[Federal Register Volume 88, Number 125 (Friday, June 30, 2023)]
[Rules and Regulations]
[Pages 42258-42271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13393]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0338; FRL-10269-02-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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is finalizing an 
approval and a limited approval and limited disapproval of revisions to 
the Mojave Desert Air Quality Management District (MDAQMD 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 
part D of title I of the Clean Air Act (CAA or ``Act''). This action 
updates the District's portion of the California SIP with ten revised 
rules. Under the authority of the CAA, this action simultaneously 
approves local rules that regulate emission sources and directs the 
District to correct rule deficiencies.

DATES: This rule is effective July 31, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2022-0338. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information. If

[[Page 42259]]

you need assistance in a language other than English or if you are a 
person with a disability 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. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On November 25, 2022 (87 FR 72434), the EPA proposed approval of 
five rules and a limited approval and limited disapproval of five rules 
that were submitted for incorporation into the California SIP. Table 1 
shows the rules in the California SIP that will be removed or 
superseded by this action, while Table 2 shows the rules that the State 
submitted for inclusion in the California SIP.\1\
---------------------------------------------------------------------------

    \1\ In the incorporation by reference (IBR) section of our 
proposed action (87 FR 72434) inadvertently refers to Table 1 as 
opposed to Table 2 for the list of submitted rules that are intended 
to replace the rules in the SIP. However, we explain in Section C of 
our proposed rulemaking that ``the rules listed in Table 2 are 
intended to replace the SIP-approved rules listed in Table 1.'' We 
also state in Section F of our proposed rulemaking that, ``[i]f 
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 . . .''

                                                       Table 1--Rules To Be Removed or Superseded
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           EPA action
                 Rule No.                           Rule title            Adoption date  Submittal date       date          Federal Register citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ These rules were adopted by California Air Resources Board (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 Southern
  California Air Pollution Control District (SoCalAPCD) (42 FR 1273).


                                            Table 2--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                                                                                  Submitted date
                  Rule No.                                Rule title               Amended date         \a\
----------------------------------------------------------------------------------------------------------------
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........................................  New Source Review General.........      03/22/2021      07/23/2021
1301........................................  New Source Review Definitions.....      03/22/2021      07/23/2021
1302 \b\....................................  New Source Review Procedure.......      03/22/2021      07/23/2021
1303........................................  New Source Review Requirements....      03/22/2021      07/23/2021
1304........................................  New Source Review Emissions             03/22/2021      07/23/2021
                                               Calculations.
1305........................................  New Source Review Emission Offsets      03/22/2021      07/23/2021
1306........................................  New Source Review for Electric          03/22/2021      07/23/2021
                                               Energy Generating Facilities.
1402........................................  Emission Reduction Credit Registry      05/19/1997      08/05/1997
----------------------------------------------------------------------------------------------------------------
\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 the EPA on August 5, 1997.
\b\ As we stated in section 5.9.1 of our technical support document (TSD), the State did not submit for
  inclusion in the SIP subsections (C)(5) and (C)(7)(c) of Rule 1302.

    In our proposal, we proposed approval of Rules 206, 219, 1300, 
1306, and 1402 as authorized under section 110(k)(3) of the Act. As 
authorized in sections 110(k)(3) and 301(a) of the Act,\2\ we proposed 
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 six 
deficiencies, summarized below, that do not fully satisfy the relevant 
requirements for preconstruction review and permitting under section 
110 and part D of the Act:
---------------------------------------------------------------------------

    \2\ 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.

---------------------------------------------------------------------------

[[Page 42260]]

    1. The use of the term ``contract'' in the District's rules as 
interchangeable with the term ``permit'' is a deficiency because, as 
used in the specific contexts we identified in our proposed action, the 
term ``contract'' is not an acceptable alternative to the term 
``permit.''
    2. The calculation procedures used in the District's rules to 
determine the amount of offsets required in certain situations do not 
comply with CAA section 173(c)(1) or 40 CFR 51.165(a)(3)(ii)(J) or 
(a)(1)(vi)(E). Rule 1304 uses a potential-to-potential test for 
calculating the quantity of ``simultaneous emission reductions'' (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 potential emissions as the 
baseline allows reductions ``on paper'' that do not represent real 
emissions reductions. The deficiency in Rule 1304, through cross-
references, also causes related deficiencies in Rules 1301, 1302, 1303, 
and 1305.
    3. The definitions for ``Major Modification'' and ``Modification 
(Modified)'' pursuant to Rule 1301(NN) and 1301(JJ), respectively, are 
deficient because they do not conform with Federal requirements. 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., best available 
control technology (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).
    4. The District's use of the term ``proceed'' in Rule 1304 is a 
deficiency because the word ``precede'' (or a synonym of ``precede'') 
should be used.
    5. The provision in Rule 1305 allowing for interprecursor trading 
(IPT) for ozone precursors is a deficiency because IPT is no longer 
permissible.
    6. The District rules do not contain the de minimis plan 
requirements contained in CAA section 182(c)(6) that apply to areas 
classified as Severe nonattainment.\3\
---------------------------------------------------------------------------

    \3\ CAA Section 182(d), which was 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.
---------------------------------------------------------------------------

    As discussed in our proposal, this action is consistent with CAA 
sections 110(l) and 193. It will not relax any existing SIP provision, 
and it will not interfere with applicable attainment and reasonable 
further progress requirements or other applicable CAA requirements. 
This action will not relax any pre-November 15, 1990 requirements in 
the SIP, and therefore changes to the SIP resulting from this action 
will ensure greater or equivalent emissions reductions of ozone and its 
precursors and PM10 and its precursors in the District.
    Finally, we proposed to approve, under 40 CFR 51.307, the 
District's visibility provisions for sources subject to the District's 
nonattainment new source review (NNSR) requirements. Accordingly, we 
also proposed to revise 40 CFR 52.281(d) to add the District to the 
list of areas not subject to the visibility Federal Implementation Plan 
(FIP) at 40 CFR 52.28, to clarify that the FIP does not apply to the 
District.
    The EPA's proposal and technical support document (TSD) for this 
action have more information and analysis on the District's submittal, 
the deficiencies, and our proposed approvals.

II. Public Comments and EPA Responses

    The public comment period on the proposed rule opened on November 
25, 2022, the date of its publication in the Federal Register, and 
closed on December 27, 2022. During this period, the EPA received one 
comment letter submitted by the Mojave Desert Air Quality Management 
District (MDAQMD or the ``District''). A copy of the District's comment 
letter is included in the docket for this action and is accessible at 
www.regulations.gov. In this section, we provide a summary of and 
response to the MDAQMD's comments.
    Comment #1: The District states that portions of the EPA's proposed 
action are inopportune. The District states that the EPA did not 
communicate with its staff on any substantive issues during its 
evaluation of CARB's submittal of the District's revisions to its NSR 
program despite previously working with its staff to address identified 
deficiencies from a prior submittal. The District states that the only 
communication it received from the EPA after adopting rule revisions 
were requests for copies of various SIP rules and accompanying 
information, most of which the District had previously provided to the 
EPA in the rule development process. The District states that the EPA 
could have communicated trivial deficiencies to the District prior to 
publishing the proposed action, which would have allowed the District 
to provide commitments to amend its rules and that such a process would 
have allowed issues to be narrowed to those that truly require 
interpretation or judicial review.
    Response to Comment #1: The EPA does not read this comment as 
asserting that our proposed action on the submitted rules was legally 
or technically deficient; rather, we understand the comment to express 
dissatisfaction with the EPA's communication after CARB's submittal of 
the revised rules on July 23, 2021.
    The EPA values its relationships with state, local, and tribal air 
agencies and strives to maintain open and transparent communications 
with them. Prior to our receipt of the District's submittal, the EPA, 
the District, and CARB committed significant resources to meeting, on a 
bi-weekly basis from approximately March 2020 to June 2021, for 
detailed discussions of the NSR program deficiencies we identified in a 
letter to the District dated December 19, 2019.\4\ After the conclusion 
of this process, and following CARB's submission of the District's 
revised rules, the EPA identified a few additional issues not 
identified in our December 19, 2019 letter. EPA staff are available to 
continue to work with the District to address questions and concerns 
with revisions necessary to correct the deficiencies, with the goal of 
full approval of revisions to the District's

[[Page 42261]]

rules and a fully approved NSR program.
---------------------------------------------------------------------------

    \4\ 87 FR 72434 (November 25, 2022). Technical Support Document, 
page 11. The December 19, 2019 letter, from Lisa Beckham to Brad 
Poiriez, which the District mentions in footnote 17 of its comment 
letter, follows our October 10, 2019 letter from Gerardo Rios, 
Manager, Air Permits Office, EPA Region IX, to Brad Poiriez, Air 
Pollution Control Officer, MDAQMD, in which we provided feedback in 
response to the MDAQMD's invitation to review and comment on the 
District's proposed adoption of its ``70 ppb Ozone Standard 
Implementation Evaluation: RACT SIP Analysis; Federal Negative 
Declarations; Certification of Nonattainment New Source Review 
Program; and, Emission Statement Certification (70 ppb O3 
Evaluation).'' In the October 10, 2019 letter, we stated that we 
would send a comprehensive list of issues to ``provide the District 
sufficient time to adopt the necessary rule revisions and make a new 
NSR submittal to meet the implementation requirements of the 2015 
ozone NAAQS [national ambient air quality standards].''
---------------------------------------------------------------------------

