[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Proposed Rules]
[Pages 72434-72439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25382]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0338; FRL-10269-01-R9]


Approval, Limited Approval and Limited Disapproval of California 
Air Plan Revisions; Mojave Desert Air Quality Management District; 
Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing an 
approval and a limited approval and limited disapproval of a revision 
to the Mojave Desert Air Quality Management District (MDAQMD or 
``District'') portion of the California State Implementation Plan 
(SIP). We are proposing approval of five rules and a limited approval 
and limited disapproval of five rules. These revisions concern the 
District's New Source Review (NSR) permitting program for new and 
modified sources of air pollution under part D of title I of the Clean 
Air Act (CAA or ``Act''). If finalized, this action will update the 
MDAQMD's current SIP with ten revised rules. We are taking comments

[[Page 72435]]

on this proposal and plan to follow with a final action.

DATES: Comments must be received on or before December 27, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0338 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: La Weeda Ward, Permits Office (Air-3-
1), U.S. Environmental Protection Agency, Region IX, (213) 244-1812, 
[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 are in the current SIP?
    B. What rules did the State submit?
    C. What is the purpose of the submitted rule revisions?
II. The EPA's Evaluation and Action
    A. What is the background for this proposal?
    B. How is the EPA evaluating the rules?
    C. Do the rules meet the evaluation criteria?
    D. What are the rule deficiencies?
    E. EPA recommendations to Further Improve the Rule
    F. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules are in the current SIP?

    Table 1 lists the rules in the current SIP with the dates they were 
adopted or amended by the MDAQMD, submitted by the California Air 
Resources Board (CARB) (the governor's designee for California SIP 
submittals), and approved by the EPA.

                                                            Table 1--Rules in the Current SIP
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                                                                                                           EPA action
                 Rule No.                           Rule title            Adoption date  Submittal date       date          Federal Register citation
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206--San Bernardino County...............  Posting of Permit to Operate  \a\ 02/01/1977      06/06/1977      11/09/1978  43 FR 52237.
206--Riverside County....................  Posting of Permit to Operate      02/06/1976      04/21/1976      11/09/1978  43 FR 52237.
219--San Bernadino County................  Equipment Not Requiring a     \a\ 02/01/1977        6/6/1977       11/9/1978  43 FR 52237.
                                            Permit.
219--Riverside County....................  Equipment Not Requiring a         09/04/1981      10/23/1981      07/06/1982  47 FR 29231.
                                            Written Permit Pursuant to
                                            Regulation II.
1300.....................................  General.....................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1301.....................................  Definitions.................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1302.....................................  Procedure...................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1303.....................................  Requirements................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1304.....................................  Emissions Calculations......      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1305.....................................  Emission Offsets............      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1306.....................................  Electric Energy Generating        03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
                                            Facilities.
1402.....................................  Emission Reduction Credit         06/28/1995       8/10/1995      01/22/1997  62 FR 3215.
                                            Registry.
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\a\ These rules were adopted by CARB Ex. Ord. G-73 on 2/1/1977 and substituted into the 6/6/1977 submittal to the EPA after the original adoption date
  of 1/9/1976 because the two versions were identical, and the earlier version was submitted on behalf of the SoCalAPCD (42 FR 1273).

B. What rules did the State submit?

    Table 2 lists the rules addressed by this proposal with the dates 
they were adopted by the MDAQMD or predecessor agency and submitted by 
the CARB.

                                            Table 2--Submitted Rules
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                                                                                                  Submitted date
                  Rule No.                                Rule title               Adopted date         \a\
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206.........................................  Posting of Permit to Operate......      02/22/2021      10/15/2021
219.........................................  Equipment Not Requiring a Permit..      01/25/2021      07/23/2021
1300........................................  General...........................      03/22/2021      07/23/2021
1301........................................  Definitions.......................      03/22/2021      07/23/2021
1302........................................  Procedure.........................      03/22/2021      07/23/2021
1303........................................  Requirements......................      03/22/2021      07/23/2021
1304........................................  Emissions Calculations............      03/22/2021      07/23/2021
1305........................................  Emission Offsets..................      03/22/2021      07/23/2021

[[Page 72436]]

 
1306........................................  Electric Energy Generating              03/22/2021      07/23/2021
                                               Facilities.
1402........................................  Emission Reduction Credit Registry      05/19/1997      08/05/1997
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\a\ The submittal for Rules 219, 1300, 1301, 1302, 1303, 1304, 1305, and 1306 was transmitted to the EPA via a
  letter from CARB dated July 22, 2021, and received by the EPA on July 23, 2021. Rule 206 was transmitted
  electronically on October 15, 2021 as an attachment to a letter dated October 14, 2021. Rule 1402 was
  submitted on August 1, 1997 and received by EPA on August 5, 1997.

