26102 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

environmental impact statement is not 

required. The final EA and Finding of 

No Significant Impact may be reviewed 

at the Los Angeles District Office. Please 

contact Peggy Bartels at the phone 

number specified above for further 

information. 

d. Unfunded Mandates Reform Act. 

This rule does not impose an 

enforceable duty among the private 

sector and, therefore, is not a Federal 

private sector mandate and is not 

subject to the requirements of Section 

202 or 205 of the Unfunded Mandates 

Reform Act (Pub. L. 104–4, 109 Stat. 48, 

2 U.S.C. 1501 et seq.). We have also 

found, under Section 203 of the Act, 

that small governments will not be 

significantly or uniquely affected by this 

rule. 

List of Subjects in 33 CFR Part 334 

Danger zones, Navigation (water), 

Transportation, Waterways. 

■ For the reasons stated in the preamble, 

the Corps is amending 33 CFR part 334 

to read as follows: 

PART 334—DANGER ZONE AND 

RESTRICTED AREA REGULATIONS 

■ 1. The authority citation for 33 CFR 

part 334 continues to read as follows: 

Authority: 40 Stat. 266 (33 U.S.C. 1) and 

40 Stat. 892 (33 U.S.C. 3). 

■ 2. Add § 334.866 to read as follows: 

§ 334.866 Pacific Ocean at Naval Base 

Coronado, in the City of Coronado, San 

Diego County, California; Naval Danger 

Zone. 

(a) The area. A fan-shaped area 

extending westerly into the waters of 

the Pacific Ocean from a point on the 

beach of Naval Base Coronado, 

Coronado, California beginning at 

latitude 32°41′13′′ N, longitude 

117°12′45′′ W; thence easterly, along the 

mean high water mark, to latitude 

32°41′14′′ N, longitude 117°12′32′′ W; 

thence southerly to latitude 32°40′31′′ N, 

longitude 117°12′12′′ W; thence westerly 

to latitude 32°40′25′′ N, longitude 

117°12′43′′ W; thence northerly, 

landward, to the point of origin. 

(b) The regulations. (1) Range live 

firing on the Naval Base Coronado, 

Coronado, California small arms range 

may occur at any time. Information on 

live firing schedules and coordination 

for community concerns can be 

obtained by calling the Naval Base 

Coronado Small Arms Range Safety 

Officer at 619–545–8413 during normal 

working hours. Assistance is also 

available via the Naval Base Coronado 

Hotline at 619–545–7190 or the Naval 

Base Coronado operator at 619–545– 

1011. If the phone numbers are changed, 

they will be updated on the Naval Base 

Coronado Web site http:// 

www.cnic.navy.mil/Coronado. 

(2) The danger zone will be open to 

fishing and general navigation when no 

weapons firing is scheduled, which will 

be indicated by the absence of any 

warning flags or flashing lights on land 

in the locations specified in paragraphs 

(b)(3) and (b)(4) of this section. 

(3) When live firing is about to be 

undertaken or is in progress during 

daylight hours, three (3) large red 

warning flags will be displayed at the 

top of the flag poles on the southern 

berm of the small arms range, so as to 

be clearly visible from all points of entry 

into the danger zone. The west flag pole 

is located on the southern berm at 

latitude 32°41′21.5′′ N, longitude 

117°12′42.8′′ W, the middle flag pole is 

located at latitude 32°41′21.7′′ N, 

longitude 117°12′40.9′′ W, and the east 

flag pole is located at latitude 

32°41′22.4′′ N, longitude 117°12′38.7′′ 

W. 

(4) When live firing is about to be 

undertaken or is in progress during 

periods of darkness, three (3) red 

flashing warning lights will be 

displayed at the top of the flag poles on 

the southern berm of the small arms 

range at the locations described in 

paragraph (b)(3) of this section, so as to 

be clearly visible from all points of entry 

into the danger zone. 

(5) The danger zone is not considered 

safe for vessels or individuals when live 

firing is in progress. When live firing is 

about to begin or is scheduled as 

indicated by the warning flags or 

flashing warning lights described in 

paragraphs (b)(3) and (b)(4) of this 

section, all vessels will be required to 

expeditiously vacate the danger zone. 

(6) Anchoring by any vessel within 

the danger zone is prohibited. 

(7) Prior to conducting live firing, 

Navy personnel will visually scan the 

danger zone to ensure that no vessels or 

individuals are located within it. Any 

vessels or individuals in the danger 

zone will be notified by the Navy Range 

Safety Officer using a marine VHF–FM 

marine radio and by other means as 

necessary, to exit the danger zone and 

remain outside the area until conclusion 

of live firing. As new technology 

becomes available, the VHF–FM marine 

radio communications system may be 

updated. 

(8) Safety observers will be posted in 

accordance with range standard 

operating procedures at all times when 

the warning flags or flashing lights 

described in paragraphs (b)(3) and (b)(4) 

of this section are displayed. Operation 

of the small arms range will only occur 

when visibility is sufficient to maintain 

visual surveillance of the danger zone 

and vicinity. In the event of limited 

visibility due to rain, fog or other 

conditions, live firing will be postponed 

until the danger zone can be confirmed 

clear of all vessels and individuals. 