    In addition, we understand the District's reference to 
``commitments'' to suggest that the EPA could have proposed a 
conditional approval under CAA section 110(k)(4) rather than proposing 
a limited approval and limited disapproval. As authorized under CAA 
sections 110(k)(3) and 301(a), we are taking action to finalize a 
limited approval and limited disapproval of the submitted rules that 
contain the deficient provisions we identified in our proposed action.
    Comment #2: The District states that the EPA's proposed rulemaking 
does not fully identify its existing NSR program. The District states 
that Table 1 in the proposed action and Table 2 in the accompanying 
Technical Support Document (TSD) are incomplete because they fail to 
mention SIP-approved Rules 201, ``Permit to Construct,'' 202, 
``Temporary Permit to Operate,'' 203, ``Permit to Operate,'' and 204, 
``Permit Conditions.'' The District points out that Rules 201, 202, 
203, and 204 are currently in the SIP, but states that they should have 
been listed in the proposed action because they are important for 
understanding portions of the District's NSR program. The District then 
requests that the EPA officially acknowledge that Rules 201, 202, 203, 
and 204 are part of District's NSR Program.
    Response to Comment #2: The EPA acknowledges that SIP-approved 
Rules 201, 202, 203, and 204 are part of the District's SIP-approved 
NSR program and clarifies that the purpose of Table 1 in our proposed 
action and Table 2 in the TSD is to present the submitted rules and the 
current SIP-approved versions of the submitted rules.
    Comment #3: The District states that the EPA's proposed rulemaking 
identifies deficiencies that are present in the current SIP-approved 
rules and does not explain why these previously approved provisions are 
no longer approvable. The District states that it would appreciate a 
more detailed explanation of the underlying provisions of the CAA that 
have changed to make the previously approved SIP provisions, which were 
adequate for SIP approval in 1996, not approvable now. The District 
states that it is not aware of any amendments to the CAA since 1990, 
therefore it requests an updated, specific analysis with appropriate 
citations, documentation, and rationale for the changes to EPA's 
interpretations that render previously approved NSR program provisions 
not approvable. The District states that it would appreciate a more 
detailed analysis--not mere citations of current regulations--regarding 
the specific changes in the EPA regulations and policy that now render 
previously approved provisions deficient. The District states that the 
TSD associated with the EPA's proposed action does not provide a 
sufficient explanation of the EPA's interpretation of the CAA 
requirements.
    Response to Comment #3: We disagree with the District's comment 
that our proposed action does not provide sufficient explanation or 
analysis of the deficiencies identified. The EPA provided its rationale 
as to why the submitted revisions to the SIP-approved rules, while 
deficient, represent an overall strengthening of the SIP.\5\ Our 
proposed action and the TSD cite to specific provisions in the CAA and 
its implementing regulations in 40 CFR part 51 that form the basis for 
the EPA's disapproval of specific provisions in the District's revised 
NSR rules.
---------------------------------------------------------------------------

    \5\ See 87 FR 72436-38; TSD Sections 5-10.
---------------------------------------------------------------------------

    As the District notes, the EPA last approved the District's 
Regulation XIII into the SIP in 1996. In 2002, the EPA revised its NSR 
regulations at 40 CFR 51.165.\6\ These revisions included the addition 
of 40 CFR 51.165(a)(3)(ii)(J). As we discuss in this document and in 
our proposed action and accompanying TSD, the District's submitted 
rules are inconsistent with the requirements in 40 CFR 
51.165(a)(3)(ii)(J) and are therefore deficient.\7\ In particular, our 
proposed action explains that 40 CFR 51.165(a)(3)(ii)(J) requires 
offsets for each major modification at a major source based on the 
difference between pre-modification actual emissions and post-
modification PTE.\8\ Our responses to Comments 5 and 6 below provide 
additional explanation of this issue. The EPA's interpretation of this 
provision is reasonable and is consistent with our actions regarding 
other submittals of NSR rules for SIP approval.\9\
---------------------------------------------------------------------------

    \6\ 67 FR 80185 (December 31, 2002).
    \7\ We explained in our TSD that the calculation of the offset 
quantity to use an actual emissions baseline is applicable to 
offsets that are being used to allow construction of new major 
sources or major modifications. The District can offset its minor 
sources and minor modifications differently than the required 
methods specified for major sources and major modifications.
    \8\ See, e.g., ``Response 4,'' 81 FR 50339, 50340 (August 1, 
2016).
    \9\ See, e.g., 81 FR 50339 (August 1, 2016), in which we 
finalized a limited approval/limited disapproval action on the Bay 
Area Air Quality Management District's NSR program. The Bay Area Air 
Quality Management District subsequently revised and resubmitted its 
rules, which the EPA approved in the rulemaking titled: ``Revisions 
to California State Implementation Plan; Bay Area Air Quality 
Management District; Stationary Sources; New Source Review,'' 83 FR 
8822 (March 1, 2018). See also ``Revision of Air Quality 
Implementation Plan; California; Sacramento Metropolitan Air Quality 
Management District; Stationary Source Permits,'' 78 FR 53270 
(August 29, 2013).
---------------------------------------------------------------------------

    Comment #4a (Inaccuracies regarding Rule 219): The District states 
that the EPA's TSD contains inaccuracies and misstatements regarding 
MDAQMD Rule 219. The District states that the EPA's statement in the 
TSD that Rule 219 exempts certain emission units from NSR is 
``manifestly untrue.'' The District describes its permitting program as 
emissions unit-based, and distinguishes it from the Federal regulatory 
scheme, which the District describes as facility-based. The District 
states that the ``net result'' is that while a specific emissions unit 
may be exempt from permitting requirements, it ``will still undergo the 
NSR process.'' The District cites Rules 1301 and 1304 to support its 
position that its NSR program requires emissions changes to be 
determined both on an emissions unit by emissions unit basis and in 
regard to the facility as a whole, and it cites to Rule 219(B)(4) to 
support its position that Rule 219 requires emissions from exempt 
equipment to be included in NSR calculations. The District further 
states that while Rule 219 exempts certain emissions units from 
obtaining ``paper'' permits, it does not exempt emissions units or an 
entire facility containing such units from other District requirements, 
such as specific emissions limits and monitoring, recordkeeping, and 
source testing requirements, as well as the requirement to undergo at 
least a portion of the NSR analysis as set forth in Rule 1302, among 
others.
    The District states that ``USEPA has expressed concerns in the 
past'' that a facility could escape NSR review if it were composed 
entirely of exempt equipment and explains that there are several 
backstops that prevent facilities that consist solely of equipment that 
is potentially exempt under Rule 219 from escaping review, such as 
actions undertaken by enforcement personnel and local land use agencies 
pursuant to state law. The District requests that the notation 
regarding the nature and effect of Rule 219 as part of its NSR program 
be corrected or clarified in the EPA's TSD.
    Response to Comment #4a (Inaccuracies regarding Rule 219): The EPA 
proposed to fully approve Rule 219 as amended on January 25, 2021, 
because we have determined that it satisfies all relevant CAA 
requirements. We do not interpret the District's comment as an 
assertion that our proposed action to fully approve Rule 219 is 
incorrect; rather, the EPA understands the District's comment to take 
issue with a statement in section

[[Page 42262]]

5.7 of our TSD, specifically, that Rule 219 ``is a rule that specifies 
which sources are exempt from the New Source Review program for 
regulated NSR pollutants.'' \10\ We agree that this statement warrants 
clarification that we determined the District's NSR program requires a 
facility-level review of emissions from a proposed project, including 
emissions from equipment otherwise exempt from permitting requirements, 
and that Rule 219 is consistent with 40 CFR 51.160(e), which allows 
states to exclude some sources from NSR requirements (i.e., lowest 
achievable emission rate (LAER) and offsets), as well as public notice, 
by not requiring those sources to obtain a permit. There is a 
distinction between sources subject to NSR requirements and sources 
that are simply part of the District's NSR program. Even emissions from 
equipment that is exempt from permitting requirements must be included 
when making a major source determination. Rules 201 and 203 require 
that essentially all sources must obtain an authority to construct and 
a permit to operate, but Rule 219 specifies which sources do not need 
to obtain a permit, and therefore do not need to undergo NSR review, 
even if their emissions are included in determining if a source is 
major.
---------------------------------------------------------------------------

    \10\ 87 FR 72434 (November 25, 2022). Technical Support 
Document, ``Notice of Proposed Rulemaking Revisions to the 
California State Implementation Plan, MDAQMD, NSR Rules 206, 219, 
1300, 1301, 1302, 1303, 1304, 1305, 1306, 1402.'' Page 13.
---------------------------------------------------------------------------

    The District's comment refers to concerns that the EPA has 
expressed ``in the past.'' Although the EPA may have expressed concerns 
with a previous version of Rule 219, our review of the submitted 
version of Rule 219 did not identify any remaining concerns and found 
that the rule is approvable.\11\ Therefore, we do not find it necessary 
to address the merits of the ``backstops'' involving District 
enforcement and State laws that the District asserts would mitigate 
such a problem.
---------------------------------------------------------------------------

    \11\ See, ``Email Communication between Gerardo Rios (EPA) and 
Brad Poiriez (District) on 3/28/2019,'' Docket No. C.12, expressing 
concerns with a previous version of Rule 219 that is not the subject 
of this rulemaking. (We have since corrected the inadvertent 
omission of portions of document C.12 from the docket and we note 
that substantive portions of document No. C.12 were included in a 
different document, ``Spreadsheet of identified deficiencies and 
changes made discussed during 11/17/20 Working Group Call with 
representatives from EPA, the District and CARB,'' Docket No. C.15.) 
As we discussed in our proposed rule, and TSD section 5.7 and TSD 
Attachment 3, we found that Rule 219 as revised on January 25, 2021, 
and submitted to the EPA on July 23, 2019, to be consistent with CAA 
requirements.
---------------------------------------------------------------------------

