[Federal Register Volume 75, Number 19 (Friday, January 29, 2010)]
[Proposed Rules]
[Pages 4745-4758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1838]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2010-0062; FRL-9107-5]
Approval and Promulgation of Implementation Plans, State of
California, San Joaquin Valley Unified Air Pollution Control District,
New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Under section 110(k)(6) of the Clean Air Act, EPA is proposing
to correct our May 2004 final approval of revisions to the San Joaquin
Valley Unified Air Pollution Control District portion of the California
State Implementation Plan. EPA is also proposing to take action on
three amended District rules, one of which was submitted on March 7,
2008 and the other two of which were submitted on March 17, 2009. Two
of the submitted rules reflect revisions to approved District rules
that provide for review of new and modified stationary sources (``new
source review'' or NSR) within the District, and the third reflects
revisions to an approved District rule that provides a mechanism by
which existing stationary sources may be exempt from the requirement to
secure a Federally-mandated operating permit. The NSR rule revisions
relate to exemptions from permitting and from offsets for certain
agricultural operations, to the establishment of NSR applicability and
offset thresholds consistent with a classification of ``extreme''
nonattainment for the ozone standard, and to the implementation of
EPA's NSR Reform Rules. With respect to the revised District NSR rules,
EPA is proposing a limited approval and limited disapproval because,
although the changes would strengthen the SIP, there are deficiencies
in enforceability that prevent full approval. With respect to the
operating permit rule, EPA is proposing a full approval. Lastly, EPA is
proposing to rescind certain obsolete permitting requirements from the
District portion of the California plan.
If EPA were to finalize the limited approval and limited
disapproval action, as proposed, then a sanctions clock, and EPA's
obligation to
[[Page 4746]]
promulgate a Federal implementation plan, would be triggered because
certain revisions to the District rules that are the subject of this
action are required under anti-backsliding principles established for
the transition from the 1-hour to the 8-hour ozone standard.
DATES: Any comments must arrive by March 1, 2010.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0062, by one of the following methods:
Federal eRulemaking Portal: http://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 http://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 http://www.regulations.gov or e-mail. http://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 http://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. Regulatory Context
II. Correction of EPA's May 2004 Final Approval
A. CAA Legal Authority
B. Background on District NSR Rules 2020 and 2201 and Related
EPA Actions
C. Correction of Erroneous Final Approval
III. The State's Submittals of Revised District Rules
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What are the purposes for revisions to these rules?
IV. EPA's Evaluation and Action on the Rule Revisions
A. How is EPA evaluating the rules?
B. Do the rules meet the evaluation criteria?
1. Regulatory Context
2. Minor Source NSR Permitting Requirements
3. ``Extreme'' Ozone Area NSR Requirements
4. EPA's NSR Reform Rules
5. Other Changes to District Rules 2020 and 2201
6. Enforceability Considerations
7. Federally Enforceable Restriction on Potential To Emit
8. CAA Section 110(l)
9. Conclusion and Proposed Action on Submitted Rules
V. Deletion of Obsolete Conditions on SIP Approvals
VI. Proposed Action and Opportunity for Public Comment
VII. Statutory and Executive Order Reviews
I. Regulatory Context
On February 20, 2008 (73 FR 9260), under sections 110(k)(2) and
110(k)(6) of the Clean Air Act (CAA or ``Act''), we proposed to correct
our May 2004 final approval of revisions to the San Joaquin Valley
Unified Air Pollution Control District (``SJVUAPCD'' or ``District'')
portion of the California State Implementation Plan (``SIP'') and to
approve revisions to two District rules submitted to EPA by the
California Air Resources Board (CARB) on December 29, 2006.\1\ The
specific provisions proposed for approval included paragraph 6.20 of
District Rule 2020 (``Exemptions'') and paragraph 4.6.9 of District
Rule 2201 (``New and Modified Stationary Source Review Rule''). These
provisions relate to review and permitting of new or modified
stationary sources (``NSR'') specifically in connection with
agricultural sources. We received substantive comments on our proposed
rule, and, since publication of the February 2008 proposed rule, the
District has adopted further revisions to Rules 2020 and 2201 that have
been submitted to EPA for approval by CARB. The further amended
District rules carry forward the revisions submitted on December 29,
2006 but reflect more recent changes by the District as well. In light
of the comments on our February 2008 proposed rule, and the more recent
submittals of District Rules 2020 and 2201, we have decided not to take
any further action on our February 2008 proposed rule, but rather to
propose action anew. Published in today's Federal Register is a
withdrawal of our February 20, 2008 proposed rule.
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\1\ The San Joaquin Valley includes all of San Joaquin,
Stanislaus, Merced, Madera, Fresno, Kings and Tulare counties, and
the western half of Kern County, in the State of California. The San
Joaquin Valley is designated as a nonattainment area for the 1997 8-
hour ozone national ambient air quality standard (NAAQS) and the
1997 fine particulate matter (PM2.5) NAAQS and is
designated as attainment or unclassifiable for the other NAAQS. See
40 CFR 81.303. The area is further classified as ``serious'' for the
8-hour ozone NAAQS, but the State of California has submitted a
request to reclassify the area to ``extreme.'' See 74 FR 43654
(August 27, 2009) for EPA's proposed approval of the State's
reclassification request. The San Joaquin Valley was further
classified as an ``extreme'' area for the now-revoked 1-hour ozone
NAAQS when EPA designated the area with respect to the 8-hour ozone
NAAQS.
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II. 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).
[[Page 4747]]
B. Background on District NSR Rules 2020 and 2201 and Related EPA
Actions
EPA originally approved District NSR Rules 2020 (``Exemptions'')
and 2201 (``New and Modified Stationary Source Review Rule'') into the
California SIP on July 19, 2001 (66 FR 37587).\2\ EPA's July 19, 2001
action was, however, a limited approval and limited disapproval
reflecting our conclusion that District Rules 2020 and 2201 could not
be fully approved as meeting all applicable requirements because, among
other reasons, District Rule 2020 exempted all agricultural sources
from District permitting requirements. 66 FR at 37590. At that time,
District Rule 2020, citing California Health & Safety Code (CH&SC)
section 42310(e), included a permitting exclusion for ``any equipment
used in agricultural operations in the growing of crops or the raising
of fowl or animals,'' except for certain orchard and citrus grove
heaters in the southern portion of the District.\3\ Our limited
disapproval stated that the District could not exempt major stationary
sources or major modifications at existing major sources from NSR
requirements and be found to meet applicable CAA requirements.\4\
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\2\ Rules 2020 and 2201 were adopted by the District to meet NSR
requirements under the Clean Air Act, as amended in 1990, for areas
that have not attained the National Ambient Air Quality Standards
(NAAQS). District Rules 2020 and 2201 replaced existing NSR rules
from the individual county air pollution control districts that were
combined into the San Joaquin Valley Unified Air Pollution Control
District (``District'') in 1991.
\3\ For more information on the status of the state law
exclusion from permitting for agricultural sources in the California
SIP, please see the related proposed rule published in today's
Federal Register.
\4\ District NSR permitting rules do not adopt the distinction
between minor sources and major sources as set forth under the CAA.
District Rules 2020 and 2201 generally apply to both Federal minor
and major stationary sources. Our limited approval and limited
disapproval 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 this deficiency, the District adopted a revision to Rule
2020 which eliminated the agricultural permitting exemption in its
entirety, and CARB submitted the revised Rule 2020 to EPA on December
23, 2002 as a revision to the California SIP. In response, 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 District Rule 2020. See 68 FR
7330 (February 13, 2003).\5\ 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.
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\5\ 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.
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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.\6\ See 68 FR 37746 (June 25, 2003).
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\6\ 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.\7\ 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.\8\
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\7\ 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.
\8\ 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 the District's
permitting rules, Rules 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.
C. Correction of Erroneous Final Approval
In this instance, we believe that our May 2004 final full approval
of District 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 the District 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
[[Page 4748]]
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.
