Revision to the South Coast Portion of the California State Implementation Plan, CPV Sentinel Energy Project AB 1318 Tracking System, 67767-67771 [2012-27564]
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Federal Register / Vol. 77, No. 220 / Wednesday, November 14, 2012 / Rules and Regulations
show that no affected firewall shutoff or
crossfeed valve is installed, then the
inspection requirement of paragraph (h) of
this AD and the replacement requirement of
paragraph (i) of this AD do not apply. You
must make an entry into the aircraft records
that shows compliance with these portions of
the AD in accordance with section 43.9 of the
Federal Aviation Regulations (14 CFR 43.9).
(h) Inspection
Within 5 days after September 3, 2003 (the
effective date of AD 2003–17–03 (68 FR
50693, August 22, 2003)), inspect the three
firewall shutoff and crossfeed valves to
determine whether they incorporate a serial
number as referenced in the Effectivity table
of PIAGGIO Aero Industries S.p.A. SB No.
ASB80–0191, dated February 27, 2003.
(i) Replacement/Modification
If any of the firewall shutoff or crossfeed
valves that are referenced in the Effectivity
table of PIAGGIO Aero Industries S.p.A. SB
No. ASB80–0191, dated February 27, 2003,
are found, before further flight, replace or
modify each affected valve following
PIAGGIO Aero Industries S.p.A. Service
Bulletin (SB) No. ASB80–0191, dated
February 27, 2003; and Electromech
Technologies SB 484–3 AB, dated February
18, 2003.
(j) Spares
As of 5 days after September 3, 2003 (the
effective date of AD 2003–17–03 (68 FR
50693, August 22, 2003)), do not install, on
any airplane, a firewall shutoff or crossfeed
valve that is referenced in the Effectivity
table of PIAGGIO Aero Industries S.p.A. SB
No. ASB80–0191, dated February 27, 2003,
unless it has been modified per paragraph (i)
of this AD.
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(k) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, Standards Office, FAA,
has the authority to approve AMOCs for this
AD, if requested using the procedures found
in 14 CFR 39.19. Send information to ATTN:
Mike Kiesov, Aerospace Engineer, FAA,
Small Airplane Directorate, 901 Locust,
Room 301, Kansas City, Missouri 64106;
telephone: (816) 329–4144; fax: (816) 329–
4090; email: mike.kiesov@faa.gov.
(2) Before using any approved AMOC,
notify your appropriate principal inspector,
or lacking a principal inspector, the manager
of the local flight standards district office/
certificate holding district office.
(l) Material Incorporated by Reference
(1) The Director of the Federal Register
approved the incorporation by reference
(IBR) of the service information listed in this
paragraph under 5 U.S.C. 552(a) and 1 CFR
part 51.
(2) You must use this service information
as applicable to do the actions required by
this AD, unless the AD specifies otherwise.
(3) The following service information was
approved for IBR on September 3, 2003 (68
FR 50693, August 22, 2003):
(i) PIAGGIO Aero Industries S.p.A. Service
Bulletin (SB) No. ASB80–0191, dated
February 27, 2003; and
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(ii) Electromech Technologies SB 484–3
AB, dated February 18, 2003.
(4) For service information identified in
this AD, contact Piaggio Aero Industries
S.p.A–Airworthiness Office, Via Luigi
Cibrario, 4–16154 Genova-Italy; phone: +39
010 6481353; fax: +39 010 6481881; email:
airworthiness@piaggioaero.it; Internet: https://
www.piaggioaero.com/#/en/aftersales/
service-support.
(5) You may view this service information
at FAA, Small Airplane Directorate, 901
Locust, Kansas City, Missouri 64106. For
information on the availability of this
material at the FAA, call (816) 329–4148.
(6) You may view this service information
that is incorporated by reference at the
National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA, call
202–741–6030, or go to: https://
www.archives.gov/federal-register/cfr/ibrlocations.html.
67767
Issued in Kansas City, Missouri, on
October 31, 2012.
Earl Lawrence,
Manager, Small Airplane Directorate, Aircraft
Certification Service.
This final rule is effective on
November 14, 2012.
ADDRESSES: The index to the docket for
this final action is available
electronically at www.regulations.gov
and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco,
California. While generally all categories
of documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., voluminous documents,
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.
FOR FURTHER INFORMATION CONTACT:
Laura Yannayon, EPA Region IX, (415)
972–3524, yannayon.laura@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we’’, ‘‘us’’,
and ‘‘our’’ refer to EPA.
[FR Doc. 2012–27051 Filed 11–13–12; 8:45 am]
Table of Contents
BILLING CODE 4910–13–P
I. Background
A. The Facility and Prior Actions
B. Description of Final Rule
II. Evaluation of Source-Specific SIP Revision
A. What action is EPA finalizing?
B. Public Comment and Final Action
III. EPA Action
IV. Statutory and Executive Order Reviews
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
DATES:
[EPA–R09–OAR–2010–1078; FRL–9751–3]
I. Background
Revision to the South Coast Portion of
the California State Implementation
Plan, CPV Sentinel Energy Project AB
1318 Tracking System
A. The Facility and Prior Actions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve a source-specific State
Implementation Plan (SIP) revision for
the South Coast Air Quality
Management District (‘‘SCAQMD’’ or
‘‘District’’) portion of the California SIP.
This source-specific SIP revision is
known as the CPV Sentinel Energy
Project AB 1318 Tracking System (‘‘AB
1318 Tracking System’’). The SIP
revision consists of enabling language
and the AB 1318 Tracking System to
revise the District’s SIP approved new
source review (NSR) program. The SIP
revision allows the District to transfer
offsetting emission reductions for
particulate matter less than 10 microns
in diameter (PM10) and one of its
precursors, sulfur oxides (SOX), to the
CPV Sentinel Energy Project
(‘‘Sentinel’’), which will be a natural gas
fired power plant.
