[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Proposed Rules]
[Pages 29483-29486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13348]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2018-0233; FRL-9979-35--Region 9]


Air Plan Approval; California; San Diego County Air Pollution 
Control District; Stationary Source Permits and Exemptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve and conditionally approve revisions to the San Diego County Air 
Pollution Control District's (SDAPCD or ``District'') portion of the 
California State Implementation Plan (SIP). These revisions concern the 
District's New Source Review (NSR) permitting program for new and 
modified sources of air pollution under section 110(a)(2)(C) and part D 
of title I of the Clean Air Act (CAA). This action updates the SDAPCD's 
applicable SIP with current SDAPCD permitting rules. We are taking 
comments on this proposal and plan to follow with a final action.

DATES: Any comments must arrive by July 25, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2018-0233 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: Ya-Ting Tsai, EPA Region IX, (415) 
972-3328, [email protected].

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

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rule revisions?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules addressed by this proposal with the dates 
when they were adopted by the SDAPCD and submitted by the California 
Air Resources Board (CARB), which is the governor's designee for 
California SIP submittals. Collectively, these submittals generally 
constitute the SDAPCD's current program for preconstruction review and 
permitting of new or modified stationary sources under its 
jurisdiction. The rule revisions that are the subject of this action 
represent a comprehensive revision to the SDAPCD's preconstruction 
review and permitting program and are intended to satisfy the 
requirements under part D of title I of the Act (nonattainment NSR or 
NNSR) as well as the general preconstruction review requirements under 
section 110(a)(2)(C) of the Act (minor NSR). The SDAPCD does not 
implement a SIP-approved prevention of significant deterioration (PSD) 
permitting program and has not submitted the rules in this action for 
purposes of the PSD program; therefore, we are not evaluating whether 
this SIP submittal satisfies PSD program requirements at 40 CFR 51.166.

                                            Table 1--Submitted Rules
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                                                                                                     Submitted
                  Rule No.                                Rule title               Adopted  date       date
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11.........................................  Exemptions from Rule 10 Permit           05/11/2016      08/22/2016
                                              Requirements.
20.........................................  Standards for Granting Permits.....      06/10/1986      11/21/1986
20.1.......................................  New Source Review--General               04/27/2016      06/17/2016
                                              Provisions.
20.2 *.....................................  New Source Review--Non-Major             04/27/2016      06/17/2016
                                              Stationary Sources.
20.3 *.....................................  New Source Review--Major Stationary      04/27/2016      06/17/2016
                                              Sources and PSD Stationary Sources.
20.4 *.....................................  New Source Review--Portable              04/27/2016      06/17/2016
                                              Emission Units.
20.6.......................................  Standards for Permit to Operate Air      04/27/2016      06/17/2016
                                              Quality Analysis.
24.........................................  Temporary Permit to Operate........      06/29/2016      08/22/2016
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* The following subsections of the Rules 20.2-20.4 were not submitted to the EPA for inclusion in the San Diego
  SIP: Rule 20.2 Subsections (d)(2)(i)(B), (d)(2)(v), (d)(2)(vi)(B) and (d)(3); Rule 20.3 Subsections
  (d)(1)(vi), (d)(2)(i)(B), (d)(2)(v), (d)(2)(vi)(B) and (d)(3); and Rule 20.4 Subsections (b)(2), (b)(3),
  (d)(1)(iii), (d)(2)(i)(B), (d)(2)(iv), (d)(2)(v)(B), (d)(3) and (d)(5).

    On October 14, 2016, the EPA determined that the submittal of Rules 
20.1, 20.2, 20.3, 20.4 and 20.6 met the completeness criteria in 40 CFR 
part 51 appendix V, which must be met before formal EPA review. On 
September 27,

[[Page 29484]]

2016, we determined that the submitted versions of Rules 11 and 24 met 
these completeness criteria. On May 21, 1987, the submittal of Rule 20 
was deemed complete by operation of law.
    In addition to these SIP submittals, on April 27, 2018 the District 
and CARB transmitted a commitment letter to the EPA to adopt and submit 
specific enforceable measures by July 31, 2019 to address deficiencies 
in the submitted rules identified by the EPA.\1\
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    \1\ Letter dated April 16, 2018, from Jim Swaney, P.E., to Carol 
Sutkus and Doris Lo, Subject: ``Commitment Letter to Fix 
Deficiencies in New Source Review Rules State Implementation Plan 
Submittal''; letter dated April 27, 2018, from Dr. Michael Benjamin 
to Alexis Strauss.
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B. Are there other versions of these rules?

