22038 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Rules and Regulations 

Subpart G—Colorado 

■ 2. Section 52.352 is revised to read as 

follows: 

§ 52.352 Interstate transport. 

Addition to the Colorado State 

Implementation Plan of the Colorado 

Interstate Transport SIP regarding the 

1997 8-Hour Ozone Standard for the 

‘‘significant contribution’’, the ‘‘interfere 

with maintenance’’, and ‘‘interference 

with visibility protection’’ requirements, 

submitted by the Governor’s designee 

on June 18, 2009 and March 31, 2010. 

[FR Doc. 2011–9580 Filed 4–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2010–1078; FRL–9293–6] 

Revision to the South Coast Portion of 

the California State Implementation 

Plan, CPV Sentinel Energy Project AB 

1318 Tracking System 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve a source-specific State 

Implementation Plan (SIP) revision for 

the South Coast Air Quality 

Management District (District) portion 

of the California SIP. This sourcespecific SIP revision is known as the 

CPV Sentinel Energy Project AB 1318 

Tracking System. The SIP revision 

consists of enabling language and the 

AB 1318 Tracking System to revise the 

District’s SIP approved New Source 

Review (NSR) program. The SIP revision 

allows the District to transfer offsetting 

emission reductions for particulate 

matter less than 10 microns in diameter 

(PM10) and one of its precursors, sulfur 

oxides (SOX), to the CPV Sentinel 

Energy Project, which will be a natural 

gas fired power plant. 

DATES: This final rule is effective on 

May 20, 2011. 

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: 

Laura Yannayon, EPA Region IX, (415) 

972–3524, yannayon.laura@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we’’, ‘‘us’’, 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

II. Evaluation of Source-Specific SIP Revision 

A. What action is EPA finalizing? 

B. Public Comments and Responses to 

Comments 

III. EPA Action 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 13563 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132, Federalism 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Population 

I. Background 

The proposed Sentinel Energy Project 

is designed to be a nominally rated 850 

megawatt electrical generating facility 

covering approximately 37 acres within 

Riverside County, adjacent to Palm 

Springs, California. EPA’s proposal for 

this action contained a detailed 

description of the project and the Clean 

Air Act’s (CAA) requirements for offsets 

during New Source Review permitting. 

76 FR 2294 (January 13, 2011) With our 

proposal to approve this SIP revision, 

EPA attached the complete list of PM10

and SOX offsetting emission reductions 

that are being transferred in the AB 1318 

Tracking System to our Technical 

Support Document (TSD). 

Documentation for each of the offsetting 

emission reductions listed in the 

attachment to the TSD was included in 

the docket for the proposal in hard copy 

at EPA’s offices as well as other 

locations. For additional background 

information please see the January 13, 

2011 proposed notice for this action. (76 

FR 2294) 

II. Evaluation of Source-Specific SIP 

Revision 

A. What is the rule that EPA is 

finalizing? 

EPA is finalizing a SIP revision for the 

South Coast portion of the California 

SIP. The SIP revision will be codified in 

40 CFR 52.220 by incorporating by 

reference the Offset Requirements for 

the Proposed CPV Sentinel Power Plant, 

including the CPV Sentinel Energy 

Project AB 1318 Tracking System, as 

adopted by the District. 

The SIP revision provides a federally 

approved and enforceable mechanism 

for the District to transfer PM10 and SOX

offsetting emissions reductions from the 

District’s internal bank to the Sentinel 

Energy Project and to track those 

emissions credits through the AB 1318 

Tracking System. 

B. Public Comment and Final Action 

In response to our January 13, 2011 

proposed rule, we received four 

comments, one each from the South 

Coast Air Quality Management District 

(District), Michael Carroll of Latham & 

Watkins LLP, the Natural Resources 

Defense Council (NRDC), and the Law 

Offices of Angela Johnson-Mezaros on 

behalf of California Communities 

Against Toxics and Communities for a 

Better Environment (jointly referred to 

herein as ‘‘CCAT’’). Copies of each 

comment letter have been added to the 

docket and are accessible at 

regulations.gov. The comment from the 

District supported EPA’s analysis and 

proposed source-specific SIP revision 

and provided an errata sheet correcting 

minor typos and the amount of SOX

offsets available in the AB1318 Tracking 

System (reduced the quantity by 92 lbs). 

The comment from Latham & Watkins 

was also supportive of our proposed 

action. The comment from NRDC 

generally opposed the SIP revision but 

did not provide any specific grounds for 

its opposition or raise any specific 

issues. To the extent that NRDC 

generally opposes the SIP revision, our 

response to its general opposition is 

included below with our response to 

CCAT’s more specific comments. We 

have summarized CCAT’s comments 

(based on the structure of their comment 

letter) and provide our response to each 

comment below. 

