Revisions to California State Implementation Plan; Bay Area Air Quality Management District; Stationary Sources; New Source Review, 8822-8827 [2018-04112]
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VIII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rulemaking
action, pertaining to New Jersey’s
section 110(a)(2) infrastructure
requirements for the 1997 and 2008
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ozone NAAQS, 1997, 2006 and 2012
PM2.5 NAAQS, 2006 PM10 NAAQS,
2010 NO2 NAAQS, 2010 SO2 NAAQS,
2011 CO NAAQS, and 2008 lead
NAAQS do not have tribal implications
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000),
because the SIP is not approved to apply
in Indian country located in the state,
and EPA notes that it will not impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide,
Intergovernmental relations, Lead,
Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 14, 2018.
Peter D. Lopez,
Regional Administrator, Region 2.
[FR Doc. 2018–04191 Filed 2–28–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2018–0080; FRL–9974–
95—Region 9]
Revisions to California State
Implementation Plan; Bay Area Air
Quality Management District;
Stationary Sources; New Source
Review
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to the Bay Area Air Quality
Management District (BAAQMD or
District) portion of the California State
Implementation Plan (SIP). These
revisions concern permit program rules
governing the issuance of permits for
stationary sources, including review and
permitting of major sources and major
modifications under parts C and D of
title I of the Clean Air Act (CAA). The
revisions correct deficiencies in
BAAQMD Regulation 2, Rules 1 and 2,
and Regulation 2, Rule 4, previously
identified by the EPA in final rules
dated August 1, 2016, and December 4,
2017, respectively. We are proposing to
approve revisions that correct the
identified deficiencies.
DATES: Any comments must arrive by
April 2, 2018.
SUMMARY:
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Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2018–0080 at https://
www.regulations.gov, or via email to
R9AirPermits@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be removed or edited from
Regulations.gov. For either manner of
submission, the EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Laura Yannayon, EPA Region 9, (415)
972–3534, yannayon.laura@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, the terms
‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to the EPA.
Table of Contents
I. The State’s Submittal
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted
rule revisions?
II. The EPA’s Evaluation and Action
A. How is the EPA evaluating the rules?
B. Do the rules meet the evaluation
criteria?
1. Regulation 2, Rules 1 and 2
2. Regulation 2, Rule 4
3. Requirements of 40 CFR 51.165(a)(13)
4. Sections 110(a)(2) and 110(l) of the Act
5. Section 193 of the Act
III. Proposed Action and Public Comment
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The word or initials Act or CAA
mean or refer to the Clean Air Act,
unless the context indicates otherwise.
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(ii) The word or initials APCO mean
or refer to the Air Pollution Control
Officer.
(iii) The word or initials BAAQMD or
District mean or refer to the Bay Area
Air Quality Management District.
(iv) The initials BACT mean or refer
to Best Available Control Technology.
(v) The words Bay Area mean or refer
to the geographic area regulated by the
Bay Area Air Quality Management
District.
(vi) The initials CARB mean or refer
to the California Air Resources Board.
(vii) The initials CFR mean or refer to
Code of Federal Regulations.
(viii) The initials or words EPA, we,
us or our mean or refer to the United
States Environmental Protection
Agency.
(ix) The initials ERC mean or refer to
Emission Reduction Credit.
(x) The initials FR mean or refer to
Federal Register.
(xi) The initials GHG mean or refer to
greenhouse gases.
(xii) The initials NAAQS mean or
refer to National Ambient Air Quality
Standards.
(xiii) The initials NOX mean or refer
to oxides of nitrogen.
(xiv) The initials NSR mean or refer
to New Source Review.
(xv) The initials PM2.5 mean or refer
to particulate matter with an
aerodynamic diameter of less than or
equal to 2.5 micrometers (fine
particulate matter).
(xvi) The initials POC mean or refer
to precursor organic compound.
(xvii) The initials PSD mean or refer
to Prevention of Significant
Deterioration.
(xviii) The initials PTE mean or refer
to potential to emit
(xix) The initials SIP mean or refer to
State Implementation Plan.
(xx) The initials SO2 mean or refer to
sulfur dioxide.
(xxi) The initials VOC mean or refer
to volatile organic compound.
I. The State’s Submittal
A. What rules did the State submit?
Table 1 lists the rules addressed by
this proposal with the dates they were
adopted by BAAQMD and submitted by
the CARB, which is the governor’s
designee for California SIP submittals.
Regulation 2, Rule 1 contains general
requirements that apply to all District
air quality permitting programs.
Regulation 2, Rule 2 contains the
District’s New Source Review (NSR)
permit programs for both attainment
and nonattainment pollutants.
Regulation 2, Rule 4 contains
requirements for banking emission
reduction credits (ERCs).
TABLE 1—SUBMITTED RULES
Regulation & Rule No.
Rule title
Regulation 2, Rule 1 (Rule 2–1) ..................................
Regulation 2, Rule 2 (Rule 2–2) ..................................
Regulation 2, Rule 4 (Rule 2–4) ..................................
Permits, General Requirements ...................................
Permits, New Source Review .......................................
Permits, Emissions Banking .........................................
On February 14, 2018, the EPA
determined that the submittal of
Regulation 2, Rules 1, 2 and 4 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?
The existing SIP-approved NSR
program for new or modified stationary
sources in the Bay Area consists of the
Amended
Submitted
12/6/2017
12/6/2017
12/6/2017
12/14/17
12/14/17
12/14/17
rules identified below in Table 2. The
EPA’s approval of the rules identified
above in Table 1 would have the effect
of entirely superseding our prior
approval of these rules in the current
SIP-approved program.
TABLE 2—EXISTING SIP RULES
Regulation & Rule No.
Rule title
Regulation 2, Rule 1 (Rule 2–1) ..................................
Regulation 2, Rule 2 (Rule 2–2) ..................................
Regulation 2, Rule 4 (Rule 2–4) ..................................
Permits, General Requirements ...................................
Permits, New Source Review .......................................
Permits, Emissions Banking .........................................
C. What is the purpose of the submitted
rule revisions?
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This SIP submittal is intended to
correct deficiencies previously
identified by the EPA in our August 1,
2016, limited approval and limited
disapproval ction for Rules 2–1 and 2–
2 (81 FR 50339), and our December 4,
2017, conditional approval action for
Rule 2–4 (82 FR 57133).
II. The EPA’s Evaluation and Action
A. How is the EPA evaluating the rules?
The evaluation criteria for the
submitted rules includes compliance
with the CAA’s requirements for SIPs in
CAA sections 110(a)(2), 110(l), and 193.
In addition, the EPA evaluated the
submitted rules for consistency with the
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regulatory provisions of 40 CFR part 51,
subpart I (Review of New Sources and
Modifications) (i.e., 40 CFR 51.160–
51.166) and 40 CFR 51.307.
B. Do the rules meet the evaluation
criteria?
In our previous August 1, 2016, and
December 4, 2017, actions we evaluated
prior submissions of the submitted rules
in accordance with the CAA and
regulatory requirements listed in
Section II.A of this document. In those
actions, we determined that for the most
part the submitted rules satisfied the
applicable requirements for NSR permit
programs. However, in each action we
identified certain deficiencies that
prevented full approval. For both of the
previous actions, we list the identified
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Approval date
8/1/2016
8/1/2016
12/4/2017
FR citation
81 FR 50339
81 FR 50339
82 FR 57133
deficiencies and evaluate whether the
submitted rule revisions correct the
deficiency. We also evaluate any
additional rule revisions and whether
the submittal complies with the
requirements of sections 110(a)(2),
110(l) and 193 of the CAA.
