Approval, Limited Approval and Limited Disapproval of California Air Plan Revisions; Mojave Desert Air Quality Management District; Stationary Source Permits, 72434-72439 [2022-25382]

Download as PDF khammond on DSKJM1Z7X2PROD with PROPOSALS 72434 Federal Register / Vol. 87, No. 226 / Friday, November 25, 2022 / Proposed Rules materials authorized under the General rule for open burning for pleasure or celebratory purposes but excludes cooking fires and fires used for debris disposal purposes. Although recreational fires are no longer included in the list of exemptions, there is no substantive difference in how they are addressed under the proposed revisions. As under the current rule, the materials that may be burned in a recreational fire have not changed and recreational fires remain prohibited when burn bans are in effect. Recreational fires remain exempt from the more specific requirements in paragraph (e)(1) of this section that apply to open burns, such as the provisions regarding smoldering. The EPA has also added a proposed exemption for fires set as part of a firefighting strategy (e.g., back burn, fire break, or safety perimeter burn), but only if approved by the appropriate fire safety jurisdiction and under an emergency or incident command situation. Such fires may reduce the duration or size of uncontrolled fires and therefore may have a positive impact on levels of particulate matter overall. The EPA is also proposing revisions to the provisions of this rulemaking that specify the requirements for conducting open burning. The proposed revisions clarify that a burn ban declared by the Regional Administrator remains in effect until the Regional Administrator makes a new determination and terminates the burn ban, as well as to describe the methods the EPA uses to announce a burn ban and its termination. The EPA is also adding language to clarify that a burn ban can be declared for specific geographic areas within an Indian reservation. We are also clarifying that burn bans are based on the 24-hour PM NAAQS and that the time period for projections of air quality levels is a maximum of 72 hours. These clarifications are consistent with the intent of the rule and how it has been implemented in practice. The EPA has heard concerns that the criterion for triggering burn bans, specifically 75% of any 24-hour PM NAAQS, could be overly conservative and impede the increased use of prescribed fire to help reduce the risk of wildfire within the Indian reservations covered by the FARR by reducing the number of available burn days. As mentioned previously, the EPA is currently reviewing the PM NAAQS and there are additional concerns that if that review results in a lower level of the 24hour PM NAAQS, the number of available burn days could be further reduced. VerDate Sep<11>2014 17:08 Nov 23, 2022 Jkt 259001 The purpose of a burn ban is to protect human health and air quality by preventing emissions from open burning from pushing PM concentrations above the level of the NAAQS, so it is important to call a burn ban before concentrations reach the level of the NAAQS. The EPA acknowledges that there are a number of other criteria for declaring burn bans that could also accomplish this objective. The EPA is therefore soliciting comment on changing the criteria to whether PM concentrations exceed or are projected to exceed the NAAQS anytime during the next 72 hours. Because the meteorological forecasting tools and availability of real-time air monitoring data have improved significantly since 2005 when the FARR was promulgated, relying on projections of the PM NAAQS, rather than a percentage below the PM NAAQS, for calling burn bans may also provide reasonable assurance that emissions from open burning will not cause or contribute to an exceedance of the PM NAAQS. This revision would potentially reduce the number of burn bans and thus increase the available days during which prescribed burning could be conducted. The EPA is also proposing revisions to account for the fact that, in certain defined instances (e.g., multi-day fires) and with the appropriate permits, a fire is allowed to smolder when it would have less impact on air quality than putting the fire out and relighting it. The revisions would also explicitly require that a person 18 years of age or older must be in attendance of the fire at all times; that there be means available for extinguishing the fire, such as water or chemical fire suppressant; and that a fire be extinguished if safe to do so, at the request of the EPA based on a determination that the open burning is causing or has the potential to cause or contribute to an exceedance of a national ambient air quality standard. When relevant, the EPA will also request that a fire be extinguished if safe to do so, based on a determination that the open burning is causing any other adverse impact on air quality. These simple precautions help ensure that fires are responsibly managed, considering changing adverse meteorological conditions, other scheduled burning activities in the surrounding area and other factors that could impact a burn. For burns that could significantly impair visibility on roadways, coordination with traffic safety authorities must take place before igniting a burn in order to provide an opportunity for such authorities to require appropriate transportation safety PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 measures. ‘‘Small open burns’’, as defined in 40 CFR 49.123, are exempt from this requirement. Because of the limited size of small open burns, the amount of material consumed would not be expected to cause a plume large enough and dense enough to impair visibility on roadways. Finally, the EPA is clarifying that nothing in the open burning rule exempts or excuses any person from complying with applicable laws and ordinances of Tribal governments. This was already encompassed in the language in the existing rule stating that nothing in the open burning rule ‘‘exempts or excuses any person from complying with applicable laws and ordinances of . . . other governmental jurisdictions.’’ The proposed revision is being made for clarity here, as well as in the following burn permit sections.4 Dated: November 17, 2022. Casey Sixkiller, Regional Administrator, Region 10. [FR Doc. 2022–25584 Filed 11–23–22; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2022–0338; FRL–10269– 01–R9] Approval, Limited Approval and Limited Disapproval of California Air Plan Revisions; Mojave Desert Air Quality Management District; Stationary Source Permits Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing an approval and a limited approval and limited disapproval of a revision to the Mojave Desert Air Quality Management District (MDAQMD or ‘‘District’’) portion of the California State Implementation Plan (SIP). We are proposing approval of five rules and a limited approval and limited disapproval of five rules. These revisions concern the District’s New Source Review (NSR) permitting program for new and modified sources of air pollution under part D of title I of the Clean Air Act (CAA or ‘‘Act’’). If finalized, this action will update the MDAQMD’s current SIP with ten revised rules. We are taking comments SUMMARY: 4 The EPA also notes that nothing in the FARR or the proposed revisions restricts the exclusion of air quality monitoring data influenced by exceptional events as provided in 40 CFR 50.14. E:\FR\FM\25NOP1.SGM 25NOP1 72435 Federal Register / Vol. 87, No. 226 / Friday, November 25, 2022 / Proposed Rules on this proposal and plan to follow with a final action. DATES: Comments must be received on or before December 27, 2022. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R09– OAR–2022–0338 at https:// www.regulations.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. 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://www.epa.gov/dockets/ commenting-epa-dockets. If you need assistance in a language other than English or if you are a person with disabilities who needs a reasonable accommodation at no cost to you, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. La Weeda Ward, Permits Office (Air–3–1), U.S. Environmental Protection Agency, Region IX, (213) 244–1812, ward.laweeda@epa.gov. FOR FURTHER INFORMATION CONTACT: Table of Contents I. The State’s Submittal A. What rules are in the current SIP? B. What rules did the State submit? C. What is the purpose of the submitted rule revisions? II. The EPA’s Evaluation and Action A. What is the background for this proposal? B. How is the EPA evaluating the rules? C. Do the rules meet the evaluation criteria? D. What are the rule deficiencies? E. EPA recommendations to Further Improve the Rule F. Proposed Action and Public Comment III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. The State’s Submittal A. What rules are in the current SIP? Table 1 lists the rules in the current SIP with the dates they were adopted or amended by the MDAQMD, submitted by the California Air Resources Board (CARB) (the governor’s designee for California SIP submittals), and approved by the EPA. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to the EPA. TABLE 1—RULES IN THE CURRENT SIP 206—San Bernardino County. 206—Riverside County ....... 219—San Bernadino County. 219—Riverside County ....... Posting of Permit to Operate ......................... a 02/01/1977 06/06/1977 11/09/1978 43 FR 52237. Posting of Permit to Operate ......................... Equipment Not Requiring a Permit ................ 02/06/1976 a 02/01/1977 04/21/1976 6/6/1977 11/09/1978 11/9/1978 43 FR 52237. 43 FR 52237. 09/04/1981 10/23/1981 07/06/1982 47 FR 29231. 