[Federal Register Volume 85, Number 95 (Friday, May 15, 2020)]
[Proposed Rules]
[Pages 29377-29381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09734]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2019-0449; FRL-10008-59-Region 9]


Approval and Limited Approval and Limited Disapproval of 
California Air Plan Revisions; San Diego County Air Pollution Control 
District; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing action 
on four permitting rules submitted as a revision to the San Diego 
County Air Pollution Control District (SDAPCD or ``District'') portion 
of the California State Implementation Plan (SIP). We are proposing a 
limited approval and limited disapproval of one rule and proposing 
approval of the remaining three rules. 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 revised rules that the District has amended to 
address deficiencies identified in a previous conditional approval 
action. We are taking comments on this proposal and plan to follow with 
a final action.

DATES: Comments must be received on or before June 15, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2019-0449 at http://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish

[[Page 29378]]

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://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sheila Tsai, EPA Region IX, Air-3-1, 
75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3328 or 
by email at Tsai.Ya-Ting@epa.gov.

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. These rules constitute part of 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 an update 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'').

                                            Table 1--Submitted Rules
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                Rule No.                             Rule title                Adopted date      Submitted date
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20.1...................................  New Source Review--General                06/26/2019         07/19/2019
                                          Provisions.
20.2 *.................................  New Source Review--Non-Major              06/26/2019         07/19/2019
                                          Stationary Sources.
20.3 *.................................  New Source Review--Major                  06/26/2019         07/19/2019
                                          Stationary Sources and PSD
                                          Stationary Sources.
20.4 *.................................  New Source Review--Portable               06/26/2019         07/19/2019
                                          Emission Units.
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* The following paragraphs of the Rules 20.2-20.4 were not submitted to the EPA for inclusion in the San Diego
  SIP: Rule 20.2 paragraphs (d)(2)(i)(B), (d)(2)(v), (d)(2)(vi)(B) and (d)(3); Rule 20.3 paragraphs (d)(1)(vi),
  (d)(2)(i)(B), (d)(2)(v), (d)(2)(vi)(B) and (d)(3); and Rule 20.4 paragraphs (b)(2), (b)(3), (d)(1)(iii),
  (d)(2)(i)(B), (d)(2)(iv), (d)(2)(v)(B), (d)(3) and (d)(5).

    On August 6, 2019, the EPA determined that the submittal of the 
revised Rules 20.1, 20.2, 20.3, and 20.4 meets the completeness 
criteria in 40 CFR part 51 appendix V, which must be met before formal 
EPA review.

B. Are there other versions of these rules?

    The EPA conditionally approved Rules 20.1-20.4 into the SDAPCD 
portion of the California SIP in 2018, based on the District's 
commitment to adopt and submit revisions to address identified 
deficiencies within one year, consistent with the requirements at CAA 
section 110(k)(4) for conditional approval. 83 FR 50007 (October 4, 
2018). That action also included a conditional approval of Rule 20.6, 
and a full approval of Rules 11, 20, and 24. The conditionally approved 
versions of Rules 20.1-20.4 are identified below in Table 2.

                                           Table 2--SIP Approved Rules
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                                                                                                Federal Register
                Rule No.                             Rule title             SIP approval date       Citation
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20.1...................................  New Source Review--General                 10/4/2018        83 FR 50007
                                          Provisions.
20.2...................................  New Source Review--Non-Major               10/4/2018        83 FR 50007
                                          Stationary Sources.
20.3...................................  New Source Review--Major                   10/4/2018        83 FR 50007
                                          Stationary Sources and PSD
                                          Stationary Sources.
20.4...................................  New Source Review--Portable                10/4/2018        83 FR 50007
                                          Emission Units.
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    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. 
Additionally, as described below, the EPA's final approval of Rules 
20.1-20.4 will resolve our conditional approval of Rule 20.6.

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 aspects of 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 classified as a 
serious nonattainment area for the 2008 ozone standard and a moderate 
nonattainment area for the 2015 8-hour ozone standard. San Diego County 
is designated attainment or unclassifiable for all other NAAQS. See 40 
CFR 81.305. Therefore, in addition to

[[Page 29379]]

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.
    These rules were submitted to address deficiencies identified in 
the EPA's 2018 action to approve and conditionally approve updates to 
the SDAPCD's SIP-approved NSR permitting program. See 83 FR 50007 
(October 4, 2018). Additionally, the rules have been revised to include 
NOX and VOC applicability thresholds and offset ratios 
applicable to severe and extreme ozone nonattainment areas, and to 
incorporate federal requirements for interprecursor offsetting that 
were added in the EPA's Implementation Rule for the 2015 Ozone NAAQS. 
See 83 FR 62998 (December 6, 2018).

II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rules?

