Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District, 9260-9266 [E8-3113]
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Federal Register / Vol. 73, No. 34 / Wednesday, February 20, 2008 / Proposed Rules
Please see the direct final rule which
is located in the Rules Section of this
Federal Register for detailed
instructions on how to submit
comments.
FOR FURTHER INFORMATION CONTACT:
Donald O. Cooke, Air Quality Unit, U.S.
Environmental Protection Agency, EPA
New England Regional Office, One
Congress Street, Suite 1100 (CAQ),
Boston, MA 02114–2023, telephone
number (617) 918–1668, fax number
(617) 918–0668, e-mail
cooke.donald@epa.gov.
In the
Final Rules Section of this Federal
Register, EPA is approving the State’s
SIP submittal as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
Please note that if EPA receives adverse
comment on an amendment, paragraph,
or section of this rule and if that
provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment.
For additional information, see the
direct final rule which is located in the
Rules Section of this Federal Register.
SUPPLEMENTARY INFORMATION:
Dated: January 9, 2008.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. E8–2883 Filed 2–19–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R04–OAR–2007–0150–200711(b);
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Approval and Promulgation of
Implementation Plans for Air Quality
Planning Purposes; Georgia: Early
Progress Plan for the Atlanta 8-Hour
Ozone Nonattainment Area
Environmental Protection
Agency (EPA).
AGENCY:
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ACTION:
Proposed rule.
SUMMARY: On December 31, 2006, the
State of Georgia, through the
Environmental Protection Division of
the Georgia Department of Natural
Resources, submitted a voluntary State
Implementation Plan (SIP) revision
requesting approval of an Early Progress
Plan for the sole purpose of establishing
motor vehicle emission budgets
(MVEBs) for the Atlanta 8-hour ozone
nonattainment area. The Atlanta 8-hour
ozone nonattainment area is comprised
of the following twenty counties:
Barrow, Bartow, Carroll, Cherokee,
Clayton, Cobb, Coweta, DeKalb,
Douglas, Fayette, Forsyth, Fulton,
Gwinnett, Hall, Henry, Newton,
Paulding, Rockdale, Spalding and
Walton counties in their entireties
(hereafter referred to as the ‘‘Atlanta 8Hour Ozone Area’’). EPA is proposing to
approve Atlanta’s Early Progress Plan,
including the new regional MVEBs for
nitrogen oxides and volatile organic
compounds for 2006. This proposed
approval of the Early Progress Plan for
the Atlanta 8-Hour Ozone Area is based
on EPA’s determination that Georgia has
demonstrated that the SIP revision
containing these MVEBs, when
considered with the emissions from all
sources, shows some progress toward
attainment from the base year (i.e.,
2002) through an interim target year
(i.e., 2006). In the Final Rules Section of
this Federal Register, EPA is approving
the SIP revision as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no significant, material, and
adverse comments are received in
response to this rule, no further activity
is contemplated. If EPA receives adverse
comments, the direct final rule will be
withdrawn and all public comments
received will be addressed in a
subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period on this
document. Any parties interested in
commenting on this document should
do so at this time.
DATES: Written comments must be
received on or before March 21, 2008.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2007–0150, by one of the
following methods:
1. https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
2. E-mail: Benjamin.lynorae@epa.gov.
3. Fax: (404) 562.9019.
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4. Mail: EPA–R04–OAR–2007–0150,
Air Quality Modeling and
Transportation Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960.
5. Hand Delivery or Courier: Lynorae
Benjamin, Air Quality Modeling and
Transportation Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. Such
deliveries are only accepted during the
Regional Office’s normal hours of
operation. The Regional Office’s official
hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal
holidays.
Please see the direct final rule which
is located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.
FOR FURTHER INFORMATION CONTACT:
Lynorae Benjamin, Air Quality
Modeling and Transportation Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9040.
Ms. Benjamin can also be reached via
electronic mail at
Benjamin.lynorae@epa.gov.
SUPPLEMENTARY INFORMATION: For
additional information, see the direct
final rule which is published in the
Rules Section of this Federal Register.
Dated: February 6, 2008.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. E8–2709 Filed 2–19–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2007–0122; FRL–8528–6]
Revisions to the California State
Implementation Plan, San Joaquin
Valley Unified Air Pollution Control
District
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to correct
our May 2004 final approval of revisions
to the San Joaquin Valley Unified Air
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Pollution Control District (SJVUAPCD
or ‘‘District’’) portion of the California
State Implementation Plan (SIP). We are
also proposing to approve two 2006
revisions to these rules that the
California Air Resources Board
submitted to EPA in December 2006.
Our correction to our May 2004
approval and our proposed approval of
the District’s 2006 revisions conform the
District’s rules to a State law generally
known as Senate Bill 700 by explicitly
limiting the applicability of new source
permitting requirements to certain
minor sources and limiting the
applicability of offset requirements for
all minor agricultural sources consistent
with criteria identified in state law. We
are proposing to correct our May 2004
final approval pursuant to section
110(k)(6) of the Clean Air Act (CAA or
‘‘Act’’). We are proposing to approve the
District’s 2006 revisions of the local
rules into the SIP pursuant to section
110(k)(2) of the Act.
DATES: Any comments must arrive by
March 21, 2008.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2007–0122, by one of the
following methods:
• Federal eRulemaking Portal:
www.regulations.gov. Follow the on-line
instructions.
• E-mail: R9airpermits@epa.gov.
• Mail or deliver: Gerardo Rios (Air–
3), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
www.regulations.gov or e-mail.
www.regulations.gov is an ‘‘anonymous
access’’ system, and EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send e-mail
directly to EPA, your e-mail address
will be automatically captured and
included as part of the public comment.
If EPA cannot read your comment due
to technical difficulties and cannot
contact you for clarification, EPA may
not be able to consider your comment.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov and in hard copy
at EPA Region IX, 75 Hawthorne Street,
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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,
yannayon.laura@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. Correction of EPA’s May 2004 Final
Approval
A. CAA Legal Authority
B. Background on California’s and
SJVUAPCD’s SIPs
C. Correction of Erroneous Final Approval
II. The State’s Submittal of Its 2006 Revisions
A. What revisions did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted
rule revisions?
III. EPA’s Evaluation and Action on the 2006
Revisions
A. How is EPA evaluating the rules?
B. Do the rules meet the evaluation
criteria?
1. Compliance With EPA Minor Source
Permitting Requirements
2. CAA Section 110(l)
C. Public Comment and Final Action
IV. Statutory and Executive Order Reviews
I. Correction of EPA’s May 2004 Final
Approval
A. CAA Legal Authority
Section 110(k)(6) of the Clean Air Act,
as amended in 1990, provides:
‘‘Whenever the Administrator
determines that the Administrator’s
action approving, disapproving, or
promulgating any plan or plan revision
(or part thereof), area designation,
redesignation, classification or
reclassification was in error, the
Administrator may in the same manner
as the approval, disapproval, or
promulgation revise such action as
appropriate without requiring any
further submission from the State. Such
determination and the basis thereof
shall be provided to the State and the
public.’’
We interpret this provision to
authorize the Agency to make
corrections to a promulgated regulation
when it is shown to our satisfaction (or
we discover) that (1) we clearly erred by
failing to consider or by inappropriately
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considering information made available
to EPA at the time of the promulgation,
or the information made available at the
time of promulgation is subsequently
demonstrated to have been clearly
inadequate, and (2) other information
persuasively supports a change in the
regulation. See 71 FR 75690, at 75693
(December 18, 2006); 57 FR 56762, at
56763 (November 30, 1992).
B. Background on California’s and
SJVUAPCD’s SIPs
The regulatory history of permitting
agricultural sources in California is
relevant to our evaluation of the error
we made in our May 2004 final approval
of the District’s new source review
(NSR) permitting rules. In 1970, the
California legislature enacted a law that
was codified as California Health &
Safety Code (CH&SC) section 24265(e).
CH&SC section 24265(e) exempted all
agricultural sources from District
permitting requirements. Specifically,
CH&SC section 24265(e) provided that a
District permit shall not be required for
equipment used in agricultural
operations in the growing of crops or
raising of fowls or animals except for
certain orchard or citrus grove heaters in
Southern California.1
On February 21, 1972, pursuant to the
Clean Air Amendments of 1970,
Governor Ronald Reagan submitted the
original California State Implementation
Plan (SIP) to EPA. The original SIP
included ‘‘Chapter 7—Legal
Considerations’’ to demonstrate
adequate legal authority to implement
and enforce SIP requirements. Chapter 7
of the original SIP discusses the
respective authorities of the California
Air Resources Board and the local air
districts. Specifically, the narrative
included as Chapter 7 cites CH&SC
section 24263 as a basis for the authority
of local air districts to operate permit
systems but does not specifically cite
the permitting exemptions found in
CH&SC section 24265. California
submitted many provisions of the
CH&SC including specific provisions
cited in the narrative, such as section
24263, as well as provisions that were
not specifically cited, such as section
24265, as appendix II to the original SIP.