SUMMARY:
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The Sentinel Energy Project is
designed to be a nominally rated 850
megawatt, natural gas-fired electrical
generating facility covering
approximately 37 acres within Riverside
County, adjacent to Desert Hot Springs
in the Palm Springs, California area.
EPA’s Federal Register notices for the
January 13, 2011 proposal (76 FR 2294),
April 20, 2011 final action (76 FR
22038), and August 23, 2012
supplemental proposal for this action
(77 FR 50973) contain a detailed
description of the project and the Clean
Air Act’s (CAA) requirements for offsets
during new source review permitting.
In response to our January 13, 2011
proposed rule, we received four
comments. We responded to those
comments on April 20, 2011 (76 FR
22038). One commenter, jointly
California Communities Against Toxics
and Communities for a Better
Environment (jointly ‘‘CCAT’’) filed a
Petition for judicial review in the
United States Court of Appeals for the
Ninth Circuit (‘‘9th Circuit’’) shortly
thereafter and an Opening Brief on July
26, 2011. On September 14, 2011, EPA
requested the 9th Circuit to remand the
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final rule to us to correct minor errors
and revise our reasoning on one issue.
Motion for a Voluntary Remand of the
Record, to Vacate the Briefing Schedule,
and to Stay the Proceedings During
Remand, Case No. 11–71127 (Sept. 14,
2011). CCAT opposed EPA’s motion for
voluntary remand. The 9th Circuit
Appellate Commissioner denied EPA’s
motion for voluntary remand on
November 7, 2011, and ordered briefing.
After briefing and oral argument, the 9th
Circuit remanded the final rule (without
vacatur) to EPA on July 26, 2012.
California Communities Against Toxics
v. EPA, 688 F.3d 989 (9th Cir. 2012).
EPA published a supplemental proposal
on August 23, 2012, (77 FR 50973) and
took comment on the supplemental
proposal through September 24, 2012.
Copies of the comments on the
supplemental proposal have been added
to the docket and are accessible at
www.regulations.gov. Comment letters
from the South Coast Air Quality
Management District (‘‘SCAQMD’’ or
‘‘District’’) and CPV Sentinel LLC
(‘‘Sentinel’’) support EPA’s approval of
the AB 1318 Tracking System as a
source-specific SIP revision. A comment
letter from CCAT opposes our proposal
and supplemental proposal to approve
of the source-specific SIP revision.
B. Description of Final Rule
We are finalizing our proposal and
supplemental proposal to approve the
AB 1318 Tracking System into the SIP
as a source-specific SIP revision. Even
with the slight revision to Attachment A
discussed below, the District transferred
more offsets into the AB 1318 Tracking
System than the amount that is needed
to allow Sentinel to operate. We are
finalizing our approval because the
offsets listed in the Revised Attachment
A meet the federal offset integrity
criteria, including proper quantification
and surplus adjustment. We are
finalizing the reasoning in our
supplemental proposal for finding that
the offsets meet the requirement in 40
CFR part 51, appendix S and 40 CFR
51.165(a)(3)(ii)(C)(1)(ii) for offsets
resulting from facilities or sources
shutting down to have occurred after the
base-year for SIP planning purposes. We
are interpreting this provision to refer to
the 2003 AQMP for PM10 for the South
Coast and the Coachella Valley Air
Basins.
In response to CCAT’s comments on
September 24, 2012, EPA is making a
slight revision to Attachment A to the
Technical Support Document for our
supplemental proposal. Attachment A
contains tables showing our evaluation
of a subset of all of the facilities from
which the District transferred offsets
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into its AB 1318 Tracking System. In
this final rule, we are attaching a
slightly revised version of Attachment A
to our Response to Comments
document. The only change in the
Revised Attachment A is that we have
applied a more conservative assumption
of zero emissions for the data missing
for the facilities listed in Attachment A,
Section II.B. The facilities listed in
Section II.B were missing Year 2 data.
Our supplemental proposal assumed
that the Year 2 data would be the same
as the reported Year 1 data for these
offsets. Based on comments we received
from CCAT, we changed the assumption
for this group of facilities. In our
Revised Attachment A, we are assuming
that Year 2 data for these facilities is
zero. This change means that we are
using the most conservative approach
(zero emissions) to quantify the offsets.
This revision lowers the quantity of
offsets listed in Attachment A by 306
pounds for PM10 and 2 pounds for SOX.
Even with this adjustment the quantity
of offsets listed in Revised Attachment
A exceeds the quantity that Sentinel
needs for operation. Because the District
is committed to retiring all of the
remaining offsets in the AB 1318
Tracking System, including those not
listed in Attachment A, the net effect
will be a greater reduction in emissions
than is required by the CAA.
For additional background
information, please see the January 13,
2011 notice of proposed rule for this
action (76 FR 2294), the notice of final
rule (which was remanded without
vacatur on July 26, 2012) (76 FR 22038
Apr. 20, 2011) and the August 23, 2012
supplemental proposal (77 FR 50974).
II. Evaluation of Source-Specific SIP
Revision
A. What action is EPA is finalizing?
EPA is finalizing our approval of a SIP
revision for the South Coast portion of
the California SIP. The SIP revision is
codified in 40 CFR 52.220(c)(384) and
incorporates by reference the CPV
Sentinel Energy Project AB 1318
Tracking System, as adopted by the
District.
The SIP revision provides a federally
approved and enforceable mechanism
for the District to transfer PM10 and SOX
offsets from the District’s internal bank
to the AB 1318 Tracking System for use
by the Sentinel Energy Project.