As noted above, on May 17, 2004, EPA took final action to approve
District Rules 2020 and 2201, as proposed in February 2003. See 69 FR
27837 (May 17, 2004). 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. At that
time, since the District had made no findings to broaden (above 50
percent of the major source threshold) or narrow the permitting
exemption (below 50 percent of the major source threshold), as allowed
under SB 700 and now codified in CH&SC sections 42301.16(b) and (c),
the permitting exemption provided by State law applied to minor
agricultural sources with actual emissions less than 50 percent of the
major source threshold. Thus, 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 actual
emissions less than 50 percent of the major source threshold). Our
approval of Rule 2201 should have been limited to provisions requiring
offsets for major agricultural sources, because at the time, the
District had not found emissions reductions from agricultural sources
to meet the criteria for real, permanent, quantifiable, and enforceable
emissions reductions and thus did not invoke the authority otherwise
provided in SB 700 (and codified in CH&SC section 42301.18(c)) to
impose an offset requirement on new or modified minor agricultural
sources. 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 the District 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. The District, however, does not have the authority under
State law to issue such permits. The fact that such cases are being
brought 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 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 offset requirement, as it relates to agricultural
sources, does not apply to new minor agricultural sources and minor
modifications to agricultural sources.
In section IV of this document, we are proposing a limited
approval/limited disapproval on subsequent submittals of District Rules
2020 and 2201 that carry forward the agricultural-source-related
provisions for which we proposed action in February 2008, but that
reflect subsequent additional changes made by the District to the
rules. If we finalize this action, as proposed, we intend to codify the
above language to clarify the status of affected sources that were
constructed or were modified during the period extending from the
effective date of our February 2004 final rule (i.e., June 16, 2004)
through the effective date of our action on revised District Rules 2020
and 2201 as described in section IV of this document.
III. The State's Submittals of Revised District Rules
A. What rules did the State submit?
Table 1 lists the rules on which we are proposing action in this
document with the dates that they were revised by the District and
submitted to EPA by CARB.
Table 1--Submitted Rules
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Local agency Rule No. Rule title Amended Submitted
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SJVUAPCD............................. 2020 Exemptions.................. 12/20/07 03/07/08
SJVUAPCD............................. 2201 New and Modified Stationary 12/18/08 03/17/09
Source Review Rule.
SJVUAPCD............................. 2530 Federally Enforceable 12/18/08 03/17/09
Potential to Emit.
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On April 17, 2008, we found that the submittal of District Rule
2020 met the completeness criteria in 40 CFR part 51 appendix V, which
must be met before formal EPA review. On April 20, 2009, we found the
submittal of District Rules 2201 and 2530 to be complete.
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). On December 29, 2006, CARB submitted an
amended version of District Rule 2020. On December 20, 2007, the
District adopted further amendments to Rule 2020, and CARB submitted
the further amended rule to us on March 7, 2008. The revision to
District Rule 2020 that CARB submitted on December 29, 2006 was carried
forward with the version
[[Page 4749]]
that was submitted on March 7, 2008 and for which we propose action
today.
We also approved a version of Rule 2201 into the SIP on May 17,
2004 (69 FR 27837). Since our May 2004 approval of Rule 2201 into the
SIP, the District has amended the rule on four occasions. One of those
amendments added paragraph 4.6.9 to the rule. On December 29, 2006,
CARB submitted only paragraph 4.6.9 from District Rule 2201 to EPA. On
December 18, 2008, the District adopted the latest amendments to Rule
2201. On March 17, 2009, CARB submitted this latest version of District
Rule 2201 to us. This latest version of District Rule 2020 that CARB
submitted on March 17, 2009 carries forward with it all of the changes,
including new paragraph 4.6.9, that the District has made in the rule
since our May 2004 approval.
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 District Rule 2020, as amended on September 17,
1998, submitted on October 27, 1998, and approved on July 19, 2001 at
66 FR 37587.
Lastly, we approved a version of Rule 2530 into the SIP on April
26, 1996 (61 FR 18500). Since EPA's 1996 approval of Rule 2530 into the
SIP, the District has amended Rule 2530 twice, once on April 25, 2002
and then again on December 18, 2008. On March 17, 2009, CARB submitted
this latest version of District Rule 2530 to us, and it includes all
amendments to the rule by the District to date.
C. What are the purposes for revisions to these rules?
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 District Rule 2020 (``Exemptions'') is to specify
emission units that are not required to obtain an Authority to
Construct or Permit to Operate. Rule 2020 also specifies the
recordkeeping requirements to verify such exemptions and outlines the
compliance schedule for emission units that lose the exemption.
Relative to the version of Rule 2020 that is approved into the SIP,
the changes would revise and clarify certain exemptions and conform the
rule to existing state law by explicitly exempting certain agricultural
sources from permitting requirements. Specifically, the changes in
District Rule 2020 would:
Revise the existing exemption for steam generators, steam
superheaters, water boilers, water heaters, steam cleaners, and closed
indirect heat transfer systems that have a maximum input heat rating of
five million Btu per hour or less and that are fired exclusively on
natural gas or liquefied petroleum gas (LPG) (see paragraph 6.1.1 of
the submitted rule). The existing exemption is limited to the types of
equipment described above but also establishes the following
specifications for both natural gas and LPG combusted by the equipment:
``provided the fuel contains no more than five percent by weight
hydrocarbons * * * and no more than 0.75 grains of total sulfur per 100
standard cubic feet of gas * * *.'' The revised exemption would
establish separate specifications for natural gas and for LPG. The
hydrocarbon content limit would remain five percent for natural gas but
would drop to two percent for LPG. The sulfur content limit would
increase from 0.75 grains, to 1.0 grain for natural gas, and to 15
grains (per 100 standard cubic feet of gas). The revised exemption
would require use of the latest versions of the relevant ASTM test
methods.
Clarify and tighten the existing exemption for certain
types of transfer equipment, such as loading and unloading racks, and
equipment used exclusively for the transfer of refined lubricating oil
(see paragraph 6.7 of the submitted rule). Specifically, with respect
to crude oil, the existing exemption establishes a limiting
specification in terms of specific gravity, and the revised exemption
would add a second limiting specification in terms of True Vapor
Pressure (TVP) and would establish certain test methods for determining
the TVP of crude oil; and
Conform 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 (see paragraph 6.20 of
the submitted rule). 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 any 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 District Rule 2201 (``New and Modified Stationary
Source Review Rule'') is to provide for the review of new and modified
stationary sources of air pollution and to provide mechanisms including
emission trade-offs by which Authorities to Construct such sources may
be granted, without interfering with the attainment or maintenance of
ambient air quality standards. District Rule 2201 is also intended to
provide for no net increase in emissions above specified thresholds
from new and modified stationary sources of all nonattainment
pollutants and their precursors.
Key features of District Rule 2201 include:
Best Available Control Technology (BACT) \9\: Mandates
emission controls to minimize emission increases above de minimis
values.
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\9\ While the District uses the term BACT as the level of
control required, a review of the definition has shown that it is
equivalent to the requirements for Federal LAER.
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Emission offsets: Requires emissions above specified
offset threshold levels to be mitigated with either concurrent
reductions or past reductions which have been banked as emission
reduction credits (ERCs).
Public notification: A 30- or 45-day notice period prior
to issuance of an Authority to Construct (ATC) to accept comments on
projects that result in emissions above specified levels.
Required elements for Authority to Construct, Permit to
Operate and administrative requirements for processing NSR
applications.
As submitted on March 17, 2009, District Rule 2201 incorporates
three major changes relative to the version of Rule 2201 that is
approved into the SIP. First, amended District Rule 2201 would replace
the term, ``Major Modification,''
[[Page 4750]]
with two terms, ``Federal major modification'' and ``SB 288 major
modification.'' (See paragraphs 3.17 and 3.34 of the amended rule.) The
former term incorporates EPA's NSR reform principles, and the latter
term retains the pre-NSR reform approach to determining whether a
modification is a major modification. Second, amended District Rule
2201 would incorporate the lower ``major source'' and ``Federal major
modification'' emissions thresholds, and higher offset ratios, for the
ozone precursors, VOC and NOX, consistent with an
``extreme'' ozone classification. (See paragraphs 3.17, 3.23, and 3.34
of the amended rule). Lastly, changes to District Rule 2201 would
conform the rule to existing state law by exempting new or modified
agricultural sources from offset requirements, unless the offsets are
required by Federal CAA requirements. (See paragraph 4.6.9 of the
amended rule.)
