
[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Rules and Regulations]
[Pages 65305-65310]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26294]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0408; FRL-9726-3]


Approval of Air Quality Implementation Plans; California; San 
Joaquin Valley Unified Air Pollution Control District; Prevention of 
Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action under section 110 of the Clean Air Act (CAA or Act) to approve a 
State Implementation Plan (SIP) revision for the San Joaquin Valley 
Unified Air Pollution Control District (District) portion of the 
California SIP. This SIP revision incorporates District Rule 2410--
Prevention of Significant Deterioration (PSD)--into the California SIP 
to establish a PSD permit program for pre-construction review of 
certain new and modified major stationary sources in attainment or 
unclassifiable areas. EPA is approving this SIP revision because Rule 
2410 provides an adequate PSD permitting program as required by section 
110 and part C of title I of the CAA.

DATES: This rule is effective on November 26, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0408 for 
this action. Generally, documents in the docket for this action are 
available electronically at www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. Some docket 
materials, however, may be publicly available only at the hard copy 
location (e.g., voluminous records, maps, copyrighted material), and 
some may not be publicly available in either location (e.g., CBI). To 
inspect the hard copy materials, please schedule an appointment during 
normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Lisa Beckham, EPA Region IX, (415) 
972-3811, beckham.lisa@epa.gov.

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

Table of Contents

I. Background
II. EPA's Evaluation of the SIP Revision
    A. What action is EPA finalizing?
    B. Public Comments and EPA Responses
III. EPA's Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Section 110(a) of the CAA requires states to adopt and submit 
regulations for the implementation, maintenance and enforcement of the 
primary and secondary national ambient air quality standards (NAAQS). 
Specifically, CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 
110(a)(2)(J) require the State's plan to meet the applicable 
requirements of section 165 relating to a pre-construction permit 
program for the prevention of significant deterioration of air quality 
and visibility protection. The purpose of District Rule 2410--
Prevention of Significant Deterioration, is to implement a pre-
construction PSD permit program as required by section 165 of the CAA 
for certain new and modified major stationary sources located in 
attainment areas. EPA is currently the PSD permitting authority within 
the District because the State does not currently have a SIP-approved 
PSD program within the District. Inclusion of this revision in the SIP 
will mean that the District has an approved PSD permitting program and 
will transfer PSD permitting authority from EPA to the District. EPA 
would then assume the role of overseeing the District's PSD permitting 
program, as

[[Page 65306]]

intended by the CAA. For a more detailed discussion of District Rule 
2410, please refer to our proposed approval. See 77 FR 32493 (June 1, 
2012).

II. EPA's Evaluation of the SIP Revision

A. What action is EPA finalizing?

    EPA is finalizing a SIP revision for the San Joaquin Valley portion 
of the California SIP. The SIP revision will be codified in 40 CFR 
52.220 and 40 CFR 52.270 by incorporating by reference District Rule 
2410, as adopted June 16, 2011 and submitted to EPA by the California 
Air Resources Board (CARB) on August 23, 2011. In addition, the letter 
from the District to EPA, dated May 18, 2012, providing certain 
clarifications concerning District Rule 2410 and 40 CFR 51.166, will be 
included as additional material in 40 CFR 52.220. The regulatory text 
addressing this action also makes it clear that EPA is relying, in 
part, on the clarifications provided in the District's May 18, 2012 
letter in taking this final approval action. As such, the District's 
implementation of the PSD program in a manner consistent with these 
clarifications is a pre-condition of today's final approval of the 
District's PSD SIP revision. This SIP revision provides a federally 
approved and enforceable mechanism for the District to issue pre-
construction PSD permits for certain new and modified major stationary 
sources subject to PSD review within the District.
    As discussed in EPA's proposal relating to today's SIP revision 
approval action, the District has requested approval to exercise its 
authority to administer the PSD program with respect to those sources 
located in the District that have existing PSD permits issued by EPA, 
including authority to conduct general administration of these existing 
permits, authority to process and issue any and all subsequent PSD 
permit actions relating to such permits (e.g., modifications, 
amendments, or revisions of any nature), and authority to enforce such 
permits. Pursuant to the criteria in section 110(a)(2)(E)(i) of the 
CAA, we have determined that the District has the authority, personnel, 
and funding to implement the PSD program within the District for 
existing EPA-issued permits and therefore are transferring authority 
for such permits to the District concurrent with the effective date of 
EPA's approval of the District's PSD program into the SIP. A list of 
the EPA-issued permits that we anticipate will be transferred to the 
District is provided in the docket for this action. EPA has already 
provided a copy of each such permit to the District. As described in 
our proposal, EPA will retain PSD permit implementation authority for 
those specific sources within the District that have submitted PSD 
permit applications to EPA and for which EPA has issued a proposed PSD 
permit decision, but for which final agency action and/or the 
exhaustion of all administrative and judicial appeals processes 
(including any associated remand actions) have not yet been concluded 
or completed upon the effective date of EPA's final SIP approval action 
for Rule 2410. The District will assume full PSD responsibility for the 
administration and implementation of such PSD permits immediately upon 
notification from EPA that all administrative and judicial appeals 
processes and any associated remand actions have been completed or 
concluded for any such permit application.

