[Federal Register Volume 73, Number 34 (Wednesday, February 20, 2008)]
[Proposed Rules]
[Pages 9260-9266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3113]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2007-0122; FRL-8528-6]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to correct our May 2004 final approval of
revisions to the San Joaquin Valley Unified Air
[[Page 9261]]
Pollution Control District (SJVUAPCD or ``District'') portion of the
California State Implementation Plan (SIP). We are also proposing to
approve two 2006 revisions to these rules that the California Air
Resources Board submitted to EPA in December 2006. Our correction to
our May 2004 approval and our proposed approval of the District's 2006
revisions conform the District's rules to a State law generally known
as Senate Bill 700 by explicitly limiting the applicability of new
source permitting requirements to certain minor sources and limiting
the applicability of offset requirements for all minor agricultural
sources consistent with criteria identified in state law. We are
proposing to correct our May 2004 final approval pursuant to section
110(k)(6) of the Clean Air Act (CAA or ``Act''). We are proposing to
approve the District's 2006 revisions of the local rules into the SIP
pursuant to section 110(k)(2) of the Act.
DATES: Any comments must arrive by March 21, 2008.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2007-0122, by one of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow
the on-line instructions.
E-mail: [email protected].
Mail or deliver: Gerardo Rios (Air-3), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.regulations.gov or e-mail.
www.regulations.gov is an ``anonymous access'' system, and EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send e-mail directly to EPA, your e-mail
address will be automatically captured and included as part of the
public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region
IX, 75 Hawthorne Street, San Francisco, California. While all documents
in the docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section below.
FOR FURTHER INFORMATION CONTACT: Laura Yannayon, Permits Office (AIR-
3), U.S. Environmental Protection Agency, Region IX, (415) 972-3534,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Correction of EPA's May 2004 Final Approval
A. CAA Legal Authority
B. Background on California's and SJVUAPCD's SIPs
C. Correction of Erroneous Final Approval
II. The State's Submittal of Its 2006 Revisions
A. What revisions did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted rule revisions?
III. EPA's Evaluation and Action on the 2006 Revisions
A. How is EPA evaluating the rules?
B. Do the rules meet the evaluation criteria?
1. Compliance With EPA Minor Source Permitting Requirements
2. CAA Section 110(l)
C. Public Comment and Final Action
IV. Statutory and Executive Order Reviews
I. Correction of EPA's May 2004 Final Approval
A. CAA Legal Authority
Section 110(k)(6) of the Clean Air Act, as amended in 1990,
provides: ``Whenever the Administrator determines that the
Administrator's action approving, disapproving, or promulgating any
plan or plan revision (or part thereof), area designation,
redesignation, classification or reclassification was in error, the
Administrator may in the same manner as the approval, disapproval, or
promulgation revise such action as appropriate without requiring any
further submission from the State. Such determination and the basis
thereof shall be provided to the State and the public.''
We interpret this provision to authorize the Agency to make
corrections to a promulgated regulation when it is shown to our
satisfaction (or we discover) that (1) we clearly erred by failing to
consider or by inappropriately considering information made available
to EPA at the time of the promulgation, or the information made
available at the time of promulgation is subsequently demonstrated to
have been clearly inadequate, and (2) other information persuasively
supports a change in the regulation. See 71 FR 75690, at 75693
(December 18, 2006); 57 FR 56762, at 56763 (November 30, 1992).
B. Background on California's and SJVUAPCD's SIPs
The regulatory history of permitting agricultural sources in
California is relevant to our evaluation of the error we made in our
May 2004 final approval of the District's new source review (NSR)
permitting rules. In 1970, the California legislature enacted a law
that was codified as California Health & Safety Code (CH&SC) section
24265(e). CH&SC section 24265(e) exempted all agricultural sources from
District permitting requirements. Specifically, CH&SC section 24265(e)
provided that a District permit shall not be required for equipment
used in agricultural operations in the growing of crops or raising of
fowls or animals except for certain orchard or citrus grove heaters in
Southern California.\1\
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\1\ In this instance, Southern California is defined as
including all counties, any part of which lie south of the Sixth
Standard Parallel South, Mount Diablo Base and Meridian. Within the
SJVUAPCD, only Kern County lies south of the Sixth Standard Parallel
South.
