2023-18401. Air Quality Implementation Plan; California; Great Basin Unified Air Pollution Control District; Stationary Source Permits

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve a revision to the Great Basin Unified Air Pollution Control District (GBUAPCD or “District”) portion of the California State Implementation Plan (SIP). In this action, we are proposing to approve one rule governing the issuance of permits for new and modified major sources in nonattainment areas under part D of title I of the Clean Air Act (CAA or “the Act”) in the District. We are also proposing to find that PM₁₀ precursors are not significant contributors to PM₁₀ levels in the Mono Basin, as the majority of direct PM emissions come from dry lake beds. We are taking comments on this proposal and a final action will follow.

DATES:

Written comments must be received on or before September 27, 2023.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA–R09–OAR–2022–0925 at https://www.regulations.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be removed or edited from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information the disclosure of which 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 and multimedia submissions, and general guidance on making effective comments, please visit https://www2.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:

Nidia Trejo, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: [phone], or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. The State's Submittal

A. What rule did the State submit?

B. Is there another version of this rule?

C. What is the purpose of the submitted rule?

II. The EPA's Evaluation

A. What is the background for this proposal?

B. How is the EPA evaluating the rule?

C. Does the rule meet the evaluation criteria?

D. EPA Recommendations To Further Improve the Rule

III. Proposed Action and Public Comment

IV. Incorporation by Reference

V. 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 including the date it was adopted by the District and the date on which it was submitted to the EPA by the California Air Resources Board (CARB or “the State”).

Table 1—Submitted Rule

Rule No.	Rule title	Adopted	Submitted
Rule 222	NSR Requirements for New and Modified Major Sources in Nonattainment Areas	01/06/22	07/05/22

On January 5, 2023, the submittal for District Rule 222 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. Is there another version of this rule?

There is no previous version of Rule 222 in the California SIP.

C. What is the purpose of the submitted rule?

Rule 222 is intended to address the CAA's statutory and regulatory requirements for Nonattainment New Source Review (NNSR) permit programs for major sources emitting nonattainment air pollutants and their precursors.

II. The EPA's Evaluation

A. What is the background for this proposal?

Historically, the District had four designated PM₁₀ nonattainment areas, including the Owens Valley and Coso Junction Planning Areas in Inyo County, CA, and the Mono Basin and Mammoth Lake Planning Areas in Mono County, CA. Currently, however, only the Mono Basin and Owens Valley Planning Areas are designated nonattainment for PM₁₀ . The designation of the Mono Basin and Owens Valley Planning Areas as federal 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. The District's NNSR program must satisfy the NNSR requirements applicable to a Moderate PM₁₀ nonattainment area for the Mono Basin and a Serious PM₁₀ nonattainment area for the Owens Valley.

Our Technical Support Document (TSD) for this action contains additional information regarding the history of the District's PM₁₀ nonattainment areas. The District is designated attainment/unclassifiable for all other NAAQS.

B. How is the EPA evaluating the rule?

The EPA reviewed Rule 222 for compliance with CAA requirements for: (1) stationary source preconstruction permitting programs as set forth in CAA part D, including CAA sections 172(c)(5) and 173; (2) the review and modification of major sources in accordance with 40 CFR 51.160–51.165 as applicable in Moderate and Serious 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 sections 110(a)(2), including 110(a)(2)(A) and 110(a)(2)(E)(i); ^[1] and (5) SIP revisions as set forth in CAA section 110(l) ^[2] and 193.^[3] Our review evaluated the submittals for compliance with the NNSR requirements applicable to nonattainment areas designated Moderate and Serious, and ensured that the submittals addressed the NNSR requirements for the 1987 PM₁₀ NAAQS.

C. Does the rule meet the evaluation criteria?

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 in the July 5, 2022 submittal of Rule 222, we find that the District has provided sufficient evidence of public notice, opportunity for comment, and a public hearing prior to adoption and submittal of this rule to the EPA.