    The EPA has promulgated specific procedural requirements for the 
completeness determination of SIP submissions pursuant to 40 CFR part 
51, subpart F and Appendix V which must be met before formal EPA 
review. The completeness criteria pursuant to 40 CFR part 51 Appendix V 
were met as follows:
    1. On January 23, 2022, the submittal of the MDAQMD Rules 219, 
1300, 1301, 1302, 1303, 1304, and 1305 on July 23, 2021, was deemed 
complete by operation of law.
    2. On April 15, 2022, the submittal of the MDAQMD Rule 206 on 
October 15, 2021, was deemed complete by operation of law.
    3. On February 5, 1998, the submittal of Rule 1402 on August 5, 
1997, was deemed complete by operation of law.

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

    The rules listed in Table 2 are intended to replace the SIP-
approved rules listed in Table 1. The submitted rules are intended to 
satisfy the minor NSR and non-attainment NSR (NNSR) requirements of 
section 110(a)(2)(C) and part D of title I of the Act, and the EPA's 
implementing regulations at title 40 of the Code of Federal Regulations 
(CFR) part 51, subpart I.\1\ Minor NSR requirements are generally 
applicable for SIPs in all areas, while NNSR requirements apply only in 
areas designated as nonattainment for one or more National Ambient Air 
Quality Standards (NAAQS). The MDAQMD is currently designated Severe 
nonattainment for the 2008 and 2015 ozone NAAQS, and Moderate 
nonattainment for the 1987 PM10 NAAQS.\2\ Therefore, the 
designation of MDAQMD as federal ozone and PM10 
nonattainment areas triggered the requirement for the District to 
develop and submit an NNSR program to the EPA for approval into the 
California SIP.
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    \1\ CARB, at the request of the District, also submitted a PSD 
rule for SIP inclusion (MDAQMD Rule 1600, ``Prevention of 
Significant Deterioration (PSD)''). We intend to take action on the 
District's PSD rule in a subsequent rulemaking.
    \2\ 40 CFR 81.305.
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II. The EPA's Evaluation and Action

A. What is the background for this proposal?

    On October 26, 2015, the EPA finalized a revised 8-hour NAAQS for 
ozone, which was lowered from 0.75 parts per billion (ppb) to 0.70 
ppb.\3\ On June 4, 2018, portions of the West Mojave Desert, under the 
jurisdiction of the MDAQMD, were designated as nonattainment for 2015 
8-hour ozone NAAQS \4\ and classified Severe-15.\5\ This designation 
became effective on August 3, 2018. On December 6, 2018, the EPA 
finalized the implementation rule for the 2015 ozone NAAQS, which 
required the MDAQMD to submit a New Source Review (NSR) certification 
to the EPA by August 3, 2021.\6\ The District's July 23, 2021 submittal 
is intended to satisfy this requirement.
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    \3\ 80 FR 65292.
    \4\ Both the 1979 1-hour ozone standard and the 1997 8-hour 
ozone standard are revoked in most areas of California including in 
the MDAQMD jurisdiction. Footnote 4 in 40 CFR 81.305 states: ``The 
1-hour ozone standard is revoked effective June 15, 2005, for all 
areas in California. The Monterey Bay, San Diego, and Santa Barbara-
Santa Maria-Lompoc areas are maintenance areas for the 1-hour NAAQS 
for purposes of 40 CFR part 51 subpart X.'' The 1997 Ozone standard 
was revoked with the implementation of the 2008 Ozone standard (see 
80 FR 12263, March 6, 2015), however the preamble makes the 
following distinction: ``After revocation of the 1997 standard, the 
designations (and the classifications associated with those 
designations) for that standard are no longer in effect, and the 
sole designations that remain in effect are those for the 2008 ozone 
NAAQS. However, the EPA is retaining the listing of the designated 
areas for the revoked 1997 ozone NAAQS in 40 CFR part 81, for the 
sole purpose of identifying the anti-backsliding requirements that 
may apply to the areas at the time of revocation. Accordingly, such 
references to historical designations for the revoked standard 
should not be viewed as current designations under CAA section 
107(d).'' It is also important to note that most of the SIP elements 
per the 2008 Ozone NAAQS are included in the plan elements per the 
2015 Ozone NAAQS. The list of anti-backsliding provisions required 
for areas transitioning from the 1997 Ozone standard to the 2008 
Standard are codified at 40 CFR 51.1105.
    \5\ 83 FR 25776. A classification of Severe-15 under the 2015 
Ozone NAAQS is an area with a design value of 0.105 up to but not 
including 0.111 ppm.
    \6\ 83 FR 62998.
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B. How is the EPA evaluating the rules?