B. Public Comment and Final Action
Our detailed response to all
significant comments is contained in the
Response to Comments (‘‘RTC’’)
document in the docket for this action.
The RTC can be accessed through
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www.regulations.gov and a very brief
summary of our responses to certain
comments is provided below. Please
refer to our RTC document for our
complete response to all comments.
Comment Letter from South Coast Air
Quality Management District
Comment: The District supported
EPA’s proposal and supplemental
proposal to approve the AB 1318
Tracking System based on the
quantification and surplus adjustment
of the offsets listed in Attachment A to
the Technical Support Document for the
supplemental proposal. The District
commented that its 2003 PM10 Air
Quality Management Plan (AQMP) was
the appropriate plan and attainment
demonstration to establish the base-year
for SIP planning as set forth in 40 CFR
51.165(a)(3)(ii)(C)(1)(ii). The District
also commented that growth was added
to the 2007 AQMP for PM2.5.
Response: EPA agrees with the
District’s comments, as discussed in the
RTC document provided in the docket
for this rule.
Comment Letter from Sentinel Energy
LLP
Comment: Sentinel also supported
EPA’s proposal and supplemental
proposal to approve the SIP revision on
generally the same basis as the District.
Response: EPA agrees with Sentinel’s
comments, as discussed in the RTC
document provided in the docket for
this rule.
Comment: On October 26, 2012,
Sentinel submitted a late comment letter
in which it requested EPA to use the
good cause exception set forth in section
553(d)(3) of the Administrative
Procedures Act, 5 U.S.C. 553(d)(3) to
make this final rule effective
immediately upon publication in the
Federal Register. Sentinel stated that
the purpose of the usual 30-day delay
for rule effectiveness is to allow the
regulated entity an opportunity to make
any changes necessary to be in
compliance with the rule. Sentinel
stated that it has been aware of what
would be required of it as a result of this
rule for 18 months. Sentinel anticipates
beginning its commission period in
November 2012. Sentinel added that if
the power plant is on-line next summer,
it will help the region avoid any
potential electricity shortfalls.
Response: EPA has discretion to
accept late comments and will accept
the comment submitted by Sentinel.
EPA agrees with Sentinel that it has
demonstrated good cause for EPA to
issue this final rule with an immediate
effective date. Sentinel has been
constructing the power plant for the
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past 12 to 18 months in anticipation of
beginning its commissioning period in
November 2012. Sentinel and the
District provided information regarding
the potential effects of delaying
commissioning and operations beyond
this date in the briefs submitted in the
9th Circuit ligation pertaining to this
rulemaking. Sentinel has indicated that
it will not be harmed by the immediate
effective date. Therefore the final rule
will become effective upon publication.
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Comment Letter From California
Communities Against Toxics (CCAT)
and Communities for a Better
Environment (CBE) (collectively CCAT)
Comment: CCAT contends that it was
arbitrary and capricious for EPA to
publish a supplemental proposal to
approve the source-specific SIP revision
after the 9th Circuit remanded the
rulemaking to EPA without vacatur.
Response: CCAT is incorrect. EPA has
discretion under Section 553 of the
Administrative Procedures Act to
supplement its existing proposed
approval of the source-specific SIP
revision. We provided notice of the
supplemental proposal and a 30-day
period for comments. The 9th Circuit’s
Opinion in California Communities
Against Toxics v. EPA, 688 F.3d at 989
did not indicate that EPA could not
supplement its prior proposal.
Comment: CCAT states: ‘‘The
Planning Year for the Failed 2003
AQMP Cannot be the Base Year for
Valid Offsets: In the Absence of an
Approved Attainment Demonstration
for PM10, Only Replacement Capacity
Can offset New Emissions.’’
Response: EPA disagrees. CCAT
asserts that the 2003 AQMP is ‘‘no
longer valid’’ because the South Coast
and Coachella Air Basins failed to be redesignated to attainment for PM10 in
2006. Based on this presumption, CCAT
argues that the SCAQMD is prohibited
from relying on offsets resulting from
sources that shut down, unless the new
source of emissions is replacement
capacity for the facility or source that is
shutting down. CCAT’s presumption is
incorrect. Failure to attain a National
Ambient Air Quality Standard
(‘‘NAAQS’’) by the attainment date does
not invalidate the plan and attainment
demonstration—in this case the 2003
PM10 AQMP. The control measures and
strategies remain in effect and
enforceable along with the emissions
inventories and attainment
demonstration. Therefore, there is no
prohibition on using offsets from
facilities or sources that have shut down
after the 1997 base-year from the 2003
PM10 AQMP to allow new source
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emissions growth in the South Coast
and Coachella Air Basins.
Comment: CCAT states: ‘‘The 2007
AQMP Applies to PM10 as well as PM2.5
Attainment.’’
Response: EPA disagrees with CCAT.
The District adopted the 2007 AQMP to
demonstrate attainment with the PM2.5
NAAQS. EPA approved the 2007 AQMP
to demonstrate attainment with the
PM2.5 NAAQS. The minor references to
PM10 in the 2007 AQMP for PM2.5 are
included for a variety of reasons,
including to comply with California
state law and to ensure continued
emissions control at one particular PM10
air quality monitor. Minor references to
PM10 for limited purposes do not mean
that the 2007 AQMP establishes a new
base-year for PM10. EPA does not
consider the incidental inclusion of
PM10 control measures or updated
emissions inventory for a future
maintenance plan to be the same as
adopting a new AQMP for PM10. EPA’s
approval of the 2007 AQMP does not
mention PM10.
Comment: CCAT states: ‘‘The 2007
AQMP Was Final At All Relevant
Times.’’