B. Public Comments and EPA Responses

    In response to our June 1, 2012 proposed rule, we received two 
comment letters, one from the Western States Petroleum Association 
(WSPA) and one from Earthjustice on behalf of a consortium of 
environmental groups (Medical Advocates for Healthy Air, the Kern-
Kaweah Chapter of the Sierra Club, the Center for Race, Poverty, and 
the Environment, and the Central Valley Air Quality Coalition). Copies 
of each comment letter have been added to the docket for this action 
and are accessible at www.regulations.gov. The comment letter from WSPA 
supports EPA's analysis and proposal to approve District Rule 2410 into 
the SIP. The comment letter from Earthjustice opposes the SIP revision 
and raises several specific objections. We have summarized the comments 
received and provided a response to the comments below.
    Comment 1: WSPA expresses its support for EPA's expeditious 
approval of District Rule 2410, and recommends that such approval be 
completed as soon as possible in order to ensure that permitting is not 
unduly impacted for facilities subject to PSD review.
    Response 1: EPA appreciates the commenter's support. We agree that 
EPA's proceeding expeditiously with its final action on the District's 
PSD SIP revision, after careful consideration of public comments 
received on its proposed action, will serve to facilitate timely 
processing of PSD permit decisions for facilities within the District 
that are subject to PSD review.
    Comment 2: Earthjustice states that CAA sections 110(a)(2)(A) and 
(C) require SIPs to include enforceable measures to regulate the 
construction and modification of stationary sources. The commenter 
believes that District Rule 2410 includes loopholes for enforcing 
District compliance with its permitting requirements because currently, 
within the District, interested parties are able to seek judicial 
review of final PSD permitting decisions under section 307 of the Act, 
whereas under Rule 2410 and California state law there is no right to 
judicial review of permitting decisions for power plants licensed by 
the California Energy Commission (CEC). The commenter asserts that 
under California Public Resources Code (CPRC) section 25531, judicial 
review of such CEC approvals may only be had at the discretion of the 
State Supreme Court, and there is no guaranteed right of review. The 
commenter states that this legal conclusion regarding the limited 
availability of judicial review for power plant permitting decisions 
has been repeatedly asserted by the CEC and the District. The commenter 
concludes that approval of Rule 2410 would open the door for abuse and 
noncompliance in PSD permitting decisions, and does not comply with the 
requirements of section 110(a)(2) of the Act because it does not 
guarantee judicial enforceability.
    Response 2: As EPA has stated previously, we interpret the CAA to 
require an opportunity for judicial review of a decision to grant or 
deny a PSD permit, whether issued by EPA or by a State under a SIP-
approved or delegated PSD program. See 61 FR 1880, 1882 (Jan. 24, 1996) 
(EPA's proposed disapproval of Virginia's PSD program SIP revision due 
to State law standing requirements that limited judicial review); 72 FR 
72617, 72619 (December 21, 2007) (in approving South Dakota's PSD 
program, EPA stated: ``We interpret the statute and regulations to 
require at minimum an opportunity for state judicial review of PSD 
permits''). EPA continues to interpret the relevant provisions of the 
Act as described in these prior rulemaking actions. We believe that 
Congress intended for state judicial review of PSD permit decisions to 
be available for members of the public who can satisfy threshold 
standing requirements under Article III of the Constitution. See 61 FR 
1882, January 24, 1996.
    The commenter argues that California's judicial review procedures 
under CPRC 25531 for PSD permit decisions subject to the CEC 
certification process do not satisfy the CAA's requirements for 
judicial review. The commenter states that these State judicial review 
procedures are inadequate because such review may