Later that same year, and with certain
exceptions not relevant here, EPA took
action to approve the original SIP. See
37 FR 10842 (May 31, 1972).
The California SIP has been revised
many times, and on March 16, 1979, the
1 In this instance, Southern California is defined
as including all counties, any part of which lie
south of the Sixth Standard Parallel South, Mount
Diablo Base and Meridian. Within the SJVUAPCD,
only Kern County lies south of the Sixth Standard
Parallel South.
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Governor’s designee, the California Air
Resources Board (CARB), submitted a
revision to the SIP referred to as
‘‘Chapter 3—Legal Authority, Revision
to State of California Implementation
Plan for the Attainment and
Maintenance of Ambient Air Quality
Standards (December 1978).’’ By 1979,
CH&SC section 24265(e) had been recodified as CH&SC section 42310(e).
Similar to the 1972 original SIP, CARB’s
1979 submittal includes a narrative that
generally describes, among many other
topics, the authority of local air districts
to issue permits to stationary sources
but that does not specifically cite
exemptions to District permitting (then
codified under CH&SC section 42310).
The 1979 submittal incorporates CH&SC
provisions as appendix 3–A to chapter
3, but, unlike the 1972 SIP, California
did not physically include the actual
CH&SC provisions with the 1979
submittal, but indicated that the code
was available separately from the ARB
Public Information Office. We described
CARB’s 1979 submittal of ‘‘Chapter 3—
Legal Authority’’ as an updating and
clarification of the 1972 SIP. See 44 FR
38912 (July 3, 1979). The following year,
we finalized our proposed approval of
the March 16, 1979 submittal of ‘‘Legal
Authority.’’ See 45 FR 53136 (August
11, 1980).
In addition, individual California air
pollution control districts subsequently
submitted (through CARB) local
permitting rules for EPA to approve into
the SIP. Some district permitting rules,
such as those submitted by SJVUAPCD,
explicitly exempted agricultural sources
from the NSR permitting rules,
consistent with and generally citing to
CH&SC section 42310(e). Prior to the
late 1990’s, EPA had approved such
exemptions into SIP NSR permitting
rules, including the SIP NSR rules for
the county APCDs that now comprise
the region-wide SJVUAPCD.
CARB submitted a revised version of
SJVUAPCD NSR permitting rules, Rules
2020 and 2201, to EPA for SIP approval
in 1998. On July 19, 2001, EPA finalized
a limited approval and limited
disapproval of revised SJVUAPCD Rules
2020 and 2201. See 66 FR 37587 (July
19, 2001). EPA’s limited disapproval
was based, in part, on Rule 2020’s
exemption of agricultural sources,
which was identical to and referenced
CH&SC section 42310(e). Our limited
disapproval stated that SJVUAPCD
could not exempt major stationary
sources or major modifications at
existing major sources from NSR
requirements.2
2 SJVUAPCD NSR permitting rules do not adopt
the distinction between minor sources and major
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To correct the deficiency in Rule 2020
leading to EPA’s July 2001 limited
disapproval, SJVUAPCD adopted and
submitted a revision to Rule 2020 which
eliminated the agricultural exemption in
its entirety from the District rules.
SJVUAPCD submitted the revised Rule
2020 to EPA on December 23, 2002.
On February 13, 2003, EPA proposed
several actions regarding the exemption
of agricultural sources from major
source NSR permitting requirements.
First, EPA proposed approval of revised
Rule 2020 completely deleting the
permit exemption for agricultural
sources from the District rules. See 68
FR 7330 (February 13, 2003).3 In that
notice, EPA specifically noted that
‘‘California Health & Safety Code
42310(e) continues to preclude the
District, as well as all other districts in
California, from permitting agricultural
sources under either title I or title V of
the CAA.’’ See 68 FR 7330, at 7335. To
address this issue, EPA published a
proposal finding that California’s
statutory exemption of agricultural
sources in CH&SC section 42310(e) from
major source NSR permitting rules
violated the requirements of CAA
section 110(a)(2)(E). See 68 FR 7327
(February 13, 2003). This action, titled
‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for California
State Implementation Plan Revision’’
(hereinafter ‘‘SIP Call’’), determined that
California lacked adequate legal
authority to carry out its NSR permitting
requirements because CH&SC section
42310(e) exempted major agricultural
sources. EPA finalized the SIP Call on
June 25, 2003, and thereby required
California to submit the necessary
assurances of authority by November 23,
2003 to support an affirmative finding
by EPA under CAA section 110(a)(2)(E).
If the State failed to submit the
necessary assurances, then EPA
indicated that the sanctions clock under
CAA section 179 would be triggered.4
See 68 FR 37746 (June 25, 2003).
sources as set forth under the CAA. SJVUAPCD
Rules 2201 and 2020 generally apply to both federal
minor and major stationary sources. Our limited
approval specified that the rule deficiency was
exempting major agricultural sources and major
modifications. See 65 FR 58252, at 58254
(September 28, 2000).
3 EPA also published an Interim Final
Determination that SJVUAPCD had corrected the
July 2001 limited approval deficiencies and EPA
stayed or deferred the imposition of CAA sanctions
on the District. See 68 FR 7321.
4 On May 22, 2002, EPA issued a Notice of
Deficiency for California’s Title V program based on
the exemption of agricultural sources from Title V
permitting. See 67 FR 35990 (May 22, 2002). EPA’s
decision was upheld. See California Farm Bureau
Fed’n v. EPA, No. 02–73371 (9th Cir. July 15, 2003)
(memorandum opinion).
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Later that summer, the California
legislature enacted Senate Bill (SB) 700,
which the Governor of California signed
on September 22, 2003. SB 700 removed
the wholesale exemption from
permitting for agricultural sources
provided under CH&SC section 42310(e)
and subjected major agricultural sources
to permitting requirements. SB 700,
however, retained exemptions for new
source permitting for certain minor
agricultural sources, and limited the
ability to require minor agricultural
sources to obtain federal offsets.5
California notified EPA of the
legislature’s action by letter dated
November 3, 2003 thereby avoiding the
triggering of a sanctions clock.
California enclosed a copy of SB 700
with the November 3, 2003 letter.6
On May 17, 2004, EPA took final
action approving SJVUAPCD’s
permitting rules, Rule 2020 and 2201, as
proposed in February 2003. See 69 FR
27837 (May 17, 2004). These rules, as
approved by EPA, did not on their face
exempt any agricultural sources from
permitting or limit the applicability of
offset requirements. EPA’s final
approval stated that the District had
removed its exemption for agricultural
sources and that the state had also
‘‘removed a similar blanket exemption,
thereby providing the District with
authority to require air permits for
agricultural sources, including federally
required NSR permits.’’ See 69 FR
27837, at 27838. EPA’s final approval
cited SB 700 in a footnote, but did not
note the limited scope of authority for
permitting and offset requirements
under SB 700, which allowed
permitting of only certain minor
agricultural sources. Whether or not
EPA’s SIP actions in 1972 or 1979
approved the statutory provision
5 As explained in Section II.C below, sources with
emissions below 50 percent of the major source
threshold are exempt from permitting unless the
District makes certain findings, while sources at or
above 50 percent of the major source threshold are
subject to permitting unless the District makes
certain findings. See CH&SC section 42301.16 (b)
and (c). In addition, offsets may not be required
unless they meet the criteria for real, permanent,
quantifiable, and enforceable emission reductions.
See CH&SC section 42301.18(c).
It is worth noting that EPA and California
interpret CH&SC section 42301.16(a) to require all
sources that emit or have the potential to emit at
or above the major source threshold to be subject
to new source permitting and offset requirements,
as required by the Clean Air Act, without regard to
the provisions of sections 42301.16(c) or
42301.18(c). Thus, an agricultural source with
actual emissions less than 50 percent of the major
source threshold but potential emissions above the
major source threshold is subject to new source
permitting and offset requirements.
6 See Letter from Bill Lockyer, Attorney General,
California Office of the Attorney General, to
Marianne Horinko, Acting Administrator, EPA,
dated November 3, 2003.
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exempting agricultural sources from
permitting (i.e., CH&SC section
24265(e), recodified as CH&SC section
42310(e)) as part of the California SIP,
it is clear that as of the promulgation of
our May 2004 final rule there is no
exemption from permitting for
agricultural sources derived from the
statutory provision within the
SJVUAPCD portion of the SIP.