Other changes in amended Rule 2201 would:
Tighten one of the conditions that qualify a replacement
of ``any article, machine, equipment, or other contrivance'' as a
``Routine Replacement;'' the existing rule requires that such a
replacement, among other conditions, not result in an increase in
permitting emissions from the ``stationary source,'' whereas, the
modified definition of the term ``routine replacement'' requires no
such increase from the ``replacement unit(s) (see paragraph 3.33.1 of
the amended rule);
Expressly extend the existing emission offset exemption
for portable equipment to equipment registered in accordance with the
provisions of District Rule 2250 (Permit-Exempt Equipment Registration)
(see paragraph 4.6.3 of the amended rule). The existing exemption
covers portable equipment registered under District Rule 2280 (Portable
Equipment Registration) or under the Statewide Portable Equipment
Registration Program. Existing District Rule 2020 provides a permitting
exemption for portable emissions units covered by a valid registration
under the above registration programs ``or other equipment registration
program approved by the APCO.'' District Rule 2250 is such a program,
and thus, portable equipment registered under District Rule 2250 are
exempt, not just from the emission offset requirement, but also from
the requirement for a permit. However, the District expressly added a
reference to equipment registered under District Rule 2250 in the
emission offset exemption portion of Rule 2201 to provide consistency
with similar exemptions for portable equipment and to avoid confusion;
and
Provide for a lower offset ratio (from 1.5 to 1.2) in the
event EPA approves a demonstration that all existing major sources of
VOC and NOX in the San Joaquin Valley are equipped with BACT
as defined in CAA section 169(3) (see paragraph 4.8.2 of the amended
rule). This change amends the SIP to add the lower offset ratio
provision contained in CAA section 182(e)(1). The lower offset ratio
referred to in paragraph 4.8.2 has no current effect, because the
required demonstration has not been submitted to EPA. Moreover, EPA
would be reviewing any such demonstration, most likely as a SIP
revision, and that review would include a review for compliance with
the relevant statutory provision in CAA section 182(e)(1).
Unlike District Rules 2020 and 2201, District Rule 2530
(``Federally Enforceable Potential to Emit'') is not an NSR rule, but
is a rule that relies on thresholds based on certain percentages of the
major source thresholds established for NSR purposes as a basis to
exempt sources from the requirements of Rule 2520 (``Federally Mandated
Operating Permits''). Relative to the corresponding rule in the
existing SIP, the amended rule would lower the thresholds below which
sources of VOC or NOX are exempt from the requirements of
Rule 2520 (see paragraph 6.1 of the amended rule), would lower the
thresholds below which sources are exempt from certain recordkeeping
and reporting requirements under Rule 2530 (see paragraph 5.4.1.2 of
the amended rule); and would lower certain alternative operational
limits (see, e.g., paragraph 6.2.4 of the amended rule).
IV. EPA's Evaluation and Action on the Rule Revisions
A. How is EPA evaluating the rules?
The rules that are the subject of this proposed action amend rules
that EPA has previously approved as meeting the statutory and
regulatory requirements for SIPs regarding minor NSR, major
nonattainment NSR, and enforceability of permit conditions. Therefore,
we have focused our review on the changes in the rules relative to the
versions of the rules in the existing SIP to ensure the amended rules
continue to meet the applicable requirements, taking into account that,
in some instances, such as the ``major source'' threshold requirement,
the applicable requirements have changed since we last acted on these
rules.
The relevant statutory provisions for our review of the submitted
rules include CAA section 110(a), section 110(l), and section 182(e)
and (f). Section 110(a) requires that SIP rules be enforceable, while
section 110(l) precludes EPA approval of SIP revisions that would
interfere with any applicable requirement concerning attainment and
reasonable further progress or any other applicable requirement of the
Act. Section 182(e) (together with section 182(f) for NOX),
requires NSR SIPs in ``extreme'' nonattainment areas to define ``major
sources'' in terms of 10 tons per year of VOC or NOX, to
lower the threshold for ``major modifications'' to zero, and to
increase the offset ratio to 1.5 to 1. In addition, we have reviewed
the submitted rules for compliance with EPA implementing regulations
for NSR, including 40 CFR 51.160 through 40 CFR 51.165.
B. Do the rules meet the evaluation criteria?
1. Regulatory Context
Other than rule clarifications and other minor revisions, the
changes to the District's rules that are the subject of this action
fall into four broad categories: Changes affecting minor source NSR
permitting requirements; changes relating to the area's extreme
classification for the 1-hour ozone standard; changes relating to NSR
Reform; and changes affecting the mechanism used by sources to avoid
title V requirements.
First, however, to provide the proper context for evaluating the
submitted changes in the District's rules, it is important to consider
the designations and plan status for the valley with respect to the
relevant national ambient air quality standards. Area designations for
California are set forth in 40 CFR 81.305 and shown in table 2, below.
As shown in table 2, the San Joaquin Valley Air Basin is designated
``nonattainment'' for the 1997 8-hour ozone standard. With respect to
particulate matter, the valley is designated ``attainment'' for
PM10 and ``nonattainment'' for PM2.5.
[[Page 4751]]
Table 2--San Joaquin Valley Area Designations
------------------------------------------------------------------------
Pollutant Designation Classification
------------------------------------------------------------------------
(Revoked) Ozone--1-hour Nonattainment........ Extreme (at the
standard. time of
designation for
the 1997 8-hour
ozone standard).
Ozone--1997 8-hour standard... Nonattainment........ Serious.\a\
Respirable Particulate Matter Attainment........... Not Applicable.
(PM10).
Fine Particulate Matter Nonattainment........ Not Applicable.
(PM2.5).
Carbon Monoxide............... Attainment (4 urban Not Applicable.
areas);
Unclassifiable/
Attainment (rest of
valley).
Nitrogen Dioxide.............. Unclassifiable/ Not Applicable.
Attainment.
Sulfur Dioxide................ Unclassifiable/ Not Applicable.
Attainment.
------------------------------------------------------------------------
\a\ The State of California has requested reclassification of the San
Joaquin Valley to ``extreme'' for the 1997 8-hour ozone standard. See
74 FR 43654 (August 27, 2009).
As to ozone, the valley is classified as a ``serious'' ozone
nonattainment area for the 1997 8-hour ozone standard, but the State of
California has requested reclassification of the area to ``extreme.''
See 74 FR 43654 (August 27, 2009). The designation of an area as
``nonattainment'' triggers certain SIP planning requirements, and on
November 16, 2007, the State of California responded to those
requirements by submitting the San Joaquin Valley 2008 Ozone Plan to
EPA as a revision to the California SIP. EPA has not yet acted on the
plan. Significantly, because, as a general matter, the SIP requirements
that applied by virtue of an area's classification for the now-revoked
1-hour ozone standard continue to apply to an 8-hour ozone
nonattainment area, we note that the San Joaquin Valley was designated
as an ``extreme'' nonattainment area for the 1-hour ozone standard at
the time of designation for the 8-hour ozone standard. Recently, EPA
approved the San Joaquin Valley 2004 Ozone Plan, which had been
developed to address the SIP requirements for ``extreme'' areas for the
1-hour ozone standard.
As to PM10, in 2008, EPA approved a redesignation
request for the area from ``nonattainment'' to ``attainment'' for the
PM10 standard and also approved the San Joaquin Valley 2007
PM10 Maintenance Plan as a revision to the California SIP.
See 73 FR 66759 (November 12, 2008).
