2010-12281. Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO_X) and particulate matter (PM) emissions primarily from indirect sources associated with new development projects as well as NO_X and PM emissions from certain transportation and transit projects. We are approving a local rule that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

DATES:

Any comments must arrive by July 6, 2010.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2010-0430, by one of the following methods:

1. Federal eRulemaking Portal: www.regulations.gov. Follow the online instructions.

2. E-mail: [e-mail].

3. Mail or Deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: The index to the docket for this action is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Lily Wong, EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of Contents

I. The State's Submittal

A. What rule did the State submit?

B. Are there other versions of this rule?

C. What is the purpose of the submitted rule?

II. EPA's Evaluation and Action

A. How is EPA evaluating the rule?

B. Does the rule meet the evaluation criteria?

C. What action is EPA proposing and why?

D. EPA Recommendations to Address Deficiencies

E. Public Comment and Final Action

III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the state submit?

Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the California Air Resources Board.

Table 1—Submitted Rule

Local agency	Rule No.	Rule title	Adopted	Submitted
SJVUAPCD	9510	Indirect Source Review (ISR)	12/15/05	12/29/06

On June 29, 2007, the submittal for SJVUAPCD Rule 9510 was deemed by operation of law to meet the completeness criteria in 40 CFR part 51 appendix V, which must be met before formal EPA review.

B. Are there other versions of this rule?

There are no previous versions of Rule 9510 in the SIP.

C. What is the purpose of the submitted rule?

NO_X helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. PM contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control NO_X and PM emissions.

Rule 9510 establishes limitations on NO_X and PM. Development projects indirectly result in new emissions from mobile, stationary, and area sources, including those from new vehicle trips, fuel combustion from stationary and area sources, use of consumer products, landscaping maintenance, and construction activities. The purpose of Rule 9510 is to achieve emission reductions from new development projects, as well as transportation and transit projects where construction exhaust emissions are equal to or greater than 2 tons of NO_X or 2 tons of PM₁₀.

Rule 9510 requires applicants of new development projects to reduce construction equipment emissions and operational emissions by a specified percentage. The reductions can be achieved through any number of on-site measures implemented by the applicant or by paying a fee to SJVUAPCD for all emissions in excess of the requirements. SJVUAPCD would utilize the fees to fund off-site projects to reduce NO_X and PM emissions.

Rule 9510 requires the submittal and approval of an application which identifies, through the use of a computer model, the projected air impacts of the development project and on-site mitigation measures, and the amount of fees to be paid. EPA's technical support document (TSD) has more information about this rule.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rule?

The CAA (see section 110(a)(2)(E)) requires the State and responsible local agencies (e.g., SJVUAPCD) to have adequate personnel, funding, and authority to carry out the SIP, including Rule 9510.

SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193 of the Act). Guidance and policy documents that we use to evaluate enforceability consistently include the following:

1. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO_X Supplement), 57 FR 55620, November 25, 1992.

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

4. “Improving Air Quality with Economic Incentive Programs,” EPA-452/R-01-001, January 2001.

B. Does the rule meet the evaluation criteria?

EPA believes that California and SJVUAPCD have demonstrated that they have adequate personnel, funding, and authority to carry out the overall SIP. EPA is aware of ongoing legal challenge by the National Association of Home Builders (NAHB) to SJVUAPCD's legal authority to implement Rule 9510. (See National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District, No. 08-17309 (9th Circuit)). In that case, NAHB asserts that the SJVUAPCD, through Rule 9510, is attempting to establish and enforce an emissions standard for new nonroad engines without first having received a waiver as required by CAA section 209, 42 U.S.C. 7543. Based on the information before EPA for Rule 9510, we believe that the SJVUAPCD has the authority to adopt and implement Rule 9510 without such a waiver. The TSD has more information on this issue.

We believe this rule is consistent with the relevant requirements, policy and guidance regarding SIP relaxations since this rule does not replace any SIP rule. However, we believe this rule is not consistent with the relevant requirements, policy and guidance on enforceability. The TSD has more information on this issue.

C. What action is EPA Proposing and why?

While Rule 9510 does not meet the evaluation criteria for enforceability, EPA is proposing to fully approve the rule because it is directionally sound and would generally strengthen the SIP. Rule 9510 is an important effort by SJVUAPCD to reduce NO_X and PM emissions from a sector that has not been generally regulated and could also result in significant co-benefits by reducing emissions of green house gases. For these reasons, EPA recommends full SIP approval, but in light of the deficiencies also recommends that the projected emission reductions from the rule should not be credited in any attainment and rate of progress/reasonable further progress demonstrations. The TSD has more information on this recommendation.

D. EPA Recommendations to Address Deficiencies

EPA recommendations on how to address the enforceability deficiencies are described in the TSD.

E. Public Comment and Final Action

EPA is proposing to fully approve it as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 45 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally enforceable SIP.

III. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. 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 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide 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.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements

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

Dated: May 10, 2010.

Jared Blumenfeld,

Regional Administrator, Region IX.