C. Correction of Erroneous Final
Approval
In this instance, we believe that our
May 2004 final full approval of Rules
2020 and 2201 was erroneous. For all
SIP revisions, States must provide
evidence that the State has the
necessary legal authority under State
law to adopt and implement the plan.
See CAA section 110(a)(2)(E); 40 CFR
part 51, appendix V, section 2.1(c).
Thus, to support the approval CARB
was required in December 2002 to
provide evidence that SJVUAPCD had
the necessary legal authority under State
law to implement Rules 2020 and 2201,
which purported to require permits and
offsets for all agricultural sources. CARB
could not have done so because CH&SC
section 42310(e), applicable at that time,
continued to preclude such authority
under State law with respect to all
agricultural sources.
Nonetheless, we proposed to fully
approve Rules 2020 and 2201 on
February 13, 2003, with the expectation
that the California legislature would act
to remove CH&SC section 42310(e)’s
exemption for agricultural sources
thereby aligning Rule 2020 with District
authority under State law. 68 FR 7330
(Feb. 13, 2003). While the legislature
did act shortly thereafter to remove the
exemption for major agricultural sources
and major modifications at existing
major agricultural sources, the
legislature also retained the exemption
from permitting for certain minor
agricultural sources, leaving the words
of Rule 2020 broader than the District’s
authority under State law. The
legislature also exempted minor
agricultural sources from obtaining
offsets pending a determination that
emissions reductions from such sources
meet certain criteria, leaving Rule 2201,
on its face, also at odds with State law.
We now understand that our final
approval action on Rules 2020 and 2201
should have ensured that the authority
in those rules was consistent with the
authority granted by SB 700. In other
words, we should have limited our
approval of Rule 2020 to exclude
applicability to agricultural sources
exempt from new source permitting
under SB 700 (i.e., minor sources with
emissions less than 50 percent of the
major source threshold absent findings,
or minor sources over 50 percent of that
threshold with findings). Our approval
of Rule 2201 should have been limited
to provisions requiring offsets for major
agricultural sources and for minor
sources when the listed criteria were
satisfied. Given that California
submitted a copy of SB 700 in
November 2003, we had information
indicating that the District did not have
the authority to implement Rules 2020
and 2201 to the extent that the language
of the rule appeared to allow (i.e., to
require permits and offsets from all new
or modified agricultural sources,
including those exempt under SB 700)
prior to the time we took final action.
We should have limited our approval of
Rules 2020 and 2201 to conform with
SB 700, and promulgated language in 40
CFR part 52 codifying that limitation on
our approval.
We note that recent enforcement
actions have been brought pursuant to
the CAA’s citizen suit provisions against
minor agricultural sources in
SJVUAPCD that have emissions less
than 50 percent of the major source
threshold for failure to apply for and
receive a new or modified source
permit. SJVUAPCD, however, does not
have the authority under State law to
issue such permits. The fact that such
cases are being brought (and one case
has been brought successfully (see
Assoc. of Irritated Residents v. C & R.
Vanderham Dairies, 2007 U.S. Dist.
70890 (E.D. Cal., Sept. 24, 2007))
persuasively supports the need to
correct our error in approving Rules
2020 and 2201 in 2004.
Therefore, pursuant to CAA section
110(k)(6), we are proposing to correct
our error by limiting our approval of
Rules 2020 and 2201 to apply only to
the extent the District has authority
under state law to require permits and
9263
offsets. Specifically, with respect to
agricultural sources, we are approving
Rule 2020 only to the extent it applies
to agricultural sources subject to
permitting under SB 700. Also and
again with respect to agricultural
sources, we are approving Rule 2201
only to the extent it requires offsets for
new major sources and major
modifications until certain criteria set
forth in State law are met. To codify this
proposed error correction, we are
proposing the following language to be
added as a new section, 52.245, of 40
CFR part 52, subpart F (‘‘California’’):
52.245 New Source Review Rules
(a) Approval of the New Source Review
rules for the San Joaquin Valley Unified Air
Pollution Control District Rules 2020 and
2201 as approved May 17, 2004, is limited,
as it relates to agricultural sources, to apply
the permit requirement only (1) to
agricultural sources with actual or potential
emissions at or above a major source
applicability threshold and (2) to agricultural
sources with actual emissions at or above 50
percent of a major source applicability
threshold. The District has the authority to
permit or exempt from permitting minor
agricultural sources upon making the
findings prescribed in CH&SC 42301.16 (b)
and (c). The offset requirement, as it relates
to agricultural sources, does not apply to new
minor agricultural sources and minor
modifications to such sources if emissions
reductions from that source would not meet
the criteria for real, permanent, quantifiable,
and enforceable emission reductions.
This document simultaneously
proposes to approve revised language
into Rules 2020 and 2201 that conforms
the rules to the authority provided in SB
700. If we take final action to approve
the revised rules at the same time as we
take final action on our proposed
correction, then the draft regulatory
language set forth above will not be
codified because it will be superceded
by the revised language submitted by
the District.
II. The State’s Submittal of Its 2006
Revisions
A. What revisions did the State submit?
Table 1 lists the rules we are
proposing to approve with the dates that
they were revised by SJVUAPCD and
submitted to EPA by the California Air
Resources Board (CARB).
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TABLE 1.—SUBMITTED RULES PROPOSED FOR FULL APPROVAL
Local agency
Rule No.
Rule title
SJVUAPCD .......
SJVUAPCD .......
2020 paragraph 6.20 only .......
2201, paragraph 4.6.9 only .....
Exemptions ................................................................................
New and Modified Stationary Source Review Rule ..................
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Amended
20FEP1
09/21/06
09/21/06
Submitted
12/29/06
12/29/06
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On June 29, 2007, the submittal of
Rule 2020, paragraph 6.20, and Rule
2201, paragraph 4.6.9, was deemed by
operation of law to have met the
completeness criteria in 40 CFR part 51
appendix V, which must be met before
formal EPA review.
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B. Are there other versions of these
rules?
As discussed above, we approved a
version of Rule 2020 into the SIP on
May 17, 2004 (69 FR 27837). In today’s
action, we have determined that the
approval was erroneous to the extent it
required sources exempted from
permitting under SB 700 (i.e. sources
less than 50 percent of the major source
threshold) to obtain permits. We also
approved a version of Rule 2201 into the
SIP on May 17, 2004 (69 FR 27837),
although we have determined the
approval was erroneous to the extent it
required offsets barred by SB 700. The
versions of Rules 2020 and 2201 that we
approved in 2004 did not include
provisions equivalent to those now
included in paragraph 6.20 of Rule 2020
or paragraph 4.6.9 of Rule 2201.
Prior to our 2004 approval of Rules
2020 and 2201, the SJVUAPCD portion
of the California SIP included a broad
exemption from permitting for all
agricultural sources, citing CH&SC
section 42310(e). See section 4.0 of
SJVUAPCD rule 2020, as amended on
September 17, 1998, submitted on
October 27, 1998, and approved on July
19, 2001 at 66 FR 37587.
C. What is the purpose of the submitted
rule revisions?
Section 110(a) of the CAA requires
states to submit regulations that control
volatile organic compounds, nitrogen
oxides, particulate matter, and other air
pollutants which harm human health
and the environment. Permitting rules
were developed as part of the local air
district’s programs to control these
pollutants.
The purpose of the addition of
paragraph 6.20 to SIP Rule 2020 is as
follows:
• This paragraph conforms District
permit requirements to State law by
explicitly exempting agricultural
sources to the extent such sources are
exempt pursuant to CH&SC section
42301.16. Section 42301.16(a) requires
local air permitting authorities to
require permits for agricultural sources
subject to the requirements of title I or
title V of the federal Clean Air Act.
Section 42301.16(b) similarly requires
permits for all agricultural sources
unless specified findings are made at a
public hearing or except as provided in
section 42301.16(c). Section 42301.16(c)
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requires the District to make specified
findings at a public hearing prior to
requiring permits for agricultural
sources with emissions that are less
than one-half of any major source
threshold. The net effect of this section
is that all agricultural sources with
actual emissions or a potential to emit
at or above a major source applicability
threshold are required to obtain a
District permit pursuant to CH&SC
section 42301.16(a). Agricultural
sources with actual emissions at or
above 50 percent of a major source
applicability threshold are required to
obtain a District permit, unless the
District makes the findings specified by
subsection (b). No permits are required
for agricultural sources with actual
emissions of less than 50 percent of the
major source applicability thresholds,
unless the District makes the findings
specified in subsection (c), subject to the
limitation in CH&SC section 42301(a).
