Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document, “we”, “us”, and “our” refer to EPA.
Section 110(a) of the CAA requires states to adopt and submit regulations for the implementation, maintenance and enforcement of the primary and secondary national ambient air quality standards (NAAQS). Specifically, CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) require the State's plan to meet the applicable requirements of section 165 relating to a pre-construction permit program for the prevention of significant deterioration of air quality and visibility protection. The purpose of District Rule 2410—Prevention of Significant Deterioration, is to implement a pre-construction PSD permit program as required by section 165 of the CAA for certain new and modified major stationary sources located in attainment areas. EPA is currently the PSD permitting authority within the District because the State does not currently have a SIP-approved PSD program within the District. Inclusion of this revision in the SIP will mean that the District has an approved PSD permitting program and will transfer PSD permitting authority from EPA to the District. EPA would then assume the role of overseeing the District's PSD permitting program, as
EPA is finalizing a SIP revision for the San Joaquin Valley portion of the California SIP. The SIP revision will be codified in 40 CFR 52.220 and 40 CFR 52.270 by incorporating by reference District Rule 2410, as adopted June 16, 2011 and submitted to EPA by the California Air Resources Board (CARB) on August 23, 2011. In addition, the letter from the District to EPA, dated May 18, 2012, providing certain clarifications concerning District Rule 2410 and 40 CFR 51.166, will be included as additional material in 40 CFR 52.220. The regulatory text addressing this action also makes it clear that EPA is relying, in part, on the clarifications provided in the District's May 18, 2012 letter in taking this final approval action. As such, the District's implementation of the PSD program in a manner consistent with these clarifications is a pre-condition of today's final approval of the District's PSD SIP revision. This SIP revision provides a federally approved and enforceable mechanism for the District to issue pre-construction PSD permits for certain new and modified major stationary sources subject to PSD review within the District.
As discussed in EPA's proposal relating to today's SIP revision approval action, the District has requested approval to exercise its authority to administer the PSD program with respect to those sources located in the District that have existing PSD permits issued by EPA, including authority to conduct general administration of these existing permits, authority to process and issue any and all subsequent PSD permit actions relating to such permits (
In response to our June 1, 2012 proposed rule, we received two comment letters, one from the Western States Petroleum Association (WSPA) and one from Earthjustice on behalf of a consortium of environmental groups (Medical Advocates for Healthy Air, the Kern-Kaweah Chapter of the Sierra Club, the Center for Race, Poverty, and the Environment, and the Central Valley Air Quality Coalition). Copies of each comment letter have been added to the docket for this action and are accessible at www.regulations.gov. The comment letter from WSPA supports EPA's analysis and proposal to approve District Rule 2410 into the SIP. The comment letter from Earthjustice opposes the SIP revision and raises several specific objections. We have summarized the comments received and provided a response to the comments below.
The commenter argues that California's judicial review procedures under CPRC 25531 for PSD permit decisions subject to the CEC certification process do not satisfy the CAA's requirements for judicial review. The commenter states that these State judicial review procedures are inadequate because such review may
CPRC section 25531(a) provides: “The decisions of the [CEC] on any application for certification of a site and related facility are subject to judicial review by the Supreme Court of California.”
Finally, with respect to the argument that the District has relinquished some of its permit processing responsibilities for power plants to the CEC, we are not aware of any particular PSD public participation requirements related to 40 CFR 51.166(q) that the District will be relying on the CEC to meet on the District's behalf, and the commenter has not specifically identified any such requirement. The District must adhere to the public participation requirements in Rule 2410 prior to issuing a PSD permit.
The commenter states that the California legislature has specifically rejected EPA's finding that the 2002 New Source Review (NSR) Reforms could benefit air quality because permit requirements have impeded or deterred upgrades to sources, citing California Health and Safety Code sections 42501(e) and (f) (finding that the revisions to the federal regulations drastically reduce the circumstances under which modifications at an existing source would be subject to federal new source review and rejecting the argument that this would be beneficial to air quality because this claim is contradicted by California's experience). The commenter believes that the 2002 NSR Reforms to the PSD regulations allow growth to increase with fewer mitigation requirements and fewer safeguards for assessing air quality impacts.
The commenter also notes that although the District is attainment or unclassifiable for particulate matter 10 micrometers (μm) in diameter and smaller (PM
The commenter asserts that EPA needs to provide its argument and analysis under section 110(l) of the Act for review and comment, as the proposed rule provides no rational basis for believing that the District's PSD program is sufficient to prevent growth in emissions that could interfere with attainment and maintenance of the national ambient air quality standards in the Valley.
Section 110(l) of the CAA states that “[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of this chapter.” 42 U.S.C. 7410(l). EPA does not interpret section 110(l) to require a full attainment or maintenance demonstration before any changes to a SIP may be approved. Generally, a SIP revision may be approved under section 110(l) if EPA finds that it will at least preserve status quo air quality, particularly where, as here, the pollutants at issue are those for which an area has not been designated nonattainment.
