[Federal Register Volume 87, Number 232 (Monday, December 5, 2022)]
[Rules and Regulations]
[Pages 74316-74319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26361]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0651; FRL-10268-02-R9]


Air Plan Approval; California; Eastern Kern Air Pollution Control 
District; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve a revision to the Eastern Kern Air Pollution 
Control District (EKAPCD or ``the District'') portion of the California 
State Implementation Plan (SIP). In this action, we are approving one 
rule submitted by the EKAPCD, governing the issuance of permits for 
stationary sources, focusing on the preconstruction review and 
permitting of major sources and major modifications under part D of 
title I of the Clean Air Act (CAA or ``the Act'').

DATES: This rule is effective on February 3, 2023 without further 
notice, unless the EPA receives adverse comment by January 4, 2023. If 
the EPA receives adverse comment, we will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0651 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be removed or edited from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information the disclosure of which is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section. 
For the full EPA public comment policy, information about CBI and 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a language other than English or if 
you are a person with disabilities who needs a reasonable accommodation 
at no cost to you, please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section.

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

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule?
II. The EPA's Evaluation
    A. What is the background for this action?
    B. How is the EPA evaluating the rule?
    C. Does the rule meet the evaluation criteria?
    D. What action is the EPA finalizing?
III. Why is the EPA using a direct final rule?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule addressed by this action including the dates 
on which it was adopted by the District and submitted to the EPA by the 
California

[[Page 74317]]

Air Resources Board (CARB or ``the State'').

                         Table 1--Submitted Rule
------------------------------------------------------------------------
       Rule No.            Rule title         Adopted      Submitted \1\
------------------------------------------------------------------------
Rule 210.1A...........  Major New and             8/4/22         10/5/22
                         Modified
                         Stationary
                         Source Review
                         (MNSR).
------------------------------------------------------------------------
\1\ The submittal was transmitted to the EPA via a letter from CARB
  dated October 5, 2022.

    CARB's October 5, 2022 SIP submittal package meets the completeness 
criteria in 40 CFR part 51, which must be met before formal EPA review. 
The EPA's signed notice of proposed rulemaking for our action on this 
submittal serves as the EPA's formal completeness determination for 
this submittal.\2\
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    \2\ CARB's May 23, 2018 submittal of a previous version of 
EKAPCD Rule 210.1A, which was determined to be complete on August 
28, 2018, addressed the findings of failure to submit issued by the 
EPA on February 3, 2017 and December 11, 2017 for the 2008 ozone 
national ambient air quality standard (NAAQS) regarding 
nonattainment new source review (NNSR) program requirements for the 
District (82 FR 9158, 82 FR 58118). That finding of completeness 
represented the EPA's determination that the deficiencies that 
formed the basis for the findings of failure to submit for the 2008 
ozone NAAQS had been corrected, and as a result, the related 
application of the offset sanction and the running of the highway 
sanction clock were permanently stopped. See 40 CFR 52.31(d)(5).
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B. Are there other versions of this rule?

    There is no previous version of EKAPCD Rule 210.1A in the 
California SIP. There are other new source review (NSR) rules in the 
California SIP that apply to the sources to which EKAPCD Rule 210.1A 
applies, including Rule 210.1, ``Standard for Authority to Construct''. 
Rule 210.1A is intended to satisfy current Federal nonattainment NSR 
requirements applicable to ozone and PM10 and related 
visibility program requirements. Other existing SIP-approved NSR rules 
such as the SIP-approved version of Rule 210.1 will remain in the SIP 
for the EKAPCD. Rule 210.1A provides that for purposes of its 
implementation and enforcement, its provisions take precedence over the 
provisions and requirements in other District rules and regulations 
(see Subsection I.B, paragraph 2 of Rule 210.1A).