1. Regulation 2, Rules 1 and 2
Our August 1, 2016 action identified
the following eleven deficiencies in
Rules 2–1 and 2–2.
First, the definitions of ‘‘agricultural
source’’ in Section 2–1–239 and ‘‘large
confined animal facility’’ used in
Section 2–1–424 rely on other
definitions and provisions in District
rules that are not SIP approved.
Second, Section 2–1–234,
subparagraph 2.2, is deficient because it
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does not satisfy the PSD provisions at 40
CFR 51.166(a)(7) and 51.166(r)(6) & (7),
which require PSD programs to contain
specific applicability procedures and
recordkeeping provisions.
Third, the same deficiency discussed
above for the PSD provisions applies to
the nonattainment NSR provisions.
Section 2–1–234, subparagraph 2.1,
does not satisfy the requirements of 40
CFR 51.165(a)(2) and 51.165(a)(6) & (7),
which require nonattainment NSR
programs to contain specific
applicability procedures and
recordkeeping provisions.
Fourth, the definition of the term
‘‘PSD pollutant’’ as defined in Section
2–2–223, which is used in place of the
federal definition for the term
‘‘regulated NSR pollutant,’’ is deficient
because it explicitly excludes
nonattainment pollutants.
Fifth, Section 2–2–305 does not
require written approval of the
Administrator prior to using any
modified or substituted air quality
model as provided in subsection 3.2.2 of
40 CFR part 51, appendix W.
Sixth, Section 2–2–611 does not
include the requirement regarding ‘‘any
other stationary source category which
as of August 7, 1980, is being regulated
under section 111 or 112 of the Act’’ in
the list of source categories that must
include fugitive emissions to determine
whether a source is a major facility.
Seventh, Section 2–2–401.4 only
requires a visibility analysis for sources
that are located within 100 km of a Class
I area, rather than for any source that
‘‘may have an impact on visibility’’ in
any mandatory Class I Federal Area, as
required by 40 CFR 51.307(b)(2).
Eighth, Section 2–2–411 pertaining to
Offset Refunds does not contain any
timeframe for obtaining an offset refund.
Ninth, the Offset Program Equivalence
demonstration required by Section 2–2–
412 does not provide a remedy if the
District fails to make the required
demonstration.
Tenth, Subsection 2–2–605.2 allows
existing ‘‘fully-offset’’ sources to
generate ERCs based on the difference
between the post-modification PTE and
the pre-modification PTE. Emission
reductions intended to be used as offsets
for new major sources or major
modifications are only creditable if they
are reductions of actual emissions, not
reductions in the PTE of a source.
Eleventh, Subsection 2–2–606.2, as it
applies to major modifications, does not
require ‘‘fully-offset’’ sources to
calculate the emission increases from a
proposed major modification based on
the difference between the postmodification PTE and the pre-
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modification actual emissions as
required by 40 CFR 51.165(a)(3)(ii)(J).
To address the first deficiency, the
definition of ‘‘agricultural source’’ in
Section 2–1–239 and the reference to
‘‘large confined animal facility’’ used in
Section 2–1–424 have been revised to
remove references to ‘‘Regulation 2,
Rule 10,’’ which is not SIP approved.
The District made additional edits to
both of these provisions, as well as
Subsection 2–1–113.1.2, to provide
additional information due to the
removal of the references to Regulation
2, Rule 10. These revisions cure this
deficiency because the rules no longer
reference rules which are not SIP
approved.
To address the second deficiency,
Section 2–1–234 has been revised by
adding two new subparagraphs (2.3 and
2.4) to include the specific applicability
procedures and recordkeeping
provisions required by 40 CFR
51.166(a)(7) and 51.166(r)(6) & (7).
These two new subparagraphs are
acceptable to cure this deficiency.
To address the third deficiency,
Section 2–1–234 has been revised by
adding two new subparagraphs (2.3 and
2.4) to include the specific applicability
procedures and recordkeeping
provisions required by 40 CFR
51.165(a)(2) and 51.165(a)(6) & (7).
These two new subparagraphs are
acceptable to cure this deficiency.
To address the fourth deficiency,
Section 2–2–224 has been revised to
reference the term ‘‘Regulated NSR
Pollutant’’ rather than ‘‘PSD pollutant.’’
This revision cures the deficiency by
ensuring that a Major PSD Facility
determination (as specified in
Subsection 224.1) is based on emissions
of all regulated NSR pollutants,
including any nonattainment pollutant.
To address the fifth deficiency,
Section 2–2–305.3—Air Quality Models,
has been revised to require written EPA
approval prior to using any modified or
substituted air quality model. This
revision cures this deficiency.
To address the sixth deficiency,
Section 2–2–611 has been revised to add
the following language: ‘‘or is in any
other stationary source category that
was being regulated under section 111
or 112 of the Clean Air Act as of August
7, 1980.’’ This revision cures this
deficiency by adding the missing
required language.
To address the seventh deficiency,
Section 2–2–401.4 has been revised to
indicate an analysis of potential impacts
to air quality related values is required
for a project which ‘‘may have an
impact on air quality related values
(including visibility) within any Class I
area(s),’’ rather than only projects
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located within 100 km of a Class I area.
In addition, language has been added to
this section to clarify how such a
determination is to be made by
referencing the guidelines adopted by
the Federal Land Managers Air Quality
Related Values Work Group. These
revisions cure this deficiency.
To address the eighth deficiency,
Section 2–2–411.1 has been revised to
specify that if excess offsets are
provided, an offset refund request must
be made within 2 years of the issuance
of the authority to construct or within
6 months of issuance of the permit to
operate. Section 2–2–411.2 has been
revised to specify that if a source is
never constructed or operated, and the
authority to construct for the source has
expired or been surrendered, an offset
refund request must be made within 2
years of the issuance or renewal of the
authority to construct. These revisions
cure this deficiency.
To address the ninth identified
deficiency, Section 2–2–415—
Additional Offset Requirements Where
District Has Not Demonstrated NOX,
POC or PM2.5 Offset Program
Equivalence, has been added to specify
that if the demonstration required by
Section 2–2–412 is not made by March
1 of each year (or other EPA-approved
date), the Air Pollution Control Officer
(APCO) shall require additional offsets
for any subsequent Authority to
Construct and/or Permit to Operate for
a Federal Major NSR Source sufficient
to make up for (i) any Federal Offsets
Baseline Shortfall calculated pursuant
to Section 2–2–229 and (ii) any Federal
Surplus-at-Time-of-Use Shortfall
calculated pursuant to Section 2–2–230.
The new provision also states that this
requirement shall continue until the
District has made the required
equivalence demonstration.
These new provisions cure this
deficiency because they ensure an
applicant will provide the full amount
of federal offsets required for a new
project if the District fails to make the
required annual demonstration. The
EPA recognizes that any shortfall for a
year in which the District does not
provide an adequate demonstration will
not be immediately corrected, but it will
be corrected prior to continued usage of
the offset equivalence demonstration.
The EPA finds this acceptable.
