[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Proposed Rules]
[Pages 78900-78902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27870]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0102; FRL-10369-01-R9]


Air Plan Approval; Bay Area Air Quality Management District; 
Nonattainment New Source Review; 2015 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
State of California addressing the nonattainment new source review 
(NNSR) requirements for the 2015 8-hour ozone National Ambient Air 
Quality Standards (NAAQS). This SIP revision addresses the Bay Area Air 
Quality Management District (BAAQMD or ``District'') portion of the 
California SIP. This action is being taken pursuant to the Clean Air 
Act (CAA or ``Act'') and its implementing regulations.

DATES: Comments must be received by January 23, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0102, at https://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 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 https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Po-Chieh Ting, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3191 or by 
email at [email protected].

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

Table of Contents

I. Background and Purpose
II. The State's Submittal
    A. What did the State submit?
    B. What is the purpose of the submitted certification letter?
III. Analysis of Nonattainment New Source Review Requirements
IV. Proposed Action and Public Comment
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background and Purpose

    On October 26, 2015, the EPA promulgated a revised 8-hour ozone 
NAAQS of 0.070 parts per million (ppm).\1\ Upon promulgation of a new 
or revised NAAQS, the CAA requires the EPA to designate as 
nonattainment any area that is violating the NAAQS based on the three 
most recent years of ambient air quality data. This action relates to 
one California air district that was designated nonattainment for the 
2015 8-hour ozone NAAQS on June 4, 2018.\2\ The San Francisco Bay Area, 
whose boundary matches that of the BAAQMD, was classified as a Marginal 
ozone nonattainment area.
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    \1\ 80 FR 65292 (October 26, 2015).
    \2\ 83 FR 25776 (June 4, 2018).
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    On December 6, 2018, the EPA issued a final rule entitled, 
``Implementation of the 2015 National Ambient Air Quality Standards for 
Ozone: Nonattainment Area State Implementation Plan Requirements,'' 
(``2015 SIP Requirements Rule''), which established the requirements 
and deadlines that state, tribal, and local air quality management 
agencies must meet as they develop implementation plans for areas where 
ozone concentrations exceed the 2015 8-hour ozone NAAQS.\3\ Based on 
its initial nonattainment designation for the 2015 8-hour ozone 
standards, the District was required to make a SIP

[[Page 78901]]

revision addressing NNSR program requirements no later than August 3, 
2021.\4\ This requirement may be met by submitting a SIP revision 
consisting of a new or revised NNSR permit program, or an analysis 
demonstrating that the existing SIP-approved NNSR permit program meets 
the applicable 2015 ozone requirements and a letter certifying the 
analysis.
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    \3\ 83 FR 62998 (December 6, 2018). The 2015 SIP Requirements 
Rule addresses a range of nonattainment area SIP requirements for 
the 2015 ozone NAAQS, including requirements pertaining to 
attainment demonstrations, reasonable further progress (RFP), 
reasonably available control technology, reasonably available 
control measures, major new source review, emission inventories, and 
the timing of SIP submissions and of compliance with emission 
control measures in the SIP.
    \4\ 40 CFR 51.1314.
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II. The State's Submittal

A. What did the State submit?

    Table 1 lists the dates the submitted 2015 Ozone Certification 
letter addressed by this proposal was adopted by the District and 
submitted by the California Air Resources Board (CARB), the agency that 
serves as the governor's designee for California SIP submittals.

                 Table 1--Submitted Certification Letter
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                District                   Adoption date  Submittal date
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Bay Area Air Quality Management District        9/1/2021       10/6/2021
 (BAAQMD)...............................
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    CARB's October 6, 2021 submittal of the BAAQMD 2015 Certification 
letter was deemed by operation of law to meet the completeness criteria 
in 40 CFR part 51, appendix V on April 6, 2022, which must be met 
before formal EPA review.

B. What is the purpose of the submitted certification letter?

    The submittal from the District is intended to satisfy the 2015 SIP 
Requirement Rule that requires states to make a SIP revision addressing 
NNSR. The SIP for the District currently contains the approved NNSR 
permit program based on its Marginal nonattainment classification for 
the 2008 8-hour ozone NAAQS. The submitted certification letter 
provides a mechanism for the District to satisfy the 40 CFR 51.1314 
submittal requirements based on its 2015 8-hr ozone Marginal 
nonattainment designation. The EPA's analysis of how this SIP revision 
addresses the NNSR requirements for the 2015 8-hour ozone NAAQS is 
provided below.