03/25/1996 03/25/1996 03/25/1996 03/25/1996 03/25/1996 03/25/1996 03/25/1996 06/28/1995 7/23/1996 7/23/1996 7/23/1996 7/23/1996 7/23/1996 7/23/1996 7/23/1996 8/10/1995 11/13/1996 11/13/1996 11/13/1996 11/13/1996 11/13/1996 11/13/1996 11/13/1996 01/22/1997 61 61 61 61 61 61 61 62 .................................... .................................... .................................... .................................... .................................... .................................... .................................... .................................... Equipment Not Requiring a Written Permit Pursuant to Regulation II. General .......................................................... Definitions ...................................................... Procedure ....................................................... Requirements ................................................. Emissions Calculations .................................. Emission Offsets ............................................ Electric Energy Generating Facilities ............. Emission Reduction Credit Registry .............. Submittal date Federal Register citation Rule title 1300 1301 1302 1303 1304 1305 1306 1402 Adoption date EPA action date Rule No. FR FR FR FR FR FR FR FR 58133. 58133. 58133. 58133. 58133. 58133. 58133. 3215. a These rules were adopted by CARB Ex. Ord. G–73 on 2/1/1977 and substituted into the 6/6/1977 submittal to the EPA after the original adoption date of 1/9/1976 because the two versions were identical, and the earlier version was submitted on behalf of the SoCalAPCD (42 FR 1273). B. What rules did the State submit? Table 2 lists the rules addressed by this proposal with the dates they were adopted by the MDAQMD or predecessor agency and submitted by the CARB. khammond on DSKJM1Z7X2PROD with PROPOSALS TABLE 2—SUBMITTED RULES Rule No. Rule title 206 ......................... 219 ......................... 1300 ....................... 1301 ....................... 1302 ....................... 1303 ....................... 1304 ....................... 1305 ....................... Posting of Permit to Operate .............................................................................................. Equipment Not Requiring a Permit ..................................................................................... General ................................................................................................................................ Definitions ............................................................................................................................ Procedure ............................................................................................................................ Requirements ...................................................................................................................... Emissions Calculations ....................................................................................................... Emission Offsets ................................................................................................................. VerDate Sep<11>2014 17:08 Nov 23, 2022 Jkt 259001 PO 00000 Frm 00022 Fmt 4702 Adopted date Sfmt 4702 E:\FR\FM\25NOP1.SGM 25NOP1 02/22/2021 01/25/2021 03/22/2021 03/22/2021 03/22/2021 03/22/2021 03/22/2021 03/22/2021 Submitted date a 10/15/2021 07/23/2021 07/23/2021 07/23/2021 07/23/2021 07/23/2021 07/23/2021 07/23/2021 72436 Federal Register / Vol. 87, No. 226 / Friday, November 25, 2022 / Proposed Rules TABLE 2—SUBMITTED RULES—Continued Rule No. Rule title Adopted date 1306 ....................... 1402 ....................... Electric Energy Generating Facilities .................................................................................. Emission Reduction Credit Registry ................................................................................... 03/22/2021 05/19/1997 Submitted date a 07/23/2021 08/05/1997 a The submittal for Rules 219, 1300, 1301, 1302, 1303, 1304, 1305, and 1306 was transmitted to the EPA via a letter from CARB dated July 22, 2021, and received by the EPA on July 23, 2021. Rule 206 was transmitted electronically on October 15, 2021 as an attachment to a letter dated October 14, 2021. Rule 1402 was submitted on August 1, 1997 and received by EPA on August 5, 1997. The EPA has promulgated specific procedural requirements for the completeness determination of SIP submissions pursuant to 40 CFR part 51, subpart F and Appendix V which must be met before formal EPA review. The completeness criteria pursuant to 40 CFR part 51 Appendix V were met as follows: 1. On January 23, 2022, the submittal of the MDAQMD Rules 219, 1300, 1301, 1302, 1303, 1304, and 1305 on July 23, 2021, was deemed complete by operation of law. 2. On April 15, 2022, the submittal of the MDAQMD Rule 206 on October 15, 2021, was deemed complete by operation of law. 3. On February 5, 1998, the submittal of Rule 1402 on August 5, 1997, was deemed complete by operation of law. khammond on DSKJM1Z7X2PROD with PROPOSALS C. What is the purpose of the submitted rule revisions? The rules listed in Table 2 are intended to replace the SIP-approved rules listed in Table 1. The submitted rules are intended to satisfy the minor NSR and non-attainment NSR (NNSR) requirements of section 110(a)(2)(C) and part D of title I of the Act, and the EPA’s implementing regulations at title 40 of the Code of Federal Regulations (CFR) part 51, subpart I.1 Minor NSR requirements are generally applicable for SIPs in all areas, while NNSR requirements apply only in areas designated as nonattainment for one or more National Ambient Air Quality Standards (NAAQS). The MDAQMD is currently designated Severe nonattainment for the 2008 and 2015 ozone NAAQS, and Moderate nonattainment for the 1987 PM10 NAAQS.2 Therefore, the designation of MDAQMD as federal ozone and PM10 nonattainment areas triggered the requirement for the District to develop and submit an NNSR program to the EPA for approval into the California SIP. 1 CARB, at the request of the District, also submitted a PSD rule for SIP inclusion (MDAQMD Rule 1600, ‘‘Prevention of Significant Deterioration (PSD)’’). We intend to take action on the District’s PSD rule in a subsequent rulemaking. 2 40 CFR 81.305. VerDate Sep<11>2014 17:08 Nov 23, 2022 Jkt 259001 II. The EPA’s Evaluation and Action A. What is the background for this proposal? On October 26, 2015, the EPA finalized a revised 8-hour NAAQS for ozone, which was lowered from 0.75 parts per billion (ppb) to 0.70 ppb.3 On June 4, 2018, portions of the West Mojave Desert, under the jurisdiction of the MDAQMD, were designated as nonattainment for 2015 8-hour ozone NAAQS 4 and classified Severe-15.5 This designation became effective on August 3, 2018. On December 6, 2018, the EPA finalized the implementation rule for the 2015 ozone NAAQS, which required the MDAQMD to submit a New Source Review (NSR) certification to the EPA by August 3, 2021.6 The District’s July 23, 2021 submittal is intended to satisfy this requirement. B. How is the EPA evaluating the rules? The EPA reviewed the rules listed in Table 2 for compliance with the CAA 3 80 FR 65292. the 1979 1-hour ozone standard and the 1997 8-hour ozone standard are revoked in most areas of California including in the MDAQMD jurisdiction. Footnote 4 in 40 CFR 81.305 states: ‘‘The 1-hour ozone standard is revoked effective June 15, 2005, for all areas in California. The Monterey Bay, San Diego, and Santa Barbara-Santa Maria-Lompoc areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X.’’ The 1997 Ozone standard was revoked with the implementation of the 2008 Ozone standard (see 80 FR 12263, March 6, 2015), however the preamble makes the following distinction: ‘‘After revocation of the 1997 standard, the designations (and the classifications associated with those designations) for that standard are no longer in effect, and the sole designations that remain in effect are those for the 2008 ozone NAAQS. However, the EPA is retaining the listing of the designated areas for the revoked 1997 ozone NAAQS in 40 CFR part 81, for the sole purpose of identifying the anti-backsliding requirements that may apply to the areas at the time of revocation. Accordingly, such references to historical designations for the revoked standard should not be viewed as current designations under CAA section 107(d).’’ It is also important to note that most of the SIP elements per the 2008 Ozone NAAQS are included in the plan elements per the 2015 Ozone NAAQS. The list of anti-backsliding provisions required for areas transitioning from the 1997 Ozone standard to the 2008 Standard are codified at 40 CFR 51.1105. 5 83 FR 25776. A classification of Severe-15 under the 2015 Ozone NAAQS is an area with a design value of 0.105 up to but not including 0.111 ppm. 6 83 FR 62998. 