To address the tenth identified
deficiency, Subsection 2–2–605.1 has
been revised to clarify the requirements
of an eligible emission reduction credit
and Subsection 2–2–605.2 has been
revised to eliminate a separate
calculation methodology for ‘‘fullyoffset’’ sources. The provision has also
been revised to specify that the amount
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of emission reduction shall be
calculated as the difference between: (i)
The source’s adjusted baseline
emissions before the change calculated
pursuant to Section 2–2–603; and (ii)
the source’s potential to emit after the
change. This revision cures this
deficiency because it ensures that the
amount of ERC is based on actual
emission reductions.
To address the eleventh identified
deficiency, the calculation methodology
specified in Subsection 2–2–606.2 was
not revised. Instead, Section 2–2–412—
Demonstration of NOX, POC and PM2.5
Offset Program Equivalence, was revised
to require the District to provide an
annual demonstration that the District’s
NSR program as a whole has obtained
at least as many NOX, POC and PM2.5
offsets as would have been required
pursuant to the provisions of 40 CFR
51.165 for federal major sources during
the previous calendar year. We note that
although section 2–2–412 was modified
to include PM2.5, the revisions to
Section 2–2–412 do not contain any
provisions for demonstrating
equivalency with SO2 offset
requirements. In section II.B.3 of this
preamble we discuss our reasoning for
proposing approval of Rule 2–2 without
requiring an equivalency demonstration
for SO2 offsets.
In addition, new definitions for the
terms Federal Major NSR Source,
Federal Offsets Baseline Shortfall,
Federal Surplus-at-Time of Use Shortfall
and Equivalence Credit were added to
define these terms as used in Section 2–
2–412. We find these new definitions
acceptable.
In the current SIP, the annual Offset
Program Equivalence Demonstration is
only required to account for the
difference between the quantity of
offsets obtained by the District using
ERCs surplus adjusted solely at the time
of generation and the subset of those
offsets that continue to be surplus at the
time of use. The new provisions require
the District to also calculate the
difference between the amount of offsets
provided pursuant to the provisions of
Subsection 2–2–606.2, and the amount
required pursuant to the provisions of
40 CFR 51.165, when applied to new
and modified major sources. We have
reviewed the language added to Section
2–2–412 and new Section 2–2–415, and
have determined that the provisions of
Rule 2–2 will ensure that in the
aggregate an equivalent number of ERCs
will be provided as would otherwise be
required by a NSR program without an
equivalence mechanism that met the
offset quantification provisions
specified in 40 CFR 51.165. We find that
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these revised and new provisions are
acceptable to cure this deficiency.
In addition to the revisions made to
address the identified deficiencies
discussed above, the District made
several additional minor rule revisions.
In Rule 2–1, the definitions for the terms
‘‘Facility’’ and ‘‘New Source’’ were
revised to provide additional
clarification regarding portable
equipment. The provisions of
Subsection 2–1–234.2 were revised to
clarify which specific provisions of 40
CFR 51.165 (for nonattainment
pollutants) and 40 CFR 52.21 (for other
Federal NSR pollutants) must be used to
determine if an emissions increase from
a project will result in a major
modification as defined in 40 CFR
51.165 or 52.21, as applicable. These
revisions provide important
clarifications to ensure the provisions
are enforceable, as required by CAA
section 110(a)(2)(C), and do not revise
any of the requirements for determining
if a project will result in a major
modification. Therefore we find the
revisions to Subsection 2–1–234.2
acceptable. Section 2–1–413—Permits
for Operation of Equipment at Multiple
Locations Within the District, was
revised by adding new Subsection
413.7. This new provision ensures that
equipment permitted under this
provision do not effectively become
‘‘stationary source equipment’’ by
residing at a single stationary source for
more than 12 months. We find these
revisions acceptable. Revisions were
also made to Section 2–1–424—Loss of
Exemption or Exclusion to remove the
reference to non-SIP approved Rule 2–
10, and provide additional clarification
regarding the applicability of this
provision. These revisions do not
change the requirements of this section,
therefore we find the revisions
acceptable.
In Rule 2–2, the definitions for the
terms ‘‘Adjustment to Emission
Reductions for Federal Purposes’’ and
‘‘Fully Offset Source’’ were deleted
because the rule no longer uses these
terms. In Section 2–2–214, the
definition of ‘‘Greenhouse Gases’’ was
revised to remove the requirement that
such gases be measured on a mass basis
consistent with the Supreme Court’s
decision in Utility Air Regulatory Group
v. EPA, and the subsequent Judgment in
the United States Court of Appeals for
the District of Columbia Circuit in
Coalition for Responsible Regulation,
Inc. v. EPA regarding the treatment of
GHGs in the PSD program.1
1 In 2014 the U.S. Supreme Court issued a ruling
in Utility Air Regulatory Group v. EPA, 134 S.Ct.
2427 (2014) that interpreted several relevant
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2. Regulation 2, Rule 4
Our December 4, 2017 action
identified the following three
deficiencies in Rule 2–4.
First, Rule 2–4 is deficient because it
defines the term ERCs as emission
reductions ‘‘that are in excess of the
reductions required by applicable
regulatory requirements, and that are
real, permanent, quantifiable, and
enforceable,’’ but does not contain any
enforceable provisions requiring the
APCO to determine that the emission
reductions under review meet the offset
integrity criteria prior to issuing an ERC
Certificate.
Second, Rule 2–4 is deficient because
it incorporates the deficient emission
reduction calculation procedures found
in Rule 2–2 subsection 605.2. This
deficiency in Rule 2–2–605.2 is
discussed in Section II.B.1 of the
present document, and is identified as
deficiency number ten.
Third, Rule 2–4 is deficient because
Section 2–4–302.3 allows ERC
Certificates to be issued that do not
adequately ensure the permanency of an
emission reduction due to a facility
closure.
To address the first deficiency,
Section 2–4–301 has been revised by
adding language clarifying that emission
reductions may be banked only if the
APCO determines (i) that the reductions
satisfy all of the criteria necessary to
constitute Emission Reduction Credits
as defined in Section 2–2–211,
including but not limited to the
requirements that the reductions are
real, permanent, quantifiable, and
enforceable, and are calculated in
accordance with Section 2–2–605; and
(ii) that banking the reductions is not
prohibited by Section 2–4–303. These
revisions cure this deficiency because
they ensure that emission reductions
may only be banked after the APCO
determines the offset integrity criteria
have been met.
To address the second deficiency,
Section 2–2–605.2 has been revised to
eliminate a separate calculation
methodology for ‘‘fully-offset’’ sources.
This revision is discussed in more detail
in section II.B.1 of the present document
in the discussion of deficiency number
ten. Because the second identified
deficiency in Rule 2–4 stems from the
incorporation of a deficiency in Section
2–2–605.2, and we found in Section
provisions of the federal Clean Air Act regarding
the Act’s PSD permit program requirements. On
April 10, 2015, the D.C. Circuit Court of Appeals
effectuated the Supreme Court’s judgment by
vacating portions of the EPA’s PSD regulations
addressing GHGs. See Coalition for Responsible
Regulation, Inc. v. EPA, 606 Fed. Appx. 6 (Apr. 10,
2015).
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II.B.1 above that the District’s
amendments to Rule 2–2 cure this
deficiency, we also find that the
corresponding deficiency cited in Rule
2–4 pertaining to how the quantity of an
emission reduction is calculated has
been cured.
To address the third identified
deficiency, Section 2–4–302.3 has been
removed from Rule 2–4. This revision
cures this deficiency by removing the
deficient provision.