As to PM2.5, in 2005, EPA designated the valley
``nonattainment'' for the 1997 PM2.5 standards. In response,
on June 30, 2008, the State of California submitted the San Joaquin
Valley 2008 PM2.5 Plan as a revision to the California SIP.
EPA has not yet taken action on the plan. More recently, EPA designated
the valley as nonattainment for the more stringent 24-hour
PM2.5 standard promulgated by EPA in 2006. See 74 FR 58688
(November 13, 2009)(Air Quality Designations for the 2006
PM2.5 NAAQS).
With respect to carbon monoxide, the valley, outside of four urban
areas, is designated as ``unclassifiable/attainment.'' Bakersfield,
Fresno, Modesto, and Stockton, the four urban areas where violations of
the carbon monoxide standard had been monitored during the 1970s and
1980s, were redesignated from ``nonattainment'' to ``attainment'' in
1998. Lastly, the valley is designated as unclassifiable or attainment
for the nitrogen dioxide and sulfur dioxide standards.
2. Minor Source NSR Permitting Requirements
a. General Considerations
The amended rules would affect minor source NSR (``minor NSR'') by
revising an existing permitting exemption for certain natural-gas- or
LPG-fired combustion and heat transfer systems (see paragraph 6.1 in
submitted District Rule 2020), by exempting minor agricultural sources
with emissions less than 50 percent of the major source threshold (see
paragraph 6.20 in submitted District Rule 2020) from permitting, and by
exempting all new or modified minor agricultural sources from the
offset requirement (see paragraph 4.6.9 of submitted District Rule
2201).
The requirements in 40 CFR 51.160 (``Legally enforceable
procedures''), subsections (a) and (e) provide the basis for evaluating
exemptions from NSR permitting. The basic purpose of NSR permitting is
set forth in 40 CFR 51.160(a). Section 51.160(a) requires NSR SIPs to
set forth legally enforceable procedures that enable the State or local
agency to determine whether the construction or modification of a
stationary source would result in a violation of applicable portions of
the control strategy; or would result in interference with attainment
or maintenance of a national standard in the State in which the
proposed source or modification is located or in a neighboring state.
Section 51.160(e) provides that the procedures must identify types and
sizes of stationary sources, which will be subject to review. We view
this provision as allowing a State to exempt certain types and sizes of
stationary sources so long as the program continues to serve the
purposes outlined in 40 CFR 51.160(a). Thus, the revised exemption for
certain natural gas or LPG-fired boilers, and the exemption from
permitting for non-major agricultural sources whose actual emissions
(excluding fugitive dust) are less than 50 percent of the major source
thresholds are approvable so long as the minor source permitting
program (i.e., including the exemption) continues to provide the
necessary information to allow the District to determine whether new or
modified stationary sources would result in a violation of applicable
portions of the control strategy or would result in interference with
attainment or maintenance of a national standard. In other words,
exemptions are approvable if it can be shown that it is not necessary
to review exempt sources in order to meet the purposes of 40 CFR
51.160(a).
Under 40 CFR 51.160, the District 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).
b. Analysis
With respect to certain smaller combustion and heat transfer
systems (steam generators, water boilers, etc.), amended Rule 2020
revises the existing permitting exemption in paragraph 6.1.1
[[Page 4752]]
of the rule by providing separate fuel specifications for natural gas
and LPG for those types of equipment eligible for the exemption. The
hydrocarbon specification would remain unchanged for natural gas but
would be tightened for LPG from five percent to two percent (by
weight). With respect to sulfur content, the fuel specification would
be relaxed from 0.75 grains (of total sulfur per 100 standard cubic
feet of gas) to 1.0 grain (for natural gas) and 15 grains (for LPG).
Theoretically, the effect of this change would be that certain
combustion and heat transfer systems, that otherwise would be covered
by the permit requirement, would avoid NSR, and would not be subject to
the applicable controls, such as BACT and offsets, thereby resulting in
emissions increases that may or may not be accounted for in regional
plans intended to attain or maintain the national standards.
In response to a query from EPA concerning potential emissions
impacts in the relaxation of the sulfur content specifications, the
District explained how, notwithstanding the permitting exemption,
certain prohibitory rules, such as Rule 4308 (Boilers, Steam
Generators, and Process Heaters 0.075 to 2 MMBtu/hr) and Rule 4307
(Boilers, Steam Generators, and Process Heaters 2 to 5 MMBtu/hr) would
still apply. See the District's November 13, 2009 memorandum, which we
have placed in the docket for this rulemaking. Moreover, the District
explained how, even if the BACT requirement were triggered by a source
that otherwise would be exempt due to the relaxed sulfur content
specification, BACT for emissions of sulfur oxides has historically
been the use of LPG or natural gas, which is already a precondition for
application of the exemption in the first place.\10\ We find the
District's explanation sufficient to find that the relaxed sulfur
content specification in amended Rule 2020, paragraph 6.1, would have
no significant impact on emissions in the valley.
---------------------------------------------------------------------------
\10\ If, in the future, use of natural gas or LPG no longer
represents BACT for sulfur emissions, then this exemption may need
to be re-evaluated.
---------------------------------------------------------------------------
In evaluating the limited permitting exemption for agricultural
sources for consistency with 40 CFR 51.160(a), EPA is taking into
account the specific pollutants emitted from agricultural operations,
relevant non-permitting requirements, and regional air quality plans.
First, California law defines ``agricultural source'' as a source of
air pollution or group of sources used in the production of crops or
the raising of fowl or animals located on contiguous property under
common ownership or control that is a confined animal facility (e.g.,
barn, corral, coop); is an internal combustion engine used in the
production of crops or the raising of fowl or animals (e.g., irrigation
pumps, but excluding nonroad vehicles such as tractors); or is a title
V source or is a source that is otherwise subject to regulation by a
district or the Federal Clean Air Act. See CH&SC section 39011.5. As
such, agricultural sources include both combustion sources (such as,
internal combustion engines and boilers) and non-combustion sources
[e.g., confined animal facilities and on- and off-field vehicular
activity (e.g., tilling and harvesting)]. Among the non-combustion
agricultural sources, some by their nature generate fugitive emissions
such as tilling, harvesting, and vehicle travel over unpaved farm
roads.
Agricultural sources, as described above, emit volatile organic
compounds (VOC), oxides of nitrogen (NOX), particulate
matter (PM10 and PM2.5), and carbon monoxide. As
precursors for ozone, PM10 and PM2.5, emissions
of NOX and VOC from agricultural sources are not a local
concern but are logically evaluated from the standpoint of regional air
quality planning efforts. Direct PM10 and PM2.5
are both of local and regional concern and thus our evaluation must
consider both the potential for local exceedances of the standard due
to the exemption, and for inconsistency with regional control
strategies for these pollutants. Carbon monoxide is typically a
pollutant of localized concern, and emissions of carbon monoxide from
exempt agricultural sources would not be significant given the rural
location of agricultural sites, which are well away from the urban
centers and high traffic densities historically associated with high
ambient concentrations of carbon monoxide in the valley, and the long
record of attainment of the carbon monoxide standard even within the
urban centers of the valley. A pollutant-specific evaluation of the
exemption for particulate matter and ozone is provided in the following
paragraphs.
Particulate Matter. With respect to PM10 and
PM2.5, paragraph 6.20 of amended Rule 2020 would exempt
agricultural operations with emissions up to 50 tons per year (assuming
that 100 tons per year is the current applicable major source threshold
based on the valley's current area designations for PM10 and
PM2.5). This threshold value, however, excludes fugitive
dust, and thus, the permitting exemption would extend to agricultural
sources with overall actual emissions of PM10 and
PM2.5 greater than 50 tons per year. Without application of
some types of control measures, we would have no basis to categorically
conclude that such sources would under no reasonably foreseeable
circumstances cause or contribute to an exceedance of the
PM10 or PM2.5 standard.