The purpose of the addition of
paragraph 4.6.9 to SIP Rule 2201 is as
follows:
• This paragraph exempts new or
modified agricultural sources from
offset requirements to the extent
provided by CH&SC section 42301.18(c),
unless the offsets are required by federal
CAA requirements (see CH&SC section
42301(a)). Section 42301.18(c) prohibits
districts from requiring agricultural
sources to obtain offsets if emissions
reductions from such sources would not
meet the criteria for real, permanent,
quantifiable, and enforceable emissions
reductions.
III. EPA’s Evaluation and Action on the
2006 Revisions
A. How is EPA evaluating the rules?
Generally, SIP rules must be
enforceable and must not interfere with
an area’s progress towards attainment or
any other requirement of the Act. See
CAA sections 110(a), 110(l); see also
CAA section 193 (antibacksliding
requirements for pre-1990 control
measures). Specific EPA requirements
for SIPs with respect to review of new
or modified minor stationary sources are
set forth in 40 CFR 51.160 through
51.164. CAA section 110(l) directs EPA
to disapprove any SIP revision that
would interfere with any applicable
requirement concerning attainment or
reasonable further progress or any other
applicable requirement of the Act.
Assuming that CAA section 193 applies
to NSR, section 193 does not apply to
this action because as of November 15,
1990, all agricultural sources were
entirely exempt from permitting and
offset requirements. Thus, the proposed
revisions, specifying limits on the
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permit and offset requirements for
minor agricultural sources, do not
modify a control requirement in effect
before passage of the Clean Air Act
Amendments of 1990.
B. Do the rules meet the evaluation
criteria?
1. Compliance With EPA Enforceability
and Minor Source Permitting
Requirements
The limited exemptions from
permitting and offsets provided in
paragraphs 6.20 (Rule 2020) and 4.6.9
(Rule 2201) for minor agricultural
sources are consistent with EPA
requirements for enforceability. The
limited exemptions are also consistent
with the requirements promulgated in
40 CFR 51.160—51.164 for stationary
sources that do not exceed the major
source or major modification thresholds.
EPA is proposing to approve paragraphs
6.20 and 4.6.9 into Rules 2020 and 2201,
respectively, because SJVUAPCD has
discretion in conducting its minor
source permitting program to exempt
certain small sources and, under federal
law, minor sources are not required to
obtain offsets. Congress directed the
States to exercise the primary
responsibility under the CAA to tailor
air quality control measures, including
minor source permitting programs, to
the State’s needs. See Train v. NRDC,
421 U.S. 60, 79 (1975) (States make the
primary decisions over how to achieve
CAA requirements); Union Electric Co.
v. EPA, 427 U.S. 246 (1976); Greenbaum
v. EPA, 370 F.3d 527 (6th Cir. 2006).
Specifically, paragraph 6.20 of Rule
2020 complies with the requirements for
minor sources established in 40 CFR
51.160(b)(2). That regulation requires
the permitting authority to retain the
legal ability to prevent construction or
modification of a minor source if ‘‘[i]t
will interfere with the attainment or
maintenance of a national standard.’’
Paragraph 6.20, by incorporating CH&SC
section 42301.16(c), continues to allow
the District to require permits for
agricultural sources with emissions that
are less than one-half of any major
source threshold upon making specified
findings at a public hearing. One such
finding is that emissions from the
construction or modification of the
source will adversely impact air quality.
Thus, since the exemptions in
paragraphs 6.20 and 4.6.9 do not apply
to any major stationary sources or major
modifications at existing major
stationary sources, and the exemptions
comply with federal regulations, we
believe these revisions are fully
approvable under section 110(k)(2) of
the CAA.
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2. CAA Section 110(l)
The only remaining issue is whether
this SIP revision would interfere with
requirements concerning attainment and
reasonable further progress (or any other
applicable CAA requirement) as set
forth in CAA section 110(l). CAA
section 110(l) provides: ‘‘Each revision
to an implementation plan submitted by
a State under this chapter shall be
adopted by such State after reasonable
notice and public hearing. The
administrator shall not approve a
revision of a plan if the revision would
interfere with any applicable
requirement concerning attainment and
reasonable further progress (as defined
in section 7501 of this title) or any other
applicable requirement of this chapter.’’
The San Joaquin Valley is currently
designated nonattainment for PM2.5,
PM10, and the eight-hour ozone
standard. The area is formally
designated attainment for the remaining
criteria pollutants. The District’s
attainment plan for PM2.5 is due April
8, 2008, it has submitted a plan for
attaining the ozone standard, and EPA
has published a Finding of Attainment
for PM10, 71 FR 63462 (Oct. 30, 2006).
Prior to the time that attainment
demonstrations are due for a standard,
it is unknown what suite of control
measures are needed for a given area to
attain the standard. During this period,
to demonstrate no interference with any
applicable NAAQS or requirement of
the Clean Air Act under section 110(l),
EPA’s view is that it is appropriate to
allow states to substitute equivalent
emission reductions to compensate for
the control measure being removed from
the active SIP. This approach has been
adopted after notice and comment
rulemaking in other SIP revisions. See,
e.g., 70 FR 57750 (October 4, 2005); 70
FR 53 (January 3, 2005).
EPA also believes there are other
means to demonstrate that a SIP
revision would not interfere with
attainment or maintenance of the
NAAQS, such as modeling to show
noninterference with attainment, or a
full attainment demonstration.7 In this
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7 We
note that no approved or submitted San
Joaquin Valley attainment plan for any
nonattainment pollutant has relied upon NSR for
agricultural sources less than 50 percent of the
major source threshold. Further, for attainment
planning purposes, growth in emissions from
agricultural sources has been established by CARB’s
area source inventory growth methodologies, and
no mitigation of that growth, such as through an
offset requirement, has been considered when
determining the impact of the growth on the
District’s ability to achieve attainment with the
standards. See the District’s Clean Air Act 110(l)
Analysis entitled ‘‘San Joaquin Valley Unified Air
Pollution Control District Rules 2020 and 2201, as
amended September 21, 2006, District’s Clean Air
Act 110(l) Analysis’’ dated November 20, 2007.
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case, after considering the District’s
attainment status and attainment plans
for nonattainment pollutants, we believe
that the adoption of the proposed
revisions in place of the SIP as proposed
to be corrected would not result in any
change in emissions, any change in air
quality, or any change in the area’s
ability to attain or maintain the NAAQS.
Accordingly, we conclude that this
SIP revision, if approved, will not
interfere with any applicable
requirements for attainment and
reasonable further progress or any other
applicable requirement of the CAA and
is approvable under section 110(l).
C. Public Comment and Final Action
Under section 110(k)(6) of the Clean
Air Act, we are proposing to correct our
May 2004 final approval of revisions to
District NSR permitting Rules 2020 and
2201 because, by virtue of information
submitted by California to us in
November 2003, we should have limited
our approval consistent with the legal
authority provided in State law to air
districts to permit, and require offsets
for, new or modified agricultural
sources. To correct our error, we are
proposing regulatory language to so
limit our May 2004 approval.
Under section 110(k)(2) of the Clean
Air Act, we are proposing to approve
the District’s 2006 revisions to Rules
2020 and 2201 to conform the rules to
State law by explicitly exempting
certain small or minor agricultural
sources from permitting requirements
and by exempting all minor agricultural
sources from offset requirements until
certain criteria are met. We will accept
comments from the public on this
proposal for the next 30 days. If, after
consideration of public comments, we
decide to publish a final error correction
and final approval of the revised rules
in the same document, then we intend
that the language of the revised rules
will supercede the error correction and
we do not intend to codify the proposed
regulatory language limiting our May
2004 approval of the previous versions
of District Rules 2020 and 2201.
IV. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this proposed
action is not a ‘‘significant regulatory
action’’ and therefore is not subject to
review by the Office of Management and
Budget. For this reason, this proposed
action is also not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001). This action
merely proposes to correct an error and
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9265
to approve state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies that this
proposed rule will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this rule proposes to
correct an error and approve preexisting requirements under state law
and does not impose any additional
enforceable duty beyond that required
by state law, it does not contain any
unfunded mandate or significantly or
uniquely affect small governments, as
described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4).
This proposed rule also does not have
tribal implications because it will not
have a substantial direct effect on one or
more Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes,
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). This
proposed action also does not have
Federalism implications because it does
not have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This action merely
proposes to correct an error and approve
a state rule implementing a Federal
standard, and does not alter the
relationship or the distribution of power
and responsibilities established in the
Clean Air Act. This proposed rule also
is not subject to Executive Order 13045
‘‘Protection of Children from
Environmental Health Risks and Safety
Risks’’ (62 FR 19885, April 23, 1997),
because it is not economically
significant.
In reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the Clean Air Act. In this context, in the
absence of a prior existing requirement
for the State to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the Clean Air Act. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. This proposed
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Federal Register / Vol. 73, No. 34 / Wednesday, February 20, 2008 / Proposed Rules
rule does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Ozone, Particulate matter,
Reporting and recordkeeping
requirements.
Dated: January 31, 2008.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. E8–3113 Filed 2–19–08; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 375
[Docket No. FMCSA–2008–0019]
RIN 2126–AB01
Transportation of Household Goods;
Consumer Complaint Information
Quarterly Report
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM); request for comments.
rwilkins on PROD1PC63 with PROPOSALS
AGENCY:
SUMMARY: FMCSA proposes to amend
the Federal Motor Carrier Safety
Regulations to implement reporting
requirements for household goods motor
carriers operating in interstate
commerce under section 4214 of the
Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (SAFETEA–LU). SAFETEA–LU
directs FMCSA to issue regulations
requiring that each household goods
motor carrier operating in interstate
commerce submit a quarterly report
summarizing specific information.
These reports must include the number
of shipments originating with, and
delivered by, the carrier; the number
and general category of complaints
lodged by consumers with the carrier;
the number of claims for loss and
damage in excess of $500 filed with the
carrier; and the number of such claims
resolved, declined, and pending during
the reporting period.
DATES: Submit comments concerning
this NPRM on or before April 21, 2008.
ADDRESSES: You may submit comments
identified by the Federal Docket
Management System Number in the
heading of this document by any of the
following methods. Do not submit the
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16:20 Feb 19, 2008
Jkt 214001
same comments by more than one
method. However, to allow effective
public participation in this rulemaking
before the comment period deadline, the
Agency encourages use of the Web site
that is listed first. It will provide the
most efficient and timely method of
receiving and processing your
comments.
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Fax: 1–202–493–2251.
• Mail: Docket Management Facility;
U.S. Department of Transportation,
Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590–
0001.
• Hand Delivery: Ground floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5
p.m., e.t., Monday through Friday,
except Federal holidays.
Instructions: All submissions must
include the Agency name and docket
number or Regulatory Identification
Number for this regulatory action. Note
that all comments received will be
posted without change to https://
www.regulations.gov, including any
personal information provided. Refer to
the Privacy Act heading on https://
www.regulations.gov for further
information. If addressing a specific
request for comments in this NPRM,
please provide detailed information
(including examples) and clearly
identify the related section heading or
question number for each topic
addressed in your comments.
Public Participation: The
regulations.gov system is generally
available 24 hours each day, 365 days
each year. You can find electronic
submission and retrieval help and
guidelines under the ‘‘help’’ section of
the Web site. For notification that
FMCSA received the comments, please
include a self-addressed, stamped
envelope or postcard, or print the
acknowledgement page that appears
after submitting comments on line.
Copies or abstracts of all documents
referenced in this notice are in the
docket for this rulemaking: FMCSA–
2008–0019. For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov at any time or to
Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC, between
9 a.m. and 5 p.m., e.t., Monday through
Friday, except Federal holidays.
All comments received before the
close of business on the comment
closing date indicated above will be
considered and will be available for
examination in the docket at the above
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address. Comments received after the
comment closing date will be filed in
the docket and will be considered to the
extent practicable. In addition to late
comments, FMCSA will also continue to
file relevant information in the docket
as it becomes available after the
comment period closing date, and
interested persons should continue to
examine the docket for new material. A
final rule may be published at any time
after the close of the comment period.
FOR FURTHER INFORMATION CONTACT: Ms.
Dorothea Grymes, (202) 385–2400.
Office hours are from 8:30 a.m. to 5
p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Legal Basis for the Rulemaking
Under the Household Goods Mover
Oversight Enforcement and Reform Act
of 2005 (Title IV Subtitle B of the Safe,
Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (SAFETEA–LU)), the Secretary of
Transportation (Secretary) must issue
regulations requiring each motor carrier
of household goods operating in
interstate commerce to submit a
quarterly report. [See section 4214(a)(2)
of Pub. L. 109–59.] The quarterly report
must summarize: (1) The number of
shipments that originate and are
delivered for individual shippers during
the reporting period by the carrier; (2)
the number and general category of
complaints lodged by consumers with
the carrier; (3) the number of claims for
loss and damage exceeding $500 filed
with the carrier; and (4) the number of
such claims resolved, declined, and
pending during the reporting period.
The regulatory changes in this proposed
rule would implement that reporting
requirement. Under 49 CFR 1.73(a), the
Secretary has delegated the various
authorities described in this section to
the FMCSA Administrator.
Background
The Motor Carrier Safety
Improvement Act of 1999 (Pub. L. 106–
159, December 9, 1999, 113 Stat. 1749)
established FMCSA as a separate agency
within the U.S. Department of
Transportation (DOT). Through that
statute, Congress also authorized the
Agency to regulate motor carriers
transporting household goods in
interstate commerce for individual
shippers. We codified and published
regulations setting forth Federal
consumer protection requirements for
interstate household goods motor
carriers in 49 CFR part 375.
In testimony before the U.S. House
Subcommittee on Highways and
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Agencies
[Federal Register Volume 73, Number 34 (Wednesday, February 20, 2008)]
[Proposed Rules]
[Pages 9260-9266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3113]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2007-0122; FRL-8528-6]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to correct our May 2004 final approval of
revisions to the San Joaquin Valley Unified Air
[[Page 9261]]
Pollution Control District (SJVUAPCD or ``District'') portion of the
California State Implementation Plan (SIP). We are also proposing to
approve two 2006 revisions to these rules that the California Air
Resources Board submitted to EPA in December 2006. Our correction to
our May 2004 approval and our proposed approval of the District's 2006
revisions conform the District's rules to a State law generally known
as Senate Bill 700 by explicitly limiting the applicability of new
source permitting requirements to certain minor sources and limiting
the applicability of offset requirements for all minor agricultural
sources consistent with criteria identified in state law. We are
proposing to correct our May 2004 final approval pursuant to section
110(k)(6) of the Clean Air Act (CAA or ``Act''). We are proposing to
approve the District's 2006 revisions of the local rules into the SIP
pursuant to section 110(k)(2) of the Act.
DATES: Any comments must arrive by March 21, 2008.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2007-0122, by one of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow
the on-line instructions.
E-mail: R9airpermits@epa.gov.
Mail or deliver: Gerardo Rios (Air-3), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.regulations.gov or e-mail.
www.regulations.gov is an ``anonymous access'' system, and EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send e-mail directly to EPA, your e-mail
address will be automatically captured and included as part of the
public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region
IX, 75 Hawthorne Street, San Francisco, California. While all documents
in the docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section below.
FOR FURTHER INFORMATION CONTACT: Laura Yannayon, Permits Office (AIR-
3), U.S. Environmental Protection Agency, Region IX, (415) 972-3534,
yannayon.laura@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Correction of EPA's May 2004 Final Approval
A. CAA Legal Authority
B. Background on California's and SJVUAPCD's SIPs
C. Correction of Erroneous Final Approval
II. The State's Submittal of Its 2006 Revisions
A. What revisions did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted rule revisions?
III. EPA's Evaluation and Action on the 2006 Revisions
A. How is EPA evaluating the rules?
B. Do the rules meet the evaluation criteria?
1. Compliance With EPA Minor Source Permitting Requirements
2. CAA Section 110(l)
C. Public Comment and Final Action
IV. Statutory and Executive Order Reviews
I. Correction of EPA's May 2004 Final Approval
A. CAA Legal Authority
Section 110(k)(6) of the Clean Air Act, as amended in 1990,
provides: ``Whenever the Administrator determines that the
Administrator's action approving, disapproving, or promulgating any
plan or plan revision (or part thereof), area designation,
redesignation, classification or reclassification was in error, the
Administrator may in the same manner as the approval, disapproval, or
promulgation revise such action as appropriate without requiring any
further submission from the State. Such determination and the basis
thereof shall be provided to the State and the public.''
We interpret this provision to authorize the Agency to make
corrections to a promulgated regulation when it is shown to our
satisfaction (or we discover) that (1) we clearly erred by failing to
consider or by inappropriately considering information made available
to EPA at the time of the promulgation, or the information made
available at the time of promulgation is subsequently demonstrated to
have been clearly inadequate, and (2) other information persuasively
supports a change in the regulation. See 71 FR 75690, at 75693
(December 18, 2006); 57 FR 56762, at 56763 (November 30, 1992).