In addition to the revisions to Rule 2–
4 discussed above, the District deleted
Section 301.7, which provided an
example of a bankable emission
reduction. Because this was only an
example, this deletion has no effect on
the approvability of Rule 2–4.
Our December 4, 2017, conditional
approval action (82 FR 57133) was
predicated on the state’s commitment to
submit SIP revisions to cure the three
identified deficiencies. Because we are
proposing to find that the present
submission cures these deficiencies, we
also propose to find that the state has
fulfilled its commitment. If finalized as
proposed, the EPA would fully approve
the submitted version of Rule 2–4 into
the SIP, curing the previously identified
deficiencies, and remove the
conditional approval contained in 40
CFR 52.248(c).
3. Requirements of 40 CFR 51.165(a)(13)
For any area designated
nonattainment for PM2.5, 40 CFR
51.165(a)(13) requires a nonattainment
NSR program to require the same
control requirements applicable to
major stationary sources and major
modifications of PM2.5 to all PM2.5
precursors. A permitting authority may
exclude a specific precursor from this
requirement if they submit—and the
EPA approves—a precursor
demonstration that meets the conditions
for a nonattainment NSR precursor
demonstration as set forth in 40 CFR
51.1006(a)(3). In our August 1, 2016
action we found that Rule 2–2 satisfied
the requirements of CAA section 189(e),
which are now enacted through 40 CFR
51.165(a)(13), for SO2, NOX, and VOC,
and we approved a demonstration for
ammonia allowing it to be excluded
from this requirement.2 A
nonattainment NSR precursor
demonstration must ‘‘evaluate the
sensitivity of PM2.5 levels in the
nonattainment area to an increase in
emissions of a particular precursor.’’ If
the changes ‘‘are not significant, based
on the facts and circumstances of the
area, the state may use that information
2 See 80 FR 52236, 52242–3 (August 28, 2015), 81
FR 50339, 50341.
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to identify new major stationary sources
and major modifications of [that]
precursor that will not be considered to
contribute significantly to PM2.5 levels
that exceed the standard in the
nonattainment area.’’ As part of the
current SIP submittal, the District has
provided an analysis in accordance with
the requirements of 40 CFR
51.1006(a)(3).3
The analysis used the Community
Multiscale Air Quality (CMAQ) Model
and California Puff Model (CALPUFF)
to model the impacts of 7 new
greenfield sources emitting 370 tpy of
SO2 along with a 20% increase of
current SO2 emissions from existing
sources to determine if such increases
would contribute significantly to PM2.5
levels that exceed the standard in the
area. The District provided reasoned
explanations for choosing the number,
size and location of the new sources to
be modeled. For the CMAQ and
CALPUFF modeling, the maximum
contribution was just under 0.6 mg/m3
and 0.68 mg/m3, respectively. Both of
these contribution estimates are well
under the recommended insignificance
threshold of 1.3 mg/m3 contained in
EPA’s draft PM2.5 Precursor
Demonstration Guidance.4
Based on the information provided in
the District’s submitted analysis, EPA is
proposing to approve the District’s
demonstration that SO2 emissions from
new and modified major SO2 sources
will not contribute significantly to 24hour PM2.5 concentrations exceeding the
standard in the area. A more detailed
summary of the District’s demonstration
and the EPA’s analysis can be found in
the docket for this action.
Based on our approval of the District’s
non-significance demonstration for SO2,
we find it acceptable that Section 2–2–
412—Demonstration of NOX, POC and
PM2.5 Offset Program Equivalence, does
not require an annual demonstration
that an equivalent number of SO2 offsets
are required under Rule 2–2, as would
otherwise be required under a fully
compliant nonattainment NSR program.
While Section 2–2–303 requires offsets
for SO2 emissions (as required by state
law), the District will not be required to
include any offsets provided for SO2
major sources in the annual equivalency
demonstration required by Section 2–2–
3 Final Report: Demonstration of SO Precursor
2
Contributions to PM2.5 in the San Francisco Bay
Area, Bay Area Air Quality Management District,
with technical assistance from Ramboll Environ,
November 30, 2017.
4 Draft PM
2.5 Precursor Demonstration Guidance,
EPA–454/P–16–001, U.S. EPA OAQPS, November
17, 2016, available at https://www.epa.gov/pmpollution/draft-pm25-precursor-demonstrationguidance.
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Fmt 4702
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412—Demonstration of NOX, POC and
PM2.5 Offset Program Equivalence.
4. Sections 110(a)(2) and 110(l) of the
Act
We are proposing to find that
Regulation 2, Rules 1, 2 and 4 satisfy the
requirements of sections 110(a)(2) and
110(l) of the CAA. These sections state
that each SIP revision submitted by a
State shall be adopted by such State
after reasonable notice and public
hearing. Section 110(l) also states that
the Administrator shall not approve a
SIP revision if the revision would
interfere with any applicable
requirement concerning attainment and
reasonable further progress, or any other
CAA applicable requirement.
With respect to the procedural
requirements of CAA sections 110(a)(2)
and 110(l), based on our review of the
public process documentation included
in the December 14, 2017 SIP submittal
package, we find that BAAQMD has
provided sufficient evidence of public
notice and opportunity for comment
and public hearings prior to adoption
and submittal of these rules to the EPA.
With respect to the substantive
requirements of section 110(l), we have
determined that our approval of the
BAAQMD NSR SIP submittal represents
a strengthening of BAAQMD’s NSR
program as compared to the District’s
current SIP-approved NSR program that
was last approved on August 1, 2016,
and that the revision would not interfere
with any applicable CAA requirement.
Therefore we are proposing full
approval of the BAAQMD NSR SIP
submittal under section 110(l) of the
Act.
5. Section 193 of the Act
Section 193 of the Act includes a
savings clause which provides, in
pertinent part: ‘‘No control requirement
in effect, or required to be adopted by
an order, settlement agreement, or plan
in effect before November 15, 1990, in
any area which is a nonattainment area
for any air pollutant may be modified
after November 15, 1990, in any manner
unless the modification insures
equivalent or greater emission
reductions of such air pollutant.’’
We have reviewed the provisions
included in BAAQMD’s NSR SIP
submittal and find that they would
ensure equivalent or greater emission
reductions compared to the current SIPapproved NSR program. The BACT and
offset requirements of the submitted
rules, which are the primary control
requirements of a NSR program, are
equivalent to or more stringent than
those contained in the existing SIPapproved NSR rules. Therefore, we can
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approve the submitted NSR program
under section 193 of the Act.
III. Proposed Action and Public
Comment
As authorized in section 110(k)(3) of
the Act, the EPA is proposing to fully
approve the submitted rules because we
believe they fulfill all relevant
requirements. In support of this
proposed action, we have concluded
that our approval of the submitted rules
would comply with sections 110(a)(2),
110(l) and 193 of the Act because the
amended rules would not interfere with
any applicable requirement concerning
attainment of the NAAQS in the Bay
Area, and do not relax control
technology and offset requirements. If
we finalize this action as proposed, our
action would be codified through
revisions to 40 CFR 52.220
(Identification of plan—in part), and
removal of the conditional approval
contained in 40 CFR 52.248(c).
We will accept comments from the
public on the proposed approval of
Rules 2–1, 2–2, and 2–4 for the next 30
days.