    Comment #4b (Use of the term ``contract''): The District comments 
that the EPA failed to sufficiently communicate a deficiency identified 
in our proposed action, specifically, that Rules 1302 and 1304 allow 
for the interchangeable use of the terms ``contract'' and ``permit.'' 
The District states that, had the EPA communicated this deficiency, the 
District could have provided assurances to the EPA to remove the 
deficiency. The District states that it can and will be able to provide 
a commitment to modify the deficient provisions in a subsequent local 
action, but it requests specific guidance from the EPA on whether it is 
appropriate to provide the EPA a commitment to modify at this time.
    Response to Comment #4b (Use of the term ``contract''): We do not 
interpret the District's comment to assert a legal or technical basis 
that our proposed action to disapprove this rule is incorrect. The 
District states that the term ``contract'' was most likely 
inadvertently retained and that it can commit to modify the specific 
provisions to address the issue. We appreciate the District's 
willingness to address this deficiency. It is not necessary for the 
District to provide additional commitments. Following this final 
action, the EPA remains available to discuss necessary revisions, with 
the goal of full approval of revisions to the District's rules and a 
fully approved NSR program.
    Comment #5: Regarding the second deficiency the EPA identified in 
the proposed rulemaking, the calculation procedures the District uses 
to determine the amount of offsets required in certain situations, the 
District first states that the EPA partially mischaracterizes Rule 
1304(C)(2)(d) as a ``potential to emit to new potential to emit after 
modification'' calculation. According to the District, this provision 
is more correctly characterized as ``current fully offset allowable 
emissions'' to ``potential new emissions.'' The District further states 
that the provision was intended to only be used to reduce the amount of 
offsets needed as opposed to a determination of whether offsets are 
required. The District also states that the structure of its NSR 
regulation is designed to ensure that emissions reductions are greater 
than those required by the Federal CAA provisions, and to meet specific 
requirements of the California Clean Air Act and states that the de 
minimis provisions in CAA section 182 could result in increased 
emissions. The District states that the provision allowing for the use 
of SERs has been in active use within the District since 1993, and that 
over that time, the number and extent of NAAQS exceedances has declined 
within its jurisdiction despite significant increases in economic 
activity and population. Therefore, the District states, the decline in 
NAAQS exceedances would not have occurred if its NSR program was not 
achieving reductions at least as stringent as those under strict CAA 
methodology. The District also states that ``it has provided clear and 
convincing evidence in its Staff Report and elsewhere that the entire 
NSR Program as formulated requires not only BACT but also Offsets in a 
number of situations where they would not be required under a strict 
[Federal] CAA calculation methodology thus resulting in a more 
stringent set of requirements overall.'' The District states that, 
despite its assertion of the adequacy of the current SIP submission, it 
would appreciate specific guidance regarding the type and nature of 
evidence the EPA would consider appropriate to show equivalent 
stringency with the requirements of the CAA.
    Response to Comment #5: The EPA does not agree with the District's 
comment. Preliminarily, the EPA notes that Rule 1303(B) imposes offset 
obligations for new or modified facilities that emit or have the 
potential to emit above specified thresholds ``as calculated pursuant 
to District Rule 1304.'' \12\ Rule 1304, ``New Source Review Emission 
Calculations,'' sets forth ``the procedures and formulas to calculate 
increases and decreases in emissions'' to determine applicability of 
offset obligations and to calculate SERs, which are ``reductions 
generated within the same facility.'' \13\ Rule 1304(B)(1) specifies 
``General emission change calculations,'' and Rule 1304(B)(2) specifies 
``Net Emissions Increase Calculations.'' Notably, Rule 1304(B)(2)(c) 
provides that the net emissions increase calculation must subtract SERs 
``as calculated and verified pursuant to Section C below.'' Rule 
1304(C) specifies the calculation of SERs. The EPA proposed to 
disapprove Rule 1304(C)(2)(d). This provision applies to modification 
projects at existing major sources that involve emissions units that 
``have been previously offset in a documented prior permitting 
action.'' Thus, Rule 1304(C)(2)(d) relates to the calculation of a net 
emissions increase to establish offset obligations.
---------------------------------------------------------------------------

    \12\ Rule 1303(B)(1). See also, EPA TSD at 17. Rule 1303(A) 
specifies control obligations, i.e., Best Available Control 
Technology.
    \13\ Rule 1304(A). In addition, Rule 1304 sets forth 
``procedures and formulas'' to calculate BACT obligations. See Rule 
1304 (A)(1)(a)(i). See also, EPA TSD at 17-18.

---------------------------------------------------------------------------

[[Page 42263]]

    The EPA's proposed action explains that Rule 1304(C)(2)(d) is 
deficient because, for certain projects, it allows the amount of 
required offsets to be calculated using a pre-project baseline using 
potential emissions (generally, the emissions allowed by a permit),\14\ 
whereas the CAA requires a pre-project baseline based on actual 
emissions.\15\ As the EPA explained, CAA section 173(c)(1) requires the 
SIP to contain provisions to ensure that emission increases from new or 
modified major stationary sources are offset by real reductions in 
actual emissions. In addition, 40 CFR 51.165(a)(3)(ii)(J) requires 
that, for major modifications, the total quantity of increased 
emissions 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.
---------------------------------------------------------------------------

    \14\ Rule 1304(C)(2)(d)(i) states that the PTE for an emissions 
unit is specified in a federally enforceable emissions limitation. 
Therefore, in the context of this rulemaking action, the terms 
``allowable'' and ``potential'' are generally interchangeable.
    \15\ We note that District's comment includes the following 
incorrect statement, ``Specifically, USEPA is objecting to the use 
of Simultaneous Emissions Reductions (SERs) which are created as 
part and parcel of an NSR action at a Major Facility to in effect 
`self-fund' the necessary offsetting emissions reductions by 
reducing emissions elsewhere in the Major Facility.'' The deficiency 
identified by the EPA is the District's calculation methodology to 
determine the quantity of offsets required, which inappropriately 
allows for the use of reductions that occurred in the past and are 
not necessarily ``simultaneous.''
---------------------------------------------------------------------------

    Rule 1304(C)(2)(d) is not consistent with statutory and regulatory 
requirements that the pre-project baseline utilize actual emissions to 
calculate offset obligations. Instead, for emissions from units that 
have been ``previously offset in a documented prior permitting 
action,'' Rule 1304(C)(2)(d) allows the pre-project baseline to use the 
unit's potential to emit (the unit's allowable emissions) as reflected 
in a permit:

    [Historic Actual Emissions] for a specific Emission Unit(s) may 
be equal to the Potential to Emit for that Emission Unit(s), [if] 
the particular Emissions Unit have [sic] been previously offset in a 
documented prior permitting action so long as: (i) The PTE for the 
specific Emissions Unit is specified in a Federally Enforceable 
Emissions Limitation; and (ii) The resulting Emissions Change from a 
calculation using this provision is a decrease or not an increase in 
emissions from the Emissions Unit(s) and (iii) Any excess SERs 
generated from a calculation using this provision are not eligible 
for banking pursuant to the provision [sic] of District Regulation 
XIV.

    The District states that the EPA partially mischaracterizes Rule 
1304(C)(2)(d) as allowing the use of the potential-to-potential test 
because the provision is more correctly characterized as ``current 
fully offset allowable emissions'' to ``potential new emissions.'' It 
is true that Rule 1304(C)(2)(d) allows the use of a pre-project 
baseline based on currently fully offset allowable emissions, because 
it is clear that the rule equates allowable emissions and potential to 
emit. However, the District's statements regarding the use of allowable 
emissions or potential emissions as the pre-project baseline are not 
relevant to the point presented in our proposed action: Rule 1304 is 
not consistent with Federal requirements because it does not require 
the use of actual emissions as the pre-project baseline, rather than 
allowable emissions.\16\
---------------------------------------------------------------------------

    \16\ See, e.g., 40 CFR 51.165(a)(3)(ii)(J) [requiring offsets 
for each major modification at a major source in an amount equal to 
the difference between pre-modification actual emissions, not 
allowable (i.e., potential) emissions].
---------------------------------------------------------------------------

    Allowable emissions are generally set higher than anticipated 
actual emissions to allow for normal fluctuations in emissions to occur 
without violating the permit conditions. The use of allowable emissions 
as the pre-project baseline means that the difference between pre-
project and post-project emissions will be smaller than a calculation 
applying the EPA's requirement to use actual emissions as the pre-
project baseline. Therefore, the District's rule, when using this 
provision, is likely to under-calculate the quantity of offsets 
required.
    The District's assertion that only units that are already fully 
offset can use the allowable-to-potential offset quantification method 
does not remedy this deficiency, as fully offset units are still likely 
to have allowable emission limits above their actual emissions.\17\ 
Furthermore, the District's assertion that the allowable-to-potential 
methodology is only available to generate ``self-funded'' reductions 
for use as offsets also fails to remedy this problem, since Federal 
requirements require actual emissions to be used as the baseline for 
offsets calculations in all instances, including those in which a 
facility internally generates its own emissions reductions to satisfy 
its offset obligations. Similarly, the District's statement that its 
rule does not allow an increase in allowable emissions is irrelevant. 
CAA 173(c)(1) and 40 CFR 51.165(a)(3)(ii)(J) require that the quantity 
of offsets must be based on increases above actual emissions.
---------------------------------------------------------------------------