4 Both PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 requirements as follows: (1) stationary source preconstruction permitting programs as set forth in CAA part D of title I, including CAA sections 172(c)(5), 173, 182(c)(6), and 182(d); (2) the review and modification of major sources in accordance with 40 CFR 51.160–51.165 as applicable in Severe ozone and Moderate PM10 nonattainment areas; (3) the review of new major stationary sources or major modifications in a designated nonattainment area that may have an impact on visibility in any mandatory Class I Federal Area in accordance with 40 CFR 51.307; (4) SIPs in general as set forth in CAA section 110(a)(2), including 110(a)(2)(A) and 110(a)(2)(E)(i); and (5) SIP revisions as set forth in CAA sections 110(l) and 193; and (6) the definition of ‘‘stationary source’’ pursuant to CAA section 302(z). We also evaluated the submittal for compliance with the NNSR requirements applicable to Severe ozone and Moderate PM10 nonattainment areas and ensured that the submittal addressed the NNSR requirements for the 2008 and 2015 ozone NAAQS. C. Do the rules meet the evaluation criteria? The EPA has reviewed the submitted rules listed in Table 2 in accordance with the rule evaluation criteria described in Section II.B of this notice. With respect to procedural requirements, CAA sections 110(a)(2) and 110(l) require that revisions to a SIP be adopted by the state after reasonable notice and public hearing. Based on our review of the public process documentation included for the rules listed in Table 2, we find that the MDAQMD has provided sufficient evidence of public notice, opportunity for comment and a public hearing prior to adoption and submittal of these rules to the EPA. With respect to the substantive requirements found in part D of title 1 of the Act (including sections 172, 173, 182(c), and 182(d)); part A of title 1 of the Act (including sections 110(a)(2) and 110(a)(2)(E)(i)); section 302(z) contained in title III the Act; and 40 CFR 51.160–51.165 and 51.307, we have determined that the submitted District E:\FR\FM\25NOP1.SGM 25NOP1 Federal Register / Vol. 87, No. 226 / Friday, November 25, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS Rules 206, 219, 1300, 1306, and 1402 meet the evaluation criteria, while District Rules 1301, 1302, 1303, 1304, and 1305 mostly meet the criteria but contain deficiencies as detailed in Section II.D. D. What are the rule deficiencies? The EPA identified six deficiencies in the rules proposed for inclusion in the SIP. The first deficiency is the use of the term ‘‘contract’’ as interchangeable with the term ‘‘permit.’’ Specifically, the MDAQMD Rules 1302(D)(6)(a)(iii) and 1304(C)(4)(c) allow an owner and/or operator to obtain a valid permit or ‘‘contract’’ that would be enforceable by the District. The MDAQMD’s rules define Authority to Construct Permit (ATC) and Permit to Operate (PTO), but do not define term ‘‘contract’’ as interchangeable with the term ‘‘permit.’’ The use of the terms ‘‘ATC’’ and ‘‘PTO’’ refer to written ‘‘permits’’ in SIPapproved Rules 201, 202, and 203 7 and hence are the basis for enforceable mechanisms to implement the NSR program in the District. We find the term ‘‘contract’’ is not an acceptable alternative to the term ‘‘permit’’ and thus the language in MDAQMD Rules 1302(D)(6)(a)(iii) and 1304(C)(4)(c) is not approvable as a SIP revision. The second deficiency is the calculation procedures specified to determine the amount of offsets required in certain situations. Specifically, the requirements at 40 CFR 51.165(a)(3)(ii)(J) state that the total tonnage of increased emissions resulting from a major modification that must be offset shall be determined by summing the difference between the allowable emissions after the modification and the actual emissions before the modification for each emissions unit. In other words, federal regulations require an ‘‘actual-topotential’’ test using a baseline of actual emissions when determining the amount of offsets required for a project. Rule 1304 allows a potential-topotential test for calculating the quantity of offsets required in some situations. Specifically, the calculation procedures for Simultaneous Emission Reductions (SERs) at Rule 1304(C)(2)(d), applies a potential-to-potential test under certain circumstances.8 Rule 1304 uses a potential-to-potential test for calculating the quantity of SERs that can be used as offsets for a ‘‘Modified Major Facility.’’ Pursuant to Rule 1304(C)(2)(d), SERs at a Modified Major 7 Rule 201, ‘‘Permit to Construct,’’ Rule 202, ‘‘Temporary Permit to Operate,’’ and Rule 203, ‘‘Permit to Operate’’ were approved into the California State Implementation Plan by the EPA on 11/9/1978, 43 FR 52237. 8 Rule 1301(OOO) provides the definition of SER. VerDate Sep<11>2014 17:08 Nov 23, 2022 Jkt 259001 Facility are calculated using the potential to emit (PTE) in place of Historic Actual Emissions (HAE). Calculating emissions decreases using a potential emissions baseline allows reductions ‘‘on paper’’ that do not represent real emissions reductions. Under CAA section 173(c)(1), such paper reductions cannot be used to offset actual emission increases. Deviations from federal definitions and requirements are generally approvable only if a state specifically demonstrates that the submitted provisions are more stringent, or at least as stringent, in all respects as the corresponding federal provisions and definitions.9 The District has not made any demonstration showing how the methodology in these rules is as stringent as the requirements of 40 CFR 51.165(a)(3)(ii)(J) and section 173(c)(1) of the Act. Furthermore, the allowance of the potential-to-potential test does not conform with the requirements of 40 CFR 51.165(a)(1)(vi)(E)(1), which states that ‘‘[a] decrease in actual emissions is creditable only to the extent that the old level of actual emission or the old level of allowable emissions whichever is lower, exceeds the new level of actual emissions.’’ Also, the calculation method in Rule 1304(C)(2)(d) allows a source to appear as if it is not undergoing a modification as defined under Rule 1301(NN). In this scenario, a facility could circumvent the requirement to offset emissions increases if potential emissions increases from a project are negated by contemporaneous emissions decreases that utilize SERs calculated using a potential-to-potential test. We describe a related deficiency in the discussion of the ‘‘third deficiency’’ below. Thus, the provisions in Rule 1304(C)(2)(d) are inconsistent with the requirements of 40 CFR 51.165(a)(3)(ii)(J) and section 173(c)(1) of the Act. As described in the Technical Support Document (TSD), which can be found in the docket for this rulemaking, the deficiency identified in Rule 1304, through crossreferences, also causes related deficiencies in Rules 1301, 1302, 1303, and 1305. The third deficiency pertains to the definitions for ‘‘Major Modification’’ and ‘‘Modification (Modified)’’ pursuant to Rule 1301(NN) and 1301(JJ), respectively. We noted in the discussion of the second deficiency above that the methodology to determine the amount of offsets is deficient because it allows the use of SERs pursuant to Rule 1304. Specifically, a ‘‘net emissions increase’’ pursuant to Rule 1304(B)(2) allows SERs 9 40 PO 00000 CFR 51.165(a)(1), 51.165(a)(2)(ii). Frm 00024 Fmt 4702 Sfmt 4702 72437 ‘‘calculated and verified pursuant to [1304(C)(2)]’’ to be subtracted from the total of all ‘‘net emissions increases’’ at any given facility. The combined effect of calculating SERs according to Rule 1304 and the District’s procedure for determining a net emissions increase could allow a facility to subtract SERs, which can be paper reductions, from a proposed emission increase. This could result in an emission increase that is less than zero. The definition of ‘‘Modification (Modified)’’ excludes modifications that do not result in a ‘‘Net Emissions Increase,’’ which is defined in Rule 1301(QQ) as: ‘‘An emission change as calculated pursuant to District Rule 1304(B)(2) which exceeds zero.’’ If there is no net emissions increase, as defined in Rule 1301(QQ) and Rule 1304(B)(2), a permit applicant can avoid NSR requirements entirely (i.e., BACT, offsets, visibility, etc.) because it can effectively exclude the proposed project from being considered a ‘‘Modification’’ and hence a ‘‘Major Modification,’’ using calculation procedures that do not conform to the federal definition for Major Modification pursuant to 40 CFR 51.165(a)(1)(v)(A)(1); the calculation procedures for determining offsets pursuant to 40 CFR 51.165(a)(3)(ii)(J); and the criteria for determining the emission decreases that are creditable pursuant to 40 CFR 51.165(a)(1)(vi)(E)(1). Thus, the definitions for both ‘‘Major Modification’’ and ‘‘Modification (Modified)’’ are deficient because they result in non-conformance with these aforementioned federal requirements. The fourth deficiency is the definition of Historical Actual Emissions (HAE) pursuant to Rule 1304(D)(2)(a)(i). Rule 1304(D)(2)(a)(i) states, ‘‘The verified Actual Emissions of an Emissions Unit(s), averaged from the two-year period which immediately proceeds the date of application, and which is representative of Facility operations . . .’’ (emphasis added). While this appears to be a typographical error, it is a deficiency because it states it is the actual emissions averaged from the 2year period that immediately proceeds the date of application. The actual emissions must be based on emissions emitted preceding the date of application. This deficiency may be corrected by replacing the word ‘‘proceeds’’ with ‘‘precedes’’ in MDAQMD Rule 1304(D)(2)(a)(i). The fifth deficiency pertains to the use of interprecursor trading (IPT). Specifically, Rule 1305 section (C)(6) allows IPT between nonattainment pollutants and their precursors on a case-by-case basis. A footnote to this E:\FR\FM\25NOP1.SGM 25NOP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 72438 Federal Register / Vol. 87, No. 226 / Friday, November 25, 2022 / Proposed Rules section states: ‘‘Use of this subsection [is] subject to the Ruling in Sierra Club v. USEPA (D.C. Cir. Case #15–1465, 1/ 29/2021), Document #1882662 and subsequent guidance by USEPA.’’ On January 29, 2021, the D.C. Circuit Court of Appeals in Sierra Club v. EPA, 21 F.4th 815, vacated provisions of the 2018 Implementation Rule that allowed IPT for the ozone precursors VOC and NOX.10 We note that the EPA recently revised its NNSR regulations at 40 CFR 51.165(a)(11) to make them consistent with the Court’s decision,11 thus the provision in section (C)(6) of Rule 1305 allowing for IPT for ozone precursors is no longer permissible and must be revised to make clear that IPT is not permissible for ozone precursors. The sixth deficiency pertains to our evaluation of Rules 1300, 1301, 1302, 1303, 1304, and 1305 against the criteria contained in Clean Air Act sections 182(c)(6) and 182(d).12 Section 182(c) of the Act, which was added by the Clean Air Act Amendments of 1990, details the plan submission and requirements for Serious non-attainment areas. Specifically, CAA section 182(c)(6) contains the ‘‘De Minimis Rule,’’ which states NSR rules ‘‘shall ensure increased emissions of volatile organic compounds resulting from any physical change in, or change in the method of operation of, a stationary source located in the area shall not be considered de minimis for purposes of determining the applicability of the permit requirements established by this Act unless the increase in net emissions of such air pollutant from such source does not exceed 25 tons when aggregated with all other net increases in emissions from the source over any period of 5 consecutive calendar years which includes the calendar year in which such increase occurred.’’ Our evaluation of Rules 1300, 1301, 1302, 1303, 1304, and 1305 against the criteria contained in CAA sections 182(c)(6), and 182(d) shows the District rules are deficient as they do not contain de minimis SIP requirements. This deficiency may be corrected by incorporating de minimis SIP requirements pursuant to CAA section 182(c)(6) in the applicable Regulation XIII nonattainment NSR rule(s). Our TSD contains a more detailed discussion of the rule deficiencies as 10 83 FR 62998 (December 6, 2018). FR 37918 (July 19, 2021). 12 Section 182(d), also added by the Clean Air Act Amendments of 1990, details plan submission requirements for Severe non-attainment areas and includes all the provisions under section 182(c) for Serious non-attainment areas. Therefore, an analysis against CAA section 182(c)(6) constitutes an analysis against section 182(d). 11 86 VerDate Sep<11>2014 17:08 Nov 23, 2022 Jkt 259001 well as a complete analysis of the District’s submitted rules that form the basis for our proposed action. E. EPA Recommendations To Further Improve the Rules The TSD also includes recommendations for additional clarifying revisions to consider for adoption when the MDAQMD next amends Rules 1301, 1302, 1303, 1304, and 1305. F. Proposed Action and Public Comment The EPA is proposing approval of MDAQMD Rules 206, 219, 1300, 1306, and 1402 as authorized under Section 110(k)(3) of the Act. In addition, as authorized in sections 110(k)(3) and 301(a) of the Act,13 we are proposing a limited approval and limited disapproval of Rules 1301, 1302, 1303, 1304, and 1305 because although they fulfill most of the relevant CAA requirements and strengthen the SIP, they also contain deficiencies as discussed in Section II.D of this notice. We have concluded that our proposed action will result in a more stringent SIP and is consistent with the additional substantive requirements of CAA sections 110(l) and 193, while not relaxing any existing provision contained in the SIP; and will not interfere with any applicable attainment and reasonable further progress requirements; or any other applicable CAA requirement. In addition, our proposed action will not relax any preNovember 15, 1990 requirement in the SIP, and therefore changes to the SIP resulting from this action ensure greater or equivalent emission reductions of ozone and its precursors and PM10 and its precursors in the District. If finalized, this action would incorporate into the SIP the submitted rules listed in Table 2 for which we have proposed approval or limited approval/limited disapproval, codified through revisions to 40 CFR 52.220 (Identification of plan—in part), including those provisions identified as deficient. Our proposed approval of Rules 1301, 1302, 1303, 1304, and 1305 is limited and the EPA is simultaneously proposing a limited disapproval of Rules 1301, 1302, 1303, 1304, and 1305 pursuant to CAA section 110(k)(3) and 301(a). In conjunction with our SIP approval of the District’s visibility provisions for major sources subject to review under 13 If a portion of a plan revision meets all the applicable CAA requirements, CAA sections 110(k)(3) and 301(a) authorize the EPA to approve the plan revision in part and disapprove the plan revision in part. PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 the NNSR program, we also propose to revise 40 CFR 52.281(d) regarding applicability of the visibility Federal Implementation Plan (FIP) at 40 CFR 52.28 as it pertains to California to clarify that the FIP does not apply to MDAQMD. Approval of the District’s visibility provisions under 40 CFR 51.307 would mean that this FIP is not needed to satisfy the CAA visibility requirements at 40 CFR 51.307 for sources subject to the District’s NNSR program. This revision will clarify the application of this FIP in California following our final action. If we finalize this action as proposed, our limited disapproval actions would trigger an obligation on the EPA to promulgate a Federal Implementation Plan (FIP) unless the State corrects the deficiencies, and the EPA approves the related plan revisions, within two years of the final action. Additionally, for the deficiencies that relate to NNSR requirements under part D of title I of the Act, the offset sanction in CAA section 179(b)(2) would apply in the West Mojave Desert 14 18 months after the effective date of a final limited disapproval, and the highway funding sanctions in CAA section 179(b)(1) would apply in the area six months after the offset sanction is imposed. Section 179 sanctions will not be imposed under the CAA if the State submits, and we approve, prior to the implementation of the sanctions, a SIP revision that corrects the deficiencies that we identify in our final action. The EPA intends to work with the District to correct the deficiencies in a timely manner. We will accept comments from the public on this proposal until December 27, 2022. III. 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 MDAQMD rules listed in Table 1 of this preamble. These rules concern the District’s New Source Review (NSR) permitting program for new and modified sources of air pollution under part D of title I of the Clean Air Act (CAA or ‘‘Act’’). The EPA has made, and will continue to make, these materials available through www.regulations.gov and in hard copy at the EPA Region IX Office (please contact the person identified in the FOR FURTHER 14 The CAA section 179 sanctions will not extend to the portion of the MDAQMD that is in Riverside County known as the Palo Verde Valley in California. E:\FR\FM\25NOP1.SGM 25NOP1 Federal Register / Vol. 87, No. 226 / Friday, November 25, 2022 / Proposed Rules section of this preamble for more information). INFORMATION CONTACT IV. Statutory and Executive Order Reviews Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders. A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. B. Paperwork Reduction Act (PRA) This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law. C. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law. D. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action. E. Executive Order 13132: Federalism khammond on DSKJM1Z7X2PROD with PROPOSALS This action does not have federalism implications. It 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. F. Executive Order 13175: Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175, because 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, and will not impose VerDate Sep<11>2014 17:08 Nov 23, 2022 Jkt 259001 substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action. Dated: November 4, 2022. Martha Guzman Aceves, Regional Administrator, Region IX. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks BILLING CODE 6560–50–P The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of ‘‘covered regulatory action’’ in section 2–202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act (NTTAA) Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The state did not evaluate environmental justice considerations as part of its SIP submittal. There is no information in the record inconsistent with the stated goals of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples. List of Subjects in 40 CFR Part 52 Environmental protection, Administrative practice and procedure, Air pollution control, Carbon oxides, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 72439 [FR Doc. 2022–25382 Filed 11–23–22; 8:45 am] ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 705 [EPA–HQ–OPPT–2020–0549; FRL–7902–04– OCSPP] RIN 2070–AK67 TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances; Notice of Data Availability and Request for Comment Environmental Protection Agency (EPA). ACTION: Proposed rule; notice of data availability. AGENCY: The Environmental Protection Agency (EPA) is announcing the availability of and soliciting comment on an Initial Regulatory Flexibility Analysis (IRFA) and Updated Economic Analysis following the completion of a Small Business Advocacy Review (SBAR) Panel for the Toxic Substances Control Act (TSCA) proposed rule for reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS). The EPA seeks public comment on all aspects of the IRFA and Updated Economic Analysis, including underlying data and assumptions in developing its estimates, as well as on certain items presented in the IRFA for public comment and related to the protection of Confidential Business Information. DATES: Comments must be received on or before December 27, 2022. December 27, 2022 ADDRESSES: Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2020–0549, through the Federal eRulemaking Portal at 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. 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: For technical information contact: Stephanie Griffin, Data Gathering and SUMMARY: E:\FR\FM\25NOP1.SGM 25NOP1