IV. Incorporation by Reference
In this rule the EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, the EPA is
proposing to incorporate by reference
the BAAQMD rules listed in Table 1 of
this preamble. The EPA has made, and
will continue to make, these materials
available electronically through
www.regulations.gov and in hard copy
at the EPA Region IX Office (please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of
this preamble for more information).
amozie on DSK30RV082PROD with PROPOSALS
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, the EPA’s role is to
approve state choices, provided that
they meet the criteria of the Clean Air
Act. Accordingly, this proposed action
merely proposes to approve state law as
meeting federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
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October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide the EPA with the
discretionary authority to address
disproportionate human health or
environmental effects with practical,
appropriate, and legally permissible
methods under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the EPA or
an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
PO 00000
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8827
Dated: February 20, 2018.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2018–04112 Filed 2–28–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 174
[EPA–HQ–OPP–2018–0040; FRL–9973–57]
Receipt of a Pesticide Petition Filed for
Residues of Pesticide Chemicals in or
on Various Commodities
Environmental Protection
Agency (EPA).
ACTION: Notice of filing of petition and
request for comment.
AGENCY:
This document announces the
Agency’s receipt of an initial filing of a
pesticide petition requesting the
establishment or modification of
regulations for residues of pesticide
chemicals in or on various commodities.
DATES: Comments must be received on
or before April 2, 2018.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number EPA–HQ–OPP–2018–0040, by
one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute.
• Mail: OPP Docket, Environmental
Protection Agency Docket Center (EPA/
DC), (28221T), 1200 Pennsylvania Ave.
NW, Washington, DC 20460–0001.
• Hand Delivery: To make special
arrangements for hand delivery or
delivery of boxed information, please
follow the instructions at https://
www.epa.gov/dockets/contacts.html.
Additional instructions on
commenting or visiting the docket,
along with more information about
dockets generally, is available at https://
www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
Robert McNally, Biopesticides and
Pollution Prevention Division (7511P),
Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC
20460–0001; main telephone number:
(703) 305–7090; email address:
BPPDFRNotices@epa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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]]>Agencies
[Federal Register Volume 83, Number 41 (Thursday, March 1, 2018)]
[Proposed Rules]
[Pages 8822-8827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04112]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2018-0080; FRL-9974-95--Region 9]
Revisions to California State Implementation Plan; Bay Area Air
Quality Management District; Stationary Sources; New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Bay Area Air Quality Management District
(BAAQMD or District) portion of the California State Implementation
Plan (SIP). These revisions concern permit program rules governing the
issuance of permits for stationary sources, including review and
permitting of major sources and major modifications under parts C and D
of title I of the Clean Air Act (CAA). The revisions correct
deficiencies in BAAQMD Regulation 2, Rules 1 and 2, and Regulation 2,
Rule 4, previously identified by the EPA in final rules dated August 1,
2016, and December 4, 2017, respectively. We are proposing to approve
revisions that correct the identified deficiencies.
DATES: Any comments must arrive by April 2, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2018-0080 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be removed or edited from Regulations.gov. For either
manner of submission, the EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region 9, (415)
972-3534, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted rule revisions?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rules?
B. Do the rules meet the evaluation criteria?
1. Regulation 2, Rules 1 and 2
2. Regulation 2, Rule 4
3. Requirements of 40 CFR 51.165(a)(13)
4. Sections 110(a)(2) and 110(l) of the Act
5. Section 193 of the Act
III. Proposed Action and Public Comment
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The word or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
[[Page 8823]]
(ii) The word or initials APCO mean or refer to the Air Pollution
Control Officer.
(iii) The word or initials BAAQMD or District mean or refer to the
Bay Area Air Quality Management District.
(iv) The initials BACT mean or refer to Best Available Control
Technology.
(v) The words Bay Area mean or refer to the geographic area
regulated by the Bay Area Air Quality Management District.
(vi) The initials CARB mean or refer to the California Air
Resources Board.
(vii) The initials CFR mean or refer to Code of Federal
Regulations.
(viii) The initials or words EPA, we, us or our mean or refer to
the United States Environmental Protection Agency.
(ix) The initials ERC mean or refer to Emission Reduction Credit.
(x) The initials FR mean or refer to Federal Register.
(xi) The initials GHG mean or refer to greenhouse gases.
(xii) The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
(xiii) The initials NOX mean or refer to oxides of nitrogen.
(xiv) The initials NSR mean or refer to New Source Review.
(xv) The initials PM2.5 mean or refer to particulate matter with an
aerodynamic diameter of less than or equal to 2.5 micrometers (fine
particulate matter).
(xvi) The initials POC mean or refer to precursor organic compound.
(xvii) The initials PSD mean or refer to Prevention of Significant
Deterioration.
(xviii) The initials PTE mean or refer to potential to emit
(xix) The initials SIP mean or refer to State Implementation Plan.
(xx) The initials SO2 mean or refer to sulfur dioxide.
(xxi) The initials VOC mean or refer to volatile organic compound.
I. The State's Submittal
A. What rules did the State submit?
Table 1 lists the rules addressed by this proposal with the dates
they were adopted by BAAQMD and submitted by the CARB, which is the
governor's designee for California SIP submittals. Regulation 2, Rule 1
contains general requirements that apply to all District air quality
permitting programs. Regulation 2, Rule 2 contains the District's New
Source Review (NSR) permit programs for both attainment and
nonattainment pollutants. Regulation 2, Rule 4 contains requirements
for banking emission reduction credits (ERCs).
Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
Regulation & Rule No. Rule title Amended Submitted
----------------------------------------------------------------------------------------------------------------
Regulation 2, Rule 1 (Rule 2-1)............... Permits, General Requirements... 12/6/2017 12/14/17
Regulation 2, Rule 2 (Rule 2-2)............... Permits, New Source Review...... 12/6/2017 12/14/17
Regulation 2, Rule 4 (Rule 2-4)............... Permits, Emissions Banking...... 12/6/2017 12/14/17
----------------------------------------------------------------------------------------------------------------
On February 14, 2018, the EPA determined that the submittal of
Regulation 2, Rules 1, 2 and 4 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?
The existing SIP-approved NSR program for new or modified
stationary sources in the Bay Area consists of the rules identified
below in Table 2. The EPA's approval of the rules identified above in
Table 1 would have the effect of entirely superseding our prior
approval of these rules in the current SIP-approved program.
Table 2--Existing SIP Rules
----------------------------------------------------------------------------------------------------------------
Regulation & Rule No. Rule title Approval date FR citation
----------------------------------------------------------------------------------------------------------------
Regulation 2, Rule 1 (Rule 2-1)............... Permits, General Requirements... 8/1/2016 81 FR 50339
Regulation 2, Rule 2 (Rule 2-2)............... Permits, New Source Review...... 8/1/2016 81 FR 50339
Regulation 2, Rule 4 (Rule 2-4)............... Permits, Emissions Banking...... 12/4/2017 82 FR 57133
----------------------------------------------------------------------------------------------------------------
C. What is the purpose of the submitted rule revisions?
This SIP submittal is intended to correct deficiencies previously
identified by the EPA in our August 1, 2016, limited approval and
limited disapproval ction for Rules 2-1 and 2-2 (81 FR 50339), and our
December 4, 2017, conditional approval action for Rule 2-4 (82 FR
57133).
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rules?