In response to the commenter's concern that approval of the District's PSD SIP submittal including NSR Reform would allow fewer projects to be subject to PSD review,
Even if the provisions of 40 CFR 52.21 as revised through NSR Reform were not already in place within the District, EPA is not aware of any basis for concluding that the PSD program under 40 CFR 52.21, including NSR Reform, that has been incorporated by reference by the District would interfere with the maintenance of the NAAQS within the District, nor has the commenter provided specific information demonstrating that such interference would occur. The commenter refers to a general legislative statement by the California legislature that appears to have been adopted in 2003 that disagrees generally with NSR Reform but which is not specific as to what changes in air quality, if any, would occur as a result of EPA's approval of the District's PSD program.
NSR Reform affects only permitting of modifications to existing sources, and more specifically, modifications to existing emissions units. Any growth occurring from new, greenfield sites would be controlled and permitted in the same manner both pre- and post-reform. Therefore, any concerns about NSR Reform would be related to unregulated growth from existing major sources. In the specific case of the District, modifications that are not subject to PSD review generally have been, and will continue to be, subject to review under the District's minor NSR program, which is approved into the California SIP through District Rule 2201. Rule 2201 contains the District's permit program for all increases in pollutants subject to a NAAQS, whether classified as attainment, nonattainment, or unclassifiable by EPA. The rule includes pre-construction permitting requirements for sources that are not required to be permitted under title I,
We note that at the time EPA adopted NSR Reform, we provided an analysis of the environmental impacts of the “various flexibilities” the commenter discusses. Based on examples and modeling, we concluded that NSR Reform would likely have a neutral to positive effect on air quality relative to the pre-Reform provisions.
In sum, as EPA concluded in its TSD for the proposed rulemaking, the transfer of the PSD program under 40 CFR 52.21 from EPA to the District is not expected to result in any substantive changes to the PSD program requirements, other CAA requirements, or air quality within the District, and EPA continues to believe that its approval of the District's PSD SIP revision would not interfere with attainment and maintenance of the NAAQS within the District, or with any other applicable requirement of the CAA. EPA bases this conclusion on the fact that the District's PSD program will be no less stringent than the federal PSD program under 40 CFR 52.21 that it is replacing. In addition, EPA has taken into consideration the District's extensive minor source permitting program that will impose control requirements on sources that are not major under the PSD program. EPA finds that the approval of this SIP revision is entirely consistent with the development of a plan for the District to attain and maintain the NAAQS.
Last, it is unclear to EPA what the basis is for the commenter's statement that relying on the existing District nonattainment NSR program is not a substitute for the necessary analysis under CAA section 110(l) in terms of maintenance of the NAAQS, or how the commenter's concerns with the District's nonattainment NSR permitting process relate to EPA's CAA section 110(l) analysis in this case. We assume that the commenter is referring in this statement to the District's major nonattainment NSR program.
EPA is approving CARB's August 23, 2011 submittal of District Rule 2410—Prevention of Significant Deterioration (PSD)—into the California SIP to establish a PSD permit program for pre-construction review of certain new and modified major stationary sources in attainment or unclassifiable areas.
Under the CAA, 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). 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 approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this 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);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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
• 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
• 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 rule does 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.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)
Air pollution control, Carbon monoxide, Environmental protection, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(415) New and amended regulations were submitted on August 23, 2011 by the Governor's designee. Final approval of these regulations is based, in part, on the clarifications contained in a May 18, 2012 letter from the San Joaquin Valley Unified Air Pollution Control District regarding specific implementation of parts of the Prevention of Significant Deterioration program.
(i) Incorporation by reference.
(A) San Joaquin Valley Unified Air Pollution Control District.
(ii) Additional materials.
(A) San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD).
(b) * * *
(5) Rule 2410, “Prevention of Significant Deterioration,” adopted on June 16, 2011, for the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) is approved under Part C, Subpart 1, of the Clean Air Act, based, in part, on the clarifications provided in a May 18, 2012 letter from the San Joaquin Valley Unified Air Pollution Control District described in § 52.220(c)(415). For PSD permits previously issued by EPA pursuant to § 52.21 to sources located in the SJVUAPCD, this approval includes the authority for the SJVUAPCD to conduct general administration of these existing permits, authority to process and issue any and all subsequent permit actions relating to such permits, and authority to enforce such permits, except for:
(i) Those specific sources within the SJVUAPCD that have submitted PSD permit applications to EPA and for which EPA has issued a proposed PSD permit decision, but for which final agency action and/or the exhaustion of all administrative and judicial appeals processes (including any associated remand actions) have not yet been concluded or completed by November 26, 2012. The SJVUAPCD will assume full responsibility for the administration and implementation of such PSD permits immediately upon notification from EPA to the SJVUAPCD that any and all administrative and judicial appeals processes (and any associated remand actions) have been completed or concluded for any such permit decision. Prior to the date of such notification, EPA is retaining authority to apply § 52.21 for such permit decisions, and the provisions of § 52.21, except paragraph (a)(1), are therefore incorporated and made a part of the State plan for California for the SJVUAPCD for such permit decisions during the identified time period.