Agencies

[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Proposed Rules]
[Pages 72434-72439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25382]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0338; FRL-10269-01-R9]


Approval, Limited Approval and Limited Disapproval of California 
Air Plan Revisions; Mojave Desert Air Quality Management District; 
Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing an 
approval and a limited approval and limited disapproval of a revision 
to the Mojave Desert Air Quality Management District (MDAQMD or 
``District'') portion of the California State Implementation Plan 
(SIP). We are proposing approval of five rules and a limited approval 
and limited disapproval of five rules. These revisions concern the 
District's New Source Review (NSR) permitting program for new and 
modified sources of air pollution under part D of title I of the Clean 
Air Act (CAA or ``Act''). If finalized, this action will update the 
MDAQMD's current SIP with ten revised rules. We are taking comments

[[Page 72435]]

on this proposal and plan to follow with a final action.

DATES: Comments must be received on or before December 27, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0338 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. 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://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: La Weeda Ward, Permits Office (Air-3-
1), U.S. Environmental Protection Agency, Region IX, (213) 244-1812, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Table of Contents

I. The State's Submittal
    A. What rules are in the current SIP?
    B. What rules did the State submit?
    C. What is the purpose of the submitted rule revisions?
II. The EPA's Evaluation and Action
    A. What is the background for this proposal?
    B. How is the EPA evaluating the rules?
    C. Do the rules meet the evaluation criteria?
    D. What are the rule deficiencies?
    E. EPA recommendations to Further Improve the Rule
    F. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules are in the current SIP?

    Table 1 lists the rules in the current SIP with the dates they were 
adopted or amended by the MDAQMD, submitted by the California Air 
Resources Board (CARB) (the governor's designee for California SIP 
submittals), and approved by the EPA.

                                                            Table 1--Rules in the Current SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           EPA action
                 Rule No.                           Rule title            Adoption date  Submittal date       date          Federal Register citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
206--San Bernardino County...............  Posting of Permit to Operate  \a\ 02/01/1977      06/06/1977      11/09/1978  43 FR 52237.
206--Riverside County....................  Posting of Permit to Operate      02/06/1976      04/21/1976      11/09/1978  43 FR 52237.
219--San Bernadino County................  Equipment Not Requiring a     \a\ 02/01/1977        6/6/1977       11/9/1978  43 FR 52237.
                                            Permit.
219--Riverside County....................  Equipment Not Requiring a         09/04/1981      10/23/1981      07/06/1982  47 FR 29231.
                                            Written Permit Pursuant to
                                            Regulation II.
1300.....................................  General.....................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1301.....................................  Definitions.................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1302.....................................  Procedure...................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1303.....................................  Requirements................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1304.....................................  Emissions Calculations......      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1305.....................................  Emission Offsets............      03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
1306.....................................  Electric Energy Generating        03/25/1996       7/23/1996      11/13/1996  61 FR 58133.
                                            Facilities.
1402.....................................  Emission Reduction Credit         06/28/1995       8/10/1995      01/22/1997  62 FR 3215.
                                            Registry.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ These rules were adopted by CARB Ex. Ord. G-73 on 2/1/1977 and substituted into the 6/6/1977 submittal to the EPA after the original adoption date
  of 1/9/1976 because the two versions were identical, and the earlier version was submitted on behalf of the SoCalAPCD (42 FR 1273).

B. What rules did the State submit?

    Table 2 lists the rules addressed by this proposal with the dates 
they were adopted by the MDAQMD or predecessor agency and submitted by 
the CARB.