The evaluation criteria for the submitted rules includes compliance
with the CAA's requirements for SIPs in CAA sections 110(a)(2), 110(l),
and 193. In addition, the EPA evaluated the submitted rules for
consistency with the regulatory provisions of 40 CFR part 51, subpart I
(Review of New Sources and Modifications) (i.e., 40 CFR 51.160-51.166)
and 40 CFR 51.307.
B. Do the rules meet the evaluation criteria?
In our previous August 1, 2016, and December 4, 2017, actions we
evaluated prior submissions of the submitted rules in accordance with
the CAA and regulatory requirements listed in Section II.A of this
document. In those actions, we determined that for the most part the
submitted rules satisfied the applicable requirements for NSR permit
programs. However, in each action we identified certain deficiencies
that prevented full approval. For both of the previous actions, we list
the identified deficiencies and evaluate whether the submitted rule
revisions correct the deficiency. We also evaluate any additional rule
revisions and whether the submittal complies with the requirements of
sections 110(a)(2), 110(l) and 193 of the CAA.
1. Regulation 2, Rules 1 and 2
Our August 1, 2016 action identified the following eleven
deficiencies in Rules 2-1 and 2-2.
First, the definitions of ``agricultural source'' in Section 2-1-
239 and ``large confined animal facility'' used in Section 2-1-424 rely
on other definitions and provisions in District rules that are not SIP
approved.
Second, Section 2-1-234, subparagraph 2.2, is deficient because it
[[Page 8824]]
does not satisfy the PSD provisions at 40 CFR 51.166(a)(7) and
51.166(r)(6) & (7), which require PSD programs to contain specific
applicability procedures and recordkeeping provisions.
Third, the same deficiency discussed above for the PSD provisions
applies to the nonattainment NSR provisions. Section 2-1-234,
subparagraph 2.1, does not satisfy the requirements of 40 CFR
51.165(a)(2) and 51.165(a)(6) & (7), which require nonattainment NSR
programs to contain specific applicability procedures and recordkeeping
provisions.
Fourth, the definition of the term ``PSD pollutant'' as defined in
Section 2-2-223, which is used in place of the federal definition for
the term ``regulated NSR pollutant,'' is deficient because it
explicitly excludes nonattainment pollutants.
Fifth, Section 2-2-305 does not require written approval of the
Administrator prior to using any modified or substituted air quality
model as provided in subsection 3.2.2 of 40 CFR part 51, appendix W.
Sixth, Section 2-2-611 does not include the requirement regarding
``any other stationary source category which as of August 7, 1980, is
being regulated under section 111 or 112 of the Act'' in the list of
source categories that must include fugitive emissions to determine
whether a source is a major facility.
Seventh, Section 2-2-401.4 only requires a visibility analysis for
sources that are located within 100 km of a Class I area, rather than
for any source that ``may have an impact on visibility'' in any
mandatory Class I Federal Area, as required by 40 CFR 51.307(b)(2).
Eighth, Section 2-2-411 pertaining to Offset Refunds does not
contain any timeframe for obtaining an offset refund.
Ninth, the Offset Program Equivalence demonstration required by
Section 2-2-412 does not provide a remedy if the District fails to make
the required demonstration.
Tenth, Subsection 2-2-605.2 allows existing ``fully-offset''
sources to generate ERCs based on the difference between the post-
modification PTE and the pre-modification PTE. Emission reductions
intended to be used as offsets for new major sources or major
modifications are only creditable if they are reductions of actual
emissions, not reductions in the PTE of a source.
Eleventh, Subsection 2-2-606.2, as it applies to major
modifications, does not require ``fully-offset'' sources to calculate
the emission increases from a proposed major modification based on the
difference between the post-modification PTE and the pre-modification
actual emissions as required by 40 CFR 51.165(a)(3)(ii)(J).
To address the first deficiency, the definition of ``agricultural
source'' in Section 2-1-239 and the reference to ``large confined
animal facility'' used in Section 2-1-424 have been revised to remove
references to ``Regulation 2, Rule 10,'' which is not SIP approved. The
District made additional edits to both of these provisions, as well as
Subsection 2-1-113.1.2, to provide additional information due to the
removal of the references to Regulation 2, Rule 10. These revisions
cure this deficiency because the rules no longer reference rules which
are not SIP approved.
To address the second deficiency, Section 2-1-234 has been revised
by adding two new subparagraphs (2.3 and 2.4) to include the specific
applicability procedures and recordkeeping provisions required by 40
CFR 51.166(a)(7) and 51.166(r)(6) & (7). These two new subparagraphs
are acceptable to cure this deficiency.
To address the third deficiency, Section 2-1-234 has been revised
by adding two new subparagraphs (2.3 and 2.4) to include the specific
applicability procedures and recordkeeping provisions required by 40
CFR 51.165(a)(2) and 51.165(a)(6) & (7). These two new subparagraphs
are acceptable to cure this deficiency.
To address the fourth deficiency, Section 2-2-224 has been revised
to reference the term ``Regulated NSR Pollutant'' rather than ``PSD
pollutant.'' This revision cures the deficiency by ensuring that a
Major PSD Facility determination (as specified in Subsection 224.1) is
based on emissions of all regulated NSR pollutants, including any
nonattainment pollutant.
To address the fifth deficiency, Section 2-2-305.3--Air Quality
Models, has been revised to require written EPA approval prior to using
any modified or substituted air quality model. This revision cures this
deficiency.
To address the sixth deficiency, Section 2-2-611 has been revised
to add the following language: ``or is in any other stationary source
category that was being regulated under section 111 or 112 of the Clean
Air Act as of August 7, 1980.'' This revision cures this deficiency by
adding the missing required language.
To address the seventh deficiency, Section 2-2-401.4 has been
revised to indicate an analysis of potential impacts to air quality
related values is required for a project which ``may have an impact on
air quality related values (including visibility) within any Class I
area(s),'' rather than only projects located within 100 km of a Class I
area. In addition, language has been added to this section to clarify
how such a determination is to be made by referencing the guidelines
adopted by the Federal Land Managers Air Quality Related Values Work
Group. These revisions cure this deficiency.
To address the eighth deficiency, Section 2-2-411.1 has been
revised to specify that if excess offsets are provided, an offset
refund request must be made within 2 years of the issuance of the
authority to construct or within 6 months of issuance of the permit to
operate. Section 2-2-411.2 has been revised to specify that if a source
is never constructed or operated, and the authority to construct for
the source has expired or been surrendered, an offset refund request
must be made within 2 years of the issuance or renewal of the authority
to construct. These revisions cure this deficiency.
To address the ninth identified deficiency, Section 2-2-415--
Additional Offset Requirements Where District Has Not Demonstrated
NOX, POC or PM2.5 Offset Program Equivalence, has
been added to specify that if the demonstration required by Section 2-
2-412 is not made by March 1 of each year (or other EPA-approved date),
the Air Pollution Control Officer (APCO) shall require additional
offsets for any subsequent Authority to Construct and/or Permit to
Operate for a Federal Major NSR Source sufficient to make up for (i)
any Federal Offsets Baseline Shortfall calculated pursuant to Section
2-2-229 and (ii) any Federal Surplus-at-Time-of-Use Shortfall
calculated pursuant to Section 2-2-230. The new provision also states
that this requirement shall continue until the District has made the
required equivalence demonstration.
These new provisions cure this deficiency because they ensure an
applicant will provide the full amount of federal offsets required for
a new project if the District fails to make the required annual
demonstration. The EPA recognizes that any shortfall for a year in
which the District does not provide an adequate demonstration will not
be immediately corrected, but it will be corrected prior to continued
usage of the offset equivalence demonstration. The EPA finds this
acceptable.