(9) Naval Base Coronado will 

maintain a schedule of live firing at the 

small arms range on its Web site, 

http://www.cnic.navy.mil/Coronado, 

which will be accessible to the public, 

mariners, and recreationists. The Navy 

will maintain the Web site on a year 

round basis and update information as 

needed for public safety. 

(c) Enforcement. The regulation in 

this section will be enforced by the 

Commanding Officer, Naval Base 

Coronado, and such agencies and 

persons as he/she may designate. 

Dated: April 30, 2010. 

Approved: 

Michael G. Ensch, 

Chief, Operations, Directorate of Civil Works. 

[FR Doc. 2010–11125 Filed 5–10–10; 8:45 am] 

BILLING CODE 3720–58–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2010–0062; FRL–9141–3] 

Approval and Promulgation of 

Implementation Plans, State of 

California, San Joaquin Valley Unified 

Air Pollution Control District, New 

Source Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action on 

revisions to the San Joaquin Valley 

Unified Air Pollution Control District 

portion of the California State 

Implementation Plan. Specifically, EPA 

is taking final action on three amended 

District rules, one of which was 

submitted on March 7, 2008 and the 

other two of which were submitted on 

March 17, 2009. Two of the submitted 

rules reflect revisions to approved 

District rules that provide for review of 

new and modified stationary sources 

(‘‘new source review’’ or NSR) within 

the District, and the third reflects 

revisions to an approved District rule 

that provides a mechanism by which 

existing stationary sources may 

voluntarily limit their operations to 

avoid the requirement to secure a 

Federally-mandated operating permit. 

The NSR rule revisions relate to 

exemptions from permitting and offsets 

requirements for certain agricultural 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 26103 

1The San Joaquin Valley includes all of San 

Joaquin, Stanislaus, Merced, Madera, Fresno, Kings 

and Tulare counties, and the western half of Kern 

County, in the State of California. The San Joaquin 

Valley is designated as a nonattainment area for the 

1997 8-hour ozone national ambient air quality 

standard (NAAQS) and the 1997 (annual) and 2006 

(24-hour) fine particulate matter (PM2.5) NAAQS 

and is designated as attainment or unclassifiable for 

the other NAAQS. See 40 CFR 81.303. The area is 

further classified as ‘‘serious’’ for the 8-hour ozone 

NAAQS, but the State of California has submitted 

a request to reclassify the area to ‘‘extreme.’’ See 74 

FR 43654 (August 27, 2009) for EPA’s proposed 

approval of the State’s reclassification request. The 

San Joaquin Valley was further classified as an 

‘‘extreme’’ area for the now-revoked 1-hour ozone 

NAAQS when EPA designated the area with respect 

to the 8-hour ozone NAAQS. 

operations, to the establishment of NSR 

applicability and offset thresholds 

consistent with a classification of 

‘‘extreme’’ nonattainment for the ozone 

standard, and to the implementation of 

EPA’s NSR Reform Rules. With respect 

to the revised District NSR rules, EPA is 

finalizing a limited approval and 

limited disapproval because, although 

the changes would strengthen the SIP, 

there are deficiencies in enforceability 

that prevent full approval. With respect 

to the rule pertaining to operating 

permit requirements, EPA is finalizing a 

full approval. EPA is also taking final 

action to remove certain obsolete 

conditions placed on previous 

approvals of various California 

nonattainment plans. Lastly, EPA is 

deferring further action on the Agency’s 

proposal to correct the May 2004 

approval of the previous version of the 

District’s NSR rules pending receipt 

from California of an interpretation of 

the District’s legal authority with 

respect to agricultural sources under 

state law. 

The limited approval and limited 

disapproval action triggers a sanctions 

clock, and EPA’s obligation to 

promulgate a Federal implementation 

plan, because the revisions to the 

District rules that are the subject of this 

action are required under antibacksliding principles established for 

the transition from the 1-hour to the 8- 

hour ozone standard. 

DATES: Effective Date: This rule is 

effective on June 10, 2010. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2010–0062 for 

this action. The index to the docket 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, Permits Office (AIR– 

3), U.S. Environmental Protection 

Agency, Region IX, (415) 972–3534, 

yannayon.laura@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

A. Correction of EPA’s May 2004 Final 

Approval 

B. Proposed Action on Amended District 

Rules 

1. Summary of Evaluation of Changes 

Related to Minor NSR 

2. Summary of Evaluation of Changes 

Related to ‘‘Extreme’’ Ozone Area NSR 

Requirements 

3. Summary of Evaluation of Changes 

Implementing EPA’s NSR Reform Rules 

4. Summary of Evaluation of Amended 

Rules for Enforceability 

5. Summary of Evaluation of Amended 

Rule 2530 

6. Summary of Evaluation of Amended 

Rules for Compliance with CAA Section 

110(l) 

C. Removal of Obsolete Conditions on SIP 

Approvals 

II. Public Comments and EPA’s Responses 

III. Final Action 

IV. Statutory and Executive Order 

Reviews 

I. Proposed Action 

On January 29, 2010 (75 FR 4745), 

under the Clean Air Act (CAA or ‘‘Act’’), 

we proposed three actions in connection 

with the permitting rules for the San 

Joaquin Valley Unified Air Pollution 

Control District (‘‘District’’) portion of 

the California State Implementation 

Plan (SIP).1

A. Correction of EPA’s May 2004 Final 

Approval 

First, we proposed to correct an error 

in our May 2004 final rule approving 

the District’s Rules 2020 and 2201 that 

establish the requirements and 

exemptions for review of new or 

modified stationary sources (‘‘new 

source review’’ or ‘‘NSR’’). In our 

proposed rule, we explained how our 

error arose from the failure, based on 

information available at the time, to 

recognize that the District did not have 

the authority under State law to 

implement Rules 2020 and 2201 with 

respect to permitting of minor 

agricultural sources with actual 

emissions less than 50% of the 

applicable ‘‘major source’’ thresholds 

and with respect to the imposition of 

emissions offset requirements for minor 

agricultural sources. 