Comment I: CCAT comments that 

EPA did not allow meaningful public 

participation on the SIP revision for 

several reasons and that approval of the 

SIP revision based on the available 

information would be arbitrary and 

capricious. 

Comment I.A: CCAT contends the 

regulatory text of the SIP revision is too 


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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Rules and Regulations 22039 

1On February 4, 2011, the District adopted Rule 

1315—Federal New Source Review Tracking 

System—which does provide a general rule for the 

District to credit and debit emissions credits in its 

internal accounts. The District has submitted Rule 

1315 to EPA as a SIP revision. EPA will be acting 

on the Rule 1315 submittal in a separate Notice of 

Proposed Rulemaking and will provide a 30 day 

comment period with that action. Some of CCAT’s 

comments on this proposal may be more properly 

directed to any action that EPA proposes to take on 

District Rule 1315. 

vague and incomplete to be federally 

enforceable. CCAT contends that the SIP 

revision consists of preambular or 

background language and that the list of 

emissions credits being transferred is 

not included in the SIP revision. 

Response I.A: CCAT is incorrect on 

both points. EPA’s proposed approval 

quoted the text of the proposed sourcespecific revision in the section of the 

proposal entitled ‘‘What is in the SIP 

Revision?’’ (76 FR at 2295) and also 

posted the text in the docket at Index 

No. I–B. Upon finalizing the approval, 

EPA will codify this revision at 40 CFR 

52.220. The SIP revision, therefore, 

consists of the regulatory text that was 

quoted in EPA’s proposed rule. Before 

quoting the language in the proposed 

approval, we identified the language 

stating: ‘‘The text of the proposed 

source-specific SIP revision is * * *’’ 76 

FR at 2295. This is the language that 

will be incorporated by reference in 40 

CFR 52.220. Therefore it is not 

preambular or background language as 

stated by CCAT. The SIP revision 

language was available to the public. 

This comment contains other 

conclusory statements such as 

characterizing the SIP revision as being 

too vague to be enforceable because it 

does not provide an enforceable 

mechanism for generating emissions 

credits. These additional statements are 

generally repeated elsewhere in the 

comment letter with more specificity. 

We have responded to the more detailed 

comments rather than the very general 

and conclusory statements in this 

section of the comment letter. 

The full list of the credits that will be 

transferred is incorporated by reference 

into the SIP revision. Incorporation by 

reference of materials such as the list of 

the emissions credits being transferred 

is permissible and there is no 

requirement for EPA to include the list 

of credits in the regulatory text that will 

be published in the Code of Federal 

Regulations. See Use of Incorporation by 

Reference as a Mechanism for 

Shortening Federal Register Notices, 

from Gerald H. Yamada, Principal 

Deputy General Counsel to Regulatory 

Policy Group, dated Jan. 12, 1995. See 

also 1 CFR part 51. 

The comment also contends that the 

SIP revision is insufficient because it 

does not contain a ‘‘mechanism for 

generating and validating the credits’’. 

The SIP revision does not purport to 

provide a mechanism for generating 

credits. This SIP revision provides an 

enforceable mechanism for the District 

to transfer previously generated 

emissions credits and incorporates the 

list of those emissions credits. The 

Sentinel Energy Project is a source that 

is not authorized to receive emissions 

credits from the District’s internal 

accounts in the absence of this SIP 

revision because it is not a source 

category or type of project listed in Rule 

1304 as exempt or in Rule 1309.1 as a 

priority reserve source. Thus, the 

general assertions submitted by CCAT 

that the public did not have adequate 

notice for a variety of reasons does not 

provide any basis for EPA to alter its 

proposed approval of this SIP revision. 

Comment I.B: CCAT contends the 

Federal Register Notice and TSD are 

unclear and provide an inconsistent 

description of the proposed SIP 

revision. 

Response I.B: EPA disagrees with the 

comment and notes that CCAT has not 

provided any specific examples in 

which the proposal and TSD are vague 

or inconsistent. CCAT also contends 

that AB 1318 is of minor relevance to 

this action. EPA agrees with this 

comment. EPA did not propose 

approval of this action based on the 

State legislation and has discussed that 

action only as background. EPA 

proposed to approve this SIP revision 

because it complies with the 

requirements of the CAA. 

Within this comment, CCAT also 

asserts that EPA’s record for proposing 

approval of the District’s SIP revision 

provides an inadequate justification. 

CCAT contends that EPA’s record is 

deficient because it does not 

acknowledge or explain that the 

proposed SIP revision purportedly does 

three separate things: first, codify in 

Federal law an entirely new method for 

the SCAQMD to generate emission 

credits; second, apply that generation 

method to specific reductions dating 

back to 1999; and third, transfer the 

credits out of the SCAMQD’s internal 

bank. See CCAT Letter at 3. 