[[Page 65307]]

only be had at the discretion of the State Supreme Court, and there is 
no guaranteed right of judicial review.
    CPRC section 25531(a) provides: ``The decisions of the [CEC] on any 
application for certification of a site and related facility are 
subject to judicial review by the Supreme Court of California.'' \1\ 
California courts have found that California Supreme Court review of a 
power plant certification decision under CPRC section 25531 is a 
decision on the merits. Santa Teresa Citizen Action Group v. California 
Energy Commission, 105 Cal. App. 4th 1441, 1447-1448 (2003); see also 
In re Rose, 22 Cal.4th 430, 444 (2000) (when the sole means of review 
is a petition in the California Supreme Court, even the court's denial 
of the petition--with or without an opinion--reflects a judicial 
determination on the merits). EPA believes that the opportunity 
provided by CPRC 25531 to seek review of a PSD permit decision for a 
CEC-certified facility before the California Supreme Court and to 
obtain that court's judicial determination on the merits satisfies the 
CAA requirement that an opportunity for judicial review be provided 
under State law for PSD permits in SIP-approved PSD programs. We 
recognize that the judicial review process under CPRC 25531 differs in 
a number of respects from the administrative and judicial review 
processes available for PSD permit decisions under 40 CFR part 124 
(opportunity to petition for administrative review by the EPA's 
Environmental Appeals Board (EAB)) and section 307(b) of the CAA 
(opportunity to seek review before Circuit Court of Appeals) when EPA 
or a delegated agency under 40 CFR 52.21 is the PSD permit issuer. 
However, the CAA does not require that the process for judicial review 
of the grant or denial of a PSD permit issued under a SIP-approved PSD 
program be identical to that provided when EPA or a delegated agency 
under 40 CFR 52.21 is the PSD permit issuer.
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    \1\ The term ``facility'' within the meaning of CPRC 25531 
refers to ``any electric transmission line or thermal powerplant, or 
both electric transmission line and thermal powerplant,'' and the 
term ``site'' refers to ``any location on which a facility is 
constructed or is proposed to be constructed.'' (CPRC 25110, 25119.)
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    Comment 3: Earthjustice suggests that District Rule 2410 does not 
meet the public participation requirements of 40 CFR 51.166(q), citing 
sections 110(a)(2)(A) and (C) of the Act. The commenter states that EPA 
notes that Rule 2410 does not, on its face, comply with various public 
participation requirements in 40 CFR 51.166(q). The commenter further 
states that EPA dismisses these defects by relying on commitments in a 
letter from the District's Permitting Director to comply with the 
public participation requirements for issuing PSD permits. The 
commenter states that these commitments are not enforceable, are 
insufficient to support approval, and are not proposed to be codified 
into the SIP or other approved regulatory language. The commenter also 
states that it has not been established through any legal reference 
that the District's Permitting Director is authorized or empowered to 
bind the District legally to any particular practice, and that should 
the District fail to adhere to the processes outlined in its letter, 
stakeholders would have no recourse for ensuring the District's 
adherence. The commenter also states that the District has relinquished 
some of its permit processing responsibilities to the CEC, and that the 
CEC would not be bound by the District's commitments.
    Response 3: We disagree that Rule 2410 does not comply with the 
public participation requirements of 40 CFR 51.166(q). Section 5.0 of 
Rule 2410 requires the District to follow the public participation 
requirements identified in certain sections of District Rule 2201 prior 