In response to our proposed rule, 

several comments were submitted that 

object to our proposed correction action 

and the interpretation of State law upon 

which it is based, and raise significant 

questions as to the true extent of District 

authority with respect to agricultural 

sources under State law. Specifically, 

the commenters who object to our 

proposed correction cite ‘‘savings’’ 

clauses in State law that they contend 

ratify District NSR rules that contain no 

permitting or offsets exemptions for 

agricultural sources notwithstanding 

other provisions in State law that would 

otherwise limit such District authority 

over those sources. To ensure our action 

is based on a correct interpretation of 

State law, we have decided to request 

the State of California to provide us 

with a legal interpretation of the extent 

of District authority with respect to 

agricultural sources under State law and 

to defer further rulemaking on the 

correction proposal until we have the 

opportunity to consider the StateY’s 

response to our request. 

B. Proposed Action on Amended District 

Rules 

In this section, we summarize the 

information we provided in the 

proposed rule concerning the submitted 

rules subject to this final action, the 

changes in the rules relative to the 

corresponding rules in the existing SIP, 

and our evaluation of the amended rules 

relative to the applicable CAA and EPA 

requirements. We provide only a 

summary of this information herein. For 

a more detailed discussion of these 

issues, please see our January 29, 2010 

proposed rule. 

Table 1 lists the rules on which we 

proposed action in our January 29, 2010 

proposed rule with the dates that they 

were revised by the District and 

submitted to EPA by the California Air 

Resources Board (CARB). Today, we are 

taking final action on the three listed 

rules. 


jlentini on DSKJ8SOYB1PROD with RULES
26104 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

2The existing exemption is limited to the types 

of equipment described above but also establishes 

the following specifications for both natural gas and 

LPG combusted by the equipment: ‘‘provided the 

fuel contains no more than five percent by weight 

hydrocarbons * * * and no more than 0.75 grains 

of total sulfur per 100 standard cubic feet of gas 

* * *.’’ The revised exemption establishes separate 

specifications for natural gas and for LPG. The 

hydrocarbon content limit remains five percent for 

natural gas but drops to two percent for LPG. The 

sulfur content limit increases from 0.75 grains, to 

1.0 grain for natural gas, and to 15 grains (per 100 

standard cubic feet of gas). The revised exemption 

requires use of the latest versions of the relevant 

ASTM test methods. 

3Using these two definitions, the District 

performs two separate ‘‘major modification’’ 

determinations. Where the modification of an 

existing source falls within the definition of ‘‘SB 

288 Major Modification,’’ the modification will be 

required at a minimum to meet the NSR SIP 

requirements that had applied prior to adoption by 

the District of the 2002 NSR Reforms into Rule 

2201. Where the modification also falls within the 

definition of ‘‘Federal Major Modification,’’ the 

modification will have to meet additional NSR 

Requirements consistent with 2002 NSR Reform. 

4We also identified and evaluated a number of 

other, less substantive changes, and found all of 

them to be either neutral or strengthening relative 

to the existing SIP and consistent with all 

applicable requirements. See section IV.B.5 of the 

January 29, 2010 proposed rule. 

TABLE 1—SUBMITTED RULES FOR WHICH WE ARE TAKING FINAL ACTION IN TODAY’S ACTION

Local agency Rule # Rule title Amended Submitted 

SJVUAPCD ................................. 2020 Exemptions ..................................................................................... 12/20/07 03/07/08 

SJVUAPCD ................................. 2201 New and Modified Stationary Source Review Rule ....................... 12/18/08 03/17/09 

SJVUAPCD ................................. 2530 Federally Enforceable Potential to Emit ......................................... 12/18/08 03/17/09 

With respect to District Rule 2020 

(‘‘Exemptions’’), the rule’s purpose is to 

specify emission units that are not 

required to obtain an Authority to 

Construct or Permit to Operate and to 

specify the recordkeeping requirements 

to verify such exemptions. Generally, 

the changes that we are taking action on 

today relative to the existing SIP version 

would revise and clarify certain 

exemptions and exempt certain 

agricultural sources from permitting 

requirements. 