Response: Our supplemental proposal
notes that the EPA had not approved the
2007 AQMP at the time the SCAQMD
approved transferring the offsets into
the AB 1318 Tracking System. EPA has
not found any authority establishing the
correct date for an approved air quality
plan to apply. EPA reasonably
determined that the date of transfer of
the offsets (i.e. when the offsets become
enforceable) is an appropriate date to
establish what AQMP applies.
Comment: CCAT states ‘‘EPA Cannot
Rely on the Failed, Superseded 2003
AQMP for a Base Year.’’
Response: CCAT appears to have
raised the same argument in an earlier
portion of its comment letter. EPA
considers this section to provide
additional argumentation of the same
point presented in the earlier
paragraphs. EPA disagrees with CCAT’s
additional discussion. CCAT has
mischaracterized the Court’s holding in
NRDC v. EPA, 571 F.3d 1245, 1267 (D.C.
Cir. 2009). The Court held that the baseyear should be established by an
‘‘approved’’ AQMP and it did not use
the term ‘‘valid.’’ As discussed
elsewhere, the CAA does not define air
quality plans as ‘‘valid’’ and EPA does
not consider the term to be dispositive
or persuasive regarding the appropriate
AQMP to establish the base-year. CCAT
also comments at length on the
appropriate method for adding new
source growth in the absence of an
approved attainment demonstration.
EPA considers this portion of CCAT’s
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discussion to be irrelevant because the
2003 PM10 AQMP is the approved
attainment demonstration for PM10 for
the South Coast and Coachella Air
Basins.
Comment: CCAT states: ‘‘The Offsets
Transferred into the 1318 Tracking
System are Not Quantifiable.’’
Response: EPA disagrees with CCAT
and is finalizing our proposal and
supplemental proposal to approve the
AB 1318 Tracking System because the
District transferred more properly
quantified and surplus adjusted PM10
and SOX offsets than Sentinel needs to
offset its PM10 and SOX emissions.
CCAT contends that EPA is required to
use two years of emissions data to
quantify offsets. CCAT also asserts that
two years of emissions data cannot be
satisfied with a conservative (i.e. fewer
offsets) assumption being used for
missing data. Nothing in the CAA or
EPA’s regulations requires EPA to use
two years of emissions data to quantify
offsets or prohibits the use of a
conservative approach for filling in
missing data. EPA is reasonably
interpreting our regulations to allow the
District to exercise discretion to use a
conservative approach to quantify
offsets where emissions data is missing.
Here, we have concluded that the
District’s quantification of offsets using
a conservative approach—specifically,
by substituting zero emissions when
data is missing—is reasonable and
consistent with the CAA and applicable
regulations.
EPA is revising our final approval
slightly from our supplemental proposal
to ensure that the most conservative
estimation of data is made regardless of
whether the facility is missing Year 1 or
Year 2 data. This means that EPA is
reducing the amount of offsets we are
determining are properly quantified in
Attachment A, Section II.B. to reduce it
by 306 pounds of PM10 and 2 pounds of
SOX. Therefore, whether a facility is
missing Year 1 or Year 2 data, EPA is
assuming the emissions for the missing
data are zero.
Comment: CCAT states: ‘‘The Offsets
Are Not Surplus.’’
Response: EPA disagrees. The offsets
listed in Attachment A to the TSD for
the supplemental proposal are properly
surplus adjusted to comply with the
CAA.
Comment: CCAT states: ‘‘Rule 1315,
Which EPA Did Not Apply, Dictates
How the Surplus Adjustment after
Deposit Occurs.’’
Response: EPA disagrees. The District
removed the offsets in the AB 1318
Tracking System from its internal
accounts and evaluated each facility to
determine if the offsets required surplus
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adjustment. Rule 1315 requires the
District to make an annual aggregate
adjustment to offsets in its Rule 1315
internal accounts. All of the offsets in
Attachment A, as revised, to the TSD for
EPA’s supplemental proposal are
properly quantified and surplus
adjusted.
Comment: CCAT states: ‘‘If Rule 1315
Were Not Applicable, EPA’s Analysis Is
Entirely Incomplete.’’
Response: EPA disagrees. Rule 1315
does not apply to this source-specific
SIP revision for the offset package for a
single power plant. All of the offsets in
Revised Attachment A are properly
surplus adjusted.
begin commissioning in November 2012
as scheduled. Such interference would
delay Sentinel from becoming fully
operational by the summer of 2013,
which is when the California Energy
Commission is expecting the plant to
come on line. This delay could result in
significant impacts to electrical
reliability and air quality.
In addition, this rule is not a major
rule under the Congressional Review
Act (CRA). Thus, the 60-day delay in
effective date required for major rules
under the CRA does not apply.
III. EPA Action
This source-specific SIP revision
complies with all relevant CAA
requirements and is consistent with
EPA’s regulations and guidance.
Therefore, as authorized in section
110(k)(3) of the Act, EPA is fully
approving this source-specific SIP
revision into the California SIP. The
changes in this final rule from EPA’s
proposal and supplemental proposal are
described above in Section I.B. EPA’s
interpretation of the CAA and our
regulations is provided more fully in
our RTC.
Our initial approval of this SIP
revision and its related incorporation by
reference into the Code of Federal
Regulations was previously codified at
40 CFR 52.220(c)(384). Because the SIP
submittal has not changed since the
initial approval and related codification,
and because the previous final rule was
not withdrawn, we are not revising the
codification of our approval at 40 CFR
52.220(c)(384) in this final action.