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On February 21, 1972, pursuant to the Clean Air Amendments of 1970,
Governor Ronald Reagan submitted the original California State
Implementation Plan (SIP) to EPA. The original SIP included ``Chapter
7--Legal Considerations'' to demonstrate adequate legal authority to
implement and enforce SIP requirements. Chapter 7 of the original SIP
discusses the respective authorities of the California Air Resources
Board and the local air districts. Specifically, the narrative included
as Chapter 7 cites CH&SC section 24263 as a basis for the authority of
local air districts to operate permit systems but does not specifically
cite the permitting exemptions found in CH&SC section 24265. California
submitted many provisions of the CH&SC including specific provisions
cited in the narrative, such as section 24263, as well as provisions
that were not specifically cited, such as section 24265, as appendix II
to the original SIP. Later that same year, and with certain exceptions
not relevant here, EPA took action to approve the original SIP. See 37
FR 10842 (May 31, 1972).
The California SIP has been revised many times, and on March 16,
1979, the
[[Page 9262]]
Governor's designee, the California Air Resources Board (CARB),
submitted a revision to the SIP referred to as ``Chapter 3--Legal
Authority, Revision to State of California Implementation Plan for the
Attainment and Maintenance of Ambient Air Quality Standards (December
1978).'' By 1979, CH&SC section 24265(e) had been re-codified as CH&SC
section 42310(e). Similar to the 1972 original SIP, CARB's 1979
submittal includes a narrative that generally describes, among many
other topics, the authority of local air districts to issue permits to
stationary sources but that does not specifically cite exemptions to
District permitting (then codified under CH&SC section 42310). The 1979
submittal incorporates CH&SC provisions as appendix 3-A to chapter 3,
but, unlike the 1972 SIP, California did not physically include the
actual CH&SC provisions with the 1979 submittal, but indicated that the
code was available separately from the ARB Public Information Office.
We described CARB's 1979 submittal of ``Chapter 3--Legal Authority'' as
an updating and clarification of the 1972 SIP. See 44 FR 38912 (July 3,
1979). The following year, we finalized our proposed approval of the
March 16, 1979 submittal of ``Legal Authority.'' See 45 FR 53136
(August 11, 1980).
In addition, individual California air pollution control districts
subsequently submitted (through CARB) local permitting rules for EPA to
approve into the SIP. Some district permitting rules, such as those
submitted by SJVUAPCD, explicitly exempted agricultural sources from
the NSR permitting rules, consistent with and generally citing to CH&SC
section 42310(e). Prior to the late 1990's, EPA had approved such
exemptions into SIP NSR permitting rules, including the SIP NSR rules
for the county APCDs that now comprise the region-wide SJVUAPCD.
CARB submitted a revised version of SJVUAPCD NSR permitting rules,
Rules 2020 and 2201, to EPA for SIP approval in 1998. On July 19, 2001,
EPA finalized a limited approval and limited disapproval of revised
SJVUAPCD Rules 2020 and 2201. See 66 FR 37587 (July 19, 2001). EPA's
limited disapproval was based, in part, on Rule 2020's exemption of
agricultural sources, which was identical to and referenced CH&SC
section 42310(e). Our limited disapproval stated that SJVUAPCD could
not exempt major stationary sources or major modifications at existing
major sources from NSR requirements.\2\
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\2\ SJVUAPCD NSR permitting rules do not adopt the distinction
between minor sources and major sources as set forth under the CAA.
SJVUAPCD Rules 2201 and 2020 generally apply to both federal minor
and major stationary sources. Our limited approval specified that
the rule deficiency was exempting major agricultural sources and
major modifications. See 65 FR 58252, at 58254 (September 28, 2000).
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To correct the deficiency in Rule 2020 leading to EPA's July 2001
limited disapproval, SJVUAPCD adopted and submitted a revision to Rule
2020 which eliminated the agricultural exemption in its entirety from
the District rules. SJVUAPCD submitted the revised Rule 2020 to EPA on
December 23, 2002.
