[Federal Register Volume 87, Number 92 (Thursday, May 12, 2022)]
[Proposed Rules]
[Pages 29105-29108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09741]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0306; FRL-9713-01-R9]


Air Quality State Implementation Plans; Approvals and 
Promulgations: California; San Diego County Air Pollution Control 
District; Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve 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). 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 or ``Act''). This 
action will update the District's applicable SIP with rules revised to 
address a deficiency identified in a previous limited disapproval 
action. We are taking comments on this proposal and plan to follow with 
a final action. Elsewhere in this issue of the Federal Register, we are 
making an interim final determination that will defer the imposition of 
CAA sanctions associated with our previous limited disapproval action. 
This action also proposes to revise regulatory text to clarify that San 
Diego County is not subject to the Federal Implementation Plan related 
to protection of visibility.

DATES: Comments must be received on or before June 13, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0306 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 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Multimedia

[[Page 29106]]

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: Laura Yannayon, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3534 or by 
email at [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 amended by the District and submitted by the California 
Air Resources Board (CARB). These rules constitute part of the 
District'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                Amended date      Submitted date
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11.....................................  Exemptions From Rule 10 Permit              7/8/2020          9/21/2020
                                          Requirements.
20.1...................................  New Source Review--General                10/14/2021           2/2/2022
                                          Provisions.
20.3 *.................................  New Source Review--Major                  10/14/2021           2/2/2022
                                          Stationary Sources and PSD
                                          Stationary Sources.
20.4 *.................................  New Source Review--Portable               10/14/2021           2/2/2022
                                          Emission Units.
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* The following subsections of the Rules 20.3 and 20.4 were not submitted to the EPA for inclusion in the San
  Diego SIP: 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 March 21, 2021, the submittal of Rule 11 became complete by 
operation of law. On March 28, 2022, the EPA determined that the 
February 2, 2022 submittal of revised Rules 20.1, 20.3, and 20.4 met 
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 SIP-approved versions of the submitted rules 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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11.....................................  Exemptions.......................            10/4/18        83 FR 50007
20.1...................................  New Source Review--General                   9/16/20        85 FR 57727
                                          Provisions.
20.3...................................  New Source Review--Major                     9/16/20        85 FR 57727
                                          Stationary Sources and PSD
                                          Stationary Sources.
20.4...................................  New Source Review--Portable                  9/16/20        85 FR 57727
                                          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 Rule 20.1 
will address our previous limited disapproval.

C. What is the purpose of the submitted rule revisions?

    As described in further detail below, the submitted rules are 
intended to resolve the NSR program deficiency we identified in our 
September 16, 2020 final action (``2020 NSR Action''),\1\ which 
included a limited disapproval of a prior version of Rule 20.1. In 
addition, the submitted rules are intended to demonstrate that the 
District's NNSR program meets the requirements applicable to San Diego 
County following the EPA's June 2, 2021 reclassification of San Diego 
County as a Severe nonattainment area for the 2008 and 2015 ozone 
national ambient air quality standards (NAAQS).\2\ Other minor 
revisions in the rules revise some permit exemptions, provide minor 
edits, and address recent changes to regulatory requirements related to 
interpollutant trading (IPT) of offsets.
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    \1\ 85 FR 57727.
    \2\ 86 FR 29522.
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II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rules?

    The EPA has evaluated the submitted rules to determine whether they 
address the deficiency identified in our 2020 NSR Action. We have also 
evaluated the rules for compliance with applicable regulations at 40 
CFR 51.160 through 51.165, consistent with the District's current 
classification as a Severe

[[Page 29107]]

nonattainment area for both the 2008 and 2015 ozone standards, and 
including the recent removal of provisions related to IPT of offsets 
made in response to the D.C. Circuit Court of Appeals decision in 
Sierra Club v. EPA, 21 F.4th 815 (2021).\3\ We have also reviewed the 
rules for consistency with other CAA general requirements for SIP 
submittals, including requirements at section 110(a)(2)(A) regarding 
rule enforceability, and requirements at sections 110(l) and 193 for 
SIP revisions.
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    \3\ See 86 FR 37918 (July 19, 2021). This decision and the 
regulatory changes made in response are discussed in the TSD for 
this action.
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    The implementing regulations at 40 CFR 51.165 contain the NNSR 
program requirements for major stationary sources and major 
modifications at facilities that are located in a nonattainment area 
and that 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 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?