B. Background on California's and SJVUAPCD's SIPs
The regulatory history of permitting agricultural sources in
California is relevant to our evaluation of the error we made in our
May 2004 final approval of the District's new source review (NSR)
permitting rules. In 1970, the California legislature enacted a law
that was codified as California Health & Safety Code (CH&SC) section
24265(e). CH&SC section 24265(e) exempted all agricultural sources from
District permitting requirements. Specifically, CH&SC section 24265(e)
provided that a District permit shall not be required for equipment
used in agricultural operations in the growing of crops or raising of
fowls or animals except for certain orchard or citrus grove heaters in
Southern California.\1\
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\1\ In this instance, Southern California is defined as
including all counties, any part of which lie south of the Sixth
Standard Parallel South, Mount Diablo Base and Meridian. Within the
SJVUAPCD, only Kern County lies south of the Sixth Standard Parallel
South.
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On February 21, 1972, pursuant to the Clean Air Amendments of 1970,
Governor Ronald Reagan submitted the original California State
Implementation Plan (SIP) to EPA. The original SIP included ``Chapter
7--Legal Considerations'' to demonstrate adequate legal authority to
implement and enforce SIP requirements. Chapter 7 of the original SIP
discusses the respective authorities of the California Air Resources
Board and the local air districts. Specifically, the narrative included
as Chapter 7 cites CH&SC section 24263 as a basis for the authority of
local air districts to operate permit systems but does not specifically
cite the permitting exemptions found in CH&SC section 24265. California
submitted many provisions of the CH&SC including specific provisions
cited in the narrative, such as section 24263, as well as provisions
that were not specifically cited, such as section 24265, as appendix II
to the original SIP. Later that same year, and with certain exceptions
not relevant here, EPA took action to approve the original SIP. See 37
FR 10842 (May 31, 1972).
The California SIP has been revised many times, and on March 16,
1979, the
[[Page 9262]]
Governor's designee, the California Air Resources Board (CARB),
submitted a revision to the SIP referred to as ``Chapter 3--Legal
Authority, Revision to State of California Implementation Plan for the
Attainment and Maintenance of Ambient Air Quality Standards (December
1978).'' By 1979, CH&SC section 24265(e) had been re-codified as CH&SC
section 42310(e). Similar to the 1972 original SIP, CARB's 1979
submittal includes a narrative that generally describes, among many
other topics, the authority of local air districts to issue permits to
stationary sources but that does not specifically cite exemptions to
District permitting (then codified under CH&SC section 42310). The 1979
submittal incorporates CH&SC provisions as appendix 3-A to chapter 3,
but, unlike the 1972 SIP, California did not physically include the
actual CH&SC provisions with the 1979 submittal, but indicated that the
code was available separately from the ARB Public Information Office.
We described CARB's 1979 submittal of ``Chapter 3--Legal Authority'' as
an updating and clarification of the 1972 SIP. See 44 FR 38912 (July 3,
1979). The following year, we finalized our proposed approval of the
March 16, 1979 submittal of ``Legal Authority.'' See 45 FR 53136
(August 11, 1980).
In addition, individual California air pollution control districts
subsequently submitted (through CARB) local permitting rules for EPA to
approve into the SIP. Some district permitting rules, such as those
submitted by SJVUAPCD, explicitly exempted agricultural sources from
the NSR permitting rules, consistent with and generally citing to CH&SC
section 42310(e). Prior to the late 1990's, EPA had approved such
exemptions into SIP NSR permitting rules, including the SIP NSR rules
for the county APCDs that now comprise the region-wide SJVUAPCD.
CARB submitted a revised version of SJVUAPCD NSR permitting rules,
Rules 2020 and 2201, to EPA for SIP approval in 1998. On July 19, 2001,
EPA finalized a limited approval and limited disapproval of revised
SJVUAPCD Rules 2020 and 2201. See 66 FR 37587 (July 19, 2001). EPA's
limited disapproval was based, in part, on Rule 2020's exemption of
agricultural sources, which was identical to and referenced CH&SC
section 42310(e). Our limited disapproval stated that SJVUAPCD could
not exempt major stationary sources or major modifications at existing
major sources from NSR requirements.\2\
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\2\ SJVUAPCD NSR permitting rules do not adopt the distinction
between minor sources and major sources as set forth under the CAA.
SJVUAPCD Rules 2201 and 2020 generally apply to both federal minor
and major stationary sources. Our limited approval specified that
the rule deficiency was exempting major agricultural sources and
major modifications. See 65 FR 58252, at 58254 (September 28, 2000).
---------------------------------------------------------------------------
To correct the deficiency in Rule 2020 leading to EPA's July 2001
limited disapproval, SJVUAPCD adopted and submitted a revision to Rule
2020 which eliminated the agricultural exemption in its entirety from
the District rules. SJVUAPCD submitted the revised Rule 2020 to EPA on
December 23, 2002.
On February 13, 2003, EPA proposed several actions regarding the
exemption of agricultural sources from major source NSR permitting
requirements. First, EPA proposed approval of revised Rule 2020
completely deleting the permit exemption for agricultural sources from
the District rules. See 68 FR 7330 (February 13, 2003).\3\ In that
notice, EPA specifically noted that ``California Health & Safety Code
42310(e) continues to preclude the District, as well as all other
districts in California, from permitting agricultural sources under
either title I or title V of the CAA.'' See 68 FR 7330, at 7335. To
address this issue, EPA published a proposal finding that California's
statutory exemption of agricultural sources in CH&SC section 42310(e)
from major source NSR permitting rules violated the requirements of CAA
section 110(a)(2)(E). See 68 FR 7327 (February 13, 2003). This action,
titled ``Finding of Substantial Inadequacy of Implementation Plan; Call
for California State Implementation Plan Revision'' (hereinafter ``SIP
Call''), determined that California lacked adequate legal authority to
carry out its NSR permitting requirements because CH&SC section
42310(e) exempted major agricultural sources. EPA finalized the SIP
Call on June 25, 2003, and thereby required California to submit the
necessary assurances of authority by November 23, 2003 to support an
affirmative finding by EPA under CAA section 110(a)(2)(E). If the State
failed to submit the necessary assurances, then EPA indicated that the
sanctions clock under CAA section 179 would be triggered.\4\ See 68 FR
37746 (June 25, 2003).
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\3\ EPA also published an Interim Final Determination that
SJVUAPCD had corrected the July 2001 limited approval deficiencies
and EPA stayed or deferred the imposition of CAA sanctions on the
District. See 68 FR 7321.
\4\ On May 22, 2002, EPA issued a Notice of Deficiency for
California's Title V program based on the exemption of agricultural
sources from Title V permitting. See 67 FR 35990 (May 22, 2002).
EPA's decision was upheld. See California Farm Bureau Fed'n v. EPA,
No. 02-73371 (9th Cir. July 15, 2003) (memorandum opinion).
---------------------------------------------------------------------------
Later that summer, the California legislature enacted Senate Bill
(SB) 700, which the Governor of California signed on September 22,
2003. SB 700 removed the wholesale exemption from permitting for
agricultural sources provided under CH&SC section 42310(e) and
subjected major agricultural sources to permitting requirements. SB
700, however, retained exemptions for new source permitting for certain
minor agricultural sources, and limited the ability to require minor
agricultural sources to obtain federal offsets.\5\ California notified
EPA of the legislature's action by letter dated November 3, 2003
thereby avoiding the triggering of a sanctions clock. California
enclosed a copy of SB 700 with the November 3, 2003 letter.\6\
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\5\ As explained in Section II.C below, sources with emissions
below 50 percent of the major source threshold are exempt from
permitting unless the District makes certain findings, while sources
at or above 50 percent of the major source threshold are subject to
permitting unless the District makes certain findings. See CH&SC
section 42301.16 (b) and (c). In addition, offsets may not be
required unless they meet the criteria for real, permanent,
quantifiable, and enforceable emission reductions. See CH&SC section
42301.18(c).
It is worth noting that EPA and California interpret CH&SC
section 42301.16(a) to require all sources that emit or have the
potential to emit at or above the major source threshold to be
subject to new source permitting and offset requirements, as
required by the Clean Air Act, without regard to the provisions of
sections 42301.16(c) or 42301.18(c). Thus, an agricultural source
with actual emissions less than 50 percent of the major source
threshold but potential emissions above the major source threshold
is subject to new source permitting and offset requirements.
\6\ See Letter from Bill Lockyer, Attorney General, California
Office of the Attorney General, to Marianne Horinko, Acting
Administrator, EPA, dated November 3, 2003.