To address the tenth identified deficiency, Subsection 2-2-605.1
has been revised to clarify the requirements of an eligible emission
reduction credit and Subsection 2-2-605.2 has been revised to eliminate
a separate calculation methodology for ``fully-offset'' sources. The
provision has also been revised to specify that the amount
[[Page 8825]]
of emission reduction shall be calculated as the difference between:
(i) The source's adjusted baseline emissions before the change
calculated pursuant to Section 2-2-603; and (ii) the source's potential
to emit after the change. This revision cures this deficiency because
it ensures that the amount of ERC is based on actual emission
reductions.
To address the eleventh identified deficiency, the calculation
methodology specified in Subsection 2-2-606.2 was not revised. Instead,
Section 2-2-412--Demonstration of NOX, POC and
PM2.5 Offset Program Equivalence, was revised to require the
District to provide an annual demonstration that the District's NSR
program as a whole has obtained at least as many NOX, POC
and PM2.5 offsets as would have been required pursuant to
the provisions of 40 CFR 51.165 for federal major sources during the
previous calendar year. We note that although section 2-2-412 was
modified to include PM2.5, the revisions to Section 2-2-412
do not contain any provisions for demonstrating equivalency with
SO2 offset requirements. In section II.B.3 of this preamble
we discuss our reasoning for proposing approval of Rule 2-2 without
requiring an equivalency demonstration for SO2 offsets.
In addition, new definitions for the terms Federal Major NSR
Source, Federal Offsets Baseline Shortfall, Federal Surplus-at-Time of
Use Shortfall and Equivalence Credit were added to define these terms
as used in Section 2-2-412. We find these new definitions acceptable.
In the current SIP, the annual Offset Program Equivalence
Demonstration is only required to account for the difference between
the quantity of offsets obtained by the District using ERCs surplus
adjusted solely at the time of generation and the subset of those
offsets that continue to be surplus at the time of use. The new
provisions require the District to also calculate the difference
between the amount of offsets provided pursuant to the provisions of
Subsection 2-2-606.2, and the amount required pursuant to the
provisions of 40 CFR 51.165, when applied to new and modified major
sources. We have reviewed the language added to Section 2-2-412 and new
Section 2-2-415, and have determined that the provisions of Rule 2-2
will ensure that in the aggregate an equivalent number of ERCs will be
provided as would otherwise be required by a NSR program without an
equivalence mechanism that met the offset quantification provisions
specified in 40 CFR 51.165. We find that these revised and new
provisions are acceptable to cure this deficiency.
In addition to the revisions made to address the identified
deficiencies discussed above, the District made several additional
minor rule revisions. In Rule 2-1, the definitions for the terms
``Facility'' and ``New Source'' were revised to provide additional
clarification regarding portable equipment. The provisions of
Subsection 2-1-234.2 were revised to clarify which specific provisions
of 40 CFR 51.165 (for nonattainment pollutants) and 40 CFR 52.21 (for
other Federal NSR pollutants) must be used to determine if an emissions
increase from a project will result in a major modification as defined
in 40 CFR 51.165 or 52.21, as applicable. These revisions provide
important clarifications to ensure the provisions are enforceable, as
required by CAA section 110(a)(2)(C), and do not revise any of the
requirements for determining if a project will result in a major
modification. Therefore we find the revisions to Subsection 2-1-234.2
acceptable. Section 2-1-413--Permits for Operation of Equipment at
Multiple Locations Within the District, was revised by adding new
Subsection 413.7. This new provision ensures that equipment permitted
under this provision do not effectively become ``stationary source
equipment'' by residing at a single stationary source for more than 12
months. We find these revisions acceptable. Revisions were also made to
Section 2-1-424--Loss of Exemption or Exclusion to remove the reference
to non-SIP approved Rule 2-10, and provide additional clarification
regarding the applicability of this provision. These revisions do not
change the requirements of this section, therefore we find the
revisions acceptable.
In Rule 2-2, the definitions for the terms ``Adjustment to Emission
Reductions for Federal Purposes'' and ``Fully Offset Source'' were
deleted because the rule no longer uses these terms. In Section 2-2-
214, the definition of ``Greenhouse Gases'' was revised to remove the
requirement that such gases be measured on a mass basis consistent with
the Supreme Court's decision in Utility Air Regulatory Group v. EPA,
and the subsequent Judgment in the United States Court of Appeals for
the District of Columbia Circuit in Coalition for Responsible
Regulation, Inc. v. EPA regarding the treatment of GHGs in the PSD
program.\1\
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\1\ In 2014 the U.S. Supreme Court issued a ruling in Utility
Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014) that interpreted
several relevant provisions of the federal Clean Air Act regarding
the Act's PSD permit program requirements. On April 10, 2015, the
D.C. Circuit Court of Appeals effectuated the Supreme Court's
judgment by vacating portions of the EPA's PSD regulations
addressing GHGs. See Coalition for Responsible Regulation, Inc. v.
EPA, 606 Fed. Appx. 6 (Apr. 10, 2015).
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2. Regulation 2, Rule 4
Our December 4, 2017 action identified the following three
deficiencies in Rule 2-4.
First, Rule 2-4 is deficient because it defines the term ERCs as
emission reductions ``that are in excess of the reductions required by
applicable regulatory requirements, and that are real, permanent,
quantifiable, and enforceable,'' but does not contain any enforceable
provisions requiring the APCO to determine that the emission reductions
under review meet the offset integrity criteria prior to issuing an ERC
Certificate.
Second, Rule 2-4 is deficient because it incorporates the deficient
emission reduction calculation procedures found in Rule 2-2 subsection
605.2. This deficiency in Rule 2-2-605.2 is discussed in Section II.B.1
of the present document, and is identified as deficiency number ten.
Third, Rule 2-4 is deficient because Section 2-4-302.3 allows ERC
Certificates to be issued that do not adequately ensure the permanency
of an emission reduction due to a facility closure.
To address the first deficiency, Section 2-4-301 has been revised
by adding language clarifying that emission reductions may be banked
only if the APCO determines (i) that the reductions satisfy all of the
criteria necessary to constitute Emission Reduction Credits as defined
in Section 2-2-211, including but not limited to the requirements that
the reductions are real, permanent, quantifiable, and enforceable, and
are calculated in accordance with Section 2-2-605; and (ii) that
banking the reductions is not prohibited by Section 2-4-303. These
revisions cure this deficiency because they ensure that emission
reductions may only be banked after the APCO determines the offset
integrity criteria have been met.
To address the second deficiency, Section 2-2-605.2 has been
revised to eliminate a separate calculation methodology for ``fully-
offset'' sources. This revision is discussed in more detail in section
II.B.1 of the present document in the discussion of deficiency number
ten. Because the second identified deficiency in Rule 2-4 stems from
the incorporation of a deficiency in Section 2-2-605.2, and we found in
Section
[[Page 8826]]
II.B.1 above that the District's amendments to Rule 2-2 cure this
deficiency, we also find that the corresponding deficiency cited in
Rule 2-4 pertaining to how the quantity of an emission reduction is
calculated has been cured.
To address the third identified deficiency, Section 2-4-302.3 has
been removed from Rule 2-4. This revision cures this deficiency by
removing the deficient provision.