                                            Table 2--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                                                                                  Submitted date
                  Rule No.                                Rule title               Adopted date         \a\
----------------------------------------------------------------------------------------------------------------
206.........................................  Posting of Permit to Operate......      02/22/2021      10/15/2021
219.........................................  Equipment Not Requiring a Permit..      01/25/2021      07/23/2021
1300........................................  General...........................      03/22/2021      07/23/2021
1301........................................  Definitions.......................      03/22/2021      07/23/2021
1302........................................  Procedure.........................      03/22/2021      07/23/2021
1303........................................  Requirements......................      03/22/2021      07/23/2021
1304........................................  Emissions Calculations............      03/22/2021      07/23/2021
1305........................................  Emission Offsets..................      03/22/2021      07/23/2021

[[Page 72436]]

 
1306........................................  Electric Energy Generating              03/22/2021      07/23/2021
                                               Facilities.
1402........................................  Emission Reduction Credit Registry      05/19/1997      08/05/1997
----------------------------------------------------------------------------------------------------------------
\a\ The submittal for Rules 219, 1300, 1301, 1302, 1303, 1304, 1305, and 1306 was transmitted to the EPA via a
  letter from CARB dated July 22, 2021, and received by the EPA on July 23, 2021. Rule 206 was transmitted
  electronically on October 15, 2021 as an attachment to a letter dated October 14, 2021. Rule 1402 was
  submitted on August 1, 1997 and received by EPA on August 5, 1997.

    The EPA has promulgated specific procedural requirements for the 
completeness determination of SIP submissions pursuant to 40 CFR part 
51, subpart F and Appendix V which must be met before formal EPA 
review. The completeness criteria pursuant to 40 CFR part 51 Appendix V 
were met as follows:
    1. On January 23, 2022, the submittal of the MDAQMD Rules 219, 
1300, 1301, 1302, 1303, 1304, and 1305 on July 23, 2021, was deemed 
complete by operation of law.
    2. On April 15, 2022, the submittal of the MDAQMD Rule 206 on 
October 15, 2021, was deemed complete by operation of law.
    3. On February 5, 1998, the submittal of Rule 1402 on August 5, 
1997, was deemed complete by operation of law.

C. What is the purpose of the submitted rule revisions?

    The rules listed in Table 2 are intended to replace the SIP-
approved rules listed in Table 1. The submitted rules are intended to 
satisfy the minor NSR and non-attainment NSR (NNSR) requirements of 
section 110(a)(2)(C) and part D of title I of the Act, and the EPA's 
implementing regulations at title 40 of the Code of Federal Regulations 
(CFR) part 51, subpart I.\1\ Minor NSR requirements are generally 
applicable for SIPs in all areas, while NNSR requirements apply only in 
areas designated as nonattainment for one or more National Ambient Air 
Quality Standards (NAAQS). The MDAQMD is currently designated Severe 
nonattainment for the 2008 and 2015 ozone NAAQS, and Moderate 
nonattainment for the 1987 PM10 NAAQS.\2\ Therefore, the 
designation of MDAQMD as federal ozone and PM10 
nonattainment areas triggered the requirement for the District to 
develop and submit an NNSR program to the EPA for approval into the 
California SIP.
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    \1\ CARB, at the request of the District, also submitted a PSD 
rule for SIP inclusion (MDAQMD Rule 1600, ``Prevention of 
Significant Deterioration (PSD)''). We intend to take action on the 
District's PSD rule in a subsequent rulemaking.
    \2\ 40 CFR 81.305.
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II. The EPA's Evaluation and Action

A. What is the background for this proposal?

    On October 26, 2015, the EPA finalized a revised 8-hour NAAQS for 
ozone, which was lowered from 0.75 parts per billion (ppb) to 0.70 
ppb.\3\ On June 4, 2018, portions of the West Mojave Desert, under the 
jurisdiction of the MDAQMD, were designated as nonattainment for 2015 
8-hour ozone NAAQS \4\ and classified Severe-15.\5\ This designation 
became effective on August 3, 2018. On December 6, 2018, the EPA 
finalized the implementation rule for the 2015 ozone NAAQS, which 
required the MDAQMD to submit a New Source Review (NSR) certification 
to the EPA by August 3, 2021.\6\ The District's July 23, 2021 submittal 
is intended to satisfy this requirement.
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    \3\ 80 FR 65292.
    \4\ Both the 1979 1-hour ozone standard and the 1997 8-hour 
ozone standard are revoked in most areas of California including in 
the MDAQMD jurisdiction. Footnote 4 in 40 CFR 81.305 states: ``The 
1-hour ozone standard is revoked effective June 15, 2005, for all 
areas in California. The Monterey Bay, San Diego, and Santa Barbara-
Santa Maria-Lompoc areas are maintenance areas for the 1-hour NAAQS 
for purposes of 40 CFR part 51 subpart X.'' The 1997 Ozone standard 
was revoked with the implementation of the 2008 Ozone standard (see 
80 FR 12263, March 6, 2015), however the preamble makes the 
following distinction: ``After revocation of the 1997 standard, the 
designations (and the classifications associated with those 
designations) for that standard are no longer in effect, and the 
sole designations that remain in effect are those for the 2008 ozone 
NAAQS. However, the EPA is retaining the listing of the designated 
areas for the revoked 1997 ozone NAAQS in 40 CFR part 81, for the 
sole purpose of identifying the anti-backsliding requirements that 
may apply to the areas at the time of revocation. Accordingly, such 
references to historical designations for the revoked standard 
should not be viewed as current designations under CAA section 
107(d).'' It is also important to note that most of the SIP elements 
per the 2008 Ozone NAAQS are included in the plan elements per the 
2015 Ozone NAAQS. The list of anti-backsliding provisions required 
for areas transitioning from the 1997 Ozone standard to the 2008 
Standard are codified at 40 CFR 51.1105.
    \5\ 83 FR 25776. A classification of Severe-15 under the 2015 
Ozone NAAQS is an area with a design value of 0.105 up to but not 
including 0.111 ppm.
    \6\ 83 FR 62998.
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B. How is the EPA evaluating the rules?

    The EPA reviewed the rules listed in Table 2 for compliance with 
the CAA requirements as follows: (1) stationary source preconstruction 
permitting programs as set forth in CAA part D of title I, including 
CAA sections 172(c)(5), 173, 182(c)(6), and 182(d); (2) the review and 
modification of major sources in accordance with 40 CFR 51.160-51.165 
as applicable in Severe ozone and Moderate PM10 
nonattainment areas; (3) the review of new major stationary sources or 
major modifications in a designated nonattainment area that may have an 
impact on visibility in any mandatory Class I Federal Area in 
accordance with 40 CFR 51.307; (4) SIPs in general as set forth in CAA 
section 110(a)(2), including 110(a)(2)(A) and 110(a)(2)(E)(i); and (5) 
SIP revisions as set forth in CAA sections 110(l) and 193; and (6) the 
definition of ``stationary source'' pursuant to CAA section 302(z). We 
also evaluated the submittal for compliance with the NNSR requirements 
applicable to Severe ozone and Moderate PM10 nonattainment 
areas and ensured that the submittal addressed the NNSR requirements 
for the 2008 and 2015 ozone NAAQS.

C. Do the rules meet the evaluation criteria?

    The EPA has reviewed the submitted rules listed in Table 2 in 
accordance with the rule evaluation criteria described in Section II.B 
of this notice.
    With respect to procedural requirements, CAA sections 110(a)(2) and 
110(l) require that revisions to a SIP be adopted by the state after 
reasonable notice and public hearing. Based on our review of the public 
process documentation included for the rules listed in Table 2, we find 
that the MDAQMD has provided sufficient evidence of public notice, 
opportunity for comment and a public hearing prior to adoption and 
submittal of these rules to the EPA.
    With respect to the substantive requirements found in part D of 
title 1 of the Act (including sections 172, 173, 182(c), and 182(d)); 
part A of title 1 of the Act (including sections 110(a)(2) and 
110(a)(2)(E)(i)); section 302(z) contained in title III the Act; and 40 
CFR 51.160-51.165 and 51.307, we have determined that the submitted 
District

[[Page 72437]]

Rules 206, 219, 1300, 1306, and 1402 meet the evaluation criteria, 
while District Rules 1301, 1302, 1303, 1304, and 1305 mostly meet the 
criteria but contain deficiencies as detailed in Section II.D.