CCAT’s first contention is that EPA 

does not explain or acknowledge that it 

is codifying into Federal law a new 

method for the District to generate 

emissions credits. The problem with 

CCAT’s comment is that EPA is not 

codifying a new method for the District 

to generate emissions credits.1 The 

emissions credits the District is 

transferring pursuant to its AB 1318 

Tracking System are emission credits 

that existed in the District’s internal 

accounts. The AB 1318 Tracking System 

contains the District’s accounting of 

these specific credits and a mechanism 

for transferring these emissions credits 

from the District’s internal account to 

Sentinel. The SIP revision does not 

establish a new method for the District 

to generate emission credits. EPA 

reviewed the submitted documentation 

demonstrating that a sufficient number 

of these specific emissions credits being 

transferred meet the Federal integrity 

criteria required by section 173 of the 

CAA. 

CCAT’s second contention is that the 

District is now generating credits from 

emissions reductions that occurred up 

to two decades ago and also that the 

District’s internal bank accounts have 

negative balances. While some of the 

emissions credits that the District is 

transferring arose from events in 1999, 

most occurred after 2003, therefore 

characterizing 1999 as being two 

decades ago may be technically correct 

but somewhat misleading. CCAT also 

states that no evidence of the actual 

dates of when the reductions occurred 

is contained in the public record. This 

is incorrect. The support 

documentation, which is voluminous 

and was available for review in hard 

copy, explicitly contains this 

information. In any event, we have 

reviewed the documentation for the 

emissions reductions, including those 

associated with events that occurred in 

1999 and consider those 1999 emissions 

credits to meet the requirements of 

section 173 of the CAA. 

CCAT also contends the District has 

‘‘negative balances’’ in its internal 

accounts. For the purposes of this SIP 

revision, the balance of the District’s 

internal accounts is not relevant, since 

EPA examined each of the specific 

emission reduction actions that are the 

basis for the credits being transferred 

pursuant to this SIP revision and found 

a sufficient quantity—compared to the 

amount needed for the CPV Sentinel 

Energy Project, to meet the CAA offset 

requirements. 

CCAT, NRDC and associated groups 

raised the same issue in a Petition to the 

Administrator in December 2010. In 

responding to the Petition, the 

Administrator examined the emission 

credits in the District’s internal accounts 

following passage of SB 827. SB 827 was 

a companion bill to AB 1318 which 

directed the District to transfer 

emissions credits from their internal 

accounts to exempt sources covered by 

Rule 1304 and priority reserve sources 

covered by Rule 1309.1 beginning in 

January 2011. A copy of the 

Administrator’s petition response letter 


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22040 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Rules and Regulations 

is attached to and incorporated into this 

Response to Comments because the 

same general issues arise with respect to 

AB 1318 and SB 827. The 

Administrator’s letter details the 

Agency’s determination that the District 

may use emissions reductions from 

previously shutdown sources, including 

minor source orphan shutdowns, to 

fund its internal accounts. The 

Administrator’s letter also disagrees 

with assertions that the District’s 

internal accounts have negative 

balances. Thus, for all of the reasons set 

forth in the Administrator’s letter, EPA 

disagrees with CCAT that this SIP 

revision constitutes codifying a new 

system of generating emissions credits, 

that the District’s internal accounts have 

negative balances or that the emission 

credits are invalid because they were 

created more than two decades ago. 

CCAT’s third contention is that this 

SIP revision allows the District to 

transfer ownership of emission credits 

out of the District’s internal bank. EPA 

agrees with this contention but CCAT 

has not raised any specific reason that 

such a transfer is contrary to the 

requirements of the CAA and this 

comment does not provide any basis for 

EPA to alter its proposal to approve the 

SIP revision providing a Federal 

mechanism to enforce the transfer of 

ownership of these emission credits. 

The District’s decision to transfer valid 

emission credits is a policy decision. 

CCAT states that the project 

description of the SIP revision is 

confusing because it does not ‘‘admit’’ 

that EPA is approving a revision to SIPapproved Rules 1303 and 1309.1. 

CCAT’s assertion that this action 

constitutes a revision of either Rule 

1303 or 1309.1 is incorrect. Instead, as 

stated in the actual SIP revision, the 

action is providing an additional 

federally enforceable mechanism for the 

District to transfer emission credits from 

its internal bank to the Sentinel project. 

But the District has not revised and EPA 

is not approving a revision to Rules 

1303 and 1309.1. 

Comment I.C: CCAT asserts that EPA 

did not include critical documents in 

the docket for this proposed rulemaking. 