to issuing a PSD permit. District Rule 2201 is enforceable because it 
is already approved into the California SIP (see, e.g., 75 FR 26102 
(May 11, 2010)). EPA asked the District to provide a letter clarifying, 
among other things, how Rule 2201 addresses certain specific 
requirements of 40 CFR 51.166 relating to the District's implementation 
of a number of PSD procedural requirements. EPA believes this written 
clarification is appropriate to support our analysis of and conclusions 
concerning Rule 2410. As noted above in Section II.A, the District 
provided a clarification letter dated May 18, 2012 to EPA that reflects 
the District's and EPA's interpretation of the District's public 
participation processes consistent with 40 CFR 51.166(q). The letter 
memorializes the proper intended reading of the provisions at issue, 
and the regulatory text that EPA is finalizing in this action expressly 
states that EPA is basing its approval of the District's PSD SIP, in 
part, on the clarifications regarding the District's implementation of 
the PSD program contained in the District's May 18, 2012 letter. EPA is 
also including this letter in the additional materials that will be 
referenced in the CFR as part of this SIP revision approval action. 
Because the District's implementation of the PSD program in a manner 
consistent with these clarifications, including those related to the 
District's public participation processes, is clearly a pre-condition 
of today's final approval of the District's PSD SIP revision, the 
clarifications provided in this letter concerning District Rule 2410 
are binding and enforceable, and the District must adhere to the 
positions taken in the letter. In sum, District Rule 2410 meets the 
public participation requirements of 40 CFR 51.166(q) and is therefore 
consistent with section 110(a) of the Act in this regard.
    Finally, with respect to the argument that the District has 
relinquished some of its permit processing responsibilities for power 
plants to the CEC, we are not aware of any particular PSD public 
participation requirements related to 40 CFR 51.166(q) that the 
District will be relying on the CEC to meet on the District's behalf, 
and the commenter has not specifically identified any such requirement. 
The District must adhere to the public participation requirements in 
Rule 2410 prior to issuing a PSD permit.
    Comment 4: Earthjustice asserts that EPA has not demonstrated, as 
required by section 110(l) of the Act, that the federal PSD program, as 
``reformed'' through the addition of the flexibility provisions in 
2002, will not interfere with the maintenance of the national ambient 
air quality standards. The commenter disagrees with EPA's analysis that 
``the requirements of the PSD SIP revision are essentially equivalent 
to * * * those of the [Federal Implementation Plan] codified in 40 CFR 
52.21'' in support of EPA's determination that its proposed SIP 
approval action here would be consistent with section 110(l). The 
commenter states that the problem with this argument is that there has 
not been any analysis of whether these PSD regulations, with the 
various flexibilities that allow sources to be constructed without 
offsetting emission reductions, without best available control 
technology to minimize emission increases, and often without any 
obligation to ensure that the emissions will not cause or contribute to 
a violation of any national ambient air quality standards, are 
sufficient to prevent deterioration of air quality and sliding the 
District into nonattainment. The commenter notes that the PSD program 
being approved into the SIP has never been a part of the SIP and 
therefore has never been analyzed for its consistency with a plan for 
maintaining compliance with the national standards. The commenter 
believes it is meaningless to say that the permitting program will not 
get any worse once it is approved into the SIP because it has