Among the changes in amended 

District Rule 2020 relative to the version 

previously approved into the SIP are 

changes that will do the following: 

• Revise the existing exemption for 

steam generators, steam superheaters, 

water boilers, water heaters, steam 

cleaners, and closed indirect heat 

transfer systems that have a maximum 

input heat rating of five million Btu per 

hour or less and that are fired 

exclusively on natural gas or liquefied 

petroleum gas (LPG) (see paragraph 

6.1.1 of the submitted rule); 2

• Clarify and tighten the existing 

exemption for certain types of transfer 

equipment, such as loading and 

unloading racks, and equipment used 

exclusively for the transfer of refined 

lubricating oil (see paragraph 6.7 of the 

submitted rule); and 

• Exempt agricultural sources to the 

extent such sources are exempt 

pursuant to California Health & Safety 

Code (CH&SC) section 42301.16 (see 

paragraph 6.20 of the submitted rule). 

CH&SC section 42301.16 essentially 

exempts agricultural sources with actual 

emissions less than 50 percent of a 

major source applicability threshold 

from permitting unless the District 

makes certain findings. 

With respect to District Rule 2201 

(‘‘New and Modified Stationary Source 

Review Rule’’), the rule’s purpose is to 

provide for the review of new and 

modified stationary sources of air 

pollution and to provide mechanisms 

including emission trade-offs by which 

Authorities to Construct such sources 

may be granted, without interfering with 

the attainment or maintenance of 

ambient air quality standards. District 

Rule 2201 is also intended to provide 

for no net increase in emissions above 

specified thresholds from new and 

modified stationary sources of all 

nonattainment pollutants and their 

precursors. 

Generally, amended District Rule 

2201 incorporates three major changes 

relative to the version of Rule 2201 that 

is approved into the SIP. First, amended 

District Rule 2201 would replace the 

term, ‘‘Major Modification,’’ with two 

terms, ‘‘Federal major modification’’ and 

‘‘SB 288 major modification.’’ (See 

paragraphs 3.17 and 3.34 of the 

amended rule.) The former term 

incorporates EPA’s NSR reform 

principles, and the latter term retains 

the pre-NSR reform approach to 

determining whether a modification is a 

major modification.3 Second, amended 

District Rule 2201 would incorporate 

the lower ‘‘major source’’ and ‘‘Federal 

major modification’’ emissions 

thresholds, and higher offset ratios, for 

the ozone precursors, VOC and NOX, 

consistent with an ‘‘extreme’’ ozone 

classification. (See paragraphs 3.17, 

3.23, and 3.34 of the amended rule.) 

Lastly, changes to District Rule 2201 

would exempt new or modified 

agricultural sources from offset 

requirements to the extent provided by 

CH&SC section 42301.18(c), which 

exempts agricultural sources from the 

offsets requirement if emissions 

reductions from such sources would not 

meet the criteria for real, permanent, 

quantifiable, and enforceable emissions 

reductions, unless the offsets are 

required by Federal CAA requirements. 

(See paragraph 4.6.9 of the amended 

rule.) 

Unlike District Rules 2020 and 2201, 

District Rule 2530 (‘‘Federally 

Enforceable Potential to Emit’’) is not an 

NSR rule, but is a rule that relies on 

thresholds based on certain percentages 

of the major source thresholds 

established for NSR purposes as a basis 

to exempt sources from the 

requirements of Rule 2520 (‘‘Federally 

Mandated Operating Permits’’). Relative 

to the corresponding rule in the existing 

SIP, the amended rule would lower the 

thresholds below which sources of VOC 

or NOX are exempt from the 

requirements of Rule 2520 (see 

paragraph 6.1 of the amended rule), 

would lower the thresholds below 

which sources are exempt from certain 

recordkeeping and reporting 

requirements under Rule 2530 (see 

paragraph 5.4.1.2 of the amended rule); 

and would lower certain alternative 

operational limits (see, e.g., paragraph 

6.2.4 of the amended rule). 

In evaluating the amendments to the 

three District Rules, we found that 

significant changes fall into four broad 

categories: Changes affecting minor 

source NSR permitting requirements; 

changes relating to the area’s extreme 

classification for the 1-hour ozone 

standard; changes relating to NSR 

Reform; and changes affecting the 

mechanism used by sources to avoid 

title V requirements, and we evaluated 

these changes for compliance with the 

requirements under CAA section 110(a), 

section 110(l), and section 182(e) and 

(f). In addition, we reviewed the 

amended rules for compliance with 

EPA’s regulations for NSR, including 40 

CFR 51.160 through 40 CFR 51.165. In 

so doing, we took into account the 

pollutant-specific designations for the 

San Joaquin Valley, summarized in table 

2.4


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 26105 

5The District’s view on whether the CH&SC 

section 42301.16 (and cited in District Rule 2020, 

section 6.20) covers fugitive VOC emissions is 

found in the District’s Final Staff Report (page B– 

13, response to comment #19) on proposed 

amendments to Rule 2201 and Rule 2530 (dated 

December 18, 2008): ‘‘The District appreciates the 

opportunity to reiterate that, for the purposes of 

implementing CH&SC sections 40724.6(c) and 

42301.16(c), all emissions, except for fugitive dust, 

must be included in calculations to determine 

district permitting requirements based on one-half 

of the major source thresholds. The statutory 

language of these sections is consistent, which read 

separately or in the interrelated nature in which 

they were intended to be read, and [sic] District’s 

implementation adheres to this statutory language.’’ 