    \17\ Relatedly, Rule 1304(C)(d)(2) allows the use of allowable 
(i.e., potential) emissions if the unit's emissions ``have been 
previously offset in a documented permitting action,'' but does not 
specify a timeframe for such previous permitting actions, which is 
inconsistent with Rule 1304(B)(2)(c)'s provision that SERs must 
occur ``at the same time or in connection with the same permitting 
action.'' The District's Staff Report also states, on pages 44-45: 
``If the Facility has fully offset Emissions Units it may in effect 
`reuse' its previously provided offsets in a different capacity.'' 
CAA sections 173(a)(1)(A) and 173(c) and EPA's NSR regulations, 
however, do not allow facilities to use the same emissions 
reductions more than once; if a facility relies upon emissions 
reductions for a prior NNSR action, under 40 CFR 
51.165(a)(3)(ii)(G), they are not eligible for use again in a future 
NNSR permit action.
---------------------------------------------------------------------------

    A real-world example that illustrates how the District's rules are 
less stringent than Federal requirements is a modification project 
reviewed by the District to upgrade three existing natural gas-fired 
combustion turbines at a power plant. The District's analysis of the 
project presents the facility's actual emissions of NOX in 
the five-year period from 2016 to 2020 as ranging from 83.6 tons per 
year (tpy) to 103.9 tpy.\18\ The District's analysis also presents the 
``pre-modification PTE'' of NOX as 205 tpy. The District's 
analysis states that the ``post-modification PTE'' of NOX is 
204.5 tpy.\19\ Per the EPA's requirements, the required quantity of 
offsets for this project would be approximately 131 tpy (204.5 tpy 
minus the highest emissions rate of 103.9 tpy, multiplied by 1.3 for 
Severe nonattainment areas, as required under CAA section 182(d)(2)). 
Per the District's rules, however, the required quantity of offsets 
calculated is minimal because there is virtually no difference between 
pre-project allowable emissions and post-project allowable (i.e., 
potential) emissions (in fact, the District's analysis indicates a 0.55 
tpy decrease in emissions resulting from the project).\20\
---------------------------------------------------------------------------

    \18\ MDAQMD, ``Preliminary Determination/Decision--Statement of 
Basis for Minor Modification to and Renewal of FOP Number: 104701849 
For: High Desert Power Project, LLC.'' December 21, 2022, p. A-52 
(PDF p. 72), Table 9.
    \19\ MDAQMD, ``Preliminary Determination/Decision--Statement of 
Basis for Minor Modification to and Renewal of FOP Number: 104701849 
For: High Desert Power Project, LLC.'' December 21, 2022, p. A-54 
(PDF p. 74), Table 14.
    \20\ See also, Letter dated June 16, 2022, from Jon Boyer, 
Director, Environmental, Health, and Safety, Middle River Power, to 
Lisa Beckham, EPA Region IX, Subject: ``Prevention of Significant 
Deterioration (PSD) Applicability Analysis for Turbine Upgrades at 
the High Desert Power Project (Revised),'' (``HDPP PSD Analysis''). 
The same project was analyzed as a modification under the Federal 
PSD program, which uses the baseline actual emissions to projected 
actual emissions methodology for determining applicability of the 
Federal NNSR program. The submitted PSD analysis shows that the 
project will result in an increase in actual emissions. For 
NO2, projected actual emissions would be 35.25 tpy 
greater than baseline actual emissions. HDPP PSD Analysis, Table 7, 
p. 8.

---------------------------------------------------------------------------

[[Page 42264]]

    Regarding the District's statement that ``USEPA is objecting to the 
use of Simultaneous Emissions Reductions (SERs) which are created as 
part and parcel of an NSR action at a Major Facility to in effect 
`self-fund' the necessary offsetting emissions reductions by reducing 
emissions elsewhere in the Major Facility,'' the EPA disagrees. This 
statement is inaccurate because the EPA did not categorically reject 
the District's use of SERs; rather, we identified the District's SERs 
calculation methodology as inconsistent with Federal requirements.\21\ 
As has been noted, the EPA identified as a deficiency Rule 
1304(C)(2)(d), which provides that the pre-project baseline can be 
equal to allowable (i.e., potential to emit, or potential emissions) if 
the emissions unit has been ``previously offset in a documented prior 
permitting action.'' Thus, the deficiency that the EPA identified is 
the District's use of SERs as a means to deviate from the Federal 
requirement to use actual emissions for the pre-project baseline. 
Instead, Rule 1304(C)(2)(d) uses a pre-project baseline using allowable 
(i.e., potential) emissions for units with previously offset emissions. 
Moreover, the EPA's regulations at 40 CFR 51.165(a)(3)(ii)(J) plainly 
apply to each proposed major modification.
---------------------------------------------------------------------------

    \21\ 87 FR 72434, 72437. We identified several District rules as 
not fully approvable because they do not ensure compliance with 
Federal regulations for calculation of required offsets, stemming 
from cross-references to Rule 1304(C)(2)(d). See, e.g., TSD Table 4, 
``Summary of Deficiencies Due to Cross References.''
---------------------------------------------------------------------------

    The District also states that SERs created from currently existing 
fully offset permit units at an existing major facility can only be 
used for changes at the same facility and cannot be banked. The fact 
that SERs cannot be bought and sold between facilities does not address 
the deficiency identified by the EPA that Rule 1304(C)(2)(d) allows the 
calculation of required offsets to use a baseline of allowable (i.e., 
potential) emissions, not the federally required baseline of actual 
emissions.\22\
---------------------------------------------------------------------------

    \22\ Arguably, the District allows facilities to ``bank'' 
emission reductions for their own internal future use, even if the 
District prohibits use of banked emission reductions between 
facilities.
---------------------------------------------------------------------------

    The District also states that Rule 1304(C)(2)(d) is intended to be 
used only to reduce the amount of offsets needed as opposed to a 
determination of whether offsets are required. This statement, however, 
appears to be a distinction without a difference. For example, any 
scenario in which the District's calculation of the amount of offsets 
required is zero (as in the real-world example described above) is 
tantamount to a determination that no offsets are required.
    The District asserts ``that it requires Best Available Control 
Technology (BACT) and offsets in more cases and on a greater number of 
Emissions Units'' than the CAA requires. The District, however, 
provides no demonstration to support this claim, nor does the District 
provide any basis on which EPA could find that the District's NSR 
program ensures equivalency with Federal offset requirements.\23\ 
Similarly, the references in the District's comment letter to its Staff 
Report are not sufficient to demonstrate that its NSR program offsets 
emissions increases in a manner that is at least as stringent as 
Federal requirements. For example, Table 4 of the Staff Report compares 
BACT and offset requirements, but the information does not demonstrate 
how implementation of the District's NSR program is imposing an 
equivalent quantity of offsets.\24\ In addition, the last row of Table 
4 states that offsets are required for significant modifications at 
existing major facilities, but it does not address the difference 
between the District's program and the Federal regulations in 
calculating the necessary quantity of offsets for such projects.
---------------------------------------------------------------------------

    \23\ See 40 CFR 51.165(a)(1), (a)(2)(ii).
    \24\ MDAQMD Staff Report p. 38-40.
---------------------------------------------------------------------------

    The District also asserts that the EPA previously approved the 
provision we now find deficient and that, since 1993, when this 
provision came into active use, the number and extent of NAAQS 
exceedances has declined. The District also asserts that the decline in 
emissions could not have occurred if its NSR program was not achieving 
reductions at least as stringent as those that would occur if the 
District followed the requirements of the CAA. We do not agree with 
this comment. NSR programs primarily regulate construction and 
modification of stationary sources, and improvements in air quality can 
and do result from regulation of existing stationary sources (e.g., 
reasonably available control technology (RACT), reasonably available 
control measure (RACM), and best available control measure (BACM) 
requirements) as well as from regulation of mobile sources such as 
passenger vehicles and trucks, and non-road engines such as diesel 
engines used in agriculture and construction. The EPA also notes that 
the District is currently classified as Severe nonattainment for the 
2008 and 2015 NAAQS; therefore, the CAA requires the District to 
implement rules consistent with Federal nonattainment NSR requirements 
at CAA section 173 and 40 CFR 51.165.
    We address MDAQMD's point regarding the De Minimis provisions at 
CAA 182(c)(6) in response to Comments 9 and 10 below.
    Comment #6: The District disagrees with the EPA's proposed 
disapproval of Rule 1301's definitions of the terms ``Major 
Modification'' and ``Modification (Modified).'' The District summarizes 
the EPA's concern that these terms allow the use of reductions from 
previously offset emissions units as SERs in such a way that a source 
might avoid entirely offset requirements. The District states that the 
EPA is correct that the Net Emissions Increase calculation under Rule 
1304(B)(2)(c) includes SERs, but that the EPA failed to consider that 
Rule 1302 ``very clearly sets out a flow for analysis in which one step 
occurs after another in sequence,'' referring to the ``Final NSR Staff 
Report.'' The District also states that the EPA also failed to consider 
Rule 1303(A)(4), which excludes the use of SERs in determining 
emissions increases for the purpose of applying BACT.
    The District admits that Rule 1304(C)(2)(d) could be interpreted 
incorrectly ``without the procedural sequence that Rule 1302 sets 
forth.'' The District asserts that these provisions have been in active 
use since 1993 with demonstrable results in overall air quality. The 
District states that, despite its assertion of the adequacy of the 
submitted provisions, it would appreciate guidance from the EPA 
regarding methods to clarify that SERs derived from previously fully 
offset activities can be used only to reduce the amount of offsets 
required and not for any other purpose.
    Response to Comment #6: The EPA disagrees with the District's 
assertions that the EPA's proposed disapproval of Rule 1301's 
definitions for ``Major Modification'' and ``Modification (Modified),'' 
is incorrect. We note that Rule 1301 defines both terms using the term 
``Net Emissions Increase,'' and, as explained in our proposed action, 
Rule 1301(QQ) defines the term ``Net Emissions Increase'' as an 
emission increase calculated per Rule 1304(B)(2) that exceeds zero.\25\ 
Rule 1304(B)(2) prescribes the calculation methodologies for net 
emissions increases, and provides that net emissions increases must 
subtract SERs ``as calculated and verified pursuant to Section C 
below.'' \26\ As noted in our proposed action and in our response to 
Comment 5, Rule 1304(C)(2)(d) allows permit applicants to calculate a 
net