D. What are the rule deficiencies?

    The EPA identified six deficiencies in the rules proposed for 
inclusion in the SIP. The first deficiency is the use of the term 
``contract'' as interchangeable with the term ``permit.'' Specifically, 
the MDAQMD Rules 1302(D)(6)(a)(iii) and 1304(C)(4)(c) allow an owner 
and/or operator to obtain a valid permit or ``contract'' that would be 
enforceable by the District. The MDAQMD's rules define Authority to 
Construct Permit (ATC) and Permit to Operate (PTO), but do not define 
term ``contract'' as interchangeable with the term ``permit.'' The use 
of the terms ``ATC'' and ``PTO'' refer to written ``permits'' in SIP-
approved Rules 201, 202, and 203 \7\ and hence are the basis for 
enforceable mechanisms to implement the NSR program in the District. We 
find the term ``contract'' is not an acceptable alternative to the term 
``permit'' and thus the language in MDAQMD Rules 1302(D)(6)(a)(iii) and 
1304(C)(4)(c) is not approvable as a SIP revision.
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    \7\ Rule 201, ``Permit to Construct,'' Rule 202, ``Temporary 
Permit to Operate,'' and Rule 203, ``Permit to Operate'' were 
approved into the California State Implementation Plan by the EPA on 
11/9/1978, 43 FR 52237.
---------------------------------------------------------------------------

    The second deficiency is the calculation procedures specified to 
determine the amount of offsets required in certain situations. 
Specifically, the requirements at 40 CFR 51.165(a)(3)(ii)(J) state that 
the total tonnage of increased emissions resulting from a major 
modification that must be offset shall be determined by summing the 
difference between the allowable emissions after the modification and 
the actual emissions before the modification for each emissions unit. 
In other words, federal regulations require an ``actual-to-potential'' 
test using a baseline of actual emissions when determining the amount 
of offsets required for a project. Rule 1304 allows a potential-to-
potential test for calculating the quantity of offsets required in some 
situations. Specifically, the calculation procedures for Simultaneous 
Emission Reductions (SERs) at Rule 1304(C)(2)(d), applies a potential-
to-potential test under certain circumstances.\8\ Rule 1304 uses a 
potential-to-potential test for calculating the quantity of SERs that 
can be used as offsets for a ``Modified Major Facility.'' Pursuant to 
Rule 1304(C)(2)(d), SERs at a Modified Major Facility are calculated 
using the potential to emit (PTE) in place of Historic Actual Emissions 
(HAE). Calculating emissions decreases using a potential emissions 
baseline allows reductions ``on paper'' that do not represent real 
emissions reductions. Under CAA section 173(c)(1), such paper 
reductions cannot be used to offset actual emission increases. 
Deviations from federal definitions and requirements are generally 
approvable only if a state specifically demonstrates that the submitted 
provisions are more stringent, or at least as stringent, in all 
respects as the corresponding federal provisions and definitions.\9\ 
The District has not made any demonstration showing how the methodology 
in these rules is as stringent as the requirements of 40 CFR 
51.165(a)(3)(ii)(J) and section 173(c)(1) of the Act. Furthermore, the 
allowance of the potential-to-potential test does not conform with the 
requirements of 40 CFR 51.165(a)(1)(vi)(E)(1), which states that ``[a] 
decrease in actual emissions is creditable only to the extent that the 
old level of actual emission or the old level of allowable emissions 
whichever is lower, exceeds the new level of actual emissions.'' Also, 
the calculation method in Rule 1304(C)(2)(d) allows a source to appear 
as if it is not undergoing a modification as defined under Rule 
1301(NN). In this scenario, a facility could circumvent the requirement 
to offset emissions increases if potential emissions increases from a 
project are negated by contemporaneous emissions decreases that utilize 
SERs calculated using a potential-to-potential test. We describe a 
related deficiency in the discussion of the ``third deficiency'' below. 
Thus, the provisions in Rule 1304(C)(2)(d) are inconsistent with the 
requirements of 40 CFR 51.165(a)(3)(ii)(J) and section 173(c)(1) of the 
Act. As described in the Technical Support Document (TSD), which can be 
found in the docket for this rulemaking, the deficiency identified in 
Rule 1304, through cross-references, also causes related deficiencies 
in Rules 1301, 1302, 1303, and 1305.
---------------------------------------------------------------------------

    \8\ Rule 1301(OOO) provides the definition of SER.
    \9\ 40 CFR 51.165(a)(1), 51.165(a)(2)(ii).
---------------------------------------------------------------------------

    The third deficiency pertains to the definitions for ``Major 
Modification'' and ``Modification (Modified)'' pursuant to Rule 
1301(NN) and 1301(JJ), respectively. We noted in the discussion of the 
second deficiency above that the methodology to determine the amount of 
offsets is deficient because it allows the use of SERs pursuant to Rule 
1304. Specifically, a ``net emissions increase'' pursuant to Rule 
1304(B)(2) allows SERs ``calculated and verified pursuant to 
[1304(C)(2)]'' to be subtracted from the total of all ``net emissions 
increases'' at any given facility. The combined effect of calculating 
SERs according to Rule 1304 and the District's procedure for 
determining a net emissions increase could allow a facility to subtract 
SERs, which can be paper reductions, from a proposed emission increase. 
This could result in an emission increase that is less than zero. The 
definition of ``Modification (Modified)'' excludes modifications that 
do not result in a ``Net Emissions Increase,'' which is defined in Rule 
1301(QQ) as: ``An emission change as calculated pursuant to District 
Rule 1304(B)(2) which exceeds zero.'' If there is no net emissions 
increase, as defined in Rule 1301(QQ) and Rule 1304(B)(2), a permit 
applicant can avoid NSR requirements entirely (i.e., BACT, offsets, 
visibility, etc.) because it can effectively exclude the proposed 
project from being considered a ``Modification'' and hence a ``Major 
Modification,'' using calculation procedures that do not conform to the 
federal definition for Major Modification pursuant to 40 CFR 
51.165(a)(1)(v)(A)(1); the calculation procedures for determining 
offsets pursuant to 40 CFR 51.165(a)(3)(ii)(J); and the criteria for 
determining the emission decreases that are creditable pursuant to 40 
CFR 51.165(a)(1)(vi)(E)(1). Thus, the definitions for both ``Major 
Modification'' and ``Modification (Modified)'' are deficient because 
they result in non-conformance with these aforementioned federal 
requirements.
    The fourth deficiency is the definition of Historical Actual 
Emissions (HAE) pursuant to Rule 1304(D)(2)(a)(i). Rule 
1304(D)(2)(a)(i) states, ``The verified Actual Emissions of an 
Emissions Unit(s), averaged from the two-year period which immediately 
proceeds the date of application, and which is representative of 
Facility operations . . .'' (emphasis added). While this appears to be 
a typographical error, it is a deficiency because it states it is the 
actual emissions averaged from the 2-year period that immediately 
proceeds the date of application. The actual emissions must be based on 
emissions emitted preceding the date of application. This deficiency 
may be corrected by replacing the word ``proceeds'' with ``precedes'' 
in MDAQMD Rule 1304(D)(2)(a)(i).
    The fifth deficiency pertains to the use of interprecursor trading 
(IPT). Specifically, Rule 1305 section (C)(6) allows IPT between 
nonattainment pollutants and their precursors on a case-by-case basis. 
A footnote to this

