2011-19897. Limited Federal Implementation Plan; Prevention of Significant Deterioration; California; North Coast Unified Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing a limited Federal Implementation Plan (FIP) for the North Coast Unified Air Quality Management District (NCUAQMD) portion of the California State Implementation Plan (SIP). We proposed this action simultaneously with our proposed limited approval and limited disapproval of a SIP revision submitted by California to address the “transport SIP” provisions of Clean Air Act (CAA) section 110(a)(2)(D)(i) for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS or standards) and the 1997 fine particulate matter (PM_2.5) NAAQS (2007 Transport SIP) (76 FR 31263, May 31, 2011). This limited FIP establishes Federal Prevention of Significant Deterioration (PSD) permitting requirements for nitrogen oxides (NO_X) emission sources only in the NCUAQMD.

DATES:

Effective Date: This rule is effective on September 7, 2011.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2011-0211 for this action. Generally, documents in the docket for this action are available electronically at http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents are listed at http://www.regulations.gov,, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multi-volume reports), and some may not be publicly available in either location (e.g., Confidential Business Information). 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:

Rory Mays, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Proposed Action

II. Public Comments

III. EPA Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On May 31, 2011 (76 FR 31263), EPA proposed a limited approval and limited disapproval of California's 2007 Transport SIP with respect to the requirement in CAA section 110(a)(2)(D)(i)(II) that each SIP contain adequate measures prohibiting emissions of air pollutants in amounts which will interfere with other States' measures required under title I, part C of the CAA to prevent significant deterioration of air quality. We refer to this requirement as “element (3)” of section 110(a)(2)(D)(i). Simultaneously, EPA proposed a limited FIP for the NCUAQMD to address certain requirements of “element (3)” of section 110(a)(2)(D)(i) that California's 2007 Transport SIP failed to satisfy. EPA proposed this limited FIP because of a statutory duty that we were obligated under the terms of a Consent Decree to meet by July 10, 2011, unless we approved a SIP meeting the applicable requirements by that date.^[1] This Consent Decree deadline has been extended by stipulation to July 29, 2011.^[2]

Specifically, for the NCUAQMD, we proposed to disapprove California's 2007 Transport SIP with respect to element (3) of CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS because the NCUAQMD's SIP-approved PSD permit program does not explicitly identify NO_X as an ozone precursor. Although California recently submitted a PSD SIP revision to EPA for the NCUAQMD to address this requirement,^[3] we noted in our proposed rule that we would not be able to act on this SIP revision in time to meet our July 10, 2011 consent decree deadline. We proposed, therefore, to promulgate a limited PSD FIP for the NCUAQMD based on the provisions of 40 CFR 52.21 regulating NO_X as an ozone precursor. We noted that EPA would retain authority to implement the applicable requirements of 40 CFR 52.21 for NO_X emission sources in NCUAQMD (unless and until EPA delegates such authority to the District), while the District would retain authority to continue implementing any existing SIP-approved PSD requirements. We also noted that this limited FIP would apply only until EPA approves a PSD SIP revision for the NCUAQMD addressing this requirement.

II. Public Comments

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments on this element of our proposed action.

III. EPA Action

Under CAA section 110(c)(1) and for the reasons discussed in our May 31, 2011 proposed rule, we are finalizing the limited PSD FIP for the NCUAQMD as proposed. The CAA authority for EPA to promulgate a FIP is found in CAA section 110(c)(1), which provides—

The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator—(B) disapproves a State implementation plan submission in whole or in part * * * unless the State corrects the deficiency, and [EPA] approves the plan or plan revision, before the Administrator promulgates such [FIP].

In a separate action published in today's Federal Register, EPA finalized the limited approval and limited disapproval of California's 2007 Transport SIP, including the disapproval with respect to the NCUAQMD because of the identified deficiency in its SIP-approved PSD program. Accordingly, under CAA sections 110(c)(1) and for the reasons set forth in our May 31, 2011 proposed rule, we are finalizing a limited PSD FIP for the NCUAQMD. This action incorporates the provisions of EPA's Federal PSD program at 40 CFR 52.21, as they apply to new or modified major sources of NO_X as precursors to ozone, into the NCUAQMD portion of the California SIP.