On February 13, 2003, EPA proposed several actions regarding the
exemption of agricultural sources from major source NSR permitting
requirements. First, EPA proposed approval of revised Rule 2020
completely deleting the permit exemption for agricultural sources from
the District rules. See 68 FR 7330 (February 13, 2003).\3\ In that
notice, EPA specifically noted that ``California Health & Safety Code
42310(e) continues to preclude the District, as well as all other
districts in California, from permitting agricultural sources under
either title I or title V of the CAA.'' See 68 FR 7330, at 7335. To
address this issue, EPA published a proposal finding that California's
statutory exemption of agricultural sources in CH&SC section 42310(e)
from major source NSR permitting rules violated the requirements of CAA
section 110(a)(2)(E). See 68 FR 7327 (February 13, 2003). This action,
titled ``Finding of Substantial Inadequacy of Implementation Plan; Call
for California State Implementation Plan Revision'' (hereinafter ``SIP
Call''), determined that California lacked adequate legal authority to
carry out its NSR permitting requirements because CH&SC section
42310(e) exempted major agricultural sources. EPA finalized the SIP
Call on June 25, 2003, and thereby required California to submit the
necessary assurances of authority by November 23, 2003 to support an
affirmative finding by EPA under CAA section 110(a)(2)(E). If the State
failed to submit the necessary assurances, then EPA indicated that the
sanctions clock under CAA section 179 would be triggered.\4\ See 68 FR
37746 (June 25, 2003).
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\3\ EPA also published an Interim Final Determination that
SJVUAPCD had corrected the July 2001 limited approval deficiencies
and EPA stayed or deferred the imposition of CAA sanctions on the
District. See 68 FR 7321.
\4\ On May 22, 2002, EPA issued a Notice of Deficiency for
California's Title V program based on the exemption of agricultural
sources from Title V permitting. See 67 FR 35990 (May 22, 2002).
EPA's decision was upheld. See California Farm Bureau Fed'n v. EPA,
No. 02-73371 (9th Cir. July 15, 2003) (memorandum opinion).
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Later that summer, the California legislature enacted Senate Bill
(SB) 700, which the Governor of California signed on September 22,
2003. SB 700 removed the wholesale exemption from permitting for
agricultural sources provided under CH&SC section 42310(e) and
subjected major agricultural sources to permitting requirements. SB
700, however, retained exemptions for new source permitting for certain
minor agricultural sources, and limited the ability to require minor
agricultural sources to obtain federal offsets.\5\ California notified
EPA of the legislature's action by letter dated November 3, 2003
thereby avoiding the triggering of a sanctions clock. California
enclosed a copy of SB 700 with the November 3, 2003 letter.\6\
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\5\ As explained in Section II.C below, sources with emissions
below 50 percent of the major source threshold are exempt from
permitting unless the District makes certain findings, while sources
at or above 50 percent of the major source threshold are subject to
permitting unless the District makes certain findings. See CH&SC
section 42301.16 (b) and (c). In addition, offsets may not be
required unless they meet the criteria for real, permanent,
quantifiable, and enforceable emission reductions. See CH&SC section
42301.18(c).
It is worth noting that EPA and California interpret CH&SC
section 42301.16(a) to require all sources that emit or have the
potential to emit at or above the major source threshold to be
subject to new source permitting and offset requirements, as
required by the Clean Air Act, without regard to the provisions of
sections 42301.16(c) or 42301.18(c). Thus, an agricultural source
with actual emissions less than 50 percent of the major source
threshold but potential emissions above the major source threshold
is subject to new source permitting and offset requirements.
\6\ See Letter from Bill Lockyer, Attorney General, California
Office of the Attorney General, to Marianne Horinko, Acting
Administrator, EPA, dated November 3, 2003.
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On May 17, 2004, EPA took final action approving SJVUAPCD's
permitting rules, Rule 2020 and 2201, as proposed in February 2003. See
69 FR 27837 (May 17, 2004). These rules, as approved by EPA, did not on
their face exempt any agricultural sources from permitting or limit the
applicability of offset requirements. EPA's final approval stated that
the District had removed its exemption for agricultural sources and
that the state had also ``removed a similar blanket exemption, thereby
providing the District with authority to require air permits for
agricultural sources, including federally required NSR permits.'' See
69 FR 27837, at 27838. EPA's final approval cited SB 700 in a footnote,
but did not note the limited scope of authority for permitting and
offset requirements under SB 700, which allowed permitting of only
certain minor agricultural sources. Whether or not EPA's SIP actions in
1972 or 1979 approved the statutory provision
[[Page 9263]]
exempting agricultural sources from permitting (i.e., CH&SC section
24265(e), recodified as CH&SC section 42310(e)) as part of the
California SIP, it is clear that as of the promulgation of our May 2004
final rule there is no exemption from permitting for agricultural
sources derived from the statutory provision within the SJVUAPCD
portion of the SIP.