However, because the District has adopted other rules that serve to
control the fugitive dust emissions from agricultural sources,
including those that would not require a permit due to the exemption in
amended District Rule 2020, paragraph 6.20, we believe the exemption
can be approved consistent with 40 CFR 51.160(a) and (e). Specifically,
District Rule 4550 (``Conservation Management Practices'') and the
District's Regulation VIII (``Fugitive PM10 Prohibitions'',
particularly, Rules 8011 and 8081) act as non-permitting means to
reduce fugitive dust emissions at agricultural sources that fall under
the exemption and reduce the potential for localized exceedances of the
PM10 and PM2.5 standards. As explained further
below, as a general matter, District Rule 4550 covers on-field
agricultural operations and is implemented through an application and
District approval process, whereas District Rules 8011 and 8081 cover
off-field agricultural operations and are implemented as prohibitory
rules.
District Rule 4550 (``Conservation Management Practices'') applies
to agricultural operation sites located within the San Joaquin Valley
Air Basin and is intended to limit fugitive dust emissions from such
sites. EPA approved Rule 4550 and associated List of Conservation
Management Practices (CMP List) into the California SIP in 2006. See 71
FR 7683 (February 14, 2006). Under the rule, an owner/operator must
implement the applicable CMPs selected pursuant to section 6.2 (one CMP
from the CMP list for each of the applicable CMP categories for each
agricultural parcel of an agricultural operation site). An owner/
operator must prepare and submit a CMP Application for each
agricultural operation site to the APCO for approval. A CMP Application
approved by the APCO constitutes a CMP Plan, and owner/operators must
implement the CMPs as contained in the CMP Plan.
Exemptions in District Rule 4550 include agricultural operation
sites where the total acreage of all agricultural parcels is less than
100 acres and exempts Animal Feeding Operations (AFOs) involving less
than a certain number of animals: Less than 500 mature dairy cows, less
than 190
[[Page 4753]]
cattle, less than 55,000 turkeys, less than 125,000 chickens (other
than laying hens), or less than 82,000 laying hens. The District's
staff report on Rule 4550 (dated August 19, 2004) concludes that Rule
4550 (with its 100-acre exemption level) will apply to approximately 91
percent of all irrigated farmland in the SJV. The District also
estimated emissions from 100-acre farms to determine the emission
impact of an exemption. District staff analyzed different commodities
and determined that PM10 emissions would be quite low for
smaller farms, less than 1 ton per year. See 71 FR 7683, at 7685
(February 14, 2006). The District also calculated the emissions impact
of the size-based exemptions for animal feeding operations. Rule 4550
is expected to apply to 73% of dairy cows, 94% of feedlot cattle, and
nearly all poultry operations in the valley. The District also
determined that any sites qualifying for the size-based cut-offs would
have emissions no greater than 1 ton per year. See 71 FR 7683, at 7685
(February 14, 2006). Such small farms would not be expected to cause or
contribute to localized exceedances of the PM10 or
PM2.5 standard.
The District's Regulation VIII (``Fugitive PM10
Prohibitions'') is intended to reduce ambient concentrations of
PM10 by requiring actions to prevent, reduce or mitigate
anthropogenic fugitive dust emissions from specified outdoor fugitive
dust sources. Rule 8011 establishes generally applicable definitions,
exemptions, requirements, administrative requirements, recordkeeping
requirements, and test methods under Regulation VIII. Rule 8081
(``Agricultural Sources'') establishes specific requirements for off-
field agricultural sources. EPA approved Regulation VIII, including
Rules 8011 and 8081, into the California SIP in 2003 (68 FR 8830,
February 26, 2003) and approved Regulation VIII amendments into the
California SIP in 2006 (71 FR 8461, February 17, 2006).
District Rule 8081 applies to off-field agricultural sources, which
includes any agricultural source that meets the definition of: Outdoor
handling, storage and transport of bulk material; paved road; unpaved
road; or unpaved vehicle/equipment traffic area. Under Rule 8081, an
owner/operator must sufficiently implement at least one of the control
measures indicated in the rule to limit visible dust emissions (VDE) to
20% opacity or to stabilize the affected surface consistent with the
requirements in Rule 8011. Together, implementation of the fugitive
dust control measures required under District Rule 4550 and Rules 8011
and 8081 provide EPA with a reasonable basis to conclude that
agricultural operations that escape permitting under paragraph 6.20 of
amended District Rule 2020 would not cause or contribute to an
exceedance of the PM10 or PM2.5 standard.
With respect to the regional planning context, we have reviewed the
various approved and submitted San Joaquin Valley attainment or
maintenance plans cited above, and note that none of these plans rely
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
from an offsets requirement has been considered when determining the
impact of the growth on the District's ability to achieve attainment
with the standards.\11\ In contrast, emissions reductions from the
prohibitory rules affecting agricultural sources, discussed above, are
taken into account in the plan inventory projections. Because the plans
do not rely on emission reductions from permitting of agricultural
sources less than 50% of the major source threshold and not rely on
offsets for new or modified minor agricultural sources, approval of the
amended Rules 2020 and 2201 would be consistent with regional planning
efforts to attain and maintain the NAAQS.
---------------------------------------------------------------------------
\11\ Also see the District's Clean Air Act section 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.
---------------------------------------------------------------------------
Ozone. With respect to ozone precursors (VOC AND NOX),
paragraph 6.20 of amended District Rule 2020 would exempt agricultural
operations with ``actual'' emissions (i.e., including fugitive
emissions) \12\ of less than 5 tons per year based on an applicable
major source threshold of 10 tons per year. As such, the scope of the
exemption therefore is limited to small-scale agricultural operations
and is acceptable so long as the ozone plans for the valley do not
count on permitting of such sources. As noted above, the regional plans
do not rely on emission reductions from permitting of agricultural
sources less than 50% of the major source threshold nor do the plans
rely on offsets for new or modified minor agricultural sources.\13\
---------------------------------------------------------------------------
\12\ The District's view on the whether CH&SC section 42301.16
(and cited in District Rule 2020, section 6.20) covers fugitive VOC
emissions is found in the District's Final Staff Report (page B-13,
response to comment 19) on proposed amendments to Rule 2201
and Rule 2530 (dated December 18, 2008): ``The District appreciates
the opportunity to reiterate that, for the purposes of implementing
CH&SC sections 40724.6(c) and 42301.16(c), all emissions, except for
fugitive dust, must be included in calculations to determine
district permitting requirements based on one-half of the major
source thresholds. The statutory language of these sections is
consistent, which read separately or in the interrelated nature in
which they were intended to be read, and [sic] District's
implementation adheres to this statutory language.'' Thus, fugitive
VOC emissions are included in the determination of whether actual
emissions from a minor agricultural operation are greater than 50%
of the applicable major source threshold which, for VOC, is 10 tons
per year, or, in other words, greater than 5 tons per year.
\13\ Like fugitive dust and District Rules 4550, 8011, and 8081,
emissions of NOX from certain types of equipment found at
agricultural sources, such as boilers and internal combustion
engines, are covered by District prohibitory rules regardless of
whether a given agricultural source is subject to permitting. Two
such rules include District Rules 4308 and 4702. SIP-approved
District Rule 4308 (``Boilers, Steam Generators, and Process
Heaters'') limit NOX emissions from boilers between
75,000 Btu/hour and 2 million Btu/hour. See 72 FR 29886 (May 30,
2007). SIP-approved District Rule 4702 (``Internal Combustion
Engines--Phase 2'') limits NOX, VOC, and carbon monoxide
from internal combustion engines with rated brake horsepower greater
than 50 horsepower. See 73 FR 1819 (January 10, 2008). Such
prohibitory rules further reduce the chance that agricultural
sources that would be exempt from permitting under District Rule
2020, paragraph 4.6.9, might interfere with attainment or
maintenance of the national standards.
---------------------------------------------------------------------------
3. ``Extreme'' Ozone Area NSR Requirements
The most recent version of the District's NSR rules that EPA has
approved into the SIP was adopted by the District on December 19, 2002.