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On May 17, 2004, EPA took final action approving SJVUAPCD's
permitting rules, Rule 2020 and 2201, as proposed in February 2003. See
69 FR 27837 (May 17, 2004). These rules, as approved by EPA, did not on
their face exempt any agricultural sources from permitting or limit the
applicability of offset requirements. EPA's final approval stated that
the District had removed its exemption for agricultural sources and
that the state had also ``removed a similar blanket exemption, thereby
providing the District with authority to require air permits for
agricultural sources, including federally required NSR permits.'' See
69 FR 27837, at 27838. EPA's final approval cited SB 700 in a footnote,
but did not note the limited scope of authority for permitting and
offset requirements under SB 700, which allowed permitting of only
certain minor agricultural sources. Whether or not EPA's SIP actions in
1972 or 1979 approved the statutory provision
[[Page 9263]]
exempting agricultural sources from permitting (i.e., CH&SC section
24265(e), recodified as CH&SC section 42310(e)) as part of the
California SIP, it is clear that as of the promulgation of our May 2004
final rule there is no exemption from permitting for agricultural
sources derived from the statutory provision within the SJVUAPCD
portion of the SIP.
C. Correction of Erroneous Final Approval
In this instance, we believe that our May 2004 final full approval
of Rules 2020 and 2201 was erroneous. For all SIP revisions, States
must provide evidence that the State has the necessary legal authority
under State law to adopt and implement the plan. See CAA section
110(a)(2)(E); 40 CFR part 51, appendix V, section 2.1(c). Thus, to
support the approval CARB was required in December 2002 to provide
evidence that SJVUAPCD had the necessary legal authority under State
law to implement Rules 2020 and 2201, which purported to require
permits and offsets for all agricultural sources. CARB could not have
done so because CH&SC section 42310(e), applicable at that time,
continued to preclude such authority under State law with respect to
all agricultural sources.
Nonetheless, we proposed to fully approve Rules 2020 and 2201 on
February 13, 2003, with the expectation that the California legislature
would act to remove CH&SC section 42310(e)'s exemption for agricultural
sources thereby aligning Rule 2020 with District authority under State
law. 68 FR 7330 (Feb. 13, 2003). While the legislature did act shortly
thereafter to remove the exemption for major agricultural sources and
major modifications at existing major agricultural sources, the
legislature also retained the exemption from permitting for certain
minor agricultural sources, leaving the words of Rule 2020 broader than
the District's authority under State law. The legislature also exempted
minor agricultural sources from obtaining offsets pending a
determination that emissions reductions from such sources meet certain
criteria, leaving Rule 2201, on its face, also at odds with State law.
We now understand that our final approval action on Rules 2020 and
2201 should have ensured that the authority in those rules was
consistent with the authority granted by SB 700. In other words, we
should have limited our approval of Rule 2020 to exclude applicability
to agricultural sources exempt from new source permitting under SB 700
(i.e., minor sources with emissions less than 50 percent of the major
source threshold absent findings, or minor sources over 50 percent of
that threshold with findings). Our approval of Rule 2201 should have
been limited to provisions requiring offsets for major agricultural
sources and for minor sources when the listed criteria were satisfied.
Given that California submitted a copy of SB 700 in November 2003, we
had information indicating that the District did not have the authority
to implement Rules 2020 and 2201 to the extent that the language of the
rule appeared to allow (i.e., to require permits and offsets from all
new or modified agricultural sources, including those exempt under SB
700) prior to the time we took final action. We should have limited our
approval of Rules 2020 and 2201 to conform with SB 700, and promulgated
language in 40 CFR part 52 codifying that limitation on our approval.
We note that recent enforcement actions have been brought pursuant
to the CAA's citizen suit provisions against minor agricultural sources
in SJVUAPCD that have emissions less than 50 percent of the major
source threshold for failure to apply for and receive a new or modified
source permit. SJVUAPCD, however, does not have the authority under
State law to issue such permits. The fact that such cases are being
brought (and one case has been brought successfully (see Assoc. of
Irritated Residents v. C & R. Vanderham Dairies, 2007 U.S. Dist. 70890
(E.D. Cal., Sept. 24, 2007)) persuasively supports the need to correct
our error in approving Rules 2020 and 2201 in 2004.
Therefore, pursuant to CAA section 110(k)(6), we are proposing to
correct our error by limiting our approval of Rules 2020 and 2201 to
apply only to the extent the District has authority under state law to
require permits and offsets. Specifically, with respect to agricultural
sources, we are approving Rule 2020 only to the extent it applies to
agricultural sources subject to permitting under SB 700. Also and again
with respect to agricultural sources, we are approving Rule 2201 only
to the extent it requires offsets for new major sources and major
modifications until certain criteria set forth in State law are met. To
codify this proposed error correction, we are proposing the following
language to be added as a new section, 52.245, of 40 CFR part 52,
subpart F (``California''):
52.245 New Source Review Rules
(a) Approval of the New Source Review rules for the San Joaquin
Valley Unified Air Pollution Control District Rules 2020 and 2201 as
approved May 17, 2004, is limited, as it relates to agricultural
sources, to apply the permit requirement only (1) to agricultural
sources with actual or potential emissions at or above a major
source applicability threshold and (2) to agricultural sources with
actual emissions at or above 50 percent of a major source
applicability threshold. The District has the authority to permit or
exempt from permitting minor agricultural sources upon making the
findings prescribed in CH&SC 42301.16 (b) and (c). The offset
requirement, as it relates to agricultural sources, does not apply
to new minor agricultural sources and minor modifications to such
sources if emissions reductions from that source would not meet the
criteria for real, permanent, quantifiable, and enforceable emission
reductions.
This document simultaneously proposes to approve revised language
into Rules 2020 and 2201 that conforms the rules to the authority
provided in SB 700. If we take final action to approve the revised
rules at the same time as we take final action on our proposed
correction, then the draft regulatory language set forth above will not
be codified because it will be superceded by the revised language
submitted by the District.
II. The State's Submittal of Its 2006 Revisions
A. What revisions did the State submit?
Table 1 lists the rules we are proposing to approve with the dates
that they were revised by SJVUAPCD and submitted to EPA by the
California Air Resources Board (CARB).
Table 1.--Submitted Rules Proposed for Full Approval
----------------------------------------------------------------------------------------------------------------
Local agency Rule No. Rule title Amended Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD....................... 2020 paragraph 6.20 only.. Exemptions............... 09/21/06 12/29/06
SJVUAPCD....................... 2201, paragraph 4.6.9 only New and Modified 09/21/06 12/29/06
Stationary Source Review
Rule.
----------------------------------------------------------------------------------------------------------------
[[Page 9264]]
On June 29, 2007, the submittal of Rule 2020, paragraph 6.20, and
Rule 2201, paragraph 4.6.9, was deemed by operation of law to have met
the completeness criteria in 40 CFR part 51 appendix V, which must be
met before formal EPA review.
B. Are there other versions of these rules?
As discussed above, we approved a version of Rule 2020 into the SIP
on May 17, 2004 (69 FR 27837). In today's action, we have determined
that the approval was erroneous to the extent it required sources
exempted from permitting under SB 700 (i.e. sources less than 50
percent of the major source threshold) to obtain permits. We also
approved a version of Rule 2201 into the SIP on May 17, 2004 (69 FR
27837), although we have determined the approval was erroneous to the
extent it required offsets barred by SB 700. The versions of Rules 2020
and 2201 that we approved in 2004 did not include provisions equivalent
to those now included in paragraph 6.20 of Rule 2020 or paragraph 4.6.9
of Rule 2201.
Prior to our 2004 approval of Rules 2020 and 2201, the SJVUAPCD
portion of the California SIP included a broad exemption from
permitting for all agricultural sources, citing CH&SC section 42310(e).
See section 4.0 of SJVUAPCD rule 2020, as amended on September 17,
1998, submitted on October 27, 1998, and approved on July 19, 2001 at
66 FR 37587.
C. What is the purpose of the submitted rule revisions?
Section 110(a) of the CAA requires states to submit regulations
that control volatile organic compounds, nitrogen oxides, particulate
matter, and other air pollutants which harm human health and the
environment. Permitting rules were developed as part of the local air
district's programs to control these pollutants.