C. Correction of Erroneous Final Approval
In this instance, we believe that our May 2004 final full approval
of Rules 2020 and 2201 was erroneous. For all SIP revisions, States
must provide evidence that the State has the necessary legal authority
under State law to adopt and implement the plan. See CAA section
110(a)(2)(E); 40 CFR part 51, appendix V, section 2.1(c). Thus, to
support the approval CARB was required in December 2002 to provide
evidence that SJVUAPCD had the necessary legal authority under State
law to implement Rules 2020 and 2201, which purported to require
permits and offsets for all agricultural sources. CARB could not have
done so because CH&SC section 42310(e), applicable at that time,
continued to preclude such authority under State law with respect to
all agricultural sources.
Nonetheless, we proposed to fully approve Rules 2020 and 2201 on
February 13, 2003, with the expectation that the California legislature
would act to remove CH&SC section 42310(e)'s exemption for agricultural
sources thereby aligning Rule 2020 with District authority under State
law. 68 FR 7330 (Feb. 13, 2003). While the legislature did act shortly
thereafter to remove the exemption for major agricultural sources and
major modifications at existing major agricultural sources, the
legislature also retained the exemption from permitting for certain
minor agricultural sources, leaving the words of Rule 2020 broader than
the District's authority under State law. The legislature also exempted
minor agricultural sources from obtaining offsets pending a
determination that emissions reductions from such sources meet certain
criteria, leaving Rule 2201, on its face, also at odds with State law.
We now understand that our final approval action on Rules 2020 and
2201 should have ensured that the authority in those rules was
consistent with the authority granted by SB 700. In other words, we
should have limited our approval of Rule 2020 to exclude applicability
to agricultural sources exempt from new source permitting under SB 700
(i.e., minor sources with emissions less than 50 percent of the major
source threshold absent findings, or minor sources over 50 percent of
that threshold with findings). Our approval of Rule 2201 should have
been limited to provisions requiring offsets for major agricultural
sources and for minor sources when the listed criteria were satisfied.
Given that California submitted a copy of SB 700 in November 2003, we
had information indicating that the District did not have the authority
to implement Rules 2020 and 2201 to the extent that the language of the
rule appeared to allow (i.e., to require permits and offsets from all
new or modified agricultural sources, including those exempt under SB
700) prior to the time we took final action. We should have limited our
approval of Rules 2020 and 2201 to conform with SB 700, and promulgated
language in 40 CFR part 52 codifying that limitation on our approval.
We note that recent enforcement actions have been brought pursuant
to the CAA's citizen suit provisions against minor agricultural sources
in SJVUAPCD that have emissions less than 50 percent of the major
source threshold for failure to apply for and receive a new or modified
source permit. SJVUAPCD, however, does not have the authority under
State law to issue such permits. The fact that such cases are being
brought (and one case has been brought successfully (see Assoc. of
Irritated Residents v. C & R. Vanderham Dairies, 2007 U.S. Dist. 70890
(E.D. Cal., Sept. 24, 2007)) persuasively supports the need to correct
our error in approving Rules 2020 and 2201 in 2004.