C. What is the purpose of the submitted rule?

    Rule 210.1A is intended to address the CAA's statutory and 
regulatory requirements for nonattainment new source review (NNSR) 
permit programs for major sources emitting nonattainment air pollutants 
and their precursors located in the areas within the EKAPCD that are 
designated nonattainment for one or more National Ambient Air Quality 
Standards (NAAQS).

II. The EPA's Evaluation

A. What is the background for this action?

    Because parts of the eastern portion of Kern County (Eastern Kern) 
are Federal ozone and PM10 nonattainment areas, the CAA 
requires the District to have a SIP-approved NNSR program for new and 
modified major sources located in the ozone and PM10 
nonattainment areas that are under its jurisdiction. Most recently, the 
designation of the Eastern Kern area as a Federal ozone nonattainment 
area for the 2008 and 2015 ozone NAAQS triggered the requirement for 
the District to develop and submit an updated NNSR program to the EPA 
for SIP approval. The District's NNSR program must address NNSR 
requirements for the 1997 ozone NAAQS, the 2008 ozone NAAQS, the 2015 
ozone NAAQS, and the 1987 p.m.10 NAAQS.\3\
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    \3\ The relevant nonattainment designation and classification 
history for the area is provided in our Technical Support Document, 
which can be found in the docket for this rule.
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    Because the District is designated and classified as Severe 
nonattainment for the 2008 8-hour ozone NAAQS, the District's NNSR 
program must satisfy the NNSR requirements applicable to Severe ozone 
nonattainment areas. Submission of an NNSR program that satisfies the 
requirements of the Act and the EPA's regulations for Severe ozone 
nonattainment areas would also satisfy the NNSR program requirements 
for lower classifications including the Serious and Moderate NNSR 
program requirements applicable to the District based on its 
designation and classification for the 2015 and 1997 8-hour ozone 
NAAQS, respectively. The District's NNSR program must also satisfy the 
NNSR requirements applicable to Serious PM10 nonattainment 
areas.\4\
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    \4\ We are not currently evaluating whether Rule 210.1A would 
satisfy the Federal requirements for NNSR programs for areas with a 
higher ozone nonattainment classification, nor are we evaluating 
whether this rule would satisfy the Federal requirements for NNSR 
programs applicable to areas designated nonattainment for other 
NAAQS pollutants. If, in the future, the District were to be 
designated nonattainment for a NAAQS pollutant other than ozone and 
PM10, the requirements of 40 CFR part 51, Appendix S 
would govern NNSR permitting for that pollutant upon the effective 
date of such designation for purposes of the CAA.
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    In addition, to implement CAA section 169A, 40 CFR 51.307(b) 
requires that NNSR programs provide for review of any major stationary 
source or major modification that may have an impact on visibility in 
any mandatory Class I Federal area.\5\
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    \5\ Such sources are required to perform a visibility impact 
analysis consistent with the provisions of 40 CFR 51.307(a) and 40 
CFR 51.166 (o), (p)(1) through (2) and (q). See 40 CFR 51.307(c). 40 
CFR 51.307(d) also provides for states to require monitoring of 
visibility in any Federal Class I area near the proposed new major 
stationary source or major modification.
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B. How is the EPA evaluating the rule?

    The EPA reviewed Rule 210.1A for compliance with CAA requirements 
for: (1) stationary source preconstruction permitting programs as set 
forth in CAA part D, including CAA sections 110(a)(2)(C), 172(c)(5), 
173, 182, and 189; (2) the review and modification of major sources in 
accordance with 40 CFR 51.160-51.165 as applicable in Severe ozone and 
Serious PM10 nonattainment areas; (3) the review of new 
major stationary sources or major modifications in a designated 
nonattainment area that may have an impact on visibility in any 
mandatory Class I Federal area in accordance with 40 CFR 51.307; (4) 
SIPs in general as set forth in CAA sections 110(a)(2), including 
110(a)(2)(A) and 110(a)(2)(E)(i); \6\ and (5) SIP revisions as set 
forth in CAA section 110(l) \7\ and 193.\8\ Our review evaluated the