Thus, fugitive VOC emissions are included in the 

determination of whether actual emissions from a 

minor agricultural operation are greater than 50% 

of the applicable major source threshold which, for 

VOC, is 10 tons per year, or, in other words, greater 

than 5 tons per year. 

6Also see the District’s Clean Air Act section 

110(l) analysis, entitled ‘‘San Joaquin Valley Unified 

Air Pollution Control District Rules 2020 and 2201, 

as amended September 21, 2006, District’s Clean 

Air Act 110(l) Analysis,’’ dated November 20, 2007. 

TABLE 2—SAN JOAQUIN VALLEY AREA DESIGNATIONS

Pollutant Designation Classification 

(Revoked) Ozone—1-hour standard .................. Nonattainment .................................................. Extreme (at the time of designation for the 

1997 8-hour ozone standard). 

Ozone—1997 8-hour standard ........................... Nonattainment .................................................. Serious.a

Respirable Particulate Matter (PM10) ................. Attainment ........................................................ Not Applicable. 

Fine Particulate Matter (PM2.5) ........................... Nonattainment .................................................. Not Applicable. 

Carbon Monoxide ............................................... Attainment (4 urban areas); Unclassifiable/Attainment (rest of valley).Not Applicable. 

Nitrogen Dioxide ................................................. Unclassifiable/Attainment ................................. Not Applicable. 

Sulfur Dioxide ..................................................... Unclassifiable/Attainment ................................. Not Applicable. 

aThe State of California has requested reclassification of the San Joaquin Valley to ‘‘extreme’’ for the 1997 8-hour ozone standard. See 74 FR 

43654 (August 27, 2009). 

1. Summary of Evaluation of Changes 

Related to Minor NSR 

As to the changes related to minor 

source NSR permitting requirements, we 

found that the amended rules would 

affect minor source NSR (‘‘minor NSR’’) 

by revising an existing permitting 

exemption for certain natural-gas- or 

LPG-fired combustion and heat transfer 

systems (see paragraph 6.1 in submitted 

District Rule 2020), by exempting minor 

agricultural sources with actual 

emissions less than 50 percent of the 

major source threshold (see paragraph 

6.20 in submitted District Rule 2020) 

from permitting, and by exempting all 

new or modified minor agricultural 

sources from the offset requirement (see 

paragraph 4.6.9 of submitted District 

Rule 2201). 

We concluded that the amended rules 

met EPA’s minor NSR requirements in 

40 CFR 51.160 because, even with the 

new and amended exemptions, the 

District NSR program would continue to 

provide the District with the 

information necessary to determine 

whether the construction or 

modification of a stationary source 

would result in a violation of applicable 

portions of the control strategy; or 

would result in interference with 

attainment or maintenance of the 

NAAQS. With respect to the revised 

exemption for certain smaller 

combustion and heat transfer systems, 

we based this conclusion on our 

determination that the relaxed sulfur 

content specification in amended Rule 

2020, paragraph 6.1, would have no 

significant impact on emissions in the 

valley. 

With respect the limited permitting 

exemption for agricultural sources, we 

based this conclusion on a number of 

factors. For particulate matter, we rely 

upon the implementation of certain 

prohibitory rules, such as District Rule 

4550 (‘‘Conservation Management 

Practices’’) and the District’s Regulation 

VIII (‘‘Fugitive PM10 Prohibitions’’, 

particularly, Rules 8011 and 8081) to act 

as non-permitting means to reduce 

fugitive dust emissions at agricultural 

sources that fall under the exemption 

and thereby reduce the potential for 

localized exceedances of the PM10 and 

PM2.5 standards. For ozone precursors 

(VOC and NOX), we noted that the 

limited permitting exemption would 

only apply to agricultural operations 

with ‘‘actual’’ emissions (i.e., including 

fugitive emissions) 5 of less than 5 tons 

per year, and that, as such, the scope of 

the exemption would be limited to 

small-scale agricultural operations and 

would be acceptable so long as the 

ozone plans for the valley do not count 

on permitting of such sources. 

With respect to the regional planning 

context, for the proposed rule, we 

reviewed the various approved and 

submitted San Joaquin Valley 

attainment or maintenance plans, and 

noted that none of these plans rely upon 

reductions from NSR for agricultural 

sources less than 50 percent of the major 

source threshold. We also noted that, for 

attainment planning purposes, growth 

in emissions from agricultural sources 

has been established by CARB’s area 

source inventory growth methodologies, 

and no mitigation of that growth from 

an offsets requirement has been 

considered when determining the 

impact of the growth on the District’s 

ability to achieve attainment with the 

standards.6 We concluded that, because 

the plans do not rely on emission 

reductions from permitting of 

agricultural sources less than 50% of the 

major source threshold and do not rely 

on offsets for new or modified minor 

agricultural sources, approval of the 

amended Rules 2020 and 2201 would be 

consistent with regional planning efforts 

to attain and maintain the NAAQS. 

Lastly, with respect to minor source 

NSR changes, we noted that, under 

Federal law, minor sources are not 

required to obtain offsets, and thus, the 

exemption for minor agricultural 

sources from the offsets requirement is 

consistent with Federal requirements. 