    The EPA evaluated the submitted rules to determine whether they 
address the deficiencies identified in our 2018 conditional approval, 
and 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 
serious nonattainment area for the 2008 ozone standard and a moderate 
nonattainment area for the 2015 8-hour ozone standard. 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 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 the prevention of significant 
deterioration (PSD) \1\ 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.
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    \1\ 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.
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    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.
    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 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 exception noted below, the EPA finds that the submitted 
rules generally satisfy the applicable CAA and regulatory requirements. 
Accordingly, we are proposing a full approval of Rules 20.2-20.4 and a 
limited approval and limited disapproval of Rule 20.1 under CAA section 
110(k)(3) and 301(a). 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 generally satisfy the NNSR and 
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 addition, the rules include the definitions, 
applicability procedures, and requirements for sources in nonattainment 
areas to obtain emission reduction offsets and comply with the lowest 
achievable emissions rate, as required by the NNSR regulations at 40 
CFR 51.165. Rule 20.1 incorporates general regulatory requirements of 
the minor NSR program and definitions, applicability procedures, and 
requirements of the minor NSR and NNSR programs, 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. For more information about how the rules satisfy 
these requirements, see our 2018 conditional approval of the District's 
minor NSR and NNSR program at 83 FR 50007 (October 4, 2018).
    The EPA has identified one deficiency in Rule 20.1(a) related to 40 
CFR 51.160(a) and (b) and CAA section 173(a). The District revised Rule 
20.1(a) to specify that the rule applies to a permit application based 
on the requirements in the rule as in effect on the date that the 
application is determined to be complete. By specifying the rule's 
applicability based on the date of application completeness, this 
language may limit the APCO's ability to ensure a source will comply 
with applicable NSR programs requirements at the time the permit is 
issued. Because of this deficiency, and our determination that other 
revisions to the rule conform to federal requirements, we are proposing 
a limited approval and limited disapproval of Rule 20.1. In order to 
correct this deficiency, we recommend that SDAPCD remove or revise the 
language added in the revised Rule 20.1(a). The TSD for this action 
contains additional detail regarding our determination and 
recommendation.
    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

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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 addition of public noticing 
requirement revisions, updates to the interpollutant offset procedures, 
and other changes to Rules 20.1-20.4 will not interfere with any 
applicable requirements of the CAA. Overall, the changes to Rules 20.1-
20.4 better conform to the federal requirements. These changes will not 
interfere with the area's ability to attain or maintain the NAAQS and 
will better align SDAPCD's NSR program to the federal requirements. 
Accordingly, we are proposing to find that the revisions to Rules 20.1-
20.4 are approvable under section 110(l).
    Similarly, we find that the submitted rules are approvable under 
section 193 of the Act because they do not modify any control 
requirement in effect before November 15, 1990 without ensuring 
equivalent or greater emission reductions.
    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 one exception noted above 
where the EPA has identified a deficiency. This submittal also corrects 
the deficiencies described in our 2018 conditional approval of Rules 
20.1-20.4 and Rule 20.6. If we finalize this action as proposed, our 
action will resolve the conditional approval of these rules, and will 
be codified through revisions to 40 CFR 52.220 (Identification of 
plan--in part) and 40 CFR 52.248 (Identification of plan--conditional 
approval). As described below, a final limited disapproval would also 
trigger a timeline for the State to submit a revised SIP, or else face 
sanctions under the CAA.

C. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA 
is proposing full approval of Rules 20.2-20.4, and a limited approval 
and limited disapproval of Rule 20.1. We will accept comments from the 
public on this proposal until June 15, 2020. If finalized, this action 
would incorporate the submitted rules into the SIP, including those 
provisions identified as deficient. This approval is limited because 
EPA is simultaneously proposing a limited disapproval of the rule under 
section 110(k)(3).
    If finalized as proposed, our limited disapproval action would 
trigger an obligation on the EPA to promulgate a Federal Implementation 
Plan (FIP) unless the State corrects the deficiencies, and the EPA 
approves the related plan revisions, within two years of the final 
action. Additionally, because the deficiency relates to NNSR 
requirements under part D of title I of the Act, the offset sanction in 
CAA section 179(b)(2) would apply in San Diego County 18 months after 
the effective date of a final limited disapproval, and the highway 
funding sanctions in CAA section 179(b)(1) would apply in the area six 
months after the offset sanction is imposed. Neither sanction will be 
imposed under the CAA if the State submits and we approve, prior to the 
implementation of the sanctions, a SIP revision that corrects the 
deficiency that we identify in our final action. The EPA intends to 
work with the SDAPCD to correct the deficiency in a timely manner.
    Note that the submitted rule has been adopted by the SDAPCD, and 
the EPA's final limited disapproval would not prevent the local agency 
from enforcing it. The limited disapproval would also not prevent any 
portion of the rule from being incorporated by reference into the 
federally enforceable SIP as discussed in a July 9, 1992 EPA memo found 
at: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.

III. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference 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

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not expected to be an Executive Order 13771 
regulatory action because this action is not significant under 
Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

D. 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 beyond those 
imposed by state law.

E. 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. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

F. 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.

G. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because 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

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jurisdiction, and will not impose substantial direct costs on tribal 
governments or preempt tribal law. Thus, Executive Order 13175 does not 
apply to this action.

H. 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 action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

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

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

J. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

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

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Administrative practice and procedure, Environmental protection, 
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: May 1, 2020.
John Busterud,
Regional Administrator, Region IX.
[FR Doc. 2020-09734 Filed 5-14-20; 8:45 am]
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