[[Page 42265]]

emissions increase using allowable (i.e., potential) emissions as the 
pre-project baseline, rather than actual emissions, as required by the 
EPA's regulations.\27\ As we have explained in our response to Comment 
5 above, the District's approach is less stringent than Federal 
requirements because actual emissions are almost always lower than 
allowable (i.e., potential) emissions. Therefore, an evaluation of a 
net emissions increase (which is essentially a comparison of pre-
project and post-project emissions) that uses actual emissions as the 
pre-project baseline (as required by the EPA's regulations) will show a 
higher net emissions increase than a calculation that uses allowable 
(i.e., potential) emissions as the pre-project baseline.
---------------------------------------------------------------------------

    \25\ 87 FR 72434, 72437.
    \26\ Rule 1304(B)(2)(c).
    \27\ 40 CFR 51.165(a)(2).
---------------------------------------------------------------------------

    We further note that Rule 1303, ``New Source Review Requirements,'' 
sets forth Best Available Control Technology (BACT) requirements \28\ 
at subsection (A), and subsections (A)(2) and (A)(3) impose BACT 
requirements through the use of the term ``Modified,'' defined at Rule 
1301(NN).\29\ As we explained in our proposed action, Rule 1301(NN) 
defines ``Modified'' in terms of whether a project will result in a 
``Net Emissions Increase.'' \30\ As a result, a project that does not 
result in a ``Net Emissions Increase'' will not meet the criteria for 
``Modified.'' Therefore, projects can potentially avoid the 
applicability of the BACT requirement because Rule 1303 uses the term 
``Modified'' and, indirectly, the term ``Net Emissions Increase,'' to 
impose this requirement.
---------------------------------------------------------------------------

    \28\ We acknowledge that the District's definition of Best 
Available Control Technology in Rule 1301(J) is consistent with the 
definition of ``lowest achievable emission rate'' in CAA section 
171(3) and 40 CFR 51.165(a)(1)(xiii).
    \29\ Rule 1303(A)(2) and (A)(3) use the term ``Modified Permit 
Unit''; Rule 1301 separately defines the terms ``Modification 
(Modified)'' at subsection (NN) and ``Permit Unit'' at subsection 
(AAA).
    \30\ 87 FR 72437.
---------------------------------------------------------------------------

    Similarly, Rule 1303(B)(2) imposes offset requirements using the 
term ``Major Modification,'' which is defined at Rule 1301(JJ). Rule 
1301(JJ) defines ``Major Modification'' using the term ``Net Emissions 
Increase.'' \31\ As a result, a project that does not result in a ``Net 
Emissions Increase'' will not meet the criteria for a ``Major 
Modification'' and therefore can potentially avoid the applicability of 
offset requirements because Rule 1303 uses the term ``Major 
Modification'' and, indirectly, the term ``Net Emissions Increase,'' to 
impose this obligation.
---------------------------------------------------------------------------

    \31\ Rule 1301(JJ) refers to a ``Significant Net Emissions 
Increase''; Rule 1301 separately defines ``Significant'' at 
subsection (NNN) and ``Net Emissions Increase'' at subsection (QQ).
---------------------------------------------------------------------------

    The District states, ``the existence of Rule 1302 . . . very 
clearly sets out a flow for analysis in which one step occurs after 
another in sequence . . . First you determine `Emissions Change' under 
1302(C)(1) on both an Emission Unit and Facility wide basis using 
1304(B)(1) . . . No SERs are used in this calculation.'' The EPA does 
not agree with these statements. Rule 1302(C)(1) does not specifically 
reference Rule 1304(B)(1)--it references, more generally, Rules 1304 
and 1600.\32\ This point is significant because Rule 1302(C)(1)'s 
general cross-reference to Rule 1304 encompasses not just Rule 
1304(B)(1), which might be helpful, but also the deficient provisions 
of Rule 1304(C)(2)(d), which, as explained above, calculate SERs using 
a pre-project baseline of allowable (i.e., potential) emissions, which 
results in improper calculations of net emissions increases.
---------------------------------------------------------------------------

    \32\ Rule 1302(C)(1)(a) states: ``The APCO shall analyze the 
application to determine the specific pollutants, amount, and change 
(if any) in emissions pursuant to the provisions of District Rules 
1304 and 1600.''
---------------------------------------------------------------------------

    The District, in its comment letter, ``admits that the provisions 
as expressed in 1304(C)(2)(d) could, in the abstract and absent the 
procedural sequence set forth in 1302, potentially be interpreted 
incorrectly.'' The EPA does not agree that Rule 1302 contains a 
``procedural sequence.'' We also do not find any such sequence in Rule 
1304. Rule 1304 identifies several different types of emissions 
calculations but does not specify an analytical framework for their 
use.
    The District's comment also repeatedly refers to its Staff Report. 
In general, references to non-regulatory sources can be helpful to 
explain regulatory text; however, the District's reliance on its Staff 
Report in this instance is not sufficient to correct the fact that the 
rules fail to ensure proper analysis and implementation of Federal 
requirements.
    Therefore, Rule 1302's broad cross reference to Rule 1304 is 
insufficient to establish a sequence or an ``analysis flow'' such as 
that asserted by the District. The ambiguity in the District's rules 
means that they do not ensure a proper analysis of emissions changes, 
such as, for example, correctly evaluating whether a project will 
result in an ``Emissions Change'' before evaluating whether it will 
result in a ``Net Emissions Increase.'' Such sequence is essential to 
correctly identifying whether a project would result in a net emissions 
increase under 40 CFR 51.165(a)(1)(vi), which the District currently 
uses as a basis for determining whether a project is a ``Major 
Modification.''
    In reviewing SIP submissions, the EPA must ensure that the plain 
language of the rule under review is clear and unambiguous. In a 
September 23, 1987 memorandum, the ``Potter memo,'' the EPA stated its 
criteria regarding the enforceability of SIPs and SIP revisions.\33\ 
The Potter memo states that SIP rules must be clear in terms of their 
applicability, and that ``[v]ague, poorly defined rules must become a 
thing of the past.'' \34\ It also states that ``SIP revisions should be 
written clearly, with explicit language to implement their intent. The 
plain language of all rules . . . should be complete, clear, and 
consistent with the intended purpose of the rules.'' \35\ The EPA can 
only approve rule language that is clear on its face, and the sequence 
the District uses for determining emissions changes and net emissions 
increases is not sufficiently clear. The clarification in the Staff 
Report cannot supplant vague rule language. The District makes the 
statement that it has been using the provisions at issue ``since 1993 
with demonstrable results in overall air quality.'' Even if air quality 
improved during this period, the rules must be clarified to ensure they 
are interpreted properly. It is speculative to assume that any air 
quality improvements occurred as a result of the way the rules are 
currently written.
---------------------------------------------------------------------------

    \33\ Memorandum dated September 23, 1987, from J. Craig Potter, 
Assistant Administrator for Air and Radiation, to EPA Regional 
Administrators and Regional Counsels, Regions I-X, ``Review of State 
Implementation Plans and Revisions for Enforceability and Legal 
Sufficiency.''
    \34\ Id. at 3.
    \35\ Id. at 4.
---------------------------------------------------------------------------

    Additionally, the District's comment letter states that ``USEPA 
also conveniently ignores the provisions of 1303(A)(4) which excludes 
the use of SERs in determining emissions increases for purpose [sic] of 
applying BACT.'' Rule 1303(A)(4) includes an appropriately specific 
cross-reference to Rule 1304(B)(1), regarding ``General Emissions 
Change Calculations.'' Rule 1304(B)(1) provides for proper calculation 
of a project's emissions changes. However, the BACT requirement is also 
implemented by Rule 1303(A)(2) and (A)(3), which, as described above, 
use the term ``Modified,'' which is problematically defined by Rule 
1301(NN), specifically because of its cross-reference to the term ``Net 
Emissions Increase,'' which is in turn deficient because of its cross-
reference to Rule 1304's calculation