Response I.C: CCAT appears to be 

criticizing the fact that scanned copies 

of voluminous records documenting the 

validity of each pound of emissions 

credits being transferred from the 

District bank to Sentinel were not 

provided in electronic form on the 

regulations.gov Web site. These 

documents consist of the ‘‘Offset Source 

Calculation/Verification Form’’ and 

supporting documentation for each 

form. The District’s submittal consisted 

of a CD, with 62 separate documents, 

comprising more than 1,000 pages. The 

forms show a facility’s name, the type 

of equipment that had been operated, 

the emission inventory data for the two 

years prior to shut down, the date when 

the facility’s permit was inactivated, 

verification of the shutdown and 

various emissions calculations using 

this data. EPA’s proposed approval of 

the SIP revision relied on these 

documents to demonstrate that a 

sufficient number of the emissions 

credits the District transferred met the 

integrity criteria in Section 173 of the 

CAA. 

Our proposed approval of this SIP 

revision stated that we had attached a 

‘‘complete list of PM10 and SOx

offsetting emissions reductions’’ to our 

Technical Support Document and that 

‘‘[d]ocumentation for each of these 

offsetting emission reductions is 

included in the docket for this 

proposal.’’ EPA’s proposed approval also 

stated: ‘‘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 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.’’ 

(76 FR 2294) Therefore, the proposed 

approval provided notice to the public 

to contact EPA to inspect the 

documentation for each offsetting 

emission reduction listed in the 

attachment to our Technical Support 

Document. 

EPA is not required to post all of the 

documents in its docket for a proposed 

rulemaking to the regulations.gov Web 

site, otherwise known as the 

‘‘EDOCKET’’. The hard copy documents 

in the Region’s office are the official 

docket for the rulemaking. We post 

many documents from the official 

docket to the EDOCKET for the 

convenience of the public but there is 

no requirement to post all of the 

documents. EPA did not post the 

voluminous Offset Source Calculation/ 

Verification Forms on the EDOCKET 

although a hard copy was readily 

available in our offices. A copy of the 

documents was also available at the 

District and CARB offices. 

CCAT also contends that EPA was 

required to specifically list the Offset 

Source Calculation/Verification Forms 

in the index to the docket. There is no 

legal requirement for EPA to provide an 

index to the docket. We frequently 

provide an index as a courtesy to the 

public. If we provide an index, we are 

not required to identify every 

background or supporting document 

provided in a submitted SIP revision. 

Because EPA cannot anticipate every 

question the public may have on our 

proposed rulemakings, EPA’s Federal 

Register notice proposing to approve 

this SIP revision contained contact 

information for EPA staff who would be 

knowledgeable about the proposal and 

could provide copies of the specific 

documents in our docket. CCAT did not 

try to contact any EPA staff to obtain a 

copy of the Offset Source Calculation/ 

Verification Forms or request EPA to 

provide further specificity in the docket 

index. Finally, the same records were 

provided to CCAT by the District long 

before our proposed approval was 

published. (South Coast Public Records 

Response #61991 and #61991B) 

In summary, CCAT has not provided 

any authority indicating that the Offset 

Source Calculation/Verification Forms 

were required to be identified in the 

index we posted on the EDOCKET or 

posted electronically in the EDOCKET. 

These documents were available in hard 

copy at the District’s office, at the offices 

of the California Air Resources Board as 

part of the SIP submission and EPA’s 

office in San Francisco. 

CCAT suggests that EPA may be 

treating some of the information in the 

records as confidential. The suggestion 

is incorrect. None of the information in 

the record for this SIP revision approval 

is confidential and all of the information 

on which EPA based its proposed 

approval has been available to the 

public. EPA does acknowledge that 

some information, such as the 

individual evaluation record for each 

emission reduction, was only available 

in hard copy. However, if CCAT had 

requested copies of these records, EPA 

would have made them available in our 

office for review, as the Federal Register 

stated, or we could have mailed a CD 

with the documents, since they were too 

large to send by e-mail. 

Comment II: CCAT asserts that EPA’s 

approval of the SIP revision would be 

arbitrary and capricious because EPA 

fails to explain the basis for its decision. 

Response II: CCAT in this comment 

points to a background paragraph in 

EPA’s TSD and argues that EPA’s 

proposal to approve this SIP revision 

constitutes approving a ‘‘new but 

equivalent’’ process for generating 

offsets. EPA disagrees. The ‘‘new but 

equivalent’’ method referred to in the 

Federal Register notice was not a new 

process for generating credits, but 

instead an additional way for a source 

to comply with the Rule 1303 

requirements that offsets be provided 

pursuant to Rule 1309 or by allocations 

from the Priority Reserve in accordance 


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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Rules and Regulations 22041 

with the provisions of Rule 1309.1. That 

is the intent of a source-specific SIP 

revision: to revise the existing SIP to 

account for an action that only applies 

to a single source. See, e.g. 76 FR 2263 

(January 8, 2011) CCAT also cites a 

NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 

2009). However, nothing in the decision 

or in this SIP revision can provide a 

basis for CCAT to challenge EPA’s 

action in 1996 on Regulation XIII. The 

time for challenging EPA’s action in 

1996 has past and our action in this SIP 

revision does not change or revise 

Regulation XIII. 