This rule is effective immediately
upon publication in the Federal
Register. Section 553(d) of the
Administrative Procedure Act (APA), 5
U.S.C. 553(d), generally provides that
rules may not take effect earlier than 30
days after they are published in the
Federal Register. However, APA section
553(d)(3) provides an exception when
the agency finds good cause exists for a
rule to take effect in less than 30-days.
The purpose of the APA’s 30-day
effective date provision is to give
affected parties time to adjust their
behavior before the final rule takes
effect. The Sentinel Energy Project, to
which this rulemaking applies,
requested in a comment letter to EPA
that the rule be made effective upon
Federal Register publication.
We find good cause exists here to
make this rule effective upon
publication because implementing a 30day delayed effective date would
interfere with CPV Sentinel’s ability to
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review 13563
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IV. Statutory and Executive Order
Reviews
This action will approve the sourcespecific SIP revision known as the CPV
Sentinel Energy Project AB 1318
Tracking System into the California SIP.
This type of action is exempt from
review under Executive Orders 12866
(58 FR 51735, October 4, 1993) and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This 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 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 CAA 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
CAA, preparation of flexibility analysis
would constitute Federal inquiry into
the economic reasonableness of State
action. The CAA forbids EPA to base its
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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 costeffective 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 this final
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 preexisting 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
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
E:\FR\FM\14NOR1.SGM
14NOR1
Federal Register / Vol. 77, No. 220 / Wednesday, November 14, 2012 / Rules and Regulations
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 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 approves a State rule
implementing a Federal standard, and
does not alter the relationship or the
distribution of power and
responsibilities established in the CAA.
Thus, the requirements of section 6 of
the Executive Order do not apply to this
rule.
emcdonald on DSK67QTVN1PROD with RULES
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 final 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
approves 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
VerDate Mar<15>2010
14:32 Nov 13, 2012
Jkt 229001
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
action does not require the public to
perform activities conducive to the use
of VCS.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Population
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA lacks the discretionary authority
to address environmental justice in this
rulemaking.
K. Congressional Review Act
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
not required to submit a rule report
regarding this action under section 801.
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by January 14, 2013.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this rule for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements (see section
307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 1, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012–27564 Filed 11–13–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2011–0985; FRL–9368–7]
Flonicamid; Pesticide Tolerances
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes
tolerances for residues of flonicamid in
or on Berry, low growing, subgroup 13–
07G; Rapeseed subgroup 20A, and
cucumber. Interregional Research
Project Number 4 (IR–4) requested these
tolerances under the Federal Food,
Drug, and Cosmetic Act (FFDCA).
DATES: This regulation is effective
November 14, 2012. Objections and
requests for hearings must be received
on or before January 14, 2013, and must
be filed in accordance with the
instructions provided in 40 CFR part
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
ADDRESSES: The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2011–0985, is
available at https://www.regulations.gov
or at the Office of Pesticide Programs
SUMMARY:
The Congressional Review Act, 5
U.S.C. section 801 et seq., as added by
the Small Business Regulatory
Enforcement Fairness Act of 1996,
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. Section 804, however,
exempts from section 801 the following
types of rules: rules of particular
applicability; rules relating to agency
management or personnel; and rules of
agency organization, procedure, or
practice that do not substantially affect
the rights or obligations of non-agency
parties. 5 U.S.C. 804(3). Because this is
a rule of particular applicability, EPA is
67771
E:\FR\FM\14NOR1.SGM
14NOR1
]]>Agencies
[Federal Register Volume 77, Number 220 (Wednesday, November 14, 2012)]
[Rules and Regulations]
[Pages 67767-67771]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27564]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2010-1078; FRL-9751-3]
Revision to the South Coast Portion of the California State
Implementation Plan, CPV Sentinel Energy Project AB 1318 Tracking
System
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a source-specific State Implementation Plan (SIP)
revision for the South Coast Air Quality Management District
(``SCAQMD'' or ``District'') portion of the California SIP. This
source-specific SIP revision is known as the CPV Sentinel Energy
Project AB 1318 Tracking System (``AB 1318 Tracking System''). The SIP
revision consists of enabling language and the AB 1318 Tracking System
to revise the District's SIP approved new source review (NSR) program.
The SIP revision allows the District to transfer offsetting emission
reductions for particulate matter less than 10 microns in diameter
(PM10) and one of its precursors, sulfur oxides
(SOX), to the CPV Sentinel Energy Project (``Sentinel''),
which will be a natural gas fired power plant.
DATES: This final rule is effective on November 14, 2012.
ADDRESSES: The index to the docket for this final action is available
electronically at www.regulations.gov and in hard copy at EPA Region
IX, 75 Hawthorne Street, San Francisco, California. While generally all
categories of documents in the docket are listed in the index, some
information may be publicly available only at the hard copy location
(e.g., voluminous documents, 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.
FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, (415)
972-3524, yannayon.laura@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we'', ``us'',
and ``our'' refer to EPA.
Table of Contents
I. Background
A. The Facility and Prior Actions
B. Description of Final Rule
II. Evaluation of Source-Specific SIP Revision
A. What action is EPA finalizing?
B. Public Comment and Final Action
III. EPA Action
IV. Statutory and Executive Order Reviews
I. Background
A. The Facility and Prior Actions
The Sentinel Energy Project is designed to be a nominally rated 850
megawatt, natural gas-fired electrical generating facility covering
approximately 37 acres within Riverside County, adjacent to Desert Hot
Springs in the Palm Springs, California area. EPA's Federal Register
notices for the January 13, 2011 proposal (76 FR 2294), April 20, 2011
final action (76 FR 22038), and August 23, 2012 supplemental proposal
for this action (77 FR 50973) contain a detailed description of the
project and the Clean Air Act's (CAA) requirements for offsets during
new source review permitting.