[[Page 74318]]

submittal for compliance with the NNSR requirements applicable to 
nonattainment areas designated Severe for ozone and Serious for 
PM10, and ensured that the submittal addressed the NNSR 
requirements for the 1997, 2008 and 2015 ozone NAAQS as well as the 
1987 PM10 NAAQS.
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    \6\ CAA section 110(a)(2)(A) requires that regulations submitted 
to the EPA for SIP approval be clear and legally enforceable, and 
CAA section 110(a)(2)(E)(i) requires that states have adequate 
personnel, funding, and authority under State law to carry out their 
proposed SIP revisions.
    \7\ CAA section 110(l) requires SIP revisions to be subject to 
reasonable notice and public hearing prior to adoption and submittal 
by states to the EPA and prohibits the EPA from approving any SIP 
revision that would interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of the CAA.
    \8\ CAA section 193 prohibits the modification of any SIP-
approved control requirement in effect before November 15, 1990 in a 
nonattainment area, unless the modification ensures equivalent or 
greater emission reductions of the relevant pollutants.
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C. Does the rule meet the evaluation criteria?

    With respect to procedural requirements, CAA sections 110(a)(2) and 
110(l) require that revisions to a SIP be adopted by the State after 
reasonable notice and public hearing. Based on our review of the public 
process documentation included in the October 5, 2022 submittal of Rule 
210.1A, we find that the District has provided sufficient evidence of 
public notice, opportunity for comment and a public hearing prior to 
adoption and submittal of the rule to the EPA.
    With respect to the substantive requirements found in CAA sections 
110(a)(2)(C), 172(c)(5), 173, 182, 189 and 40 CFR 51.160-51.165, we 
have evaluated Rule 210.1A in accordance with the applicable CAA and 
regulatory requirements that apply to NNSR permit programs under part D 
of title I of the Act for all relevant NAAQS, including the 1997, 2008 
and 2015 ozone NAAQS as well as the 1987 p.m.10 NAAQS. We 
find that Rule 210.1A satisfies these requirements as it applies to 
sources subject to NNSR permit program requirements for ozone 
nonattainment areas classified as Severe \9\ and for PM10 
nonattainment areas classified as Serious. We have also determined that 
this rule satisfies the related visibility requirements in 40 CFR 
51.307. In addition, we have determined that Rule 210.1A satisfies the 
requirement in CAA section 110(a)(2)(A) that regulations submitted to 
the EPA for SIP approval be clear and legally enforceable and have 
determined in accordance with CAA section 110(a)(2)(E)(i) that the 
District has adequate personnel, funding, and authority under State law 
to carry out these SIP revisions.
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    \9\ As discussed above, an NNSR program that satisfies the 
requirements of the Act and the EPA's regulations for Severe ozone 
nonattainment areas also satisfies the NNSR program requirements for 
lower classifications, including the Serious and Moderate NNSR 
program requirements applicable to the District based on its 
designation and classification for the 2015 and 1997 8-hour ozone 
NAAQS, respectively.
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    Regarding the additional substantive requirements of CAA sections 
110(l) and 193, our action will result in a more stringent SIP, while 
not relaxing any existing provision contained in the SIP. We have 
concluded that our action would comply with section 110(l) because our 
approval of Rule 210.1A will not interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other CAA applicable requirement. In addition, our approval of Rule 
210.1A will not relax any pre-November 15, 1990 requirement in the SIP, 
and therefore changes to the SIP resulting from this action ensure 
greater or equivalent emission reductions of the nonattainment 
pollutants and their precursors in the District; accordingly, we have 
concluded that our action is consistent with the requirements of CAA 
section 193.
    Our Technical Support Document, which can be found in the docket 
for this rule, contains a more detailed discussion of our analysis of 
Rule 210.1A.