[[Page 42266]]

methodologies, including Rule 1304(C)(2)(d). As we described in our 
response to Comment 5, the District determined that a project did not 
trigger BACT because there was no net emissions increase and therefore 
the facility was not ``Modified'' as defined in Rule 1301(NN). It 
appears that the District used the SERs-related provisions of Rule 
1304(C)(2)(d) to calculate ``Net Emission Increase'' to conclude that 
the project was not ``Modified'' and as a result it did not require 
BACT.\36\ We note that such a conclusion appears inconsistent with Rule 
1303(A)(4), but apparently resulted from the ambiguities in Rules 1301, 
1302, 1303, and 1304 described above. Under the District's submitted 
NSR program, it is difficult to envision a scenario in which a ``fully 
offset'' emissions unit, using the District's terminology, would ever 
need to install BACT or obtain offsets as long as the facility does not 
increase its allowable emissions. Therefore, we confirm the 
determinations in our proposed action that the definitions of 
``Modification (Modified)'' and ``Major Modification'' in Rule 1301(QQ) 
and (NN) are deficient.
---------------------------------------------------------------------------

    \36\ The District's analysis of this project states: ``The 
permitting action is classified as an NSR Modification as defined in 
Rule 1301(NN). As there are no net emissions increases associated 
with NOX [nitrogen oxides], VOC [volatile organic 
compounds], or PM10 [particulate matter], the emissions 
unit and the facility are not Modified as defined in Rule 1301 with 
respect to those pollutants and current BACT is not triggered.'' 
(Emphasis in original.) MDAQMD, ``Preliminary Determination/
Decision--Statement of Basis for Minor Modification to and Renewal 
of FOP Number: 104701849 For: High Desert Power Project, LLC.'' 
December 21, 2022, p. 8. We note that the District makes two 
logically inconsistent statements in its analysis of the project: 
first, that the project is an NSR Modification under Rule 1301(NN), 
and second, that the project is not Modified as defined in Rule 
1301(NN).
---------------------------------------------------------------------------

    Comment #7: Regarding the EPA's fourth identified deficiency, the 
use of the word ``proceed'' in the definition of ``Historic Actual 
Emissions,'' the District agrees that the deficiency is probably an 
overlooked typographical error, but that it has been in the rule for 
several iterations, dating back to 1996. The District states that it 
could have provided to the EPA a commitment to correct this deficiency 
prior to the publication of the EPA's action if the EPA had provided 
prior notification of the issue. The District states that it would 
appreciate specific guidance from the EPA regarding whether a 
commitment to modify the deficient provision would be appropriate at 
this time.
    Response to Comment #7: The District does not appear to disagree 
with the EPA's proposed determination that this issue is a deficiency; 
rather, the District appears to take issue with the way the EPA 
provided notification of it. The EPA appreciates the coordination and 
cooperation demonstrated over the period of joint work by our agencies 
to improve the District's NSR rules. We remain available to discuss 
revisions necessary to address the deficiencies with the goal to full 
approval of revisions to the District's rules and a fully approved NSR 
program. The District may address this deficiency, along with all other 
identified deficiencies, in its next revised SIP submittal of its NSR 
program rules.
    Comment #8: This comment concerns the use of interprecursor 
trading, which is provided for in Rule 1305(C)(6). The District first 
states that the EPA is concerned that a court decision and subsequent 
change to 40 CFR 51.165(a)(11) make interprecursor trading 
impermissible. The District notes that it revised Regulation XIII 
(including Rule 1305) after the court decision but before the EPA 
revised 40 CFR 51.165(a)(11). The District states that it is unclear 
whether the revision to 40 CFR 51.165(a)(11) has been challenged and 
observes that the EPA could have chosen to revise the provision 
differently. The District states that the EPA did not provide any 
indication in the TSD on the current status of this particular 
regulatory provision other than a citation. The District references a 
footnote as providing sufficient warning and requiring compliance with 
the applicable provisions to ensure that interprecursor trading among 
ozone precursors does not occur in a subsequent NSR action. The 
District states that prompt communication on the EPA's part ``would 
have obliviated [sic] the need for this comment'' as the District could 
have committed to clarifying the deficient provision in a subsequent 
rulemaking. The District then requests specific guidance from the EPA 
regarding whether the provision of a commitment of modify the deficient 
provision would be appropriate at this time.
    Response to Comment #8: To the extent the District's comment might 
be read as asserting that the EPA's proposed limited approval/limited 
disapproval of Rule 1305 is incorrect, the EPA does not agree. As the 
District acknowledges in its comment, on January 29, 2021, the D.C. 
Circuit Court of Appeals issued a decision in Sierra Club v. USEPA, 
which vacated an EPA regulation that allowed the use of reductions of 
an ozone precursor to offset increases in a different ozone precursor, 
i.e., ``interprecursor trading.'' \37\ On July 19, 2021, the EPA 
removed the ozone interprecursor trading provisions in 40 CFR 
51.165(a)(11).\38\
---------------------------------------------------------------------------

    \37\ See, Sierra Club v. EPA, 21 F.4th 815, 819-823 (D.C. Cir. 
2021).
    \38\ 86 FR 37918 (July 19, 2021).
---------------------------------------------------------------------------

    Rule 1305(C)(6) allows for the use of interprecursor trading. This 
fact is not changed by a footnote in the rule that acknowledges the 
January 2021 court decision without clearly prohibiting the use of 
interprecursor trading to satisfy offset obligations.\39\ To the extent 
the District is suggesting that the timing of the EPA's revisions to 40 
CFR 51.165(a)(11) or the possibility of subsequent legal challenges to 
those revisions somehow affects the EPA's conclusion that Rule 
1305(C)(6) is not consistent with Federal law, we disagree. Therefore, 
the EPA's proposed limited approval/limited disapproval of Rule 1305 is 
appropriate. Following this final action, the EPA remains available to 
discuss necessary revisions, with the goal of full approval of 
revisions to the District's rules and a fully approved NSR program.
---------------------------------------------------------------------------

    \39\ The footnote attached to Rule 1305 states: ``Use of this 
section 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.''
---------------------------------------------------------------------------

    Comment #9: The District summarizes the EPA's proposed action as 
asserting that CAA section 182(c)(6) ``mandates the inclusion of a so 
called `De Minimis' provision'' and also as appearing to assert that 
CAA 182(c)(6) overrides the District's ability to implement rules that 
are more stringent than the requirements of the CAA pursuant to CAA 
section 116. The District notes that the previous version of Rule 1303, 
as amended on September 24, 2001, contained a provision that satisfied 
this requirement, but that it removed the provision from the current 
version because it was unworkable. The District asserts that the EPA 
did not bring up this issue during the rule development period. The 
District states that the inclusion of the ``de minimis'' provision, as 
required under CAA section 182, would allow major facilities to 
increase their actual emissions without providing offsets, increasing 
NOX and VOC emissions by as much as 750 tons per year. The 
District asserts that its removal of the ``de minimis'' provision from 
Rule 1303 strengthens the rule and results in its NSR program being 
more stringent than the CAA requirements. The District also states 
that, despite its assertion of the adequacy of the current submissions, 
it requests specific guidance regarding the

[[Page 42267]]

type and nature of evidence the EPA would consider appropriate to show 
greater stringency of the District's NSR program than that provided by 
the ``de minimis'' provision.
    Response to Comment #9: The EPA does not agree with the comment. 
CAA section 182(c)(6) (``the De Minimis Rule'') specifies a mandatory 
requirement for state NSR programs in nonattainment areas classified as 
Serious and above.\40\ It requires such areas to evaluate whether a 
particular physical change or change in the method of operation is a 
major modification by considering net emissions increases from that 
change and all other net emissions increases during the preceding five 
calendar years. If the total of all such increases is greater than 25 
tons, the particular change is subject to the area's SIP-approved NNSR 
program, according to the plain text of CAA section 182(c)(6).
---------------------------------------------------------------------------

    \40\ Nonattainment area classifications for the ozone NAAQS are 
established under CAA section 181.
---------------------------------------------------------------------------

    The District does not dispute the EPA's determination that the 
District's NSR program does not include provisions specified in CAA 
section 182(c)(6).\41\ Instead, the District asserts that the inclusion 
of language to satisfy the De Minimis Rule provision would result in 
emissions increases at major facilities, possibly totaling as much as 
750 tons each of NOX and VOC over a five-year period without 
requiring offsets. This assertion, however, reflects the District's 
misinterpretation of CAA 182(c)(6). CAA section 182(c)(6) requires NNSR 
programs in nonattainment areas to require facilities to aggregate 
project emissions over a rolling five-year period to ensure adequate 
regulatory review of NSR requirements such as those for control 
technologies and offsets. Contrary to the District's assertions, CAA 
section 182(c)(6) does not allow facilities to increase actual 
emissions by greater than 25 tons without offsetting them.
---------------------------------------------------------------------------

    \41\ The District also concedes that it revised Rule 1303 to 
remove a provision that previously provided such assurance.
---------------------------------------------------------------------------