    The EPA finds that the submitted rules satisfy the applicable CAA 
and regulatory requirements. Below, we discuss generally our evaluation 
of the submitted rules. The technical support document (TSD) for this 
proposed rulemaking contains a more detailed analysis and is included 
in the docket for this action.
    We find that the revision to Rule 20.1 Section (a) to remove the 
sentence that was the basis for the deficiency identified in our 2020 
NSR Action corrects this deficiency. We find that the submitted rules 
satisfy the applicable NNSR requirements for both the 2008 and 2015 
ozone NAAQS, in that the rules contain the proper major source and 
major modification thresholds and offset ratio for a Severe ozone 
nonattainment area. We find that the revisions to Rule 11, 
``Exemptions,'' are approvable as the emissions from new and revised 
permit exemptions are inconsequential to attainment or maintenance of 
the NAAQS, considering local air quality concerns, and as the changes 
to the rule are otherwise acceptable. We find that the removal of IPT 
provisions from Rules 20.3 and 20.4 is consistent with the EPA's recent 
changes to 40 CFR 51.165(a)(11) addressing the Sierra Club decision and 
are therefore approvable. Finally, we find that the other minor non-
substantive edits to the rules are approvable.
    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 not 
interfere with the area's ability to attain or maintain the NAAQS or 
with any other applicable requirements of the CAA. 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 satisfy the applicable CAA and 
regulatory requirements for NNSR permit programs under CAA section 
110(a)(2)(A) and part D of title I of the Act and other applicable 
requirements. This submittal also corrects the deficiency described in 
our 2020 NSR Action. If we finalize this action as proposed, our action 
will resolve the limited disapproval of Rule 20.1 and will be codified 
through revisions to 40 CFR 52.220 (Identification of plan--in part). 
Elsewhere in this issue of the Federal Register, we are making an 
interim final determination that will defer the imposition of sanctions 
triggered by that limited disapproval.

C. Proposed Action and Public Comment

    As authorized in section 110(k)(3) of the Act, the EPA is proposing 
approval of Rules 11, 20.1, 20.3, and 20.4. We are proposing this 
action based on our determination that the submitted rules satisfy the 
applicable statutory and regulatory provisions governing regulation of 
stationary sources under part D of title I of the Act and accompanying 
regulations at 40 CFR 51.160 through 51.165. In support of our proposed 
action, we have concluded that our approval would comply with sections 
110(l) and 193 of the Act because the amended rules will not interfere 
with continued attainment of the NAAQS in San Diego County and do not 
relax control technology and offset requirements.
    This action would also revise the regulatory provisions at 40 CFR 
52.281(d) concerning the applicability of the visibility Federal 
implementation plan (FIP) at 40 CFR 52.28 as it pertains to California, 
to provide that this FIP does not apply to sources subject to review 
under the District's SIP-approved NNSR program. As described in more 
detail in the TSD for this action, the EPA has previously found 
Subsection (e)(3) of District Rule 20.3 acceptable to meet the 
visibility provisions for sources subject to the NNSR program at 40 CFR 
51.307.\4\
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    \4\ See TSD for 2018 NSR Action at 28.
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    We will accept comments from the public on this proposal until June 
13, 2022. If finalized, this action would incorporate the submitted 
rules into the SIP and our action would be codified through revisions 
to 40 CFR 52.220, ``Identification of plan--in part.''

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 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).

[[Page 29108]]

IV. 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);
     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 disproportionate human health or environmental effects with 
practical, appropriate, 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 rules do 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: April 29, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-09741 Filed 5-11-22; 8:45 am]
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