Comment III: CCAT asserts that the 

SIP revision is a violation of CAA 

section 173(c) and 40 CFR 

51.165(a)(3)(ii)(C)(1)(i)–(ii). 

Comment III (1): CCAT contends the 

District’s emission credits are not real 

because the District’s internal accounts 

are ‘‘balanced in the aggregate’’ and there 

is a ‘‘negative balance’’. 

Response III (1): EPA disagrees that 

the District’s internal accounts are 

balanced in the aggregate. Instead, a 

more accurate description is that the 

District demonstrates that their local 

NSR program provides at least as many 

offsets ‘‘in the aggregate’’ as would 

otherwise be required under a strictly 

Federal NSR program, on a project by 

project basis. The emissions credits that 

are the subject of this action represent 

‘‘real’’ emissions reductions that 

occurred from sources in the District. 

The District provided comprehensive 

documentation for each emission credit, 

including documentation of when the 

source was shutdown, verification that 

it was actually shutdown, actual 

emission inventory data for each source 

for the two years prior to shutdown, and 

other supporting information. The 

emission credits transferred to the AB 

1318 Tracking System were individually 

subtracted from the District’s internal 

accounts and are not included in the 

District’s annual ‘‘in the aggregate’’ 

equivalency demonstration. CCAT also 

alleges that the District’s accounts have 

a negative balance. This allegation has 

been thoroughly addressed in EPA 

Administrator Jackson’s letter dated 

September 23, 2010, which we are 

incorporating by reference into this 

response. Administrator Jackson’s letter 

sets forth the background during which 

EPA requested the District to remove 

pre-1990 emission credits for which the 

District did not have adequate 

documentation from its internal 

accounts. However, the District could 

replace those subtractions with 

previously uncounted emissions 

reductions from minor source orphan 

shutdowns. See p. 7–8. Therefore, the 

District’s internal bank is adequately 

funded and does not have ‘‘negative 

balances.’’ The support cited by CCAT 

for the proposition that the District’s 

balances are insufficient is an opinion 

in CCAT’s State court litigation 

pertaining to the California 

Environmental Quality Act (CEQA), 

which is not relevant to EPA’s 

evaluation of this SIP revision. Finally, 

CCAT contends that there is insufficient 

documentation to demonstrate the 

emission reductions occurred. EPA 

disagrees. The District’s documentation 

provides the name and location of the 

source that made the reduction, when 

the source was shutdown, verification 

that it was actually shutdown, the 

amount of the reduction, including 

documentation of actual emission 

inventory data for each source for the 

two years prior to shutdown, and other 

supporting information. 

Comment III (2): CCAT contends that 

the emission reductions are not 

quantifiable. 

Response III (2): EPA disagrees. The 

District provided documents with the 

SIP revision showing precisely how 

many pounds of pollutant had been 

reduced or eliminated to support each 

emission credit. These amounts were 

based on actual emission inventory data 

or production records for each source. 

This issue was also raised in 

conjunction with SB 827 and the 

Administrator’s letter dated September 

23, 2011 contains our further response. 

Comment III (3): CCAT alleges that 

the emissions reductions are not 

surplus. 

Response III (3): EPA disagrees. 

Emission credits would need to be 

adjusted to ensure they are surplus to 

any new or modified standards for PM10

and/or SOx emissions from power 

plants, aggregate operations, spray 

booths, etc. The District has not 

promulgated new rules or standards that 

would apply to these types of sources, 

and thus no adjustments to the credits 

were required. 

Comment III (4): CCAT contends that 

the emission reductions are not 

enforceable, citing the Ninth Circuit’s 

decision in El Comite para el Bienestar 

de Earlimart v. Warmerdam, 539 F.3d 

1062 (9th Cir. 2008). 

Response III (4): EPA disagrees. In this 

action the emission reductions will be 

enforceable because EPA’s SIP revision 

has incorporated by reference the 

transfer of a specific amount of emission 

credits. In Warmerdam, EPA had not 

incorporated by reference certain letters 

between CARB and EPA into the SIP. 