[[Page 72438]]

section states: ``Use of this subsection [is] subject to the Ruling in 
Sierra Club v. USEPA (D.C. Cir. Case #15-1465, 1/29/2021), Document 
#1882662 and subsequent guidance by USEPA.'' On January 29, 2021, the 
D.C. Circuit Court of Appeals in Sierra Club v. EPA, 21 F.4th 815, 
vacated provisions of the 2018 Implementation Rule that allowed IPT for 
the ozone precursors VOC and NOX.\10\ We note that the EPA 
recently revised its NNSR regulations at 40 CFR 51.165(a)(11) to make 
them consistent with the Court's decision,\11\ thus the provision in 
section (C)(6) of Rule 1305 allowing for IPT for ozone precursors is no 
longer permissible and must be revised to make clear that IPT is not 
permissible for ozone precursors.
---------------------------------------------------------------------------

    \10\ 83 FR 62998 (December 6, 2018).
    \11\ 86 FR 37918 (July 19, 2021).
---------------------------------------------------------------------------

    The sixth deficiency pertains to our evaluation of Rules 1300, 
1301, 1302, 1303, 1304, and 1305 against the criteria contained in 
Clean Air Act sections 182(c)(6) and 182(d).\12\ Section 182(c) of the 
Act, which was added by the Clean Air Act Amendments of 1990, details 
the plan submission and requirements for Serious non-attainment areas. 
Specifically, CAA section 182(c)(6) contains the ``De Minimis Rule,'' 
which states NSR rules ``shall ensure increased emissions of volatile 
organic compounds resulting from any physical change in, or change in 
the method of operation of, a stationary source located in the area 
shall not be considered de minimis for purposes of determining the 
applicability of the permit requirements established by this Act unless 
the increase in net emissions of such air pollutant from such source 
does not exceed 25 tons when aggregated with all other net increases in 
emissions from the source over any period of 5 consecutive calendar 
years which includes the calendar year in which such increase 
occurred.'' Our evaluation of Rules 1300, 1301, 1302, 1303, 1304, and 
1305 against the criteria contained in CAA sections 182(c)(6), and 
182(d) shows the District rules are deficient as they do not contain de 
minimis SIP requirements. This deficiency may be corrected by 
incorporating de minimis SIP requirements pursuant to CAA section 
182(c)(6) in the applicable Regulation XIII nonattainment NSR rule(s).
---------------------------------------------------------------------------

    \12\ Section 182(d), also added by the Clean Air Act Amendments 
of 1990, details plan submission requirements for Severe non-
attainment areas and includes all the provisions under section 
182(c) for Serious non-attainment areas. Therefore, an analysis 
against CAA section 182(c)(6) constitutes an analysis against 
section 182(d).
---------------------------------------------------------------------------

    Our TSD contains a more detailed discussion of the rule 
deficiencies as well as a complete analysis of the District's submitted 
rules that form the basis for our proposed action.

E. EPA Recommendations To Further Improve the Rules

    The TSD also includes recommendations for additional clarifying 
revisions to consider for adoption when the MDAQMD next amends Rules 
1301, 1302, 1303, 1304, and 1305.

F. Proposed Action and Public Comment

    The EPA is proposing approval of MDAQMD Rules 206, 219, 1300, 1306, 
and 1402 as authorized under Section 110(k)(3) of the Act. In addition, 
as authorized in sections 110(k)(3) and 301(a) of the Act,\13\ we are 
proposing a limited approval and limited disapproval of Rules 1301, 
1302, 1303, 1304, and 1305 because although they fulfill most of the 
relevant CAA requirements and strengthen the SIP, they also contain 
deficiencies as discussed in Section II.D of this notice.
---------------------------------------------------------------------------

    \13\ If a portion of a plan revision meets all the applicable 
CAA requirements, CAA sections 110(k)(3) and 301(a) authorize the 
EPA to approve the plan revision in part and disapprove the plan 
revision in part.
---------------------------------------------------------------------------

    We have concluded that our proposed action will result in a more 
stringent SIP and is consistent with the additional substantive 
requirements of CAA sections 110(l) and 193, while not relaxing any 
existing provision contained in the SIP; and will not interfere with 
any applicable attainment and reasonable further progress requirements; 
or any other applicable CAA requirement. In addition, our proposed 
action will not relax any pre-November 15, 1990 requirement in the SIP, 
and therefore changes to the SIP resulting from this action ensure 
greater or equivalent emission reductions of ozone and its precursors 
and PM10 and its precursors in the District.
    If finalized, this action would incorporate into the SIP the 
submitted rules listed in Table 2 for which we have proposed approval 
or limited approval/limited disapproval, codified through revisions to 
40 CFR 52.220 (Identification of plan--in part), including those 
provisions identified as deficient. Our proposed approval of Rules 
1301, 1302, 1303, 1304, and 1305 is limited and the EPA is 
simultaneously proposing a limited disapproval of Rules 1301, 1302, 
1303, 1304, and 1305 pursuant to CAA section 110(k)(3) and 301(a).
    In conjunction with our SIP approval of the District's visibility 
provisions for major sources subject to review under the NNSR program, 
we also propose to revise 40 CFR 52.281(d) regarding applicability of 
the visibility Federal Implementation Plan (FIP) at 40 CFR 52.28 as it 
pertains to California to clarify that the FIP does not apply to 
MDAQMD. Approval of the District's visibility provisions under 40 CFR 
51.307 would mean that this FIP is not needed to satisfy the CAA 
visibility requirements at 40 CFR 51.307 for sources subject to the 
District's NNSR program. This revision will clarify the application of 
this FIP in California following our final action.
    If we finalize this action as proposed, our limited disapproval 
actions would trigger an obligation on the EPA to promulgate a Federal 
Implementation Plan (FIP) unless the State corrects the deficiencies, 
and the EPA approves the related plan revisions, within two years of 
the final action. Additionally, for the deficiencies that relate to 
NNSR requirements under part D of title I of the Act, the offset 
sanction in CAA section 179(b)(2) would apply in the West Mojave Desert 
\14\ 18 months after the effective date of a final limited disapproval, 
and the highway funding sanctions in CAA section 179(b)(1) would apply 
in the area six months after the offset sanction is imposed. Section 
179 sanctions will not be imposed under the CAA if the State submits, 
and we approve, prior to the implementation of the sanctions, a SIP 
revision that corrects the deficiencies that we identify in our final 
action. The EPA intends to work with the District to correct the 
deficiencies in a timely manner.
---------------------------------------------------------------------------

    \14\ The CAA section 179 sanctions will not extend to the 
portion of the MDAQMD that is in Riverside County known as the Palo 
Verde Valley in California.
---------------------------------------------------------------------------

    We will accept comments from the public on this proposal until 
December 27, 2022.

III. 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 MDAQMD rules listed in Table 1 of this preamble. These 
rules concern the District's New Source Review (NSR) permitting program 
for new and modified sources of air pollution under part D of title I 
of the Clean Air Act (CAA or ``Act''). The EPA has made, and will 
continue to make, these materials available through www.regulations.gov 
and in hard copy at the EPA Region IX Office (please contact the person 
identified in the FOR FURTHER

[[Page 72439]]

INFORMATION CONTACT section of this preamble for more information).

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because 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, and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The state did not evaluate environmental justice considerations as 
part of its SIP submittal. There is no information in the record 
inconsistent with the stated goals of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon oxides, Incorporation by reference, 
Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: November 4, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-25382 Filed 11-23-22; 8:45 am]
BILLING CODE 6560-50-P
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