Therefore, pursuant to CAA section 110(k)(6), we are proposing to
correct our error by limiting our approval of Rules 2020 and 2201 to
apply only to the extent the District has authority under state law to
require permits and offsets. Specifically, with respect to agricultural
sources, we are approving Rule 2020 only to the extent it applies to
agricultural sources subject to permitting under SB 700. Also and again
with respect to agricultural sources, we are approving Rule 2201 only
to the extent it requires offsets for new major sources and major
modifications until certain criteria set forth in State law are met. To
codify this proposed error correction, we are proposing the following
language to be added as a new section, 52.245, of 40 CFR part 52,
subpart F (``California''):
52.245 New Source Review Rules
(a) Approval of the New Source Review rules for the San Joaquin
Valley Unified Air Pollution Control District Rules 2020 and 2201 as
approved May 17, 2004, is limited, as it relates to agricultural
sources, to apply the permit requirement only (1) to agricultural
sources with actual or potential emissions at or above a major
source applicability threshold and (2) to agricultural sources with
actual emissions at or above 50 percent of a major source
applicability threshold. The District has the authority to permit or
exempt from permitting minor agricultural sources upon making the
findings prescribed in CH&SC 42301.16 (b) and (c). The offset
requirement, as it relates to agricultural sources, does not apply
to new minor agricultural sources and minor modifications to such
sources if emissions reductions from that source would not meet the
criteria for real, permanent, quantifiable, and enforceable emission
reductions.
This document simultaneously proposes to approve revised language
into Rules 2020 and 2201 that conforms the rules to the authority
provided in SB 700. If we take final action to approve the revised
rules at the same time as we take final action on our proposed
correction, then the draft regulatory language set forth above will not
be codified because it will be superceded by the revised language
submitted by the District.
II. The State's Submittal of Its 2006 Revisions
A. What revisions did the State submit?
Table 1 lists the rules we are proposing to approve with the dates
that they were revised by SJVUAPCD and submitted to EPA by the
California Air Resources Board (CARB).
Table 1.--Submitted Rules Proposed for Full Approval
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Local agency Rule No. Rule title Amended Submitted
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SJVUAPCD....................... 2020 paragraph 6.20 only.. Exemptions............... 09/21/06 12/29/06
SJVUAPCD....................... 2201, paragraph 4.6.9 only New and Modified 09/21/06 12/29/06
Stationary Source Review
Rule.
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[[Page 9264]]
On June 29, 2007, the submittal of Rule 2020, paragraph 6.20, and
Rule 2201, paragraph 4.6.9, was deemed by operation of law to have met
the completeness criteria in 40 CFR part 51 appendix V, which must be
met before formal EPA review.
B. Are there other versions of these rules?
As discussed above, we approved a version of Rule 2020 into the SIP
on May 17, 2004 (69 FR 27837). In today's action, we have determined
that the approval was erroneous to the extent it required sources
exempted from permitting under SB 700 (i.e. sources less than 50
percent of the major source threshold) to obtain permits. We also
approved a version of Rule 2201 into the SIP on May 17, 2004 (69 FR
27837), although we have determined the approval was erroneous to the
extent it required offsets barred by SB 700. The versions of Rules 2020
and 2201 that we approved in 2004 did not include provisions equivalent
to those now included in paragraph 6.20 of Rule 2020 or paragraph 4.6.9
of Rule 2201.
Prior to our 2004 approval of Rules 2020 and 2201, the SJVUAPCD
portion of the California SIP included a broad exemption from
permitting for all agricultural sources, citing CH&SC section 42310(e).
See section 4.0 of SJVUAPCD rule 2020, as amended on September 17,
1998, submitted on October 27, 1998, and approved on July 19, 2001 at
66 FR 37587.
C. What is the purpose of the submitted rule revisions?
Section 110(a) of the CAA requires states to submit regulations
that control volatile organic compounds, nitrogen oxides, particulate
matter, and other air pollutants which harm human health and the
environment. Permitting rules were developed as part of the local air
district's programs to control these pollutants.
The purpose of the addition of paragraph 6.20 to SIP Rule 2020 is
as follows:
This paragraph conforms District permit requirements to
State law by explicitly exempting agricultural sources to the extent
such sources are exempt pursuant to CH&SC section 42301.16. Section
42301.16(a) requires local air permitting authorities to require
permits for agricultural sources subject to the requirements of title I
or title V of the federal Clean Air Act. Section 42301.16(b) similarly
requires permits for all agricultural sources unless specified findings
are made at a public hearing or except as provided in section
42301.16(c). Section 42301.16(c) requires the District to make
specified findings at a public hearing prior to requiring permits for
agricultural sources with emissions that are less than one-half of any
major source threshold. The net effect of this section is that all
agricultural sources with actual emissions or a potential to emit at or
above a major source applicability threshold are required to obtain a
District permit pursuant to CH&SC section 42301.16(a). Agricultural
sources with actual emissions at or above 50 percent of a major source
applicability threshold are required to obtain a District permit,
unless the District makes the findings specified by subsection (b). No
permits are required for agricultural sources with actual emissions of
less than 50 percent of the major source applicability thresholds,
unless the District makes the findings specified in subsection (c),
subject to the limitation in CH&SC section 42301(a).