[[Page 65308]]

never been demonstrated that this permitting program is adequate to 
prevent the deterioration of air quality in the District.
    The commenter states that the California legislature has 
specifically rejected EPA's finding that the 2002 New Source Review 
(NSR) Reforms could benefit air quality because permit requirements 
have impeded or deterred upgrades to sources, citing California Health 
and Safety Code sections 42501(e) and (f) (finding that the revisions 
to the federal regulations drastically reduce the circumstances under 
which modifications at an existing source would be subject to federal 
new source review and rejecting the argument that this would be 
beneficial to air quality because this claim is contradicted by 
California's experience). The commenter believes that the 2002 NSR 
Reforms to the PSD regulations allow growth to increase with fewer 
mitigation requirements and fewer safeguards for assessing air quality 
impacts.
    The commenter also notes that although the District is attainment 
or unclassifiable for particulate matter 10 micrometers ([mu]m) in 
diameter and smaller (PM10), nitrogen dioxide 
(NO2), sulfur dioxide (SO2), carbon monoxide 
(CO), and lead, EPA has approved a maintenance plan only for 
PM10 in the last 10 years since the revisions to the PSD 
regulations. The commenter asserts that without such a plan there is no 
basis for assessing how a permitting program that allows significant 
modifications of major sources to avoid control and air quality 
analysis requirements will ensure that increased emissions from these 
sources will not interfere with attainment of the national standards. 
The commenter argues that blind reliance on the District's parallel 
nonattainment new source review permitting is no substitute for the 
missing analysis because the District allows sources to offset emission 
increases with ``pre-baseline'' emission reduction credits--meaning 
current air quality sees only an increase in emissions--and to offset 
emission increases of one pollutant with decreases of another, which 
may or may not be relevant to maintenance of the particular national 
standard.
    The commenter asserts that EPA needs to provide its argument and 
analysis under section 110(l) of the Act for review and comment, as the 
proposed rule provides no rational basis for believing that the 
District's PSD program is sufficient to prevent growth in emissions 
that could interfere with attainment and maintenance of the national 
ambient air quality standards in the Valley.
    Response 4: We disagree with the commenter's contentions that EPA 
has not conducted the analysis required by section 110(l) of the Act 
and that EPA's analysis does not provide adequate assurance that 
approval of the District's PSD program would not interfere with 
maintenance of the NAAQS. As stated in the Federal Register notice for 
our proposed approval of the District's PSD SIP revision, EPA included 
an analysis under section 110(l) in the technical support document 
(TSD) for the proposed rulemaking for this SIP revision approval 
action. In the TSD, we stated that our approval of the submittal would 
comply with CAA section 110(l), because the SIP, as revised to reflect 
the submitted revision, would provide for reasonable further progress 
and attainment of the NAAQS, and the requirements of the PSD SIP 
revision are essentially equivalent to, and at least as stringent as, 
those of the Federal Implementation Plan (FIP) codified in 40 CFR 52.21 
and used to date by EPA to implement the required PSD program within 
the District. EPA noted that approval of the District's PSD SIP 
submittal would merely result in the transfer of authority for the PSD 
program from the EPA to the District, and therefore would not result in 
any substantive changes to the PSD program requirements, other CAA 
requirements, or air quality. We believe that our 110(l) analysis was 
adequate and appropriate, for the following reasons.
    Section 110(l) of the CAA states that ``[t]he Administrator shall 
not approve a revision of a plan if the revision would interfere with 
any applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of this chapter.'' 42 
U.S.C. 7410(l). EPA does not interpret section 110(l) to require a full 
attainment or maintenance demonstration before any changes to a SIP may 
be approved. Generally, a SIP revision may be approved under section 
110(l) if EPA finds that it will at least preserve status quo air 
quality, particularly where, as here, the pollutants at issue are those 
for which an area has not been designated nonattainment.
    In response to the commenter's concern that approval of the 
District's PSD SIP submittal including NSR Reform would allow fewer 
projects to be subject to PSD review,\2\ meaning that fewer sources 
must demonstrate that their emission increases will not cause or 
contribute to a violation of the NAAQS or apply the best available 
control technology to those emission increases, we note that our 
approval of the District's PSD program, which incorporates by reference 
40 CFR 52.21, into the SIP will not result in a change to the status 
quo. As stated in our TSD, the PSD program has been implemented within 
the District by EPA in accordance with the provisions of 40 CFR 52.21, 
which incorporated the NSR Reform provisions to which the commenter 
refers since their inception.
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    \2\ EPA understands the comment regarding the ``various 
flexibilities'' allowing sources to be constructed without BACT and 
air quality assessment to be directed at NSR Reform's revisions to 
the method of determining what changes are deemed to be major 
modifications under EPA and San Joaquin's rules and therefore 
subject to PSD review. Plainly, once a change is deemed a major 
modification, 40 CFR 52.21 and the District's rule incorporating 
52.21 by reference have provisions for BACT and air quality 
assessments required by PSD.
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    Even if the provisions of 40 CFR 52.21 as revised through NSR 
Reform were not already in place within the District, EPA is not aware 
of any basis for concluding that the PSD program under 40 CFR 52.21, 
including NSR Reform, that has been incorporated by reference by the 
District would interfere with the maintenance of the NAAQS within the 
District, nor has the commenter provided specific information 
demonstrating that such interference would occur. The commenter refers 
to a general legislative statement by the California legislature that 
appears to have been adopted in 2003 that disagrees generally with NSR 
Reform but which is not specific as to what changes in air quality, if 
any, would occur as a result of EPA's approval of the District's PSD 
program.
    NSR Reform affects only permitting of modifications to existing 
sources, and more specifically, modifications to existing emissions 
units. Any growth occurring from new, greenfield sites would be 
controlled and permitted in the same manner both pre- and post-reform. 
Therefore, any concerns about NSR Reform would be related to 
unregulated growth from existing major sources. In the specific case of 
the District, modifications that are not subject to PSD review 
generally have been, and will continue to be, subject to review under 
the District's minor NSR program, which is approved into the California 
SIP through District Rule 2201. Rule 2201 contains the District's 
permit program for all increases in pollutants subject to a NAAQS, 
whether classified as attainment, nonattainment, or unclassifiable by 
EPA. The rule includes pre-construction permitting requirements for 
sources that are not required to be permitted under title I,