    The EPA reviewed the rules listed in Table 2 for compliance with 
the CAA requirements as follows: (1) stationary source preconstruction 
permitting programs as set forth in CAA part D of title I, including 
CAA sections 172(c)(5), 173, 182(c)(6), and 182(d); (2) the review and 
modification of major sources in accordance with 40 CFR 51.160-51.165 
as applicable in Severe ozone and Moderate PM10 
nonattainment areas; (3) the review of new major stationary sources or 
major modifications in a designated nonattainment area that may have an 
impact on visibility in any mandatory Class I Federal Area in 
accordance with 40 CFR 51.307; (4) SIPs in general as set forth in CAA 
section 110(a)(2), including 110(a)(2)(A) and 110(a)(2)(E)(i); and (5) 
SIP revisions as set forth in CAA sections 110(l) and 193; and (6) the 
definition of ``stationary source'' pursuant to CAA section 302(z). We 
also evaluated the submittal for compliance with the NNSR requirements 
applicable to Severe ozone and Moderate PM10 nonattainment 
areas and ensured that the submittal addressed the NNSR requirements 
for the 2008 and 2015 ozone NAAQS.

C. Do the rules meet the evaluation criteria?

    The EPA has reviewed the submitted rules listed in Table 2 in 
accordance with the rule evaluation criteria described in Section II.B 
of this notice.
    With respect to procedural requirements, CAA sections 110(a)(2) and 
110(l) require that revisions to a SIP be adopted by the state after 
reasonable notice and public hearing. Based on our review of the public 
process documentation included for the rules listed in Table 2, we find 
that the MDAQMD has provided sufficient evidence of public notice, 
opportunity for comment and a public hearing prior to adoption and 
submittal of these rules to the EPA.
    With respect to the substantive requirements found in part D of 
title 1 of the Act (including sections 172, 173, 182(c), and 182(d)); 
part A of title 1 of the Act (including sections 110(a)(2) and 
110(a)(2)(E)(i)); section 302(z) contained in title III the Act; and 40 
CFR 51.160-51.165 and 51.307, we have determined that the submitted 
District

[[Page 72437]]

Rules 206, 219, 1300, 1306, and 1402 meet the evaluation criteria, 
while District Rules 1301, 1302, 1303, 1304, and 1305 mostly meet the 
criteria but contain deficiencies as detailed in Section II.D.