The purpose of the addition of paragraph 4.6.9 to SIP Rule 2201 is
as follows:
This paragraph exempts new or modified agricultural
sources from offset requirements to the extent provided by CH&SC
section 42301.18(c), unless the offsets are required by federal CAA
requirements (see CH&SC section 42301(a)). Section 42301.18(c)
prohibits districts from requiring agricultural sources to obtain
offsets if emissions reductions from such sources would not meet the
criteria for real, permanent, quantifiable, and enforceable emissions
reductions.
III. EPA's Evaluation and Action on the 2006 Revisions
A. How is EPA evaluating the rules?
Generally, SIP rules must be enforceable and must not interfere
with an area's progress towards attainment or any other requirement of
the Act. See CAA sections 110(a), 110(l); see also CAA section 193
(antibacksliding requirements for pre-1990 control measures). Specific
EPA requirements for SIPs with respect to review of new or modified
minor stationary sources are set forth in 40 CFR 51.160 through 51.164.
CAA section 110(l) directs EPA to disapprove any SIP revision that
would interfere with any applicable requirement concerning attainment
or reasonable further progress or any other applicable requirement of
the Act. Assuming that CAA section 193 applies to NSR, section 193 does
not apply to this action because as of November 15, 1990, all
agricultural sources were entirely exempt from permitting and offset
requirements. Thus, the proposed revisions, specifying limits on the
permit and offset requirements for minor agricultural sources, do not
modify a control requirement in effect before passage of the Clean Air
Act Amendments of 1990.
B. Do the rules meet the evaluation criteria?
1. Compliance With EPA Enforceability and Minor Source Permitting
Requirements
The limited exemptions from permitting and offsets provided in
paragraphs 6.20 (Rule 2020) and 4.6.9 (Rule 2201) for minor
agricultural sources are consistent with EPA requirements for
enforceability. The limited exemptions are also consistent with the
requirements promulgated in 40 CFR 51.160--51.164 for stationary
sources that do not exceed the major source or major modification
thresholds. EPA is proposing to approve paragraphs 6.20 and 4.6.9 into
Rules 2020 and 2201, respectively, because SJVUAPCD has discretion in
conducting its minor source permitting program to exempt certain small
sources and, under federal law, minor sources are not required to
obtain offsets. Congress directed the States to exercise the primary
responsibility under the CAA to tailor air quality control measures,
including minor source permitting programs, to the State's needs. See
Train v. NRDC, 421 U.S. 60, 79 (1975) (States make the primary
decisions over how to achieve CAA requirements); Union Electric Co. v.
EPA, 427 U.S. 246 (1976); Greenbaum v. EPA, 370 F.3d 527 (6th Cir.
2006). Specifically, paragraph 6.20 of Rule 2020 complies with the
requirements for minor sources established in 40 CFR 51.160(b)(2). That
regulation requires the permitting authority to retain the legal
ability to prevent construction or modification of a minor source if
``[i]t will interfere with the attainment or maintenance of a national
standard.'' Paragraph 6.20, by incorporating CH&SC section 42301.16(c),
continues to allow the District to require permits for agricultural
sources with emissions that are less than one-half of any major source
threshold upon making specified findings at a public hearing. One such
finding is that emissions from the construction or modification of the
source will adversely impact air quality. Thus, since the exemptions in
paragraphs 6.20 and 4.6.9 do not apply to any major stationary sources
or major modifications at existing major stationary sources, and the
exemptions comply with federal regulations, we believe these revisions
are fully approvable under section 110(k)(2) of the CAA.
[[Page 9265]]
2. CAA Section 110(l)
The only remaining issue is whether this SIP revision would
interfere with requirements concerning attainment and reasonable
further progress (or any other applicable CAA requirement) as set forth
in CAA section 110(l). CAA section 110(l) provides: ``Each revision to
an implementation plan submitted by a State under this chapter shall be
adopted by such State after reasonable notice and public hearing. The
administrator shall not approve a revision of a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress (as defined in section 7501 of this
title) or any other applicable requirement of this chapter.''