[[Page 65309]]

parts C and D of the Act as new major stationary sources or major 
modifications at existing major stationary sources in attainment or 
nonattainment areas, which are commonly referred to as ``minor NSR,'' 
although this term is not used in Rule 2201. A modification in the 
District that is not required to obtain a PSD permit (whether due to 
the application of the NSR Reform provisions or not) would still be 
subject to the preconstruction permit requirements of the District's 
minor NSR program in Rule 2201, including any associated testing, 
monitoring, recordkeeping and reporting requirements. All modifications 
within the District are required to obtain a permit revision prior to 
modification of the applicable units. Generally, for any new or 
modified emissions unit, the District's NSR program begins applying 
BACT for emission increases of two pounds per day (0.4 tons per 
year).\3\ See District Rule 2201, Sections 4.1 and 4.2. The District's 
NSR program also generally requires a demonstration that emissions from 
certain new or modified stationary sources, including minor sources, 
will not cause or make worse the violation of an ambient air quality 
standard. See District Rule 2201, Section 4.14. EPA's approval of the 
District's PSD program will not change the level of review that is 
conducted for modifications not subject to PSD review within the 
District. The District's robust minor NSR permitting program for such 
sources provides additional assurance that EPA's approval of the 
District's PSD SIP revision, which incorporates NSR Reform, will not 
interfere with maintenance of the NAAQS within the District.
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    \3\ Under the District's rules, CO emissions from a new or 
modified emissions unit at a stationary source with a post project 
potential to emit of less than 100 tons per year are exempt from the 
requirement to apply BACT. In addition, the District's definition of 
BACT is at least as stringent as the federal definitions for Lowest 
Achievable Emission Rate (LAER).
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    We note that at the time EPA adopted NSR Reform, we provided an 
analysis of the environmental impacts of the ``various flexibilities'' 
the commenter discusses. Based on examples and modeling, we concluded 
that NSR Reform would likely have a neutral to positive effect on air 
quality relative to the pre-Reform provisions. See generally 
Supplemental Analysis of the Environmental Impact of the 2002 Final NSR 
Improvement Rules (Nov. 21, 2002) (Supplemental Analysis).\4\ This 
analysis applied at the time the NSR Reforms became effective within 
the District, March 3, 2003. See 67 FR 80186. The commenter has 
provided no specific data that leads EPA to conclude that this initial 
analysis was incorrect. Considering the District's minor NSR program, 
which was not a part of the above-mentioned national analysis, the 
environmental impacts of continuing to implement the NSR Reform should 
not be different from the effect modeled in the analysis.
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    \4\ The Supplemental Analysis is available at 
http:[sol][sol]epa.gov/nsr/documents/nsr-analysis.pdf, and has also 
been added to the docket for this action. It is incorporated into 
these responses by reference.
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    In sum, as EPA concluded in its TSD for the proposed rulemaking, 
the transfer of the PSD program under 40 CFR 52.21 from EPA to the 
District is not expected to result in any substantive changes to the 
PSD program requirements, other CAA requirements, or air quality within 
the District, and EPA continues to believe that its approval of the 
District's PSD SIP revision would not interfere with attainment and 
maintenance of the NAAQS within the District, or with any other 
applicable requirement of the CAA. EPA bases this conclusion on the 
fact that the District's PSD program will be no less stringent than the 
federal PSD program under 40 CFR 52.21 that it is replacing. In 
addition, EPA has taken into consideration the District's extensive 
minor source permitting program that will impose control requirements 
on sources that are not major under the PSD program. EPA finds that the 
approval of this SIP revision is entirely consistent with the 
development of a plan for the District to attain and maintain the 
NAAQS.
    Last, it is unclear to EPA what the basis is for the commenter's 
statement that relying on the existing District nonattainment NSR 
program is not a substitute for the necessary analysis under CAA 
section 110(l) in terms of maintenance of the NAAQS, or how the 
commenter's concerns with the District's nonattainment NSR permitting 
process relate to EPA's CAA section 110(l) analysis in this case. We 
assume that the commenter is referring in this statement to the 
District's major nonattainment NSR program.\5\ For the reasons outlined 
above, EPA believes that its 110(l) analysis for this action is 
appropriate, and we have not specifically relied on the District's 
major nonattainment NSR program to support our 110(l) analysis here 
because our approval action addresses the District's PSD permitting 
program, which regulates only those pollutants for which the District 
has been designated attainment or unclassifiable. General concerns 
about the District's major nonattainment NSR permitting process are 
outside the scope of this PSD SIP revision approval action.
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    \5\ To the extent the commenter may be referring to the 
District's minor NSR program as it relates to nonattainment 
pollutants, as noted in more detail above, the District's minor NSR 
program is quite comprehensive and will impose permit requirements 
on numerous sources not subject to major nonattainment NSR or PSD 
review by the District, and, accordingly, will provide additional 
protection of the NAAQS beyond that provided by the District's PSD 
program.
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III. EPA's Final Action