The purpose of the addition of paragraph 6.20 to SIP Rule 2020 is
as follows:
This paragraph conforms District permit requirements to
State law by explicitly exempting agricultural sources to the extent
such sources are exempt pursuant to CH&SC section 42301.16. Section
42301.16(a) requires local air permitting authorities to require
permits for agricultural sources subject to the requirements of title I
or title V of the federal Clean Air Act. Section 42301.16(b) similarly
requires permits for all agricultural sources unless specified findings
are made at a public hearing or except as provided in section
42301.16(c). Section 42301.16(c) requires the District to make
specified findings at a public hearing prior to requiring permits for
agricultural sources with emissions that are less than one-half of any
major source threshold. The net effect of this section is that all
agricultural sources with actual emissions or a potential to emit at or
above a major source applicability threshold are required to obtain a
District permit pursuant to CH&SC section 42301.16(a). Agricultural
sources with actual emissions at or above 50 percent of a major source
applicability threshold are required to obtain a District permit,
unless the District makes the findings specified by subsection (b). No
permits are required for agricultural sources with actual emissions of
less than 50 percent of the major source applicability thresholds,
unless the District makes the findings specified in subsection (c),
subject to the limitation in CH&SC section 42301(a).
The purpose of the addition of paragraph 4.6.9 to SIP Rule 2201 is
as follows:
This paragraph exempts new or modified agricultural
sources from offset requirements to the extent provided by CH&SC
section 42301.18(c), unless the offsets are required by federal CAA
requirements (see CH&SC section 42301(a)). Section 42301.18(c)
prohibits districts from requiring agricultural sources to obtain
offsets if emissions reductions from such sources would not meet the
criteria for real, permanent, quantifiable, and enforceable emissions
reductions.
III. EPA's Evaluation and Action on the 2006 Revisions
A. How is EPA evaluating the rules?
Generally, SIP rules must be enforceable and must not interfere
with an area's progress towards attainment or any other requirement of
the Act. See CAA sections 110(a), 110(l); see also CAA section 193
(antibacksliding requirements for pre-1990 control measures). Specific
EPA requirements for SIPs with respect to review of new or modified
minor stationary sources are set forth in 40 CFR 51.160 through 51.164.
CAA section 110(l) directs EPA to disapprove any SIP revision that
would interfere with any applicable requirement concerning attainment
or reasonable further progress or any other applicable requirement of
the Act. Assuming that CAA section 193 applies to NSR, section 193 does
not apply to this action because as of November 15, 1990, all
agricultural sources were entirely exempt from permitting and offset
requirements. Thus, the proposed revisions, specifying limits on the
permit and offset requirements for minor agricultural sources, do not
modify a control requirement in effect before passage of the Clean Air
Act Amendments of 1990.
B. Do the rules meet the evaluation criteria?
1. Compliance With EPA Enforceability and Minor Source Permitting
Requirements
The limited exemptions from permitting and offsets provided in
paragraphs 6.20 (Rule 2020) and 4.6.9 (Rule 2201) for minor
agricultural sources are consistent with EPA requirements for
enforceability. The limited exemptions are also consistent with the
requirements promulgated in 40 CFR 51.160--51.164 for stationary
sources that do not exceed the major source or major modification
thresholds. EPA is proposing to approve paragraphs 6.20 and 4.6.9 into
Rules 2020 and 2201, respectively, because SJVUAPCD has discretion in
conducting its minor source permitting program to exempt certain small
sources and, under federal law, minor sources are not required to
obtain offsets. Congress directed the States to exercise the primary
responsibility under the CAA to tailor air quality control measures,
including minor source permitting programs, to the State's needs. See
Train v. NRDC, 421 U.S. 60, 79 (1975) (States make the primary
decisions over how to achieve CAA requirements); Union Electric Co. v.
EPA, 427 U.S. 246 (1976); Greenbaum v. EPA, 370 F.3d 527 (6th Cir.
2006). Specifically, paragraph 6.20 of Rule 2020 complies with the
requirements for minor sources established in 40 CFR 51.160(b)(2). That
regulation requires the permitting authority to retain the legal
ability to prevent construction or modification of a minor source if
``[i]t will interfere with the attainment or maintenance of a national
standard.'' Paragraph 6.20, by incorporating CH&SC section 42301.16(c),
continues to allow the District to require permits for agricultural
sources with emissions that are less than one-half of any major source
threshold upon making specified findings at a public hearing. One such
finding is that emissions from the construction or modification of the
source will adversely impact air quality. Thus, since the exemptions in
paragraphs 6.20 and 4.6.9 do not apply to any major stationary sources
or major modifications at existing major stationary sources, and the
exemptions comply with federal regulations, we believe these revisions
are fully approvable under section 110(k)(2) of the CAA.
[[Page 9265]]
2. CAA Section 110(l)
The only remaining issue is whether this SIP revision would
interfere with requirements concerning attainment and reasonable
further progress (or any other applicable CAA requirement) as set forth
in CAA section 110(l). CAA section 110(l) provides: ``Each revision to
an implementation plan submitted by a State under this chapter shall be
adopted by such State after reasonable notice and public hearing. The
administrator shall not approve a revision of a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress (as defined in section 7501 of this
title) or any other applicable requirement of this chapter.''
The San Joaquin Valley is currently designated nonattainment for
PM2.5, PM10, and the eight-hour ozone standard.
The area is formally designated attainment for the remaining criteria
pollutants. The District's attainment plan for PM2.5 is due
April 8, 2008, it has submitted a plan for attaining the ozone
standard, and EPA has published a Finding of Attainment for
PM10, 71 FR 63462 (Oct. 30, 2006).
Prior to the time that attainment demonstrations are due for a
standard, it is unknown what suite of control measures are needed for a
given area to attain the standard. During this period, to demonstrate
no interference with any applicable NAAQS or requirement of the Clean
Air Act under section 110(l), EPA's view is that it is appropriate to
allow states to substitute equivalent emission reductions to compensate
for the control measure being removed from the active SIP. This
approach has been adopted after notice and comment rulemaking in other
SIP revisions. See, e.g., 70 FR 57750 (October 4, 2005); 70 FR 53
(January 3, 2005).
EPA also believes there are other means to demonstrate that a SIP
revision would not interfere with attainment or maintenance of the
NAAQS, such as modeling to show noninterference with attainment, or a
full attainment demonstration.\7\ In this case, after considering the
District's attainment status and attainment plans for nonattainment
pollutants, we believe that the adoption of the proposed revisions in
place of the SIP as proposed to be corrected would not result in any
change in emissions, any change in air quality, or any change in the
area's ability to attain or maintain the NAAQS.
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\7\ We note that no approved or submitted San Joaquin Valley
attainment plan for any nonattainment pollutant has relied upon NSR
for agricultural sources less than 50 percent of the major source
threshold. Further, for attainment planning purposes, growth in
emissions from agricultural sources has been established by CARB's
area source inventory growth methodologies, and no mitigation of
that growth, such as through an offset requirement, has been
considered when determining the impact of the growth on the
District's ability to achieve attainment with the standards. See the
District's Clean Air Act 110(l) Analysis entitled ``San Joaquin
Valley Unified Air Pollution Control District Rules 2020 and 2201,
as amended September 21, 2006, District's Clean Air Act 110(l)
Analysis'' dated November 20, 2007.
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Accordingly, we conclude that this SIP revision, if approved, will
not interfere with any applicable requirements for attainment and
reasonable further progress or any other applicable requirement of the
CAA and is approvable under section 110(l).
C. Public Comment and Final Action
Under section 110(k)(6) of the Clean Air Act, we are proposing to
correct our May 2004 final approval of revisions to District NSR
permitting Rules 2020 and 2201 because, by virtue of information
submitted by California to us in November 2003, we should have limited
our approval consistent with the legal authority provided in State law
to air districts to permit, and require offsets for, new or modified
agricultural sources. To correct our error, we are proposing regulatory
language to so limit our May 2004 approval.
Under section 110(k)(2) of the Clean Air Act, we are proposing to
approve the District's 2006 revisions to Rules 2020 and 2201 to conform
the rules to State law by explicitly exempting certain small or minor
agricultural sources from permitting requirements and by exempting all
minor agricultural sources from offset requirements until certain
criteria are met. We will accept comments from the public on this
proposal for the next 30 days. If, after consideration of public
comments, we decide to publish a final error correction and final
approval of the revised rules in the same document, then we intend that
the language of the revised rules will supercede the error correction
and we do not intend to codify the proposed regulatory language
limiting our May 2004 approval of the previous versions of District
Rules 2020 and 2201.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this proposed action is also not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001). This action merely proposes to correct an error
and to approve state law as meeting Federal requirements and imposes no
additional requirements beyond those imposed by state law. Accordingly,
the Administrator certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule proposes to correct an error and approve pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). This proposed action also
does not have Federalism implications because it does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This
action merely proposes to correct an error and approve a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This proposed rule also is not subject to Executive Order
13045 ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not
economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed
[[Page 9266]]
rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Particulate matter, Reporting and recordkeeping
requirements.
Dated: January 31, 2008.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. E8-3113 Filed 2-19-08; 8:45 am]
BILLING CODE 6560-50-P