In response to our January 13, 2011 proposed rule, we received four
comments. We responded to those comments on April 20, 2011 (76 FR
22038). One commenter, jointly California Communities Against Toxics
and Communities for a Better Environment (jointly ``CCAT'') filed a
Petition for judicial review in the United States Court of Appeals for
the Ninth Circuit (``9th Circuit'') shortly thereafter and an Opening
Brief on July 26, 2011. On September 14, 2011, EPA requested the 9th
Circuit to remand the
[[Page 67768]]
final rule to us to correct minor errors and revise our reasoning on
one issue. Motion for a Voluntary Remand of the Record, to Vacate the
Briefing Schedule, and to Stay the Proceedings During Remand, Case No.
11-71127 (Sept. 14, 2011). CCAT opposed EPA's motion for voluntary
remand. The 9th Circuit Appellate Commissioner denied EPA's motion for
voluntary remand on November 7, 2011, and ordered briefing. After
briefing and oral argument, the 9th Circuit remanded the final rule
(without vacatur) to EPA on July 26, 2012. California Communities
Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012). EPA published a
supplemental proposal on August 23, 2012, (77 FR 50973) and took
comment on the supplemental proposal through September 24, 2012. Copies
of the comments on the supplemental proposal have been added to the
docket and are accessible at www.regulations.gov. Comment letters from
the South Coast Air Quality Management District (``SCAQMD'' or
``District'') and CPV Sentinel LLC (``Sentinel'') support EPA's
approval of the AB 1318 Tracking System as a source-specific SIP
revision. A comment letter from CCAT opposes our proposal and
supplemental proposal to approve of the source-specific SIP revision.
B. Description of Final Rule
We are finalizing our proposal and supplemental proposal to approve
the AB 1318 Tracking System into the SIP as a source-specific SIP
revision. Even with the slight revision to Attachment A discussed
below, the District transferred more offsets into the AB 1318 Tracking
System than the amount that is needed to allow Sentinel to operate. We
are finalizing our approval because the offsets listed in the Revised
Attachment A meet the federal offset integrity criteria, including
proper quantification and surplus adjustment. We are finalizing the
reasoning in our supplemental proposal for finding that the offsets
meet the requirement in 40 CFR part 51, appendix S and 40 CFR
51.165(a)(3)(ii)(C)(1)(ii) for offsets resulting from facilities or
sources shutting down to have occurred after the base-year for SIP
planning purposes. We are interpreting this provision to refer to the
2003 AQMP for PM10 for the South Coast and the Coachella
Valley Air Basins.
In response to CCAT's comments on September 24, 2012, EPA is making
a slight revision to Attachment A to the Technical Support Document for
our supplemental proposal. Attachment A contains tables showing our
evaluation of a subset of all of the facilities from which the District
transferred offsets into its AB 1318 Tracking System. In this final
rule, we are attaching a slightly revised version of Attachment A to
our Response to Comments document. The only change in the Revised
Attachment A is that we have applied a more conservative assumption of
zero emissions for the data missing for the facilities listed in
Attachment A, Section II.B. The facilities listed in Section II.B were
missing Year 2 data. Our supplemental proposal assumed that the Year 2
data would be the same as the reported Year 1 data for these offsets.
Based on comments we received from CCAT, we changed the assumption for
this group of facilities. In our Revised Attachment A, we are assuming
that Year 2 data for these facilities is zero. This change means that
we are using the most conservative approach (zero emissions) to
quantify the offsets. This revision lowers the quantity of offsets
listed in Attachment A by 306 pounds for PM10 and 2 pounds
for SOX. Even with this adjustment the quantity of offsets
listed in Revised Attachment A exceeds the quantity that Sentinel needs
for operation. Because the District is committed to retiring all of the
remaining offsets in the AB 1318 Tracking System, including those not
listed in Attachment A, the net effect will be a greater reduction in
emissions than is required by the CAA.
For additional background information, please see the January 13,
2011 notice of proposed rule for this action (76 FR 2294), the notice
of final rule (which was remanded without vacatur on July 26, 2012) (76
FR 22038 Apr. 20, 2011) and the August 23, 2012 supplemental proposal
(77 FR 50974).
II. Evaluation of Source-Specific SIP Revision
A. What action is EPA is finalizing?
EPA is finalizing our approval of a SIP revision for the South
Coast portion of the California SIP. The SIP revision is codified in 40
CFR 52.220(c)(384) and incorporates by reference the CPV Sentinel
Energy Project AB 1318 Tracking System, as adopted by the District.
The SIP revision provides a federally approved and enforceable
mechanism for the District to transfer PM10 and
SOX offsets from the District's internal bank to the AB 1318
Tracking System for use by the Sentinel Energy Project.
B. Public Comment and Final Action
Our detailed response to all significant comments is contained in
the Response to Comments (``RTC'') document in the docket for this
action. The RTC can be accessed through www.regulations.gov and a very
brief summary of our responses to certain comments is provided below.
Please refer to our RTC document for our complete response to all
comments.
Comment Letter from South Coast Air Quality Management District
Comment: The District supported EPA's proposal and supplemental
proposal to approve the AB 1318 Tracking System based on the
quantification and surplus adjustment of the offsets listed in
Attachment A to the Technical Support Document for the supplemental
proposal. The District commented that its 2003 PM10 Air
Quality Management Plan (AQMP) was the appropriate plan and attainment
demonstration to establish the base-year for SIP planning as set forth
in 40 CFR 51.165(a)(3)(ii)(C)(1)(ii). The District also commented that
growth was added to the 2007 AQMP for PM2.5.
Response: EPA agrees with the District's comments, as discussed in
the RTC document provided in the docket for this rule.