    The District does not explain how the ``no net increase'' 
requirement of California Health and Safety Code section 40918(a)(1), 
which it references in footnote 73 of its comment letter, conflicts 
with the ``De Minimis'' requirements. The District's comment does not 
change the EPA's understanding that the De Minimis Rule operates 
independently of these requirements, and therefore the District's 
implementation of it would not weaken the District's current NNSR 
program. As the District's rules are currently written, BACT 
requirements apply when an emission unit has an emission increase or 
PTE of greater than 4.56 tpy (25 lb/day) (Rule 1303(A)(1) and (2)), or 
when the emission increase or PTE of all emission units exceed 25 tpy 
(Rule 1303(A)(3)). For example, a new facility with five emission 
units, each with a PTE of 4 tpy, would not be subject to BACT 
requirements under state or Federal NSR requirements. However, if 
during the next five years, the source proposed to add three additional 
emission units, each with a PTE of 4 tpy, BACT would still not be 
triggered under the current rule, since the State 4.56 tpy emission 
unit and the Federal 25 tpy project thresholds have not been exceeded. 
However, under the ``De Minimis'' requirements, the new project would 
be considered a major modification, with an aggregated emission 
increase of 32 tpy, and therefore, trigger both BACT and offset 
requirements for the current project. This is because the aggregated 
emissions from the two projects occurring within a five-year time frame 
exceed the 25 tpy threshold. The District's rules fail to ensure that 
such a scenario is not treated as de minimis, as CAA section 182(c)(6) 
requires. The Federal De Minimis Rule prevents a series of smaller 
projects, with emissions equivalent to the major modification 
threshold, from avoiding the major modification requirements of BACT 
and offsets. California law does not ensure conformity with the De 
Minimis Rule; therefore, the District's NSR program must include 
provisions to ensure compliance with it.
    The District asserts that its submitted rules would be more 
stringent than implementing the De Minimis Rule and other aspects of 
EPA's NNSR requirements and seeks guidance from the EPA on how to make 
this demonstration. In general, to make a demonstration that a program 
is at least as stringent as Federal NNSR program requirements, the 
District would need to demonstrate that the requirements of its rule 
would trigger LAER and offsets requirements in all cases that would 
trigger these same requirements pursuant to the provisions of CAA 
section 182(c)(6). The EPA does not believe such a demonstration is 
possible, given the variety of project scenarios, which, depending on 
the facts (timing and emission rates from individual groups of emission 
units), would show that each set of rules is more and less stringent 
than the other in some cases. As we discussed in our responses to 
Comments 5 and 6, the District's rules are flawed in that they allow 
for improper calculation of net emissions increases, which affects the 
implementation of NSR requirements. Our responses to Comments 5 and 6 
also describe the District's analysis of a permit application for a 
project involving a power plant and its determination that the project 
was not a modification because it would result in an emissions 
decrease, even though the project would increase actual emissions. We 
do not agree that the District's approach of not considering this 
project or other similar projects to be a modification constitutes a 
more stringent program.
    As to the District's statement regarding the EPA not raising this 
issue earlier, the EPA appreciates the coordination and cooperation 
demonstrated over the period of joint work by our agencies to improve 
the rules. We remain available to discuss revisions necessary to 
address the deficiencies with the goal of full approval of revisions to 
the District's rules and a fully approved NSR program.
    Comment #10: The District states that the De Minimis Rule ``would 
have a profound negative effect on air quality'' because not only would 
facilities be able to increase allowable emissions by up to 25 tons per 
rolling five-year period, but the rule would also cause other 
detrimental practices such as ``emissions spiking'' and delayed 
equipment upgrades.
    Response to Comment #10: The District's hypothetical assertions 
that CAA 182(c)(6) would encourage ``emissions spiking'' to 
artificially increase actual emissions prior to making a modification 
are unsupported. As a practical matter, a source operating for two 
years above its actual needed operations to get as close as possible to 
its allowable emissions would likely incur significant costs in the 
process to unnecessarily operate the equipment. We do not see this 
scenario as providing a realistic incentive, in fact, implementation of 
CAA section 182(c)(6) would create no greater incentive for a source to 
increase its actual emissions prior to making a change that may require 
the source to undergo NNSR than the limited incentive that exists under 
the District's current rules. Similarly, the District's hypothetical 
assertion that the De Minimis Rule would discourage facilities from 
upgrading equipment is outside the scope of our proposed action, which 
is to ensure the District's NSR rules comply with Federal NNSR program 
requirements regarding the calculation of emission reductions and

[[Page 42268]]

the quantity of offsets required for significant emission 
increases.\42\
---------------------------------------------------------------------------

    \42\ We also note that the District's current NSR program fails 
to adequately address increases in actual emissions that might 
result from delayed equipment upgrades because the rules allowing 
net emissions increases to be evaluated using a baseline of pre-
project allowable emissions rather than actual emissions. See EPA 
responses to Comments 5 and 6 above.
---------------------------------------------------------------------------

    The District requests that the EPA ``provide clear and convincing 
evidence that the implementation of USEPA's suggested corrections would 
indeed produce a benefit to air quality in the region''; however, the 
objective of the EPA review of the District's submitted rules is to 
ensure conformity with Federal requirements. Our proposed action 
describes the statutory and regulatory requirements that the District's 
NSR rules must satisfy for EPA approval.\43\ Where the District 
disagrees with the EPA's finding of deficiency, it has not provided a 
quantitative or legal demonstration that its rule provisions are more 
stringent, or at least as stringent as the Federal requirements.
---------------------------------------------------------------------------

    \43\ See 87 FR 72437-38; TSD p. 8-9.
---------------------------------------------------------------------------

    Comment #11: The District states that the EPA's proposed limited 
disapproval of all rules that cite Rule 1304(C)(2) is overbroad. The 
District states that the EPA has indicated that it is proposing to 
disapprove MDAQMD Rules 1301, 1302, 1303, 1304, and 1305 primarily due 
to the cross-references in these rules to provisions in Rule 
1304(C)(2). The District states that such an action would disapprove 
the use of any internal offsetting for any facility--not just Major 
Facilities--regardless of the calculation used to determine SERs. The 
District states that such a disapproval might result in an increase of 
emission reduction credits being banked and then immediately used, 
under District Regulation XIV, ``Emission Reduction Credit Banking,'' 
but asserts that it is more probable that it would result in an 
immediate cessation of all modifications to existing facilities within 
the District. Therefore, the District states this action is overbroad, 
as simply disapproving the use of the provisions in Rule 1304(C)(2)(d) 
would be enough to alleviate the EPA's stated concerns and allow the 
remainder of the NSR program to be approved in a manner and to the 
extent that it could be included to satisfy the 70 parts per billion 
(ppb) ozone NAAQS requirements. The District requests that the EPA 
provide further justification on why a more limited disapproval of the 
provisions contained in Rule 1304(C)(2)(d) would be insufficient to 
address the EPA's major alleged deficiencies, as set forth in the EPA's 
proposed action.
    Response to Comment #11: As we stated in our proposed action, the 
deficiencies pertaining to offsets in the District's NSR program make 
portions of Rules 1301, 1302, 1303, 1304, and 1305 not fully approvable 
because the District's NSR program is not consistent with CAA section 
182(c)(6). Our basis for that finding is also explained in our 
responses to Comments 9 and 10 above. In addition, the EPA's TSD 
provides additional information regarding the deficiencies in these 
rules, largely as a result of cross references to Rule 1304(C)(2)(d), 
which allows SERs to be calculated using a baseline of allowable 
emissions, not actual emissions. This deficiency affects the 
calculation of net emissions increases in Rule 1304(B)(2). Therefore, 
the use of the term ``net emissions increase'' or cross-references to 
Rule 1304 also affect the approvability of Rules 1301, 1302, 1303, and 
1305. Please see Table 4 of our TSD for additional information.
    The EPA's action to finalize a limited approval and limited 
disapproval of District Rules 1301, 1302, 1303, 1304, and 1305 into the 
SIP means that the rules, as currently submitted, will be incorporated 
into the SIP, but they must be revised and resubmitted to the EPA to 
avoid sanctions and FIP consequences. As we stated in our proposed 
action, we proposed limited approval and limited disapproval of these 
rules because although they fulfill most of the relevant CAA 
requirements and strengthen the SIP, they also contain certain 
deficiencies. Our final action incorporates into the SIP the submitted 
rules listed in Table 2 of this document for which we are fully 
approving or finalizing a limited approval/limited disapproval, 
including those provisions we identified as deficient.

III. EPA Action

    None of the submitted comments change our assessment of the 
submitted rules as described in our proposed action. Therefore, as 
authorized in section 110(k)(3) of the Act, the EPA is approving the 
submitted versions of Rules 206, 219, 1300, 1306, and 1402. Likewise, 
as authorized under sections 110(k)(3) and 301(a) of the Act, the EPA 
is finalizing a limited approval of the submitted versions of Rules 
1301, 1302, 1303, 1304, and 1305. This action incorporates submitted 
Rules 206, 219, 1300, 1301, 1302, 1303, 1304, 1305, 1306, and 1402 into 
the California SIP, including those provisions identified as deficient. 
As authorized under section 110(k)(3) and 301(a), the EPA is 
simultaneously finalizing a limited disapproval of Rules 1301, 1302, 
1303, 1304, and 1305.
    As a result of our limited approval and limited disapproval of 
Rules 1301, 1302, 1303, 1304, and 1305, the EPA must promulgate a 
Federal implementation plan (FIP) under section 110(c) for the West 
Mojave Desert nonattainment area portion of the District within 24 
months unless we approve subsequent SIP revisions that correct the 
deficiencies identified in this action. In this instance, we note that 
the EPA already has an existing obligation to promulgate a FIP for any 
NSR SIP elements that we have not taken final action to approve.\44\ In 
addition, the offset sanction in CAA section 179(b)(2) will be imposed 
18 months after the effective date of this action, and the highway 
funding sanction in CAA section 179(b)(1) six months after the offset 
sanction is imposed. Sanctions will not be imposed if the EPA approves 
a subsequent SIP submission that corrects the identified deficiencies 
before the applicable deadlines.
---------------------------------------------------------------------------