D. What action is the EPA finalizing?

    As authorized in section 110(k)(3) of the Act, the EPA is approving 
the submitted rule because we believe it fulfills all relevant 
requirements. We have concluded that our approval of the submitted rule 
would comply with the relevant provisions of CAA sections 110(a)(2), 
110(l), 172(c)(5), 173, 182, 189 and 193, 40 CFR 51.160-51.165, and 40 
CFR 51.307. Our action will be codified through revisions to 40 CFR 
52.220a (Identification of plan--in part). In conjunction with the 
EPA's SIP approval of the District's visibility provisions for sources 
subject to the NNSR program as meeting the relevant requirements of 40 
CFR 51.307, this action also revises the regulatory provision at 40 CFR 
52.281(d) concerning the applicability of the visibility Federal 
Implementation Plan (FIP) at 40 CFR 52.28 as it pertains to California, 
to provide that this FIP does not apply to sources subject to review 
under the District's SIP-approved NNSR program.

III. Why is the EPA using a direct final rule?

    The EPA is publishing this rule without a prior proposed rule 
because we view this as a noncontroversial action and we anticipate no 
adverse comment as the submitted rule fulfills all applicable 
regulatory requirements and is generally consistent with very similar 
NNSR rules that the EPA has approved into the California SIP recently 
for other California air districts, for which the EPA received no 
public comments. However, in the ``Proposed Rules'' section of this 
issue of the Federal Register, we are publishing a separate document 
that will serve as the EPA's proposed rule to approve the rule 
submitted by the EKAPCD if adverse comment is received on this direct 
final rule. We will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
For further information about commenting on this rule, see the 
ADDRESSES section of this document.
    If the EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.
    If we do not receive timely adverse comment, the direct final 
approval will be effective without further notice on February 3, 2023, 
as discussed above. This will incorporate the rule into the federally 
enforceable SIP.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of EKAPCD 
Rule 210.1A, Major New and Modified Stationary Source Review (MNSR), 
adopted on August 4, 2022, which regulates the issuance of permits for 
stationary sources. The EPA has made, and will continue to make, this 
document available electronically through https://www.regulations.gov 
and in hard copy at the EPA Region IX Office (please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section of this 
preamble for more information).

V. Statutory and Executive Order Reviews

    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 approve State choices, 
provided that they meet the criteria of the Act. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 3, 
2017) regulatory

[[Page 74319]]

action because SIP approvals are exempted under Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA.
    The State did not evaluate environmental justice considerations as 
part of its SIP submittal. There is no information in the record 
inconsistent with the stated goals of Executive Order 12898 (59 FR 
7629, February 16, 1994) of achieving environmental justice for people 
of color, low-income populations, and indigenous peoples.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 February 3, 2023. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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).)

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 28, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended 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 adding paragraph (c)(590) to read as 
follows:


Sec.  52.220  Identification of plan-in part.

* * * * *
    (c) * * *
    (590) The following new regulation was submitted on October 5, 2022 
by the Governor's designee as an attachment to a letter dated October 
5, 2022.
    (i) Incorporation by reference. (A) Eastern Kern Air Pollution 
Control District.
    (1) Rule 210.1A, Major New and Modified Stationary Source Review 
(MNSR), adopted on August 4, 2022.
    (2) [Reserved]
    (B) [Reserved]
    (ii) [Reserved]
* * * * *

0
3. Section 52.281 is amended by revising paragraphs (d)(1) through (6) 
and adding paragraph (d)(7) to read as follows:


Sec.  52.281  Visibility protection.

* * * * *
    (d) * * *
    (1) Monterey County Air Pollution Control District.
    (2) Sacramento County Air Pollution Control District.
    (3) Calaveras County Air Pollution Control District.
    (4) Mariposa County Air Pollution Control District.
    (5) Northern Sierra Air Pollution Control District.
    (6) San Diego County Air Pollution Control District.
    (7) Eastern Kern Air Pollution Control District.
* * * * *
[FR Doc. 2022-26361 Filed 12-2-22; 8:45 am]
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