Here, the language that EPA is placing 

into the SIP clearly incorporates by 

reference all the individual emission 

reductions being transferred to the 

Sentinel Energy Project. While 

ultimately the Director of the Federal 

Register Office must determine that 

incorporation by reference complies 

with the requirements of 1 CFR 51.7, 

this type of material is generally within 

the type accepted for such treatment. 

See Use of Incorporation by Reference 

as a Mechanism for Shortening Federal 

Register Notices, from Gerald H. 

Yamada, Principal Deputy General 

Counsel to Regulatory Policy Group, 

dated Jan. 12, 1995. CCAT can enforce 

the District’s transfer of the emission 

credits and can also confirm that the 

permit from which the emission credit 

was created has been inactivated or 

review the conditions of a permit 

revised to create the emission 

reductions. 

Comment III (5): CCAT asserts that 

some of the emissions reductions are 

not creditable. 

Response III (5): EPA disagrees. 

Emission reductions are considered 

creditable if they have not been relied 

upon to demonstrate attainment, RFP or 

any other permit action. The District 

accounts for the use credits from their 

internal accounts by adding the average 

annual quantity of ERCs used over the 

last eight years to the projected 

inventory for years 2014 and 2020, i.e., 

the AQMP assumes that these emissions 

are in the air. By including such 

emissions in the inventory, the 

attainment plan has not relied on these 

emission reductions, thus they remain 

creditable for other purposes, such as 

NSR offsets. In addition, these emission 

reductions are being transferred from 

the Districts internal offset account and 

are therefore not available for any other 

permit action. 

Comment IV: CCAT contends that 

EPA cannot approve the District’s 

transfer of the emission credits to the 

Sentinel Energy Project because the 

emission reductions have been relied 

upon in other permitting actions and for 

demonstrating attainment. 

Comment IV.A.1: CCAT asserts that 

the offsets being transferred do not meet 

the requirements of Federal law because 

the District’s internal accounts have 

negative balances. 

Response IV.A.1: This portion of 

CCAT’s comment letter is a repetition of 

prior comments. With respect to the 

purported negative balance, EPA has 

responded previously. We repeat that 

the District does not have a negative 

balance. As fully set forth in the 

Administrator’s petition response letter 

dated September 23, 2010, EPA 

requested the District to remove any 

pre-1990 emission credits for which the 

District did not have adequate 

documentation. The District did so and 


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22042 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Rules and Regulations 

2Air Quality Demonstration: SIP Revision for CPV 

Sentinel Energy Project. 

then added in credits from minor source 

orphan shutdowns that it had not 

previously counted. EPA has 

determined that funding the District’s 

bank with minor source orphan 

shutdowns complies with the CAA. The 

District’s balance of credits for each 

pollutant is positive when credits from 

minor orphan shutdowns are included. 

Comment IV.A.2: CCAT also contends 

that the emissions credits being 

transferred that were based on shutdown equipment may not be used if 

they were shut down before the base 

year for the SIP planning process. 

Response IV.A.2: CCAT contends that 

the District has relied on the emission 

reduction credits generated from 

shutdown sources which occurred 

before the 2002 baseline in the 2007 

AQMP. EPA disagrees. As explained in 

Response III (5), the District adds in a 

portion of the pre-baseline banked 

emission credits into the inventory for 

each future year. The amount added for 

each pollutant is determined based on 

historical usage of offsets in the basin. 

Since the baseline inventory is adjusted 

to account for an adequate number of 

pre-baseline emission reductions due to 

shutdowns, the District is complying 

with the requirements of 40 CFR 

51.165(a)(3)(ii)(C)(1)(ii) and may use 

such reductions as current offsets. 

Comment IV.A.3: CCAT contends that 

‘‘crediting these purported emission 

reductions to the SCAQMD’s Offset 

Accounts Violates CCA [sic] section 

110(l)’’. 

Response IV.A.3: Under section 110(l) 

of the CAA, EPA may not approve any 

SIP revision that would interfere with 

attainment, reasonable further progress 

(RFP) or any other CAA requirement. 

In our proposed approval, EPA stated 

that this revision will not interfere with 

attainment or RFP because the emission 

credits in the AB 1318 Tracking System 

are not relied on for attainment or RFP 

in the District’s most recent attainment 

demonstrations. We also indicated that 

this revision did not interfere with any 

other CAA requirement. In addition, we 

stated that the District supplied a copy 

of its air quality analysis for the CPV 

Sentinel Energy Project which shows 

that operation of the facility will not 

interfere with the ability of the District 

to reach attainment.2 CCAT has 

provided no specific information to 

refute this discussion regarding CAA 

110(l) from our proposal. 

Comment IV.A.3.i: CCAT again 

contends that the emission reductions 

have been relied upon by the District in 

past permitting actions and in its 2007 

AQMP, therefore not making them 

available for the Sentinel Energy Project. 