    \44\ The FIP obligation originates from our February 3, 2017 
finding that the District failed to submit a Nonattainment NSR SIP 
for the 2008 8-hour ozone NAAQS by the required submittal deadline. 
This finding of failure to submit established a FIP obligation 
deadline of March 6, 2019. See also, CBD v. Regan, N.D. Cal. 22-cv-
3309.
---------------------------------------------------------------------------

    In this action we are also finalizing an approval of the District's 
visibility provisions for major sources subject to review under the 
NNSR program under 40 CFR 51.307. Therefore, we are revising 40 CFR 
52.281(d) to remove the FIP for visibility protections as it applied to 
the District.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, the EPA is incorporating by reference the District rules 
listed in Table 2 of this preamble which implement 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 CAA.\45\ The EPA has made, 
and will continue to make, these materials available through https://www.regulations.gov and in hard copy

[[Page 42269]]

at the EPA Region IX Office (please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information).
---------------------------------------------------------------------------

    \45\ In the IBR section of our proposed action (87 FR 72434) we 
inadvertently referred to Table 1 as opposed to Table 2 for the list 
of submitted rules that are intended to replace the rules in the 
SIP. However, we explained in Section C of our proposed action that 
``the rules listed in Table 2 are intended to replace the SIP-
approved rules listed in Table 1.'' We also stated in Section F of 
our proposed action that, ``[i]f 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 . . . .''
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www.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

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    Under the CAA, 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 review state choices, 
and approve those choices if they meet the minimum criteria of the Act. 
Accordingly, this final action is finalizing the approval and the 
limited approval and limited disapproval of a state submittal as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law.
    The State did not evaluate environmental justice considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. EPA did 
not perform an EJ analysis and did not consider EJ in this action. Due 
to the nature of the action being taken here, this action is expected 
to have a neutral to positive impact on the air quality of the affected 
area. Consideration of EJ is not required as part of this action, and 
there is no information in the record inconsistent with the stated goal 
of E.O. 12898 of achieving environmental justice for people of color, 
low-income populations, and Indigenous peoples.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 29, 2023. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

[[Page 42270]]

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: June 16, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends part 52, chapter I, title 40 of the Code of 
Federal Regulations as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by:
0
a. Adding paragraphs (c)(31)(vi)(G) and (H), (c)(32)(iv)(G), 
(c)(39)(ii)(K) and (L), (c)(39)(iv)(K), (c)(68)(iii) and (iv), 
(c)(70)(i)(E), (c)(87)(iv)(B), (c)(103)(xviii)(C), (c)(155)(iv)(C), 
(c)(224)(i)(C)(3), (c)(239)(i)(A)(4), and (c)(248)(i)(D)(3);
0
b. Adding reserved paragraphs (c)(598) and (599); and
0
c. Adding paragraphs (c)(600) and (601).
    The additions read as follows:


Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (31) * * *
    (vi) * * *
    (G) Previously approved on November 9, 1978, in paragraph 
(c)(31)(vi)(C) of this section and now deleted with replacement in 
paragraph (c)(601)(i)(A)(1) of this section for implementation in the 
Mojave Desert Air Quality Management District: Rule 206.
    (H) Previously approved on November 9, 1978, in paragraph 
(c)(31)(vi)(C) of this section and deleted with replacement in 
paragraph (c)(103)(xviii)(A) of this section: Rule 219.
* * * * *
    (32) * * *
    (iv) * * *
    (G) Previously approved on November 9, 1978, in paragraph 
(c)(32)(iv)(C) of this section and deleted with replacement in 
paragraph (c)(103)(xviii)(A) of this section: Rule 219.
* * * * *
    (39) * * *
    (ii) * * *
    (K) Previously approved on November 9, 1978, in paragraph 
(c)(39)(ii)(B) of this section and now deleted with replacement in 
paragraph (c)(601)(i)(A)(1) of this section: Rule 206.
    (L) Previously approved on November 9, 1978, in paragraph 
(c)(39)(ii)(B) of this section and now deleted with replacement in 
paragraph (c)(600)(i)(A)(1) of this section: Rule 219.
* * * * *
    (iv) * * *
    (K) Previously approved on November 9, 1978, in paragraph 
(c)(39)(iv)(B) of this section and deleted without replacement for 
implementation in the Mojave Desert Air Quality Management District: 
Rules 206 and 219.
* * * * *
    (68) * * *
    (iii) Previously approved on January 21, 1981, in paragraph 
(c)(68)(i) of this section and deleted with replacement in paragraph 
(c)(239)(i)(A)(1) of this section for implementation in the Mojave 
Desert Air Quality Management District: Rules 1301, 1303, 1304, 1306, 
1307, 1310, 1311, and 1313.
    (iv) Previously approved on January 21, 1981, in paragraph 
(c)(68)(i) of this section and deleted with replacement in paragraph 
(c)(155)(iv)(B) of this section: Rule 1305.
* * * * *
    (70) * * *
    (i) * * *
    (E) Previously approved on January 21, 1981, in paragraph 
(c)(70)(i)(A) of this section and deleted with replacement in paragraph 
(c)(239)(i)(A)(1) of this section for implementation in the Mojave 
Desert Air Quality Management District: Rules 1302 and 1308.
* * * * *
    (87) * * *
    (iv) * * *
    (B) Previously approved on June 9, 1982, in paragraph 
(c)(87)(iv)(A) of this section and deleted with replacement in 
paragraph (c)(239)(i)(A)(1) of this section: Rules 1301, 1302, 1303, 
1304, 1305, 1306, 1307, 1308, 1310, 1311, and 1313.
* * * * *
    (103) * * *
    (xviii) * * *
    (C) Previously approved on July 6, 1982, in paragraph 
(c)(103)(xviii)(A) of this section and now deleted with replacement in 
paragraph (c)(600)(i)(A)(1) of this section for implementation in the 
Mojave Desert Air Quality Management District: Rule 219.
* * * * *
    (155) * * *
    (iv) * * *
    (C) Previously approved on January 29, 1985 in paragraph 
(c)(155)(iv)(B) of this section and deleted with replacement in 
paragraph (c)(239)(i)(A)(1) of this section for implementation in the 
Mojave Desert Air Quality Management District: Rule 1305.
* * * * *
    (224) * * *
    (i) * * *
    (C) * * *
    (3) Previously approved on January 22, 1997, in paragraph 
(c)(224)(i)(C)(1) of this section and now deleted with replacement in 
paragraph (c)(248)(i)(D)(3) of this section: Rule 1402, adopted on June 
28, 1995.
* * * * *
    (239) * * *
    (i) * * *
    (A) * * *
    (4) Previously approved on November 13, 1996, in paragraph 
(c)(239)(i)(A)(1) of this section and now deleted with replacement in 
paragraphs (c)(600)(i)(A)(2) through (8) of this section: Rules 1300, 
1301, 1302, 1303, 1304, 1305, and 1306, adopted on March 25, 1996.
* * * * *
    (248) * * *
    (i) * * *
    (D) * * *
    (3) Rule 1402, ``Emission Reduction Credit Registry,'' amended on 
May 19, 1997.
* * * * *
    (598) [Reserved]
    (599) [Reserved]
    (600) The following regulations were submitted on July 23, 2021, by 
the Governor's designee as an attachment to a letter dated July 22, 
2021.
    (i) Incorporation by reference. (A) Mojave Desert Air Quality 
Management District.
    (1) Rule 219, ``Equipment Not Requiring a Permit,'' amended on 
January 25, 2021.
    (2) Rule 1300, ``New Source Review General,'' amended on March 22, 
2021.
    (3) Rule 1301, ``New Source Review Definitions,'' amended on March 
22, 2021.
    (4) Rule 1302, ``New Source Review Procedure,'' (except subsections 
(C)(5) and (C)(7)(c)), amended on March 22, 2021.

[[Page 42271]]

    (5) Rule 1303, ``New Source Review Requirements,'' amended on March 
22, 2021.
    (6) Rule 1304, ``New Source Review Emissions Calculations,'' 
amended on March 22, 2021.
    (7) Rule 1305, ``New Source Review Emission Offsets,'' amended on 
March 22, 2021.
    (8) Rule 1306, ``New Source Review for Electric Energy Generating 
Facilities,'' amended on March 22, 2021.
    (B) [Reserved]
    (ii) [Reserved]
    (601) The following regulations were submitted on October 15, 2021, 
by the Governor's designee as an attachment to a letter dated October 
14, 2021.
    (i) Incorporation by reference. (A) Mojave Desert Air Quality 
Management District.
    (1) Rule 206, ``Posting of Permit to Operate,'' amended on February 
22, 2021.
    (2) [Reserved]
    (B) [Reserved]
    (ii) [Reserved]

0
3. Section 52.281 is amended by revising paragraph (d) introductory 
text and adding paragraph (d)(9) to read as follows:


Sec.  52.281  Visibility protection.

* * * * *
    (d) Plan provisions. The provisions of Sec.  52.28 are hereby 
incorporated and made part of the applicable plan for the State of 
California, except for the air pollution control districts listed in 
this paragraph (d). The provisions of Sec.  52.28 remain the applicable 
plan for any Indian reservation lands, and any other area of Indian 
country where the EPA or an Indian tribe has demonstrated that a tribe 
has jurisdiction, located within the State of California, including any 
such areas located in the air pollution control districts listed in 
this paragraph (d).
* * * * *
    (9) Mojave Desert Air Quality Management District.
* * * * *
[FR Doc. 2023-13393 Filed 6-29-23; 8:45 am]
BILLING CODE 6560-50-P