Since that time, with respect to major sources and major modifications,
there have been two significant regulatory changes affecting the NSR
rules in San Joaquin Valley: (1) EPA's approval of the State of
California's request to reclassify the San Joaquin Valley to
``extreme'' for the 1-hour ozone standard, and (2) EPA's promulgation
of NSR Reform Rules.
EPA approved the State of California's request to reclassify the
San Joaquin Valley to ``extreme'' for the 1-hour ozone standard in
2004. See 69 FR 20550 (April 16, 2004). In doing so, EPA established a
deadline of May 16, 2005 for submittal of revised District NSR rules
that reflect the requirements for ``extreme'' ozone nonattainment
areas. For such areas, the relevant NSR requirements include a major
source threshold of 10 tons per year of VOC or NOX [see CAA
section 182(e) and 182(f) and 51.165(a)(1)(iv)], the offset ratio is
1.5 to 1 [see CAA section 182(e)(1) and 40 CFR 51.165(a)(9)], and any
change at a major stationary source which results in any increase in
emissions from any discrete operation, unit, or other pollutant
emitting activity at the source
[[Page 4754]]
is considered a major modification [see CAA section 182(e)(2) and 40
CFR 51.165(a)(1)(x)(E)]. These NSR SIP requirements will also apply
once we approve the State of California's request to reclassify San
Joaquin Valley to ``extreme'' for the 8-hour ozone standard.
As submitted on March 17, 2009, the VOC and NOX
provisions in District Rule 2201 have been amended to include the 10
ton per year threshold (see section 3.23 of amended Rule 2201), the 1.5
to 1 offset ratio (see section 4.8.1 of amended Rule 2201), and the
``any increase'' threshold for major modifications (see 3.17.1.4 of
amended Rule 2201). As such, District Rule 2201 has adequately been
amended to reflect ``extreme'' ozone area requirements under the CAA
and 40 CFR 51.165.
4. EPA's NSR Reform Rules
On December 31, 2002 (67 FR 80186), EPA published final rule
changes to 40 CFR parts 51 and 52, regarding the CAA's PSD and
Nonattainment NSR programs relating to major sources and major
modifications. On November 7, 2003 (68 FR 63021), EPA published a
notice of final action on the reconsideration of the December 31, 2002
final rule changes. The December 31, 2002, and the November 7, 2003,
final actions are collectively referred to as the ``2002 NSR Reform
Rules.'' The purpose of this action is to propose to approve the SIP
submittal from the State of California that includes rule changes made
as a result of EPA's 2002 NSR Reform Rules.
The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. In summary, the 2002 Rules: (1) Provide a new method for
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with Plantwide Applicability Limitations (PALs) to avoid having a
significant emissions increase that triggers the requirements of the
major NSR program; (4) provided a new applicability provision for
emissions units that are designated clean units; and (5) excluded
pollution control projects (PCPs) from the definition of ``physical
change or change in the method of operation.'' On November 7, 2003 (68
FR 63021), EPA published a notice of final action on its
reconsideration of the 2002 NSR Reform Rules, which added a definition
for ``replacement unit'' and clarified an issue regarding PALs. For
additional information on the 2002 NSR Reform Rules, see, 67 FR 80186
(December 31, 2002), and http://www.epa.gov/nsr.
After the 2002 NSR Reform Rules were finalized and effective (March
3, 2003), industry, state and environmental petitioners challenged
numerous aspects of the 2002 NSR Reform Rules, along with portions of
EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005,
the United States Court of Appeals for the District of Columbia (DC
Circuit Court) issued a decision on the challenges to the 2002 NSR
Reform Rules. New York v. United States, 413 F.3d 3 (DC Cir. 2005). In
summary, the DC Circuit Court vacated portions of the rules pertaining
to clean units and PCPs, remanded a portion of the rules regarding
recordkeeping and the term ``reasonable possibility'' found in 40 CFR
52.21(r)(6) and 40 CFR 51.166(r)(6), and either upheld or did not
comment on the other provisions included as part of the 2002 NSR Reform
Rules. On June 13, 2007 (72 FR 32526), EPA took final action to revise
the 2002 NSR Reform Rules to remove from Federal law all provisions
pertaining to clean units and the PCP exemption that were vacated by
the DC Circuit Court.
With regard to the remanded portions of the 2002 NSR Reform Rules
related to recordkeeping, on December 21, 2007, EPA took final action
to establish that a ``reasonable possibility'' applies where source
emissions equal or exceed 50 percent of the CAA NSR significant levels
for any pollutant (72 FR 72607). The ``reasonable possibility''
provision identifies for sources and reviewing authorities the
circumstances under which a major stationary source undergoing a
modification that does not trigger major NSR must keep records.
The 2002 NSR Reform Rules require that states adopt and submit
revisions to their SIP permitting programs implementing the minimum
program elements of the 2002 NSR Reform Rules no later than January 2,
2006. State agencies may meet the requirements of 40 CFR part 51 and
the 2002 NSR Reform Rules with different but equivalent regulations.
As submitted on March 17, 2009, District Rule 2201 has been amended
to provide for the minimum program elements of the 2002 NSR Reform
Rules that remain in the wake of subsequent litigation and EPA
rulemaking. The amended rule provides for the minimum program elements
by replacing a single definition for ``Major Modification'' with two
definitions, one for ``Federal Major Modification'' and the other for
``SB 288 Major Modification.'' The former term captures the NSR Reform
program elements (and the ``any increase'' emissions threshold required
in ``extreme'' ozone areas), while the latter retains the pre-Reform
approach to determining major modification status. Section 3.17.1
incorporates the new method for determining baseline actual emissions
and the actual-to-projected-actual methodology for determining whether
a major modification has occurred. Section 3.17.2 incorporates
provisions allowing major stationary sources to comply with PALs.
Amended District Rule 2201 avoids any issue concerning potential SIP
relaxations due to these changes, because, consistent with State law
(SB 288), the District retained the pre-reform requirements. The net
effect of these changes are that the District will now perform two
separate major modification determinations, one to determine if the
project will result in a SB 288 Major Modification and the other to
determine if it will result in a Federal Major Modification. Under the
revised rule, a modification of an existing stationary source would be
required at a minimum to meet the NSR SIP requirements that had applied
prior to adoption by the District of the 2002 NSR Reforms into Rule
2201, and may have to meet additional NSR requirements if the
modification is determined to be a Federal Major Modification.
5. Other Changes to District Rules 2020 and 2201
As described in section III.C of this document, the District has
made a number of changes to their NSR Rules (i.e., Rules 2020 and 2201)
not directly related to fuel specifications, agricultural sources,
``extreme'' area requirements, or NSR Reform. These changes include
clarification and tightening of an existing exemption for certain types
of transfer equipment and equipment used exclusively for the transfer
of refined lubricating oil (see paragraph 6.7 of amended Rule 2020);
tightening of one of the conditions that qualify a replacement of
equipment as ``routine replacement'' (see paragraph 3.33.1 of amended
Rule 2201); clarification of the scope of an existing emission offset
exemption for portable equipment (see paragraph 4.6.3 of amended Rule
2201); and provision for a lower offset ratio if and when EPA makes the
necessary findings under CAA section 182(e)(1) (see paragraph 4.8.2 of
amended Rule 2210). We find these changes to either be neutral or
strengthening relative to the existing SIP and consistent with all
applicable requirements.
[[Page 4755]]
6. Enforceability Considerations
For the reasons given above, we find the amendments to District
Rules 2020 and 2201 to be acceptable under applicable NSR regulations;
however, SIP rules must also be enforceable [see CAA section 110(a)],
and we find two specific deficiencies related to enforceability of
Rules 2020 and 2201 that prevent our full approval. These deficiencies
arise from the ambiguity introduced by the references in both paragraph
6.20 (of Rule 2020) and paragraph 4.6.9 (of Rule 2201) to State law
under circumstances where the State law has not been submitted to EPA
for approval into the SIP. Specifically, paragraph 6.20 (of Rule 2020)
provides a permitting exemption for: ``Agricultural sources, but only
to the extent provided by California Health and Safety Code, Section
42301.16.'' In turn, CH&SC section 42301.16 requires districts to
extend permitting requirements to all agricultural sources that are
``major'' under the CAA and to all ``minor'' agricultural sources with
actual emissions one-half of the applicable major source emissions
thresholds (or greater) for any air contaminant, but excluding fugitive
dust. However, subsection (b) of CH&SC section 42301.16 provides a
means through which a district can extend the exemption from ``one-half
of any applicable emissions threshold'' to the ``major source''
threshold if certain findings are made in a public hearing.