Response IV.A.3.i: Please see earlier 

responses on these same points in 

responses III(5) and IV.A.2. 

Comment IV.A.3.ii: CCAT contends 

that it is inadequate for EPA to meet its 

burden for rational decision-making 

regarding compliance with section 

110(l) by not being aware of interference 

the proposed action would have with 

other CAA requirements. 

Response IV.A.3.ii: EPA disagrees. 

The TSD (pages 5–6) discusses how the 

project complies with the CAA 

requirements that this SIP action is 

subject to, and this statement is simply 

affirming that there are no other CAA 

requirements for which the action is 

subject. 

Comment IV.A.3.iii: CCAT contends 

that EPA fails to describe the ‘‘new but 

equivalent mechanism * * * for 

satisfying the offset requirements of 

CAA § 173’’, and that the record does 

not provide any proof, facts or analysis 

that EPA engaged in a rational 

consideration of all facts for its decision. 

Response IV.A.3.iii: EPA disagrees. 

The TSD (pages 5–6) provides a 

discussion of all five of the CAA § 173 

offset integrity criteria, and explains the 

rationale for EPA’s conclusion that the 

proposed offsets meet these criteria. The 

‘‘new but equivalent mechanism’’ EPA 

was referring to in the FR notice was not 

for generating credits, but instead refers 

to the ability of the source to provide 

emission reduction credits for their 

project which were not provided 

pursuant to Rule 1309 or allocations 

from Rule 1309.1. 

Comment IV.A.3.iii: CCAT contends 

that in an analysis undertaken by the 

California Energy Commission, staff 

concluded that the Sentinel facility 

would contribute to existing 

exceedences in the area, and supplied 

the text from the CEC analysis. 

Response IV.A.3.iii: The submitted 

CEC modeling does not evaluate the 

impacts of the project on the District’s 

ability to attain the PM10 standard, 

which is the required evaluation 

criteria, but instead models a worst case 

scenario assuming the highest 

background concentrations, the highest 

PM10 emission rate from the plant and 

the worst meteorological conditions 

would all occur at the same time and at 

the same location. CEC staff 

acknowledges that all of these worst 

case conditions are ‘‘not likely to occur.’’ 

In addition, the modeling did not take 

into account the reductions expected 

from other District control measures or 

the offsets provided for this project. The 

air quality analysis prepared by the 

District is consistent with EPA guidance 

for determining the impacts of projects 

on an area’s ability to attain a NAAQS. 

Comment IV.A.3.iv: CCAT contends 

that EPA must analyze this submission 

together with the District’s recently 

approved Rule 1315. 

Response IV.A.3.iv: EPA disagrees. 

We note that the District has submitted 

and EPA will be taking action in the 

future on District Rule 1315. Rule 1315 

provides in regulatory language the 

District methodology for debiting and 

crediting offsets for sources that qualify 

under Rules 1304 and 1309.1. Rule 1315 

is not the subject of, nor is it related to 

this rulemaking in anyway. The merits 

of Rule 1315 will be considered in a 

separate action which will be subject to 

public notice and comment. 

CCAT has not provided any specific 

comments showing that the factual 

statements in our proposed approval 

were incorrect or insufficient. CCAT 

merely repeats general and conclusory 

allegations of violations of section 

110(l). That provision is not a general 

bar to revising a SIP. Accordingly, 

section 110(l) does not prevent us from 

taking final action to approve this 

source-specific SIP revision 

independent of action on Rule 1315. 

Comment V.: CCAT contends that 

through this source-specific SIP revision 

EPA has re-opened its 1996 approval of 

the California SIP’s creation of a 

SCAQMD internal bank, and how the 

credits in the bank are generated, 

tracked and validated. 

Response V: EPA approved 

Regulation XIII in 1996. Regulation XIII 

comprised the District’s comprehensive 

new source review program, including 

two provisions that allowed the District 

to provide offsets from its internal bank 

of emission credits to certain exempt 

and priority reserve sources which 

would otherwise be required to obtain 

offsets for meeting Federal CAA 

requirements. Our approval of 

Regulation XIII was not challenged 

following our rulemaking action in 

1996. 

CCAT’s contention that our approval 

of this source-specific SIP revision reopens our 1996 approval of Regulation 

XIII is without merit. This sourcespecific SIP revision allows the District 

to transfer certain emissions credits to 

one stationary source, the Sentinel 

Energy Project. The action does not 

modify or revise any provision of 

Regulation XIII. CCAT notes that it has 

litigation in the Court of Appeals 

regarding its belief that District Rule 

1309 applies to the District’s internal 

bank. This source-specific SIP revision 

is unrelated. In this action, we have 

found that the specific amount of 

emission credits the District is 


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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Rules and Regulations 22043 

transferring to Sentinel meet the 

integrity criteria of Federal law in the 

amounts calculated to offset Sentinel’s 

emissions increases. 