Comment Letter from Sentinel Energy LLP
Comment: Sentinel also supported EPA's proposal and supplemental
proposal to approve the SIP revision on generally the same basis as the
District.
Response: EPA agrees with Sentinel's comments, as discussed in the
RTC document provided in the docket for this rule.
Comment: On October 26, 2012, Sentinel submitted a late comment
letter in which it requested EPA to use the good cause exception set
forth in section 553(d)(3) of the Administrative Procedures Act, 5
U.S.C. 553(d)(3) to make this final rule effective immediately upon
publication in the Federal Register. Sentinel stated that the purpose
of the usual 30-day delay for rule effectiveness is to allow the
regulated entity an opportunity to make any changes necessary to be in
compliance with the rule. Sentinel stated that it has been aware of
what would be required of it as a result of this rule for 18 months.
Sentinel anticipates beginning its commission period in November 2012.
Sentinel added that if the power plant is on-line next summer, it will
help the region avoid any potential electricity shortfalls.
Response: EPA has discretion to accept late comments and will
accept the comment submitted by Sentinel. EPA agrees with Sentinel that
it has demonstrated good cause for EPA to issue this final rule with an
immediate effective date. Sentinel has been constructing the power
plant for the
[[Page 67769]]
past 12 to 18 months in anticipation of beginning its commissioning
period in November 2012. Sentinel and the District provided information
regarding the potential effects of delaying commissioning and
operations beyond this date in the briefs submitted in the 9th Circuit
ligation pertaining to this rulemaking. Sentinel has indicated that it
will not be harmed by the immediate effective date. Therefore the final
rule will become effective upon publication.
Comment Letter From California Communities Against Toxics (CCAT) and
Communities for a Better Environment (CBE) (collectively CCAT)
Comment: CCAT contends that it was arbitrary and capricious for EPA
to publish a supplemental proposal to approve the source-specific SIP
revision after the 9th Circuit remanded the rulemaking to EPA without
vacatur.
Response: CCAT is incorrect. EPA has discretion under Section 553
of the Administrative Procedures Act to supplement its existing
proposed approval of the source-specific SIP revision. We provided
notice of the supplemental proposal and a 30-day period for comments.
The 9th Circuit's Opinion in California Communities Against Toxics v.
EPA, 688 F.3d at 989 did not indicate that EPA could not supplement its
prior proposal.
Comment: CCAT states: ``The Planning Year for the Failed 2003 AQMP
Cannot be the Base Year for Valid Offsets: In the Absence of an
Approved Attainment Demonstration for PM10, Only Replacement
Capacity Can offset New Emissions.''
Response: EPA disagrees. CCAT asserts that the 2003 AQMP is ``no
longer valid'' because the South Coast and Coachella Air Basins failed
to be re-designated to attainment for PM10 in 2006. Based on
this presumption, CCAT argues that the SCAQMD is prohibited from
relying on offsets resulting from sources that shut down, unless the
new source of emissions is replacement capacity for the facility or
source that is shutting down. CCAT's presumption is incorrect. Failure
to attain a National Ambient Air Quality Standard (``NAAQS'') by the
attainment date does not invalidate the plan and attainment
demonstration--in this case the 2003 PM10 AQMP. The control
measures and strategies remain in effect and enforceable along with the
emissions inventories and attainment demonstration. Therefore, there is
no prohibition on using offsets from facilities or sources that have
shut down after the 1997 base-year from the 2003 PM10 AQMP
to allow new source emissions growth in the South Coast and Coachella
Air Basins.
Comment: CCAT states: ``The 2007 AQMP Applies to PM10 as
well as PM2.5 Attainment.''
Response: EPA disagrees with CCAT. The District adopted the 2007
AQMP to demonstrate attainment with the PM2.5 NAAQS. EPA
approved the 2007 AQMP to demonstrate attainment with the
PM2.5 NAAQS. The minor references to PM10 in the
2007 AQMP for PM2.5 are included for a variety of reasons,
including to comply with California state law and to ensure continued
emissions control at one particular PM10 air quality
monitor. Minor references to PM10 for limited purposes do
not mean that the 2007 AQMP establishes a new base-year for
PM10. EPA does not consider the incidental inclusion of
PM10 control measures or updated emissions inventory for a
future maintenance plan to be the same as adopting a new AQMP for
PM10. EPA's approval of the 2007 AQMP does not mention
PM10.
Comment: CCAT states: ``The 2007 AQMP Was Final At All Relevant
Times.''
Response: Our supplemental proposal notes that the EPA had not
approved the 2007 AQMP at the time the SCAQMD approved transferring the
offsets into the AB 1318 Tracking System. EPA has not found any
authority establishing the correct date for an approved air quality
plan to apply. EPA reasonably determined that the date of transfer of
the offsets (i.e. when the offsets become enforceable) is an
appropriate date to establish what AQMP applies.
Comment: CCAT states ``EPA Cannot Rely on the Failed, Superseded
2003 AQMP for a Base Year.''
Response: CCAT appears to have raised the same argument in an
earlier portion of its comment letter. EPA considers this section to
provide additional argumentation of the same point presented in the
earlier paragraphs. EPA disagrees with CCAT's additional discussion.
CCAT has mischaracterized the Court's holding in NRDC v. EPA, 571 F.3d
1245, 1267 (D.C. Cir. 2009). The Court held that the base-year should
be established by an ``approved'' AQMP and it did not use the term
``valid.'' As discussed elsewhere, the CAA does not define air quality
plans as ``valid'' and EPA does not consider the term to be dispositive
or persuasive regarding the appropriate AQMP to establish the base-
year. CCAT also comments at length on the appropriate method for adding
new source growth in the absence of an approved attainment
demonstration. EPA considers this portion of CCAT's discussion to be
irrelevant because the 2003 PM10 AQMP is the approved
attainment demonstration for PM10 for the South Coast and
Coachella Air Basins.