With respect to the substantive requirements found in CAA sections 172(c)(5), 173, 189 and 40 CFR 51.160–51.165, we have evaluated Rule 222 in accordance with the applicable CAA and regulatory requirements that apply to NNSR permit programs under part D of title I of the Act for the 1987 PM₁₀ NAAQS. We find that Rule 222 satisfies these requirements as they apply to sources subject to NNSR permit program requirements applicable to Moderate and Serious PM₁₀ nonattainment areas. As part of our determination, we relied on a previous finding from our 2016 final action approving the Owens Valley 1987 PM₁₀ attainment plan that PM₁₀ precursors are not significant contributors to PM₁₀ in the area,^[4] and a comparative analysis of emission sources in the Mono Basin to determine that PM₁₀ precursors are also not significant contributors to PM₁₀ in the Mono Basin.^[5]

We have also determined that this rule satisfies the related visibility requirements in 40 CFR 51.307. In addition, we find that Rule 222 satisfies the requirement in CAA section 110(a)(2)(A) that regulations submitted to the EPA for SIP approval be clear and legally enforceable and that the submittal demonstrates in accordance with CAA section 110(a)(2)(E)(i) that the Districts have adequate personnel, funding, and authority under state law to carry out the proposed SIP revision.

Regarding the additional substantive requirements of CAA sections 110(l) and 193, our action will result in a more stringent SIP, while not relaxing any existing provision contained in the SIP. We have concluded that our action would comply with section 110(l) because our approval of Rule 222 will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other CAA applicable requirement. In addition, our approval of Rule 222 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 PM₁₀ and its precursors in the District; accordingly, our action is consistent with the requirements of CAA section 193.

Our TSD, which can be found in the docket for this rule, contains a more detailed discussion of our analysis of Rule 222.

D. EPA Recommendations To Further Improve the Rule

The TSD also includes recommendations for an additional clarifying revision to consider for adoption when the District next modifies Rule 222.

III. Proposed Action and Public Comment

As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is proposing approval of the submitted rule because it fulfills the relevant CAA requirements and strengthens the SIP. We have concluded that our approval of the submitted rule would comply with the relevant provisions of CAA sections 110(a)(2), 110(l), 172(c)(5), 173, 189, and 193, and 40 CFR 51.160–51.165 and 40 CFR 51.307.

If we finalize this action as proposed, our action will be codified through revisions to 40 CFR 52.220a (Identification of plan—in part). This action would incorporate the submitted rule into the SIP. In conjunction with the EPA's SIP approval of the District's visibility provisions for sources subject to the NNSR program as meeting the relevant requirements of 40 CFR 51.307, this action would also revise the regulatory provision at 40 CFR 52.281(d) concerning the applicability of the visibility Federal Implementation Plan (FIP) at 40 CFR 52.28 as it pertains to California, to provide that this FIP does not apply to sources subject to review under the District's SIP-approved NNSR program.

We will accept comments from the public on this proposal until September 27, 2023.

IV. Incorporation by Reference

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the GBUAPCD rule listed in Table 1 of this preamble, which regulates the issuance of permits for new and modified major sources in nonattainment areas in the District. The EPA has made, and will continue to make, this document available electronically through https://www.regulations.gov and in hard copy at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it proposes to approve a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• 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.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The District did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and 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
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

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

Dated: August 17, 2023.

Cheree Peterson,

Deputy Regional Administrator, Region IX.

Footnotes

1.  CAA section 110(a)(2)(A) requires that regulations submitted to the EPA for SIP approval be clear and legally enforceable, and CAA section 110(a)(2)(E)(i) requires that states have adequate personnel, funding, and authority under state law to carry out their proposed SIP revisions.

2.  CAA section 110(l) requires SIP revisions to be subject to reasonable notice and public hearing prior to adoption and submittal by states to EPA and prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA.

3.  CAA section 193 prohibits the modification of any SIP-approved control requirement in effect before November 15, 1990, in a nonattainment area, unless the modification ensures equivalent or greater emission reductions of the relevant pollutants.

4.  82 FR 13390, (March 13, 2017). See also 81 FR 89407, (December 12, 2016).

5.  See GBUAPCD 1995 PM₁₀ State Implementation Plan for Mono Basin Planning Area, Table 4.1—PM₁₀ Emissions Summary; see also 82 FR 13390 (Mar. 13, 2017).