Because CH&SC section 42301.16 is not included in the California
SIP, nor has California submitted the section to EPA for approval, the
SIP would be ambiguous as to the extent of the agricultural source
permitting exemption if EPA were to approve submitted District Rule
2020 into the SIP. Effective enforcement of the permitting requirements
would rely on judicial notice of the statutory provision cited in the
rule, and such judicial notice may or may not be forthcoming. There is
no need to rely on judicial notice when the District can eliminate the
ambiguity by clearly stating the exemption for agricultural sources in
District Rule 2020 or by submitting CH&SC section 42301.16 to EPA for
approval into the SIP. Moreover, even if we could assume that judicial
notice of the statutory provision would be taken, CH&SC section
42301.16 by its terms allows for a relaxation of the one-half of major
source permitting threshold for agricultural sources, and such
relaxations should be reviewed by EPA under section 110 for approval as
a SIP revision. Therefore, we are proposing a limited approval and
limited disapproval of submitted Rule 2020.
Paragraph 4.6.9 of submitted Rule 2201 contains a similarly-
ambiguous reference to State law in listing emission offset exemptions:
``Agricultural sources, to the extent provided by California Health and
Safety Code, section 42301.18(c), except that nothing in this section
shall circumvent the requirements of section 42301(a).'' CH&SC section
42301.18(c) states: ``A district may not require an agricultural source
to obtain emissions offsets for criteria pollutants for that source if
emissions reductions from that source would not meet the criteria for
real, permanent, quantifiable, and enforceable emission reductions.''
Our understanding is that the District has no plans to require
emissions offsets for new or modified agricultural sources unless such
new or modified source is a ``Major Source'' or a ``Federal Major
Modification'' as defined in another section of Rule 2201. Once again,
there is no need for ambiguity in the applicability of the emissions
offset exemption, and therefore, EPA is proposing a limited approval
and limited disapproval of submitted Rule 2201.
7. Federally Enforceable Restriction on Potential To Emit
District Rule 2530 establishes limits to restrict the PTE of a
stationary source so that the source may be exempt from the District's
rule implementing Title V operating permit requirements. The emission
limits in section 6.1 of District Rule 2530 are intended to represent
50% of the applicable major source threshold.\14\ With the change in
the valley's ozone classification to ``extreme'' for the 1-hour ozone
standard, and the corresponding lowering of the applicable major source
threshold from 25 tons per year to 10 tons per year, it follows that
the District has amended Rule 2530 to change the corresponding emission
limit in section 6.1 to 5 tons per year of VOC or NOX, to
maintain the emission limit at 50% of the applicable major source
threshold. Other emissions thresholds in District Rule 2530, such as
those for exemptions from recordkeeping and reporting (20% of
applicable major source threshold) and from reporting (25% of
applicable major source threshold) have also been reduced accordingly.
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\14\ The approach in District Rule 2530 of establishing emission
limits and alternative operational limits that are intended to
represent percentages of the applicable major source threshold (50%
for emission limits and 80% for alternative operational limits), as
a mechanism to allow sources to avoid title V permitting
requirements, is consistent with EPA guidance on this subject as set
forth in a memorandum dated January 25, 1995 from John S. Seitz,
Director, Office of Air Quality Planning and Standards, titled,
``Options for Limiting the Potential to Emit (PTE) of a Stationary
Source Under Section 112 and Title V of the Clean Air Act (Act).''
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Certain alternative operational limits in section 6.2 of the rule,
which were intended to allow sources using these types of limits to go
up to 80% of the major source threshold (in actual emissions), were
changed accordingly but certain other limits in section 6.2 were left
unchanged or were changed by a lesser proportion. The District
explained how the values that were not revised downwards in proportion
to the drop in the major source threshold met the underlying purpose of
the provision allowing alternative operational limits, i.e., allowing
certain types of sources to go up to 80% of the major source threshold
(in actual emissions). For instance, the alternative operational limit
of 7,000,000 gallons per year of gasoline dispensed at gasoline
dispensing facilities with phase I and II vapor recovery systems, as
set forth in paragraph 6.2.1 of Rule 2530, was left unchanged because
it still is well below the 80% (of 10 tons per year) threshold for
underground storage tanks (16.9 million gallons per year) and for above
ground storage tanks (12.2 million gallons per year). See District
memorandum on Rule 2530 (dated December 18, 2009), which we have placed
in the docket.
Therefore, we find the changes to District Rule 2530 to be
acceptable, and we propose to approve amended District Rule 2530, as
submitted on March 17, 2009, as a revision to the California SIP.
8. 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.'' 42 U.S.C.
7410(l).
For the purposes of CAA section 110(l), we take into account the
overall effect of the revisions included in this action. Given the wide
application of the lower major source thresholds to all
[[Page 4756]]
types of new or modified stationary sources of VOC and NOX
and the limited extent of the exemptions from permitting and offsets
for certain types of agricultural sources, we find that the overall
effect of the revisions would strengthen the SIP, notwithstanding
deficiencies identified above in enforceability. Moreover, we do not
anticipate localized exceedances of the PM10 or
PM2.5 standards, due to the permitting exemption for certain
agricultural sources, given the application of non-permitting
requirements in the SIP. Lastly, we note that the revisions are
consistent with the assumptions of the various air quality plans
developed for the valley.
Accordingly, we conclude that the revisions to Rules 2020, 2201,
and 2530, if approved, would not interfere with any applicable
requirements for attainment and reasonable further progress or any
other applicable requirement of the CAA and are approvable under
section 110(l).
9. Conclusion and Proposed Action on Submitted Rules
For the reasons given above, under CAA section 110(k)(2) and
301(a), we are proposing a limited approval and limited disapproval of
amended Rules 2020 and 2201 because, although they would strengthen the
SIP and meet all but one of the applicable requirements for SIPs in
general and NSR SIPs in particular, they contain certain deficiencies
related to enforceability that prevent our full approval. The
deficiency in Rule 2020 can be remedied by the District by revision of
Rule 2020 by replacing the statutory reference to CH&SC section
42301.16 in paragraph 6.20 with a clear description of the sources
covered by the exemption. The deficiency in Rule 2201 can be remedied
by either submittal of the statutory provisions cited in paragraph
4.6.9 or by replacement of the references with a clear description of
the applicability of the offset requirement to agricultural sources.
For amended Rule 2530, we are proposing a full approval because we find
that it has been appropriately modified to reflect the decrease in the
major source threshold for VOC and NOX consistent with the
area's ``extreme'' classification for the 1-hour ozone standard.
V. Deletion of Obsolete Conditions on SIP Approvals
In the 1980s, EPA placed conditions, including conditions related
to NSR, on approvals of certain California nonattainment plans. As to
certain San Joaquin Valley plans, EPA approved the plans on the
condition that the State of California submit revised NSR rules for the
individual county-based Air Pollution Control Districts (APCDs), then
having jurisdiction in San Joaquin Valley, as revisions to the
California SIP. These NSR-related conditions are identified in table 3,
below, by applicable county, EPA action, and CFR citation.
On September 23, 1999, in an action proposing approval of previous
versions of District Rules 2020 and 2201 (later superceded by a
proposed rule published on September 28, 2000), we proposed to remove
these conditions. See 64 FR 51493, at 51494 (September 23, 1999).
Specifically, we proposed to delete the conditions set forth in 40 CFR
52.232(a)(5)(i)(A), (a)(6)(i)(A), (a)(10)(i)(A), and (a)(11)(i)(A).