    The EPA last approved significant revisions or updates to the 
SDAPCD's SIP-approved NSR program in the 1980s. The existing SIP-
approved NSR program for new or modified stationary sources under the 
SDAPCD's jurisdiction generally consists of the versions of the rules 
identified below in Table 2.

                                           Table 2--SIP Approved Rules
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                                                                   SIP approval
              Rule No.                        Rule title               date          Federal Register citation
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11.................................  Exemptions from Rule 10          07/06/1982  47 FR 29233 \2\
                                      Permit Requirements.
20.................................  Standards for Granting           09/22/1972  37 FR 19812
                                      Applications.
20.1...............................  New Source Review--General       04/14/1981  46 FR 21757
                                      Provisions.
20.2...............................  New Source Review--Non-          04/14/1981  46 FR 21757
                                      Major Stationary Sources.
20.3...............................  New Source Review--Major         04/14/1981  46 FR 21757
                                      Stationary Sources and PSD
                                      Stationary Sources.
20.4...............................  New Source Review--Portable      04/14/1981  46 FR 21757
                                      Emission Units.
20.6...............................  Standards for Permit to          04/14/1981  46 FR 21757
                                      Operate Air Quality
                                      Analysis.
24.................................  Temporary Permit to Operate      10/24/2008  73 FR 63382
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    Collectively,  these regulations establish the NSR requirements 
that are currently in place for both major and minor stationary sources 
under the SDAPCD's jurisdiction in California. If the EPA finalizes the 
action proposed herein, these rules will be replaced in the SIP by the 
submitted set of rules listed in Table 1.
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    \2\ The EPA approved Rule 11 in its entirety for incorporation 
into the California SIP in September 22, 1972 (37 FR 19812) and 
approved revisions in 1982.
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C. What is the purpose of the submitted rule revisions?

    As noted above and described in further detail below, the submitted 
rules are intended to satisfy the minor NSR and NNSR requirements of 
section 110(a)(2)(C) and part D of title I of the Act, and related EPA 
regulations. Minor NSR requirements are generally applicable for SIPs 
in all areas, while NNSR requirements apply only for areas designated 
as nonattainment for one or more National Ambient Air Quality Standards 
(NAAQS). San Diego County is currently classified as a ``moderate'' 
nonattainment area for the 2008 8-hour ozone NAAQS and is designated 
attainment or unclassifiable for all other NAAQS. See 40 CFR 81.305. 
Therefore, in addition to being subject to the requirements for minor 
NSR at section 110(a)(2)(C) of the Act, California is required to adopt 
and implement a SIP-approved NNSR permitting program that applies to 
new or modified major stationary sources of ozone and ozone precursors 
within the San Diego County nonattainment area, under part D of title I 
of the Act.

II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rules?

    The EPA has evaluated the submitted rules for compliance with 
applicable requirements of section 110(a)(2)(C) and part D of title I 
of the CAA and associated regulations at 40 CFR 51.160-165, consistent 
with the District's current classification as a ``moderate'' 
nonattainment area for the 2008 8-hour ozone NAAQS. We have also 
reviewed the rules for consistency with other CAA general requirements 
for SIP submittals, including requirements at section 110(a)(2) 
regarding rule enforceability, and requirements at sections 110(l) and 
193 for SIP revisions.
    Section 110(a)(2)(C) of the Act requires each SIP to include a 
program to regulate the modification and construction of any stationary 
source within the areas covered by the SIP as necessary to assure 
attainment and maintenance of the NAAQS. The EPA's regulations at 40 
CFR 51.160-51.164 provide general programmatic requirements to 
implement this statutory mandate. These requirements, commonly referred 
to as the ``minor NSR'' or ``general NSR'' program, apply generally to 
both major and non-major stationary sources and modifications and in 
both attainment and nonattainment areas, in contrast to the specific 
statutory and regulatory requirements for PSD and NNSR permitting 
programs under parts C and D of title I of the Act that apply to major 
sources in attainment and nonattainment areas, respectively.
    Part D of title I of the Act, and the implementing regulations at 
40 CFR 51.165, contain the NNSR program requirements for major 
stationary sources and major modifications (as those terms are defined 
at 40 CFR 51.165) at facilities that are located in a nonattainment 
area and are major sources for the pollutants for which the area has 
been designated nonattainment.
    The SDAPCD has elected not to submit rules to satisfy requirements 
of the PSD program under part C of title I of the Act for major 
stationary sources in attainment areas at this time. Accordingly, the 
EPA is not evaluating whether this SIP submittal satisfies PSD program 
requirements at 40 CFR 51.166, and some portions of Rules 20.2-20.4 
addressing major sources in attainment areas are excluded from the 
submittal. See Table 1. The EPA remains the PSD permitting authority in 
San Diego County.
    Section 110(a)(2)(A) of the Act requires that regulations submitted 
to the EPA for SIP approval must be clear and legally enforceable. 
Section 110(l) of the Act prohibits the EPA from approving any SIP 
revisions that would interfere with any applicable requirement 
concerning attainment and reasonable further progress (RFP) or any 
other applicable requirement of the CAA. Section 193 of the Act 
prohibits the modification of a SIP-approved control requirement in 
effect before November 15, 1990 in a nonattainment