In addition to the revisions to Rule 2-4 discussed above, the
District deleted Section 301.7, which provided an example of a bankable
emission reduction. Because this was only an example, this deletion has
no effect on the approvability of Rule 2-4.
Our December 4, 2017, conditional approval action (82 FR 57133) was
predicated on the state's commitment to submit SIP revisions to cure
the three identified deficiencies. Because we are proposing to find
that the present submission cures these deficiencies, we also propose
to find that the state has fulfilled its commitment. If finalized as
proposed, the EPA would fully approve the submitted version of Rule 2-4
into the SIP, curing the previously identified deficiencies, and remove
the conditional approval contained in 40 CFR 52.248(c).
3. Requirements of 40 CFR 51.165(a)(13)
For any area designated nonattainment for PM2.5, 40 CFR
51.165(a)(13) requires a nonattainment NSR program to require the same
control requirements applicable to major stationary sources and major
modifications of PM2.5 to all PM2.5 precursors. A
permitting authority may exclude a specific precursor from this
requirement if they submit--and the EPA approves--a precursor
demonstration that meets the conditions for a nonattainment NSR
precursor demonstration as set forth in 40 CFR 51.1006(a)(3). In our
August 1, 2016 action we found that Rule 2-2 satisfied the requirements
of CAA section 189(e), which are now enacted through 40 CFR
51.165(a)(13), for SO2, NOX, and VOC, and we
approved a demonstration for ammonia allowing it to be excluded from
this requirement.\2\ A nonattainment NSR precursor demonstration must
``evaluate the sensitivity of PM2.5 levels in the
nonattainment area to an increase in emissions of a particular
precursor.'' If the changes ``are not significant, based on the facts
and circumstances of the area, the state may use that information to
identify new major stationary sources and major modifications of [that]
precursor that will not be considered to contribute significantly to
PM2.5 levels that exceed the standard in the nonattainment
area.'' As part of the current SIP submittal, the District has provided
an analysis in accordance with the requirements of 40 CFR
51.1006(a)(3).\3\
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\2\ See 80 FR 52236, 52242-3 (August 28, 2015), 81 FR 50339,
50341.
\3\ Final Report: Demonstration of SO2 Precursor Contributions
to PM2.5 in the San Francisco Bay Area, Bay Area Air Quality
Management District, with technical assistance from Ramboll Environ,
November 30, 2017.
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The analysis used the Community Multiscale Air Quality (CMAQ) Model
and California Puff Model (CALPUFF) to model the impacts of 7 new
greenfield sources emitting 370 tpy of SO2 along with a 20%
increase of current SO2 emissions from existing sources to
determine if such increases would contribute significantly to
PM2.5 levels that exceed the standard in the area. The
District provided reasoned explanations for choosing the number, size
and location of the new sources to be modeled. For the CMAQ and CALPUFF
modeling, the maximum contribution was just under 0.6 [micro]g/m\3\ and
0.68 [micro]g/m\3\, respectively. Both of these contribution estimates
are well under the recommended insignificance threshold of 1.3
[micro]g/m\3\ contained in EPA's draft PM2.5 Precursor Demonstration
Guidance.\4\
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\4\ Draft PM2.5 Precursor Demonstration Guidance, EPA-454/P-16-
001, U.S. EPA OAQPS, November 17, 2016, available at https://www.epa.gov/pm-pollution/draft-pm25-precursor-demonstration-guidance.
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Based on the information provided in the District's submitted
analysis, EPA is proposing to approve the District's demonstration that
SO2 emissions from new and modified major SO2
sources will not contribute significantly to 24-hour PM2.5
concentrations exceeding the standard in the area. A more detailed
summary of the District's demonstration and the EPA's analysis can be
found in the docket for this action.
Based on our approval of the District's non-significance
demonstration for SO2, we find it acceptable that Section 2-
2-412--Demonstration of NOX, POC and PM2.5 Offset
Program Equivalence, does not require an annual demonstration that an
equivalent number of SO2 offsets are required under Rule 2-
2, as would otherwise be required under a fully compliant nonattainment
NSR program. While Section 2-2-303 requires offsets for SO2
emissions (as required by state law), the District will not be required
to include any offsets provided for SO2 major sources in the
annual equivalency demonstration required by Section 2-2-412--
Demonstration of NOX, POC and PM2.5 Offset
Program Equivalence.
4. Sections 110(a)(2) and 110(l) of the Act
We are proposing to find that Regulation 2, Rules 1, 2 and 4
satisfy the requirements of sections 110(a)(2) and 110(l) of the CAA.
These sections state that each SIP revision submitted by a State shall
be adopted by such State after reasonable notice and public hearing.
Section 110(l) also states that the Administrator shall not approve a
SIP revision if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other CAA applicable requirement.
With respect to the procedural requirements of CAA sections
110(a)(2) and 110(l), based on our review of the public process
documentation included in the December 14, 2017 SIP submittal package,
we find that BAAQMD has provided sufficient evidence of public notice
and opportunity for comment and public hearings prior to adoption and
submittal of these rules to the EPA.
With respect to the substantive requirements of section 110(l), we
have determined that our approval of the BAAQMD NSR SIP submittal
represents a strengthening of BAAQMD's NSR program as compared to the
District's current SIP-approved NSR program that was last approved on
August 1, 2016, and that the revision would not interfere with any
applicable CAA requirement. Therefore we are proposing full approval of
the BAAQMD NSR SIP submittal under section 110(l) of the Act.
5. Section 193 of the Act
Section 193 of the Act includes a savings clause which provides, in
pertinent part: ``No control requirement in effect, or required to be
adopted by an order, settlement agreement, or plan in effect before
November 15, 1990, in any area which is a nonattainment area for any
air pollutant may be modified after November 15, 1990, in any manner
unless the modification insures equivalent or greater emission
reductions of such air pollutant.''
We have reviewed the provisions included in BAAQMD's NSR SIP
submittal and find that they would ensure equivalent or greater
emission reductions compared to the current SIP-approved NSR program.
The BACT and offset requirements of the submitted rules, which are the
primary control requirements of a NSR program, are equivalent to or
more stringent than those contained in the existing SIP-approved NSR
rules. Therefore, we can
[[Page 8827]]
approve the submitted NSR program under section 193 of the Act.
III. Proposed Action and Public Comment
As authorized in section 110(k)(3) of the Act, the EPA is proposing
to fully approve the submitted rules because we believe they fulfill
all relevant requirements. In support of this proposed action, we have
concluded that our approval of the submitted rules would comply with
sections 110(a)(2), 110(l) and 193 of the Act because the amended rules
would not interfere with any applicable requirement concerning
attainment of the NAAQS in the Bay Area, and do not relax control
technology and offset requirements. If we finalize this action as
proposed, our action would be codified through revisions to 40 CFR
52.220 (Identification of plan--in part), and removal of the
conditional approval contained in 40 CFR 52.248(c).
We will accept comments from the public on the proposed approval of
Rules 2-1, 2-2, and 2-4 for the next 30 days.
IV. Incorporation by Reference
In this rule the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the BAAQMD rules listed in Table 1 of this preamble. The EPA
has made, and will continue to make, these materials available
electronically through www.regulations.gov and in hard copy at the EPA
Region IX Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely proposes to approve state law
as meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide the EPA with the discretionary authority
to address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 20, 2018.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2018-04112 Filed 2-28-18; 8:45 am]
BILLING CODE 6560-50-P
