will my Federal NNSR permit 
become effective? After making a decision on a permit application, the 
reviewing authority must notify you, the permit applicant, of the 
decision in writing, and, if the permit is denied, provide the reasons 
for such denial and the procedures for appeal. If the reviewing 
authority issues a final permit to you, it must make a copy of the 
permit available at any location where the draft permit was made 
available. In addition, the reviewing authority must provide adequate 
public notice of the final permit decision to ensure that the affected 
community, the general public and any individuals who commented on the 
draft permit have reasonable access to the decision and supporting 
materials. A final permit becomes effective 30 days after service of 
the final permit decision, unless:
    (i) A later effective date is specified in the permit;
    (ii) Review of the final permit is requested under paragraph (f)(3) 
of this section; or
    (iii) No comments requested a change in the draft permit or a 
denial of the permit, in which case the reviewing authority may make 
the permit effective immediately upon issuance.
    (2) What is the administrative record for each final permit? (i) 
The reviewing authority must base final permit decisions on an 
administrative record consisting of:
    (A) All comments received during any public comment period, 
including any extension or reopening;
    (B) The tape or transcript of any hearing(s) held;
    (C) Any written material submitted at such a hearing;
    (D) Any new materials placed in the record as a result of the 
reviewing authority's evaluation of public comments;
    (E) Other documents in the supporting files for the permit that 
were relied upon in the decision-making;
    (F) The final Federal NNSR permit;
    (G) The application and any supporting data furnished by you, the 
permit applicant;
    (H) The draft permit or notice of intent to deny the application or 
to terminate the permit; and
    (I) Other documents in the supporting files for the draft permit 
that were relied upon in the decision-making.
    (ii) The additional documents required under paragraph (f)(2)(i) of 
this section should be added to the record as soon as possible after 
their receipt or publication by the reviewing authority. The record 
must be complete on the date the final permit is issued.
    (iii) Material readily available or published materials that are 
generally available and that are included in the administrative record 
under the standards of paragraph (f)(2)(i) of this section need not be 
physically included in the same file as the rest of the record as long 
as it is specifically referred to in that file.
    (3) Can permit decisions be appealed? (i) Permit decisions may be 
appealed under the permit appeal procedures of 40 CFR 124.19, and the 
provisions of that section applicable to prevention of significant 
deterioration (PSD) permits shall apply to permit decisions under the 
FIP. A petition for review must be filed with the Clerk of the 
Environmental Appeals Board within 30 days after the reviewing 
authority serves notice of the issuance of a final permit decision 
under the plan, in accordance with 40 CFR 124.19.
    (ii) An appeal under paragraph (f)(3)(i) of this section is, under 
section 307(b) of the Act, a prerequisite to seeking judicial review of 
the final agency action.
    (4) Can my permit be reopened? The reviewing authority may reopen 
an existing, currently-in-effect permit for cause on its own 
initiative, such as if it contains a material mistake or fails to 
assure compliance with requirements in this section. However, except 
for those permit reopenings that do not increase the emission 
limitations in the permit, such as permit reopenings that correct 
typographical, calculation and other errors, all other permit 
reopenings shall be carried out after the opportunity for public notice 
and comment and in accordance with one or more of the public 
participation requirements under paragraph (e)(2) of this section.
    (5) Can my permit be rescinded? (i) Any permit issued under this 
section, or a prior version of this section, shall remain in effect 
until it is rescinded under this paragraph (f)(5).
    (ii) An owner or operator of a stationary source or modification 
who holds a permit issued under this section for the construction of a 
new source or modification that meets the requirement in paragraph 
(f)(5)(iii) of this section may request that the reviewing authority 
rescind the permit or a particular portion of the permit.
    (iii) The reviewing authority may grant an application for 
rescission if the application shows that the provisions of the plan 
would not apply to the source or modification.
    (iv) If the reviewing authority rescinds a permit under this 
paragraph (f), the public shall be given adequate notice of the 
rescission determination in accordance with paragraph (e)(2)(i)(B) of 
this section.
    (g) Administration and delegation of the Federal nonattainment 
major NSR plan in the MDAQMD--(1) Who administers the FIP in the 
MDAQMD? (i) The Administrator is the reviewing authority and will 
directly administer all aspects of the FIP in the MDAQMD under Federal 
authority.
    (ii) The Administrator may delegate Federal authority to administer 
specific portions of the FIP to the MDAQMD upon request, in accordance 
with the provisions of paragraph (g)(2) of this section. If the MDAQMD 
has been granted such delegation, it will be the reviewing authority 
for purposes of the provisions for which it has been granted 
delegation.
    (2) Delegation of administration of the FIP to the MDAQMD. This 
paragraph (g)(2) establishes the process by which the Administrator may 
delegate authority to the MDAQMD in accordance with the provisions in 
paragraphs (g)(2)(i) through (iv) of this section. Any Federal 
requirements under the plan that are administered by the delegate 
MDAQMD are enforceable by the EPA under Federal law.
    (i) Information to be included in the Administrative Delegation 
Request. To be delegated authority to administer the FIP or specific 
portions of it, the MDAQMD must submit a request to the Administrator.
    (ii) Delegation Agreement. A Delegation Agreement will set forth 
the terms and conditions of the delegation, will specify the provisions 
that the delegate MDAQMD will be authorized to implement on behalf of 
the EPA and will be entered into by the Administrator and the MDAQMD. 
The Agreement will become effective upon the date that both the 
Administrator and the MDAQMD have signed the Agreement or as otherwise 
stated in the Agreement. Once the delegation becomes effective, the 
MDAQMD will be responsible, to the extent specified in the Agreement, 
for administration of the provisions of the FIP that are subject to the 
Agreement.
    (iii) Publication of notice of the Agreement. The Administrator 
will publish a notice in the Federal Register informing the public of 
any Delegation Agreement. The Administrator also will

[[Page 56250]]

publish the notice in a newspaper of general circulation in the MDAQMD. 
In addition, the Administrator will mail a copy of the notice to 
persons on a mailing list developed by the Administrator consisting of 
those persons who have requested to be placed on such a mailing list.
    (iv) Revision or revocation of an Agreement. A Delegation Agreement 
may be modified, amended or revoked, in part or in whole, by the 
Administrator after consultation with the MDAQMD.

[FR Doc. 2024-14695 Filed 7-8-24; 8:45 am]
BILLING CODE 6560-50-P