[Federal Register Volume 83, Number 41 (Thursday, March 1, 2018)]
[Rules and Regulations]
[Pages 8750-8752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04111]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2018-0080; FRL-9974-97--Region 9]


Determination To Defer Sanctions; Bay Area Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: The EPA is making an interim final determination to defer 
imposition of sanctions based on a proposed determination, published 
elsewhere in this Federal Register, that the California Air Resources 
Board (CARB) has submitted rules on behalf of the Bay Area Air Quality 
Management District (BAAQMD or District) that satisfy the requirements 
of part D of the Clean Air Act (CAA or Act) permitting program for 
areas under the jurisdiction of the BAAQMD.

DATES: This interim final determination is effective on March 1, 2018. 
However, comments will be accepted until April 2, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2018-0080 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be removed or edited from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region 9, (415) 
972-3534, [email protected].

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

Table of Contents

I. Background
II. EPA Action
III. Statutory and Executive Order Reviews

I. Background

    On August 1, 2016 (81 FR 50339), the EPA issued a final limited 
approval and limited disapproval for revisions to the BAAQMD portion of 
the California State Implementation Plan (SIP) that had been submitted 
by CARB to the EPA for approval (the 2016 NSR action). The 2016 NSR 
action addressed the BAAQMD's permitting program for the issuance of 
New Source Review (NSR) permits for stationary sources, including 
review and permitting of major and minor sources under the Act. In our 
2016 NSR action, we determined that while BAAQMD's SIP revision 
submittal strengthened the SIP, the submittal did not fully meet the 
requirements for NSR permitting programs under the CAA. Our 2016 NSR 
action included a final limited

[[Page 8751]]

disapproval action under title I, part D of the Act, relating to 
requirements for nonattainment areas. Pursuant to section 179 of the 
CAA and our regulations at 40 CFR 52.31, this limited disapproval 
action under title I, part D started a sanctions clock for imposition 
of offset sanctions 18 months after the action's effective date of 
August 31, 2016, and highway sanctions 6 months later.
    On December 6, 2017, BAAQMD revised its NSR permit program rules 
and on December 14, 2017, CARB submitted the revised NSR permit program 
rules to the EPA for approval into the California SIP (December 2017 
NSR submittal). These revised rules are intended to address the limited 
disapproval issues under title I, part D that we identified in our 2016 
NSR action. In the Proposed Rules section of this Federal Register, we 
have proposed approval of BAAQMD's December 2017 NSR submittal. Based 
on this proposed approval action, we are also taking this interim final 
determination, effective on publication, to defer imposition of the 
offset sanctions and highway sanctions that were triggered by our 2016 
NSR action's limited disapproval of BAAQMD's NSR permitting program, 
because we believe that the December 2017 NSR submittal corrects the 
deficiencies that triggered such sanctions.
    The EPA is providing the public with an opportunity to comment on 
this deferral of sanctions. If comments are submitted that change our 
assessment described in this interim final determination and the 
proposed full approval of BAAQMD's December 2017 NSR submittal with 
respect to the title I, part D deficiencies identified in our 2016 NSR 
action, we would take final action to lift this deferral of sanctions 
under 40 CFR 52.31. If no comments are submitted that change our 
assessment, then all sanctions and any sanction clocks triggered by our 
2016 NSR action would be permanently terminated on the effective date 
of our final approval of BAAQMD's December 2017 NSR submittal.

II. EPA Action

    We are making an interim final determination to defer CAA section 
179 sanctions associated with our limited disapproval action on August 
1, 2016 of BAAQMD's NSR permitting program with respect to the 
requirements of part D of title I of the CAA. This determination is 
based on our concurrent proposal to fully approve BAAQMD's December 
2017 NSR submittal, which resolves the deficiencies that triggered 
sanctions under section 179 of the CAA.
    Because the EPA has preliminarily determined that BAAQMD's December 
2017 NSR submittal addresses the deficiencies under part D of title I 
of the CAA identified in our 2016 NSR action and is fully approvable, 
relief from sanctions should be provided as quickly as possible. 
Therefore, the EPA is invoking the good cause exception under the 
Administrative Procedure Act (APA) in not providing an opportunity for 
comment before this action takes effect (5 U.S.C. 553(b)(3)). However, 
by this action, the EPA is providing the public with a chance to 
comment on the EPA's determination after the effective date, and the 
EPA will consider any comments received in determining whether to 
reverse such action.
    The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. The EPA has reviewed the State's submittal and, 
through its proposed action, is indicating that it is more likely than 
not that the State has submitted a revision to the SIP that corrects 
deficiencies under part D of the Act that were the basis for the action 
that started the sanctions clocks. Therefore, it is not in the public 
interest to impose sanctions. The EPA believes that it is necessary to 
use the interim final rulemaking process to defer sanctions while the 
EPA completes its rulemaking process on the approvability of the 
State's submittal. Moreover, with respect to the effective date of this 
action, the EPA is invoking the good cause exception to the 30-day 
notice requirement of the APA because the purpose of this notice is to 
relieve a restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

    This action defers sanctions and imposes no additional 
requirements.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA. This action defers sanctions and imposes no new requirements.

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 will not impose any requirements on small entities. This action 
defers sanctions and imposes no new requirements.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The 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. This action defers sanctions and imposes no new 
requirements. In addition, this action does not apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. Thus, Executive Order 
13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This rule is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

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

    This rule is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

[[Page 8752]]

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994) because it does not establish an 
environmental health or safety standard. This action defers sanctions 
in accordance with CAA regulatory provisions and imposes no additional 
requirements.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest (5 U.S.C. 
808(2)). The EPA has made a good cause finding for this rule as 
discussed in section II of this preamble, including the basis for that 
finding.
    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 April 30, 2018. Filing a petition for 
reconsideration by the EPA Administrator of this final rule does not 
affect the finality of this rule for the purpose of judicial review nor 
does it extend the time within which 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

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

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

    Dated: February 20, 2018.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2018-04111 Filed 2-28-18; 8:45 am]
 BILLING CODE 6560-50-P