D. What are the rule deficiencies?

    The EPA identified six deficiencies in the rules proposed for 
inclusion in the SIP. The first deficiency is the use of the term 
``contract'' as interchangeable with the term ``permit.'' Specifically, 
the MDAQMD Rules 1302(D)(6)(a)(iii) and 1304(C)(4)(c) allow an owner 
and/or operator to obtain a valid permit or ``contract'' that would be 
enforceable by the District. The MDAQMD's rules define Authority to 
Construct Permit (ATC) and Permit to Operate (PTO), but do not define 
term ``contract'' as interchangeable with the term ``permit.'' The use 
of the terms ``ATC'' and ``PTO'' refer to written ``permits'' in SIP-
approved Rules 201, 202, and 203 \7\ and hence are the basis for 
enforceable mechanisms to implement the NSR program in the District. We 
find the term ``contract'' is not an acceptable alternative to the term 
``permit'' and thus the language in MDAQMD Rules 1302(D)(6)(a)(iii) and 
1304(C)(4)(c) is not approvable as a SIP revision.
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    \7\ Rule 201, ``Permit to Construct,'' Rule 202, ``Temporary 
Permit to Operate,'' and Rule 203, ``Permit to Operate'' were 
approved into the California State Implementation Plan by the EPA on 
11/9/1978, 43 FR 52237.
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    The second deficiency is the calculation procedures specified to 
determine the amount of offsets required in certain situations. 
Specifically, the requirements at 40 CFR 51.165(a)(3)(ii)(J) state that 
the total tonnage of increased emissions resulting from a major 
modification that must be offset shall be determined by summing the 
difference between the allowable emissions after the modification and 
the actual emissions before the modification for each emissions unit. 
In other words, federal regulations require an ``actual-to-potential'' 
test using a baseline of actual emissions when determining the amount 
of offsets required for a project. Rule 1304 allows a potential-to-
potential test for calculating the quantity of offsets required in some 
situations. Specifically, the calculation procedures for Simultaneous 
Emission Reductions (SERs) at Rule 1304(C)(2)(d), applies a potential-
to-potential test under certain circumstances.\8\ Rule 1304 uses a 
potential-to-potential test for calculating the quantity of SERs that 
can be used as offsets for a ``Modified Major Facility.'' Pursuant to 
Rule 1304(C)(2)(d), SERs at a Modified Major Facility are calculated 
using the potential to emit (PTE) in place of Historic Actual Emissions 
(HAE). Calculating emissions decreases using a potential emissions 
baseline allows reductions ``on paper'' that do not represent real 
emissions reductions. Under CAA section 173(c)(1), such paper 
reductions cannot be used to offset actual emission increases. 
Deviations from federal definitions and requirements are generally 
approvable only if a state specifically demonstrates that the submitted 
provisions are more stringent, or at least as stringent, in all 
respects as the corresponding federal provisions and definitions.\9\ 
The District has not made any demonstration showing how the methodology 
in these rules is as stringent as the requirements of 40 CFR 
51.165(a)(3)(ii)(J) and section 173(c)(1) of the Act. Furthermore, the 
allowance of the potential-to-potential test does not conform with the 
requirements of 40 CFR 51.165(a)(1)(vi)(E)(1), which states that ``[a] 
decrease in actual emissions is creditable only to the extent that the 
old level of actual emission or the old level of allowable emissions 
whichever is lower, exceeds the new level of actual emissions.'' Also, 
the calculation method in Rule 1304(C)(2)(d) allows a source to appear 
as if it is not undergoing a modification as defined under Rule 
1301(NN). In this scenario, a facility could circumvent the requirement 
to offset emissions increases if potential emissions increases from a 
project are negated by contemporaneous emissions decreases that utilize 
SERs calculated using a potential-to-potential test. We describe a 
related deficiency in the discussion of the ``third deficiency'' below. 
Thus, the provisions in Rule 1304(C)(2)(d) are inconsistent with the 
requirements of 40 CFR 51.165(a)(3)(ii)(J) and section 173(c)(1) of the 
Act. As described in the Technical Support Document (TSD), which can be 
found in the docket for this rulemaking, the deficiency identified in 
Rule 1304, through cross-references, also causes related deficiencies 
in Rules 1301, 1302, 1303, and 1305.
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    \8\ Rule 1301(OOO) provides the definition of SER.
    \9\ 40 CFR 51.165(a)(1), 51.165(a)(2)(ii).
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    The third deficiency pertains to the definitions for ``Major 
Modification'' and ``Modification (Modified)'' pursuant to Rule 
1301(NN) and 1301(JJ), respectively. We noted in the discussion of the 
second deficiency above that the methodology to determine the amount of 
offsets is deficient because it allows the use of SERs pursuant to Rule 
1304. Specifically, a ``net emissions increase'' pursuant to Rule 
1304(B)(2) allows SERs ``calculated and verified pursuant to 
[1304(C)(2)]'' to be subtracted from the total of all ``net emissions 
increases'' at any given facility. The combined effect of calculating 
SERs according to Rule 1304 and the District's procedure for 
determining a net emissions increase could allow a facility to subtract 
SERs, which can be paper reductions, from a proposed emission increase. 
This could result in an emission increase that is less than zero. The 
definition of ``Modification (Modified)'' excludes modifications that 
do not result in a ``Net Emissions Increase,'' which is defined in Rule 
1301(QQ) as: ``An emission change as calculated pursuant to District 
Rule 1304(B)(2) which exceeds zero.'' If there is no net emissions 
increase, as defined in Rule 1301(QQ) and Rule 1304(B)(2), a permit 
applicant can avoid NSR requirements entirely (i.e., BACT, offsets, 
visibility, etc.) because it can effectively exclude the proposed 
project from being considered a ``Modification'' and hence a ``Major 
Modification,'' using calculation procedures that do not conform to the 
federal definition for Major Modification pursuant to 40 CFR 
51.165(a)(1)(v)(A)(1); the calculation procedures for determining 
offsets pursuant to 40 CFR 51.165(a)(3)(ii)(J); and the criteria for 
determining the emission decreases that are creditable pursuant to 40 
CFR 51.165(a)(1)(vi)(E)(1). Thus, the definitions for both ``Major 
Modification'' and ``Modification (Modified)'' are deficient because 
they result in non-conformance with these aforementioned federal 
requirements.
    The fourth deficiency is the definition of Historical Actual 
Emissions (HAE) pursuant to Rule 1304(D)(2)(a)(i). Rule 
1304(D)(2)(a)(i) states, ``The verified Actual Emissions of an 
Emissions Unit(s), averaged from the two-year period which immediately 
proceeds the date of application, and which is representative of 
Facility operations . . .'' (emphasis added). While this appears to be 
a typographical error, it is a deficiency because it states it is the 
actual emissions averaged from the 2-year period that immediately 
proceeds the date of application. The actual emissions must be based on 
emissions emitted preceding the date of application. This deficiency 
may be corrected by replacing the word ``proceeds'' with ``precedes'' 
in MDAQMD Rule 1304(D)(2)(a)(i).
    The fifth deficiency pertains to the use of interprecursor trading 
(IPT). Specifically, Rule 1305 section (C)(6) allows IPT between 
nonattainment pollutants and their precursors on a case-by-case basis. 
A footnote to this