[[Page 29485]]

area, unless the modification ensures equivalent or greater emission 
reductions of the relevant pollutant(s). With respect to procedures, 
CAA sections 110(a) and 110(l) require that a state conduct reasonable 
notice and hearing before adopting a SIP revision.

B. Do the rules meet the evaluation criteria?

    With the exceptions noted below, the EPA finds that the submitted 
rules generally satisfy the applicable CAA and regulatory requirements. 
Accordingly, we are proposing to fully approve Rules 11, 20, and 24 
under CAA section 110(k)(3), and to conditionally approve Rules 20.1, 
20.2, 20.3, 20.4, and 20.6 under CAA section 110(k)(4). Below, we 
discuss generally our evaluation of the submitted rules. The technical 
support document (TSD) included in the docket for this proposed 
rulemaking contains a more detailed analysis.
    We find that the submitted rules satisfy the minor NSR 
requirements. The rules clearly identify the kinds of projects subject 
to review under the District's program, include legally enforceable 
procedures to ensure that construction will not violate the state's 
control strategy or interfere with attainment or maintenance of the 
NAAQS, provide for public availability of relevant information, and 
meet other requirements of the minor NSR regulations at 40 CFR 51.160-
164. In general, Rules 11, 20, 20.1, 20.6 and 24 incorporate general 
regulatory requirements of the minor NSR program, while Rules 20.2, 
20.3, and 20.4 apply applicable elements of the program to minor 
stationary sources, major stationary sources, and portable emission 
units, respectively.
    We find that the submitted rules satisfy nearly all applicable 
statutory and regulatory NNSR requirements, including definitions, 
applicability procedures, and requirements for sources in nonattainment 
areas to obtain emission reduction offsets and comply with the lowest 
achievable emissions rate. These requirements are met substantially 
through Rule 20.1, and other elements are addressed in Rules 20.2-20.4. 
The EPA has identified two deficiencies in the rules. First, the 
submitted rules do not contain recordkeeping and reporting requirements 
for sources using an actual-to-potential-actual test to determine 
applicability of major source requirements. The submitted Rule 20.1 
provides an option for sources to use the federal actual-to-potential-
actual test under 40 CFR 51.165(a)(2)(ii)(B) through (F); however, the 
rule does not include associated provisions at 40 CFR 51.165(a)(6) and 
(7) that require these sources to comply with recordkeeping and 
reporting requirements. Second, the rules do not incorporate the 
requirement at section 173(a)(4) of the Act, which states that NNSR 
permit programs shall provide that permits to construct and operate may 
not be issued if the EPA Administrator has determined that the 
applicable implementation plan for the nonattainment area is not being 
adequately implemented. As described below, these deficiencies are the 
basis for the EPA's proposed conditional approval of the District's 
June 17, 2016 submittal.
    The submitted rules comply with the substantive and procedural 
requirements of CAA section 110(l). With respect to the procedural 
requirements, based on our review of the public process documentation 
included with the submitted rules, we find that the SDAPCD has provided 
sufficient evidence of public notice and opportunity for comment and 
public hearings prior to submittal of this SIP revision and has 
satisfied these procedural requirements under CAA section 110(l).
    With respect to the substantive requirements of CAA section 110(l), 
we have determined that our approval of the submitted rules would 
strengthen the applicable SIP. The current SIP-approved San Diego NNSR 
program is significantly out of date when compared with current federal 
NNSR regulatory requirements, and the updated versions of the submitted 
rules bring the program up to date with current requirements. As a 
whole, the submitted rules are more stringent and will be more 
protective of air quality in San Diego County, and we have determined 
that our approval of this SIP submittal would not interfere with any 
applicable requirement concerning attainment and RFP or any other 
applicable requirement of the Act.
    Similarly, we find that the submitted rules are approvable under 
section 193 of the Act. Most of the submitted rules were last approved 
prior to November 15, 1990, and are subject to the general requirement 
to ensure equivalent or greater emission reductions. We have determined 
that the submitted rules will ensure greater reductions overall 
relative to the SIP-approved version of the rules.
    The submitted rules are otherwise consistent with criteria for the 
EPA's approval of regulations submitted for inclusion in the SIP, 
including the requirement at CAA section 110(c)(2)(A) that submitted 
regulations be clear and legally enforceable.
    For the reasons stated above and explained further in our TSD, we 
find that the submitted NSR rules generally satisfy the applicable CAA 
and regulatory requirements for minor NSR and NNSR permit programs 
under CAA section 110(a)(2)(C) and part D of title I of the Act and 
other applicable requirements, subject to the two exceptions noted 
above where the EPA has identified a deficiency. For those exceptions, 
the District and CARB have committed to adopt and submit revisions to 
address the identified deficiencies within a year of the date of 
approval, consistent with the requirements at CAA section 110(k)(4) for 
conditional approval.