In our September 1999 proposed rule, we noted that the conditions
required the prior county-based APCDs (now combined to form the San
Joaquin Valley Unified Air Pollution Control District) \15\ to submit
regulations consistent with EPA regulations that were current at the
time the conditions were established in 1981, 1982, and 1985. We also
noted that the conditions are moot today because the District has
submitted revised NSR rules (i.e., Rules 2020 and 2201) that comply
with EPA's current regulations and the Clean Air Act, as amended in
1990. However, we did not include the removal of these obsolete NSR-
related conditions in the subsequent final rule on May 17, 2004 (69 FR
27837) fully approving the District's NSR rules, i.e., District Rules
2020 and 2201.
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\15\ Kern County APCD, one of the original county-based APCDs
covering San Joaquin Valley, was not entirely consolidated into the
current unified District, but its jurisdiction is no longer county-
wide, and is limited to the eastern portion of the county.
Table 3--Obsolete Conditions Proposed for Deletion
----------------------------------------------------------------------------------------------------------------
Conditional approval
County Federal Register citation Regulatory citation
----------------------------------------------------------------------------------------------------------------
Kern County \a\.................. 46 FR 42450 (August 21, 40 CFR 52.232(a)(5)(i)(A).
1981).
San Joaquin County............... 47 FR 19694 (May 7, 40 CFR 52.232(a)(6)(i)(A).
1982), amended at 50 FR
7591 (February 25, 1985).
Kings, Madera, Merced, 47 FR 19694 (May 7, 1982) 40 CFR 52.232(a)(10)(i)(A).
Stanislaus, and Tulare Counties.
Fresno County.................... 47 FR 28617 (July 1, 40 CFR 52.232(a)(11)(i)(A).
1982).
----------------------------------------------------------------------------------------------------------------
\a\ In today's document, we are proposing to remove the Kern County condition for carbon monoxide and ozone
only.
In today's document, we are addressing the same provisions in 40
CFR 52.232 as our 1999 proposed rule, but we are not proposing exactly
the same action as before. Today, we recognize that the condition in 40
CFR 52.232(a)(5)(i)(A) is obsolete as to carbon monoxide and ozone in
light of the approval of District NSR rules in 2004 (69 FR 27837, May
17, 2004), the change in the boundary for the 1-hour ozone
nonattainment boundary for San Joaquin Valley (66 FR 56476, November 8,
2001), and the redesignation of the East Kern County 1-hour ozone
nonattainment area to attainment (69 FR 21731, April 22, 2004).
However, as to particulate matter, we find the condition to be
unfulfilled because the Kern County APCD retains jurisdiction over a
small portion of the San Joaquin Valley planning area, the portion of
the San Joaquin Valley planning area over which Kern County APCD
retains jurisdiction remains nonattainment for PM10 (see 73
FR 66759, November 12, 2008), and because we have yet to approve a
revision to Kern County APCD NSR rules that meet the condition in 40
CFR 52.232(a)(5)(i)(A). Therefore, we propose to amend 40 CFR
52.232(a)(5)(i) to remove the references to carbon monoxide and ozone
only. We will retain the condition as to particulate matter until we
approve the Kern County APCD's nonattainment NSR rules for the East
Kern County PM10 nonattainment area or until we approve a
redesignation request for the East Kern PM10 area to
``attainment.''
We are also proposing to remove the conditions set forth in 40 CFR
52.232(a)(6)(i)(A), (a)(10)(i)(A), and (a)(11)(i)(A) as obsolete in
light of the approval of District NSR rules in 2004
[[Page 4757]]
(69 FR 27837, May 17, 2004).\16\ Unlike Kern County, the counties
subject to the conditions in 40 CFR 52.232(a)(6), (10), and (11) (i.e.,
San Joaquin, Kings, Madera, Merced, Stanislaus, Tulare, and Fresno) all
lie entirely within District jurisdiction. If we finalize this aspect
of this action as proposed, we will be removing and reserving 40 CFR
52.232(a)(6), (a)(10), and (a)(11) because the conditions proposed for
removal are the last conditions on approval that remain.
---------------------------------------------------------------------------
\16\ The condition established in 40 CFR 52.232(a)(11) also
relates to Ventura County, but removal of the condition is proper as
to Ventura County in light of EPA's subsequent approval of the
Ventura County nonattainment NSR rules at 68 FR 9561 (February 28,
2003).
---------------------------------------------------------------------------
VI. Proposed Action and Opportunity for Public Comment
For the reasons set forth above, we are proposing to correct a
previous approval of San Joaquin Valley District NSR rules, Rule 2020
(``Exemptions'') and Rule 2210 (``New and Modified Stationary Source
Review Rule''), to approve amended District Rule 2530 (``Federally
Enforceable Potential to Emit''), and to take a limited approval and
limited approval action for amended District NSR Rules 2020 and 2201.
More specifically, we are proposing to correct our May 2004 final
approval of revisions to the San Joaquin Valley Unified Air Pollution
Control District portion of the California State Implementation Plan
under section 110(k)(6) of the Clean Air Act. We do so 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 language to be added as a new section, 52.245, of 40 CFR part
52.
Under CAA sections 110(k)(2) and 301(a), we are proposing a limited
approval and limited disapproval of amended District Rules 2020 and
2201, as submitted on March 7, 2008 and March 17, 2009, respectively.
The amended District Rules 2020 and 2201 would establish an exemption
from permitting, and from offsets, for certain minor agricultural
operations, would establish applicability thresholds (for major sources
and major modifications) and offset thresholds consistent with a
classification of ``extreme'' for the ozone standard, and would
implement NSR Reform. We are proposing a limited approval and limited
disapproval, because, although the amended rules meet most of the
applicable requirements and strengthen the SIP, they contain
unacceptably ambiguous references to statutory provisions.
With respect to amended District Rule 2530, as submitted on March
17, 2009, we are proposing full approval because we find that it has
been appropriately modified to reflect the decrease in the major source
threshold for VOC and NOX consistent with an ``extreme''
classification.
Lastly, EPA is proposing to rescind conditions placed on 1980s era
approvals by EPA on various nonattainment plans submitted by California
for the San Joaquin Valley that have become obsolete by EPA approval of
subsequent revisions to the District's NSR rules. Therefore, we propose
to amend 40 CFR 52.232(a)(5)(i) to remove the references to carbon
monoxide and ozone and to remove and reserve 40 CFR 52.232(a)(6),
(a)(10), and (a)(11).
If EPA were to finalize the limited approval and limited
disapproval action, as proposed, then a sanctions clock, and EPA's
obligation to promulgate a Federal implementation plan, would be
triggered because the revisions to the District rules for which a
limited approval and limited disapproval is proposed are required under
anti-backsliding principles established for the transition from the 1-
hour to the 8-hour ozone standard.
We will accept comments from the public on this proposal for the
next 30 days.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This proposed rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed action does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This Federal action proposes to approve pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132
[[Page 4758]]
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have Federalism implications.'' ``Policies
that have Federalism implications'' is defined in the Executive Order
to include regulations that 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.'' Under Executive Order 13132, EPA may
not issue a regulation that has Federalism implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or EPA consults with State and local officials early in
the process of developing the proposed regulation. EPA also may not
issue a regulation that has Federalism implications and that preempts
State law unless the Agency consults with State and local officials
early in the process of developing the proposed regulation.
This proposed rule 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, as specified in Executive Order 13132,
because it merely proposes to 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. Thus, the requirements of section 6 of the Executive Order do not
apply to this rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175. It
will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it proposes to
approve a State rule implementing a Federal standard.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
proposed action does not require the public to perform activities
conducive to the use of VCS.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Particulate matter, Reporting and recordkeeping
requirements.
Accordingly, 40 CFR part 52 is proposed to be amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.245 is added to read as follows:
Sec. 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 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.
(b) The offset requirement, as it relates to agricultural sources,
does not apply to new minor agricultural sources and minor
modifications to agricultural sources.
Dated: January 21, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2010-1838 Filed 1-28-10; 8:45 am]
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