    EPA is approving CARB's August 23, 2011 submittal of District Rule 
2410--Prevention of Significant Deterioration (PSD)--into the 
California SIP to establish a PSD permit program for pre-construction 
review of certain new and modified major stationary sources in 
attainment or unclassifiable areas.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k). Thus, in reviewing SIP 
submissions, EPA's role is to approve State choices, provided that they 
meet the criteria of the CAA. Accordingly, this action merely approves 
State law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by State law. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National

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Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) 
because application of those requirements would be inconsistent with 
the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 26, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See CAA section 307(b)(2).)

List of Subjects in 40 CFR part 52

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

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

    Dated: August 30, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52 [AMENDED]

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 52.220 is amended by adding new paragraph (c)(415) to read 
as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (415) New and amended regulations were submitted on August 23, 2011 
by the Governor's designee. Final approval of these regulations is 
based, in part, on the clarifications contained in a May 18, 2012 
letter from the San Joaquin Valley Unified Air Pollution Control 
District regarding specific implementation of parts of the Prevention 
of Significant Deterioration program.
    (i) Incorporation by reference.
    (A) San Joaquin Valley Unified Air Pollution Control District.
    (1) Rule 2410, ``Prevention of Significant Deterioration,'' adopted 
on June 16, 2011.
    (ii) Additional materials.
    (A) San Joaquin Valley Unified Air Pollution Control District 
(SJVUAPCD).
    (1) Letter dated May 18, 2012 from David Warner, SJVUAPCD, to 
Gerardo Rios, United States Environmental Protection Agency Region 9, 
regarding Clarifications of District Rule 2410 and 40 CFR 51.166.

0
3. Section 52.270 is amended by adding new paragraph (b)(5) to read as 
follows:


Sec.  52.270  Significant deterioration of air quality.

* * * * *
    (b) * * *
    (5) Rule 2410, ``Prevention of Significant Deterioration,'' adopted 
on June 16, 2011, for the San Joaquin Valley Unified Air Pollution 
Control District (SJVUAPCD) is approved under Part C, Subpart 1, of the 
Clean Air Act, based, in part, on the clarifications provided in a May 
18, 2012 letter from the San Joaquin Valley Unified Air Pollution 
Control District described in Sec.  52.220(c)(415). For PSD permits 
previously issued by EPA pursuant to Sec.  52.21 to sources located in 
the SJVUAPCD, this approval includes the authority for the SJVUAPCD to 
conduct general administration of these existing permits, authority to 
process and issue any and all subsequent permit actions relating to 
such permits, and authority to enforce such permits, except for:
    (i) Those specific sources within the SJVUAPCD that have submitted 
PSD permit applications to EPA and for which EPA has issued a proposed 
PSD permit decision, but for which final agency action and/or the 
exhaustion of all administrative and judicial appeals processes 
(including any associated remand actions) have not yet been concluded 
or completed by November 26, 2012. The SJVUAPCD will assume full 
responsibility for the administration and implementation of such PSD 
permits immediately upon notification from EPA to the SJVUAPCD that any 
and all administrative and judicial appeals processes (and any 
associated remand actions) have been completed or concluded for any 
such permit decision. Prior to the date of such notification, EPA is 
retaining authority to apply Sec.  52.21 for such permit decisions, and 
the provisions of Sec.  52.21, except paragraph (a)(1), are therefore 
incorporated and made a part of the State plan for California for the 
SJVUAPCD for such permit decisions during the identified time period.
    (ii) [Reserved].
[FR Doc. 2012-26294 Filed 10-25-12; 8:45 am]
BILLING CODE 6560-50-P