CCAT’s comment also contends that 

this action is establishing ‘‘an alternate 

generation system.’’ We disagree, as 

noted previously. 

Comment V.1.: CCAT lastly alleges 

that the source-specific SIP revision 

violates CAA section 172(e). 

Response V.1.: CCAT has not 

explained how this source-specific SIP 

revision triggers the requirements in 

section 172(e) that apply to the 

Administrator following promulgation 

of a national ambient air quality 

standard. CCAT states that any emission 

credits that are not ‘‘generated’’ 

according to Rule 1309 ‘‘must accrue to 

the benefit of air quality’’ apparently 

based on section 172(e). EPA does not 

agree that section 172(e) establishes 

such an obligation. 

III. EPA Action 

This source-specific SIP revision 

complies with all relevant CAA 

requirements and is consistent with 

EPA’s guidance for NSR. Therefore, as 

authorized in section 110(k)(3) of the 

Act, EPA is fully approving this sourcespecific SIP revision into the California 

SIP. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 13563 

This action will approve the sourcespecific SIP revision known as the CPV 

Sentinel Energy Project AB 1318 

Tracking System into the California SIP. 

This type of action is exempt from 

review under Executive Orders 12866 

(58 FR 51735, October 4, 1993) and 

13563 (76 FR 3821, January 21, 2011). 

B. Paperwork Reduction Act 

This 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 conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements 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 not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals under 

section 110 and subchapter I, part D of 

the CAA do not create any new 

requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because the 

Federal SIP approval does not create 

any new requirements, I certify that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

CAA, preparation of flexibility analysis 

would constitute Federal inquiry into 

the economic reasonableness of State 

action. The CAA forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under sections 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed into 

law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that the approval 

action proposed does not include a 

Federal mandate that may result in 

estimated costs of $100 million or more 

to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This Federal action 

proposes to approve pre-existing 

requirements under State or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule 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, because it 

merely approves a State rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

Thus, the requirements of section 6 of 

the Executive Order do not apply to this 

rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This proposed rule does 

not have tribal implications, as specified 

in Executive Order 13175. It will not 

have substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 


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22044 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Rules and Regulations 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 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 Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

approves a State rule implementing a 

Federal standard. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (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 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order 12898 (59 FR 7629 

(Feb. 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 lacks the discretionary authority 

to address environmental justice in this 

rulemaking. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: April 4, 2011. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

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 52.220 is amended by 

adding paragraph (c)(384) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(384) New and amended regulations 

for the following APCD’s were 

submitted on September 10, 2010 by the 

Governor’s designee. 

(i) Incorporation by Reference 

(A) South Coast Air Quality 

Management District 

(1) Resolution No. 10–20, dated July 

9, 2010. 

(2) ‘‘Revision to the State 

Implementation Plan for the South 

Coast Air Quality Management District, 

State of California: Sulfur Oxides and 

Particulate Matter Offset Requirements 

for the Proposed CPV Sentinel Power 

Plant to be Located in Desert Hot 

Springs, California, Including AB 1318 

Offset Tracking System’’, which is 

incorporated by reference in Resolution 

No. 10–20, dated July 9, 2010. 

(3) ‘‘CPV Sentinel Energy Project AB 

1318 Tracking System’’, which is 

incorporated by reference in Resolution 

No. 10–20, dated July 9, 2010. 

* * * * * 

[FR Doc. 2011–9460 Filed 4–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 158 and 161 

[EPA–HQ–OPP–2008–0110; FRL–8861–7] 

RIN 2070–AD30 

Data Requirements for Antimicrobial 

Pesticides; Notification to the 

Secretaries of Agriculture and Health 

and Human Services 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notification to the Secretaries of 

Agriculture and Health and Human 

Services. 

SUMMARY: This document notifies the 

public that the Administrator of EPA 

has forwarded to the Secretary of 

Agriculture and the Secretary of Health 

and Human Services a draft final rule 

under the Federal Insecticide, 

Fungicide, and Rodenticide Act 

(FIFRA). EPA is codifying a separate 

listing of data requirements in the Code 

of Federal Regulations for the 

registration of antimicrobial pesticide 

products. These data requirements 

reflect current scientific knowledge and 

current Agency regulatory practices. 

Besides providing the regulated 

community with clearer and more 

transparent information, the updated 

data requirements further enhance 

EPA’s ability to make regulatory 

decisions about the human health and 

environmental fate and effects of 

antimicrobial pesticide products. 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2008–0110. All documents in the 

docket are listed in the docket index 

available in http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 


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