2. Summary of Evaluation of Changes 

Related to ‘‘Extreme’’ Ozone Area NSR 

Requirements 

In our January 29, 2010 proposed rule, 

we identified the applicable 

requirements for nonattainment areas 

classified as ‘‘extreme’’ for the 1-hour 

ozone standard and reviewed the 

amended District rules for compliance 

with the applicable requirements. For 

such areas, the relevant NSR 

requirements include a major source 

threshold of 10 tons per year of VOC or 

NOX [see CAA section 182(e) and 182(f) 

and 51.165(a)(1)(iv)], an offset ratio of 

1.5 to 1 [see CAA section 182(e)(1) and 

40 CFR 51.165(a)(9)], and definition of 

major modification that applies to any 

change at a major stationary source 

which results in any increase in 

emissions from any discrete operation, 

unit, or other pollutant emitting activity 

at the source [see CAA section 182(e)(2) 

and 40 CFR 51.165(a)(1)(x)(E)]. 

As submitted on March 17, 2009, the 

VOC and NOX provisions in District 

Rule 2201 have been amended to 

include the 10 ton per year threshold 


jlentini on DSKJ8SOYB1PROD with RULES
26106 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

(see paragraph 3.23 of amended Rule 

2201), the 1.5 to 1 offset ratio (see 

paragraph 4.8.1 of amended Rule 2201), 

and the ‘‘any increase’’ threshold for 

major modifications (see paragraph 

3.17.1.4 of amended Rule 2201). As 

such, we concluded that District Rule 

2201 has adequately been amended to 

reflect ‘‘extreme’’ ozone area 

requirements under the CAA and 40 

CFR 51.165. 

3. Summary of Evaluation of Changes 

Implementing EPA’s NSR Reform Rules 

In our proposed rule, we described 

EPA’s implementation of NSR Reform 

Rules and the ensuing litigation and 

identified the basic program elements 

that NSR programs must be amended to 

include. We concluded that, as 

submitted on March 17, 2009, District 

Rule 2201 has been amended to provide 

for the minimum program elements of 

the 2002 NSR Reform Rules that remain 

in the wake of subsequent litigation and 

EPA rulemaking. The amended District 

Rule provides for the minimum program 

elements by replacing a single definition 

for ‘‘Major Modification’’ with two 

definitions, one for ‘‘Federal Major 

Modification’’ and the other for ‘‘SB 288 

Major Modification.’’ As discussed 

above, the former term captures the NSR 

Reform program elements (and the ‘‘any 

increase’’ emissions threshold required 

in ‘‘extreme’’ ozone areas), while the 

latter retains the pre-Reform approach to 

determining major modification status. 

Paragraph 3.17.1 of amended Rule 2201 

incorporates the new method for 

determining baseline actual emissions 

and the actual-to-projected-actual 

methodology for determining whether a 

major modification has occurred. 

Paragraph 3.17.2 incorporates 

provisions allowing major stationary 

sources to comply with Plantwide 

Applicability Limits (PALs). 

4. Summary of Evaluation of Amended 

Rules for Enforceability 

For the reasons given in the January 

2010 proposed rule and summarized 

above, we found the amendments to 

District Rules 2020 and 2201 to be 

acceptable under applicable NSR 

regulations; however, SIP rules must 

also be enforceable [see CAA section 

110(a)], and we found two specific 

deficiencies related to enforceability of 

Rules 2020 and 2201 that prevent our 

full approval. These deficiencies arise 

from the ambiguity introduced by the 

references in both paragraph 6.20 (of 

Rule 2020) and paragraph 4.6.9 (of Rule 

2201) to State law under circumstances 

where the State law has not been 

submitted to EPA for approval into the 

SIP. Specifically, paragraph 6.20 (of 

Rule 2020) provides a permitting 

exemption for: ‘‘Agricultural sources, 

but only to the extent provided by 

California Health and Safety Code, 

Section 42301.16.’’ In turn, CH&SC 

section 42301.16(a) requires districts to 

extend permitting requirements to all 

agricultural sources that are ‘‘required to 

obtain a permit pursuant to Title I * * * 

or Title V * * * of the Federal Clean 

Air Act,’’ which we have interpreted as 

referring to ‘‘major’’ sources under the 

CAA, and to all other agricultural 

sources (referred to herein as ‘‘minor’’) 

with actual emissions one-half of the 

applicable major source emissions 

thresholds (or greater) for any air 

contaminant, excluding fugitive dust. 

See CH&SC section 42301.16(b). 

However, CH&SC section 42301.16(b) 

also provides a means through which a 

district can extend the exemption from 

‘‘one-half of any applicable emissions 

threshold’’ to the ‘‘major source’’ 

threshold if certain findings are made in 

a public hearing. 

Because CH&SC section 42301.16 is 

not included in the California SIP, nor 

has California submitted the section to 

EPA for approval, the SIP would be 

ambiguous as to the extent of the 

agricultural source permitting 

exemption if EPA were to approve 

submitted District Rule 2020 into the 

SIP. Effective enforcement of the 

permitting requirements would rely on 

judicial notice of the statutory provision 

cited in the rule, and such judicial 

notice may or may not be forthcoming. 