C. Proposed Action and Public Comment

    Based on our evaluation of the submitted rules, the EPA is 
proposing to fully approve the SDAPCD's August 22, 2016 and November 
21, 1986 submittals (consisting of Rules 11, 20, and 24), and to 
conditionally approve the District's June 17, 2016 submittal 
(consisting of Rules 20.1, 20.2, 20.3, 20.4, and 20.6). Under CAA 
section 110(k)(3), the EPA may approve a plan revision in whole or in 
part if it meets all applicable requirements. Under CAA section 
110(k)(4), the EPA may conditionally approve a plan revision based on a 
commitment by the state to adopt specific enforceable measures by a 
date certain but not later than one year after the date of the plan 
approval.
    As described above, the EPA has determined that the submitted rules 
generally comply with most applicable requirements, but do not satisfy 
the requirements at 40 CFR 51.165(a)(6) and (7) and section 173(a)(4) 
of the Act. On April 16, 2018, the District transmitted to CARB and the 
EPA a commitment to revise the submitted rules by amending Rule 20.1 to 
incorporate the requirements at 40 CFR 51.165(a)(6) and (7) and by 
amending Rule 20.3 to incorporate the requirement at CAA section 
173(a)(4), and to transmit the revised rules to CARB no later than June 
30, 2019. The amendments to Rules 20.1 and 20.3 as described above will 
cure the deficiencies in Rules 20.2, 20.4, and 20.6. On April 27, 2018, 
CARB committed to submit these rules to the EPA no later than July 31, 
2019. These letters commit the District to adopt specific enforceable 
measures to correct the rule deficiencies and commit the state to 
submit them to the EPA by a date certain, and the EPA has determined 
that if the District adopts and submits these revisions as committed, 
the identified deficiencies will be cured. Accordingly, we find that

[[Page 29486]]

these commitment letters are consistent with CAA requirements regarding 
conditional approval at CAA section 110(k)(4).
    The intended effect of our proposed conditional approval action is 
to update the applicable SIP with current SDAPCD rules and provide the 
SDAPCD the opportunity to correct the identified deficiencies. If we 
finalize this action as proposed, our action would be codified through 
revisions to 40 CFR 52.220 (Identification of plan--in part) and 40 CFR 
52.248 (Identification of plan--conditional approval).
    If the State meets its commitment to submit the required measures 
and the EPA approves the submission, then the deficiencies listed above 
will be cured. However, if the District fails to submit these revisions 
within the required timeframe, the conditional approval will become a 
disapproval, and the EPA will issue a finding of disapproval. The EPA 
is not required to propose the finding of disapproval. Further, a 
finding of disapproval would start an 18-month clock to apply sanctions 
under CAA section 179(b) and a two-year clock for a federal 
implementation plan under CAA section 110(c)(1).
    We will accept comments from the public on this proposal until July 
25, 2018.

III. Incorporation by Reference

    In this document, the EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the SDAPCD rules described in Table 1 of this 
preamble. The EPA has made, and will continue to make, these materials 
available through www.regulations.gov and at the EPA Region IX Office 
(please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section of this preamble for more information).

IV. Statutory and Executive Order Reviews

    Under the CAA, the EPA Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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 Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide the 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

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: June 4, 2018.
Michael Stoker,
Regional Administrator, Region IX.
[FR Doc. 2018-13348 Filed 6-22-18; 8:45 am]
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