[[Page 72438]]

section states: ``Use of this subsection [is] subject to the Ruling in 
Sierra Club v. USEPA (D.C. Cir. Case #15-1465, 1/29/2021), Document 
#1882662 and subsequent guidance by USEPA.'' On January 29, 2021, the 
D.C. Circuit Court of Appeals in Sierra Club v. EPA, 21 F.4th 815, 
vacated provisions of the 2018 Implementation Rule that allowed IPT for 
the ozone precursors VOC and NOX.\10\ We note that the EPA 
recently revised its NNSR regulations at 40 CFR 51.165(a)(11) to make 
them consistent with the Court's decision,\11\ thus the provision in 
section (C)(6) of Rule 1305 allowing for IPT for ozone precursors is no 
longer permissible and must be revised to make clear that IPT is not 
permissible for ozone precursors.
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    \10\ 83 FR 62998 (December 6, 2018).
    \11\ 86 FR 37918 (July 19, 2021).
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    The sixth deficiency pertains to our evaluation of Rules 1300, 
1301, 1302, 1303, 1304, and 1305 against the criteria contained in 
Clean Air Act sections 182(c)(6) and 182(d).\12\ Section 182(c) of the 
Act, which was added by the Clean Air Act Amendments of 1990, details 
the plan submission and requirements for Serious non-attainment areas. 
Specifically, CAA section 182(c)(6) contains the ``De Minimis Rule,'' 
which states NSR rules ``shall ensure increased emissions of volatile 
organic compounds resulting from any physical change in, or change in 
the method of operation of, a stationary source located in the area 
shall not be considered de minimis for purposes of determining the 
applicability of the permit requirements established by this Act unless 
the increase in net emissions of such air pollutant from such source 
does not exceed 25 tons when aggregated with all other net increases in 
emissions from the source over any period of 5 consecutive calendar 
years which includes the calendar year in which such increase 
occurred.'' Our evaluation of Rules 1300, 1301, 1302, 1303, 1304, and 
1305 against the criteria contained in CAA sections 182(c)(6), and 
182(d) shows the District rules are deficient as they do not contain de 
minimis SIP requirements. This deficiency may be corrected by 
incorporating de minimis SIP requirements pursuant to CAA section 
182(c)(6) in the applicable Regulation XIII nonattainment NSR rule(s).
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    \12\ Section 182(d), also added by the Clean Air Act Amendments 
of 1990, details plan submission requirements for Severe non-
attainment areas and includes all the provisions under section 
182(c) for Serious non-attainment areas. Therefore, an analysis 
against CAA section 182(c)(6) constitutes an analysis against 
section 182(d).
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    Our TSD contains a more detailed discussion of the rule 
deficiencies as well as a complete analysis of the District's submitted 
rules that form the basis for our proposed action.