Comment: CCAT states: ``The Offsets Transferred into the 1318
Tracking System are Not Quantifiable.''
Response: EPA disagrees with CCAT and is finalizing our proposal
and supplemental proposal to approve the AB 1318 Tracking System
because the District transferred more properly quantified and surplus
adjusted PM10 and SOX offsets than Sentinel needs
to offset its PM10 and SOX emissions. CCAT
contends that EPA is required to use two years of emissions data to
quantify offsets. CCAT also asserts that two years of emissions data
cannot be satisfied with a conservative (i.e. fewer offsets) assumption
being used for missing data. Nothing in the CAA or EPA's regulations
requires EPA to use two years of emissions data to quantify offsets or
prohibits the use of a conservative approach for filling in missing
data. EPA is reasonably interpreting our regulations to allow the
District to exercise discretion to use a conservative approach to
quantify offsets where emissions data is missing. Here, we have
concluded that the District's quantification of offsets using a
conservative approach--specifically, by substituting zero emissions
when data is missing--is reasonable and consistent with the CAA and
applicable regulations.
EPA is revising our final approval slightly from our supplemental
proposal to ensure that the most conservative estimation of data is
made regardless of whether the facility is missing Year 1 or Year 2
data. This means that EPA is reducing the amount of offsets we are
determining are properly quantified in Attachment A, Section II.B. to
reduce it by 306 pounds of PM10 and 2 pounds of
SOX. Therefore, whether a facility is missing Year 1 or Year
2 data, EPA is assuming the emissions for the missing data are zero.
Comment: CCAT states: ``The Offsets Are Not Surplus.''
Response: EPA disagrees. The offsets listed in Attachment A to the
TSD for the supplemental proposal are properly surplus adjusted to
comply with the CAA.
Comment: CCAT states: ``Rule 1315, Which EPA Did Not Apply,
Dictates How the Surplus Adjustment after Deposit Occurs.''
Response: EPA disagrees. The District removed the offsets in the AB
1318 Tracking System from its internal accounts and evaluated each
facility to determine if the offsets required surplus
[[Page 67770]]
adjustment. Rule 1315 requires the District to make an annual aggregate
adjustment to offsets in its Rule 1315 internal accounts. All of the
offsets in Attachment A, as revised, to the TSD for EPA's supplemental
proposal are properly quantified and surplus adjusted.
Comment: CCAT states: ``If Rule 1315 Were Not Applicable, EPA's
Analysis Is Entirely Incomplete.''
Response: EPA disagrees. Rule 1315 does not apply to this source-
specific SIP revision for the offset package for a single power plant.
All of the offsets in Revised Attachment A are properly surplus
adjusted.
III. EPA Action
This source-specific SIP revision complies with all relevant CAA
requirements and is consistent with EPA's regulations and guidance.
Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully
approving this source-specific SIP revision into the California SIP.
The changes in this final rule from EPA's proposal and supplemental
proposal are described above in Section I.B. EPA's interpretation of
the CAA and our regulations is provided more fully in our RTC.
Our initial approval of this SIP revision and its related
incorporation by reference into the Code of Federal Regulations was
previously codified at 40 CFR 52.220(c)(384). Because the SIP submittal
has not changed since the initial approval and related codification,
and because the previous final rule was not withdrawn, we are not
revising the codification of our approval at 40 CFR 52.220(c)(384) in
this final action.
This rule is effective immediately upon publication in the Federal
Register. Section 553(d) of the Administrative Procedure Act (APA), 5
U.S.C. 553(d), generally provides that rules may not take effect
earlier than 30 days after they are published in the Federal Register.
However, APA section 553(d)(3) provides an exception when the agency
finds good cause exists for a rule to take effect in less than 30-days.
The purpose of the APA's 30-day effective date provision is to give
affected parties time to adjust their behavior before the final rule
takes effect. The Sentinel Energy Project, to which this rulemaking
applies, requested in a comment letter to EPA that the rule be made
effective upon Federal Register publication.
We find good cause exists here to make this rule effective upon
publication because implementing a 30-day delayed effective date would
interfere with CPV Sentinel's ability to begin commissioning in
November 2012 as scheduled. Such interference would delay Sentinel from
becoming fully operational by the summer of 2013, which is when the
California Energy Commission is expecting the plant to come on line.
This delay could result in significant impacts to electrical
reliability and air quality.
In addition, this rule is not a major rule under the Congressional
Review Act (CRA). Thus, the 60-day delay in effective date required for
major rules under the CRA does not apply.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review 13563
This action will approve the source-specific SIP revision known as
the CPV Sentinel Energy Project AB 1318 Tracking System into the
California SIP. This type of action is exempt from review under
Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR
3821, January 21, 2011).
B. Paperwork Reduction Act
This 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 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 CAA 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 CAA, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of State action. The CAA
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 this final 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 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
[[Page 67771]]
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 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 approves a State rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the CAA. 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 final 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 approves 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
action does not require the public to perform activities conducive to
the use of VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 804, however, exempts from
section 801 the following types of rules: rules of particular
applicability; rules relating to agency management or personnel; and
rules of agency organization, procedure, or practice that do not
substantially affect the rights or obligations of non-agency parties. 5
U.S.C. 804(3). Because this is a rule of particular applicability, EPA
is not required to submit a rule report regarding this action under
section 801.
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 14, 2013. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 1, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-27564 Filed 11-13-12; 8:45 am]
BILLING CODE 6560-50-P