III. Analysis of Nonattainment New Source Review Requirements

    NNSR is a preconstruction review permit program that applies to new 
major stationary sources or major modifications at existing sources 
within a nonattainment area and is required under CAA sections 
172(c)(5) and 173.
    As mentioned in Section I of this notice, NNSR permit program 
requirements were adopted for the 2015 ozone NAAQS at 40 CFR 51.1314 as 
part of the 2015 SIP Requirements Rule. The minimum SIP requirements 
for NNSR permitting programs for the 2015 8-hour ozone NAAQS are 
contained in 40 CFR 51.165. The SIP for each ozone nonattainment area 
must contain NNSR provisions that: (1) set major source thresholds for 
nitrogen oxides (NOX) and volatile organic compounds (VOC) 
pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2); (2) classify 
physical changes as a major source if the change would constitute a 
major source by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); (3) 
consider any significant net emissions increase of NOX as a 
significant net emissions increase for ozone pursuant to 40 CFR 
51.165(a)(1)(v)(E); (4) consider any increase of VOC emissions in 
Extreme ozone nonattainment areas as a significant net emissions 
increase and a major modification for ozone pursuant to 40 CFR 
51.165(a)(1)(v)(F); (5) set significant emissions rates for VOC and 
NOX as ozone precursors pursuant to 40 CFR 
51.165(a)(1)(x)(A)-(C) and (E); (6) contain provisions for emissions 
reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2); (7) 
provide that the requirements applicable to VOC also apply to 
NOX pursuant to 40 CFR 51.165(a)(8); (8) set offset ratios 
for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(ii)-(iv); 
and (9) require public participation procedures complaint with 40 CFR 
51.165(i).
    The District's SIP-approved NNSR program,\5\ established in 
Regulation 2 (``Permits''), Rule 2, ``New Source Review,'' of the 
District's Rules and Regulations, applies to the construction and 
modification of stationary sources, including major stationary sources 
in nonattainment areas under its jurisdiction. The District's submitted 
SIP revision includes a compliance demonstration, consisting of a table 
listing each of the 2015 ozone NAAQS NNSR SIP requirements from 40 CFR 
51.165 and a citation to the specific provision of the rule satisfying 
the requirement. The submittal also includes a certification by the 
District that the cited rules meet the federal NNSR requirements for 
the applicable ozone nonattainment designation. These documents, 
including our Summary of Evaluation of the District's submittal, are 
available in the docket for this action. The EPA has reviewed the 
demonstration and cited program elements intended to meet the federal 
NNSR requirements and is proposing to approve the District's submittal 
because the current SIP-approved NSR program satisfies all the 2015 SIP 
Requirements Rule NNSR program requirements applicable to the San 
Francisco Bay Area as a Marginal ozone nonattainment area.
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    \5\ 83 FR 23372 (May 21, 2018).
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IV. Proposed Action and Public Comment

    The EPA is proposing to approve the SIP revision addressing the 
NNSR requirements for the 2015 8-hour ozone NAAQS for the District. In 
support of this proposed action, we have concluded that our approval of 
the submitted 2015 ozone certification for the District would comply 
with section 110(l) of the Act because the submittal will not interfere 
with continued attainment or maintenance of the NAAQS in the District. 
The EPA has concluded that the State's submission fulfills the 40 CFR 
51.1314 revision requirement and meets the requirements of CAA sections 
110, 172(c)(5), 173, and 182(a), and the minimum SIP requirements of 40 
CFR 51.165. If we finalize this action as proposed, our action will 
incorporate this certification into the federally enforceable SIP and 
be codified through revisions to 40 CFR 52.220 (Identification of 
plan--in part).
    We will accept comments from the public on this proposal until 
January 23, 2023.

V. 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 certification letter listed in Table 1 of this preamble. 
The certification letter

[[Page 78902]]

addresses the NNSR requirements for the 2015 8-hour ozone NAAQS. The 
EPA has made, and will continue to make, these materials available 
electronically through https://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).

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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); 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 Clean Air Act. 
Accordingly, this proposed action merely proposes to approve state law 
as meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed 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); and
     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.
    The State did not evaluate environmental justice considerations as 
part of its SIP submittal. There is no information in the record 
inconsistent with the stated goals of Executive Order 12898 (59 FR 
7629, February 16, 1994) of achieving environmental justice for people 
of color, low-income populations, and indigenous peoples.
    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, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: December 16, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-27870 Filed 12-22-22; 8:45 am]
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