E. EPA Recommendations To Further Improve the Rules

    The TSD also includes recommendations for additional clarifying 
revisions to consider for adoption when the MDAQMD next amends Rules 
1301, 1302, 1303, 1304, and 1305.

F. Proposed Action and Public Comment

    The EPA is proposing approval of MDAQMD Rules 206, 219, 1300, 1306, 
and 1402 as authorized under Section 110(k)(3) of the Act. In addition, 
as authorized in sections 110(k)(3) and 301(a) of the Act,\13\ we are 
proposing a limited approval and limited disapproval of Rules 1301, 
1302, 1303, 1304, and 1305 because although they fulfill most of the 
relevant CAA requirements and strengthen the SIP, they also contain 
deficiencies as discussed in Section II.D of this notice.
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    \13\ If a portion of a plan revision meets all the applicable 
CAA requirements, CAA sections 110(k)(3) and 301(a) authorize the 
EPA to approve the plan revision in part and disapprove the plan 
revision in part.
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    We have concluded that our proposed action will result in a more 
stringent SIP and is consistent with the additional substantive 
requirements of CAA sections 110(l) and 193, while not relaxing any 
existing provision contained in the SIP; and will not interfere with 
any applicable attainment and reasonable further progress requirements; 
or any other applicable CAA requirement. In addition, our proposed 
action will not relax any pre-November 15, 1990 requirement in the SIP, 
and therefore changes to the SIP resulting from this action ensure 
greater or equivalent emission reductions of ozone and its precursors 
and PM10 and its precursors in the District.
    If finalized, this action would incorporate into the SIP the 
submitted rules listed in Table 2 for which we have proposed approval 
or limited approval/limited disapproval, codified through revisions to 
40 CFR 52.220 (Identification of plan--in part), including those 
provisions identified as deficient. Our proposed approval of Rules 
1301, 1302, 1303, 1304, and 1305 is limited and the EPA is 
simultaneously proposing a limited disapproval of Rules 1301, 1302, 
1303, 1304, and 1305 pursuant to CAA section 110(k)(3) and 301(a).
    In conjunction with our SIP approval of the District's visibility 
provisions for major sources subject to review under the NNSR program, 
we also propose to revise 40 CFR 52.281(d) regarding applicability of 
the visibility Federal Implementation Plan (FIP) at 40 CFR 52.28 as it 
pertains to California to clarify that the FIP does not apply to 
MDAQMD. Approval of the District's visibility provisions under 40 CFR 
51.307 would mean that this FIP is not needed to satisfy the CAA 
visibility requirements at 40 CFR 51.307 for sources subject to the 
District's NNSR program. This revision will clarify the application of 
this FIP in California following our final action.
    If we finalize this action as proposed, our limited disapproval 
actions 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, for the deficiencies that relate to 
NNSR requirements under part D of title I of the Act, the offset 
sanction in CAA section 179(b)(2) would apply in the West Mojave Desert 
\14\ 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. Section 
179 sanctions will not 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 deficiencies that we identify in our final 
action. The EPA intends to work with the District to correct the 
deficiencies in a timely manner.
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    \14\ The CAA section 179 sanctions will not extend to the 
portion of the MDAQMD that is in Riverside County known as the Palo 
Verde Valley in California.
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    We will accept comments from the public on this proposal until 
December 27, 2022.

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 MDAQMD rules listed in Table 1 of this preamble. These 
rules concern the District's New Source Review (NSR) permitting program 
for new and modified sources of air pollution under part D of title I 
of the Clean Air Act (CAA or ``Act''). The EPA has made, and will 
continue to make, these materials available through www.regulations.gov 
and in hard copy at the EPA Region IX Office (please contact the person 
identified in the FOR FURTHER

[[Page 72439]]

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 https://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. 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.

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 beyond those 
imposed by state law.

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. 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.

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: 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 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.

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

H. 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.

I. 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.

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

    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 E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
indigenous peoples.

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 4, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-25382 Filed 11-23-22; 8:45 am]
BILLING CODE 6560-50-P