The San Joaquin Valley is currently designated nonattainment for
PM2.5, PM10, and the eight-hour ozone standard.
The area is formally designated attainment for the remaining criteria
pollutants. The District's attainment plan for PM2.5 is due
April 8, 2008, it has submitted a plan for attaining the ozone
standard, and EPA has published a Finding of Attainment for
PM10, 71 FR 63462 (Oct. 30, 2006).
Prior to the time that attainment demonstrations are due for a
standard, it is unknown what suite of control measures are needed for a
given area to attain the standard. During this period, to demonstrate
no interference with any applicable NAAQS or requirement of the Clean
Air Act under section 110(l), EPA's view is that it is appropriate to
allow states to substitute equivalent emission reductions to compensate
for the control measure being removed from the active SIP. This
approach has been adopted after notice and comment rulemaking in other
SIP revisions. See, e.g., 70 FR 57750 (October 4, 2005); 70 FR 53
(January 3, 2005).
EPA also believes there are other means to demonstrate that a SIP
revision would not interfere with attainment or maintenance of the
NAAQS, such as modeling to show noninterference with attainment, or a
full attainment demonstration.\7\ In this case, after considering the
District's attainment status and attainment plans for nonattainment
pollutants, we believe that the adoption of the proposed revisions in
place of the SIP as proposed to be corrected would not result in any
change in emissions, any change in air quality, or any change in the
area's ability to attain or maintain the NAAQS.
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\7\ We note that no approved or submitted San Joaquin Valley
attainment plan for any nonattainment pollutant has relied upon NSR
for agricultural sources less than 50 percent of the major source
threshold. Further, for attainment planning purposes, growth in
emissions from agricultural sources has been established by CARB's
area source inventory growth methodologies, and no mitigation of
that growth, such as through an offset requirement, has been
considered when determining the impact of the growth on the
District's ability to achieve attainment with the standards. See the
District's Clean Air Act 110(l) Analysis entitled ``San Joaquin
Valley Unified Air Pollution Control District Rules 2020 and 2201,
as amended September 21, 2006, District's Clean Air Act 110(l)
Analysis'' dated November 20, 2007.
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Accordingly, we conclude that this SIP revision, if approved, will
not interfere with any applicable requirements for attainment and
reasonable further progress or any other applicable requirement of the
CAA and is approvable under section 110(l).
C. Public Comment and Final Action
Under section 110(k)(6) of the Clean Air Act, we are proposing to
correct our May 2004 final approval of revisions to District NSR
permitting Rules 2020 and 2201 because, by virtue of information
submitted by California to us in November 2003, we should have limited
our approval consistent with the legal authority provided in State law
to air districts to permit, and require offsets for, new or modified
agricultural sources. To correct our error, we are proposing regulatory
language to so limit our May 2004 approval.
Under section 110(k)(2) of the Clean Air Act, we are proposing to
approve the District's 2006 revisions to Rules 2020 and 2201 to conform
the rules to State law by explicitly exempting certain small or minor
agricultural sources from permitting requirements and by exempting all
minor agricultural sources from offset requirements until certain
criteria are met. We will accept comments from the public on this
proposal for the next 30 days. If, after consideration of public
comments, we decide to publish a final error correction and final
approval of the revised rules in the same document, then we intend that
the language of the revised rules will supercede the error correction
and we do not intend to codify the proposed regulatory language
limiting our May 2004 approval of the previous versions of District
Rules 2020 and 2201.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this proposed action is also not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001). This action merely proposes to correct an error
and to approve state law as meeting Federal requirements and imposes no
additional requirements beyond those imposed by state law. Accordingly,
the Administrator certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule proposes to correct an error and approve pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it 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).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). This proposed action also
does not have Federalism implications because it does 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, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This
action merely proposes to correct an error and approve a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This proposed rule also is not subject to Executive Order
13045 ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not
economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed
[[Page 9266]]
rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Particulate matter, Reporting and recordkeeping
requirements.
Dated: January 31, 2008.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. E8-3113 Filed 2-19-08; 8:45 am]
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