EPA currently implements a partial PSD FIP for certain types of projects located in the NCUAQMD. See 40 CFR 52.270(b)(2). The limited PSD FIP promulgated today adds new and modified major sources of NO_X emissions to the list of projects that are already subject to the Federal PSD Program as provided in 40 CFR 52.270(b)(2). Thus, EPA will implement the applicable requirements of 40 CFR 52.21 for major NO_X emission sources in North Coast, unless and until EPA delegates such authority to the District pursuant to 40 CFR 52.21(u). The District, however, retains authority to continue implementing any existing SIP-approved PSD requirements.

This limited PSD FIP will apply only until EPA approves a PSD SIP revision for NCUAQMD meeting the PSD requirements applicable to NO_X emissions as precursors to ozone, at which time EPA will rescind this limited FIP.

IV. Statutory and Executive Order Reviews

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

This final action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Order 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This final action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this action on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards (see 13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

In the case of North Coast, EPA has not yet proposed to approve the SIP revision necessary to make NO_X a precursor to ozone in the context of PSD permitting. For this area, EPA is establishing a narrow FIP to fill the gap with respect to the PSD requirement to address NO_X as a precursor to ozone. To EPA's knowledge, in the past ten years there has been no more than one small entity in this area subject to PSD permitting requirements for NO_X emissions, and this is not a substantial number of entities. EPA does not anticipate that there will be additional sources that would require such a permit in the future, and EPA is not required to analyze theoretical future impacts. It would be speculative to estimate potential impacts on sources based solely on theoretical future sources.

After considering the economic impacts of this rule on small entities, I certify that this final action will not have a significant economic impact on a substantial number of small entities. Although this rule establishes Federal permitting requirements that may apply to a small number of sources, EPA believes that in such an event, there will not be a significant economic impact on the potentially affected sources and that any such impacts would not affect a substantial number of sources, regardless of size.

D. Unfunded Mandates Reform Act

This final action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1531-1538) for state, local or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action merely prescribes EPA's action in an area for which EPA has disapproved the 2007 Transport SIP in part and not yet approved a corrective SIP revision. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.

This final action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action merely prescribes EPA's action in an area for which EPA has disapproved the 2007 Transport SIP in part and not yet approved a corrective SIP revision.

E. Executive Order 13132: Federalism

This final 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, as specified in Executive Order 13132. This action merely prescribes EPA's action in an area for which EPA has disapproved the 2007 Transport SIP in part and not yet approved a corrective SIP revision. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Coordination With Indian Tribal Governments

This final action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action does not impose a FIP in any tribal area. Thus, Executive Order 13175 does not apply to this action.

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

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This final action is not subject to EO 13045 because it merely prescribes EPA's action in an area for which EPA has disapproved the 2007 Transport SIP in part and not yet approved a corrective SIP revision.

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

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rule merely prescribes EPA's action in an area for which EPA has disapproved the 2007 Transport SIP in part and not yet approved a corrective SIP revision.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This final action is not a “major rule” as defined by 5 U.S.C. section 804(2). This rule will be effective on September 7, 2011.

L. Determination Under Section 307(d)

Pursuant to section 307(d)(1)(B) of the CAA, this action is subject to the provisions of section 307(d). Section 307(d)(1)(B) provides that the provisions of section 307(d) apply to “the promulgation or revision of an implementation plan by the Administrator under section 110(c) of this Act.”

M. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 7, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 section 307(b)(2)).

List of Subjects in 40 CFR Part 52

• Air pollution control
• Environmental protection
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone

Dated: July 29, 2011.

Lisa P. Jackson,

Administrator.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52—-[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

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

Subpart F—California

2. Section 52.270 is amended by adding paragraph (b)(2)(iv) to read as follows:

§ 52.270

Significant deterioration of air quality.

* * * * *

(b) * * *

(2) * * *

(iv) Those projects which are major stationary sources or major modifications for nitrogen oxides as precursors to ozone under § 52.21.

* * * * *

Footnotes

1.  See WildEarth Guardians v. U.S. EPA (Case No. 4:09-CV-02453-CW), Consent Decree dated November 10, 2009, as amended by Notice of Stipulated Extensions to Consent Decree Deadlines, dated April 28, 2011, and Notice of Stipulated Extension to Consent Decree Deadline, dated July 7, 2011.

2.  See ibid.

3.  By letter dated February 28, 2011, California submitted a revised NSD/PSD rule (Rule 110, New Source Review (NSR) and Prevention of Significant Deterioration (PSD)) for approval into the NCUAQMD portion of the California SIP. The NCUAQMD adopted this amended rule on December 9, 2010.