There is no need to rely on judicial 

notice when the District can eliminate 

the ambiguity by clearly stating the 

exemption for agricultural sources in 

District Rule 2020 or by submitting 

CH&SC section 42301.16 to EPA for 

approval into the SIP. Moreover, even if 

we could assume that judicial notice of 

the statutory provision would be taken, 

CH&SC section 42301.16 by its terms 

allows for a relaxation of the one-half of 

major source permitting threshold for 

agricultural sources, and such 

relaxations should be reviewed by EPA 

under section 110 for approval as a SIP 

revision. Therefore, we proposed a 

limited approval and limited 

disapproval of submitted Rule 2020. In 

our January 2010 proposed rule, we 

noted that the deficiency in Rule 2020 

can be remedied by the District by 

replacing the statutory reference to 

CH&SC section 42301.16 in paragraph 

6.20 with a clear description of the 

sources covered by the exemption, and 

by submitting the amended rule to EPA 

(via CARB) as a SIP revision. In today’s 

document, we are taking final limited 

approval and limited disapproval action 

today on amended Rule 2020 consistent 

with our January 29, 2010 proposal. 

Paragraph 4.6.9 of submitted Rule 

2201 contains a similarly-ambiguous 

reference to state law in listing emission 

offset exemptions: ‘‘Agricultural sources, 

to the extent provided by California 

Health and Safety Code, section 

42301.18(c), except that nothing in this 

section shall circumvent the 

requirements of section 42301(a).’’ 

CH&SC section 42301.18(c) states: ‘‘A 

district may not require an agricultural 

source to obtain emissions offsets for 

criteria pollutants for that source if 

emissions reductions from that source 

would not meet the criteria for real, 

permanent, quantifiable, and 

enforceable emission reductions.’’ Our 

understanding is that the District has no 

plans to require emissions offsets for 

new or modified agricultural sources 

unless such new or modified source is 

a ‘‘Major Source’’ or a ‘‘Federal Major 

Modification’’ as defined in another 

section of Rule 2201. Once again, there 

is no need for ambiguity in the 

applicability of the emissions offset 

exemption, and therefore, EPA proposed 

a limited approval and limited 

disapproval of submitted Rule 2201. 

The deficiency in Rule 2201 can be 

remedied by either submittal of the 

statutory provisions cited in paragraph 

4.6.9 or by replacing the references with 

a clear description of the applicability of 

the offset requirement to agricultural 

sources, and by submitting the amended 

rule to EPA (via CARB) as a SIP 

revision. In today’s document, we are 

taking final limited approval and 

limited disapproval action today on 

amended Rule 2201 consistent with our 

January 29, 2010 proposal. 

5. Summary of Evaluation of Amended 

Rule 2530 

In our January 2010 proposed rule, we 

discussed the purpose of District Rule 

2530 and the applicable EPA guidance 

and corresponding parameters for such 

rules, and explained that the emission 

limits and the alternative operational 

limits in the rule were amended by the 

District in step with the valley’s 

classification of ‘‘extreme’’ for the 1-hour 

ozone NAAQS. We reviewed the 

amended limits in District Rule 2530, as 

submitted on March 17, 2009, and 

found them to be acceptable. Based on 

our review of the amended rule in 

relation to its underlying purpose, we 

are taking final action today to approve 

amended District Rule 2530 because we 

find that it has been appropriately 

modified to reflect the decrease in the 

major source threshold for VOC and 

NOX consistent with the area’s 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 26107 

7 Kern County ACPD, one of the original countybased APCDs covering San Joaquin Valley, was not 

entirely consolidated into the current San Joaquin 

Valley Unified Air Pollution Control District 

(herein, referred to as ‘‘District’’), but its jurisdiction 

is no longer county-wide, and is limited to the 

eastern portion of the county. 

8The condition established in 40 CFR 

52.232(a)(11) also relates to Ventura County, but 

removal of the condition is proper as to Ventura 

County in light of EPA’s subsequent approval of the 

Ventura County nonattainment NSR rules at 68 FR 

9561 (February 28, 2003). 

‘‘extreme’’ classification for the 1-hour 

ozone standard. 

6. Summary of Evaluation of Amended 

Rules for Compliance with CAA Section 

110(l) 

CAA section 110(l) provides: ‘‘Each 

revision to an implementation plan 

submitted by a State under this chapter 

shall be adopted by such State after 

reasonable notice and public hearing. 

The administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 7501 of this title) or any other 

applicable requirement of this chapter.’’ 

42 U.S.C. 7410(l). 

In our January 2010 proposed rule, for 

the purposes of CAA section 110(l), we 

took into account the overall effect of 

the revisions included in this action. 

Given the wide application of the lower 

major source thresholds to all types of 

new or modified stationary sources of 

VOC and NOX and the limited extent of 

the exemptions from permitting and 

offsets for certain types of agricultural 

sources, we found that the overall effect 

of the revisions would strengthen the 

SIP, notwithstanding deficiencies 

identified above in enforceability. 

Moreover, we concluded that we do not 

anticipate localized exceedances of the 

PM10 or PM2.5 standards, due to the 

permitting exemption for certain 

agricultural sources, given the 

application of non-permitting 

requirements in the SIP. Lastly, we 

noted that the revisions are consistent 

with the assumptions of the various air 

quality plans developed for the valley. 

Accordingly, we concluded that the 

revisions to Rules 2020, 2201, and 2530 

would not interfere with any applicable 

requirements for attainment and 

reasonable further progress or any other 

applicable requirement of the CAA and 

are approvable under section 110(l) of 

the Clean Air Act. 

C. Removal of Obsolete Conditions on 

SIP Approvals 

In our January 29, 2010 proposed rule, 

we also proposed to remove certain 

obsolete conditions placed on SIP 

approvals of certain California 

nonattainment plans in the 1980’s. 

These NSR-related conditions are 

identified in table 3, below, by 

applicable county, EPA action, and CFR 

citation. 

TABLE 3—OBSOLETE CONDITIONS BEING REMOVED

County Conditional approval Federal Register 

citation Regulatory citation 

Kern County a ..................................................... 46 FR 42450 (August 21, 1981) ...................... 40 CFR 52.232(a)(5)(i)(A) 

San Joaquin County ........................................... 47 FR 19694 (May 7, 1982), amended at 50 

FR 7591 (February 25, 1985).

40 CFR 52.232(a)(6)(i)(A) 

Kings, Madera, Merced, Stanislaus, and Tulare 

Counties.

47 FR 19694 (May 7, 1982) ............................ 40 CFR 52.232(a)(10)(i)(A) 

Fresno County .................................................... 47 FR 28617 (July 1, 1982) ............................. 40 CFR 52.232(a)(11)(i)(A) 

a In today’s document, we are removing the Kern County condition for carbon monoxide and ozone only. 

We proposed removal of the condition 

in 40 CFR 52.232(a)(5)(i)(A) because we 

concluded that it was obsolete as to 

carbon monoxide and ozone in light of 

the approval of District NSR rules in 

2004 (69 FR 27837, May 17, 2004), the 

change in the boundary for the 1-hour 

ozone nonattainment boundary for San 

Joaquin Valley (66 FR 56476, November 

8, 2001), and the redesignation of the 

East Kern County 1-hour ozone 

nonattainment area to attainment (69 FR 

21731, April 22, 2004). However, as to 

particulate matter, we found the 

condition to be unfulfilled because the 

Kern County Air Pollution Control 

District (APCD) 7 retains jurisdiction 

over a small portion of the San Joaquin 

Valley planning area, the portion of the 

San Joaquin Valley planning area over 

which Kern County APCD retains 

jurisdiction remains nonattainment for 

PM10 (see 73 FR 66759, November 12, 

2008), and because we have yet to 

approve a revision to Kern County 

APCD NSR rules that meet the condition 

in 40 CFR 52.232(a)(5)(i)(A). We 

proposed removal of the conditions set 

forth in 40 CFR 52.232(a)(6)(i)(A), 

(a)(10)(i)(A), and (a)(11)(i)(A) as obsolete 

in light of the approval of District NSR 

rules in 2004 (69 FR 27837, May 17, 

2004).8 We are taking final action today 

to remove the obsolete provisions 

described above for the reasons given in 

our January 29, 2010 proposed rule and 

that are summarized above. We are 

retaining the condition in 40 CFR 

52.232(a)(5)(i)(A) as to particulate 

matter until we approve the Kern 

County APCD’s nonattainment NSR 

rules for the East Kern County PM10

nonattainment area or until we approve 

a redesignation request for the East Kern 

PM10 area to ‘‘attainment.’’ 

II. Public Comments and EPA’s 

Responses 

Our January 29, 2010 proposed rule 

(75 FR 4745) provided for a 30-day 

comment period. During that period, we 

received adverse comments from three 

groups: Greenberg-Glusker law firm 

(referred to herein as ‘‘Dairy Cares’’), on 

behalf of Dairy Cares, a coalition of 

California’s dairy producer and 

processor associations, by letter dated 

March 1, 2010; Earthjustice, by letter 

dated March 1, 2010; and the Center on 

Race, Poverty & the Environment 

(referred to herein as ‘‘AIR’’), on behalf 

of the Association of Irritated Residents 

and other community and 

environmental groups, by letter dated 

March 1, 2010. AIR joins in the 

comments from Earthjustice, but also 

adds comments of its own. As noted 

previously, we have decided to defer 

further rulemaking action on our 

proposal to correct our May 2004 

approval of the previous version of 

District NSR rules pending a legal 

interpretation from the state regarding 

the extent of the District’s permitting 

and offsets authority in connection with 

agricultural sources under State law. 

Thus, we have not responded to the 

comments related to that aspect of our 

proposal in this document, but will 

respond to those comments in a separate 

final rule if we subsequently finalize our 

proposed correction as proposed on 

January 29, 2010. In the following 

paragraphs, we provide a summary of 

the significant adverse comments and 


jlentini on DSKJ8SOYB1PROD with RULES
26108 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

our responses (i.e., related to the aspects 

of our proposal other than the error 

correction). 

Comment #1: Dairy Cares disagrees 

with EPA’s approval of the District’s 

Rule Revisions to the extent it is 

predicated on an interpretation that the 

exemption for emission offsets does not 

apply to major sources. Dairy Cares 

claims that CH&SC section 42301.18(c) 

prohibits any district from requiring any 

agricultural source to obtain offsets until 

agricultural source reductions meet the 

criteria for creditability. Dairy Cares 

claims that, under CH&SC 42301.18(c), 

the District does not have the requisite 

State authority to require emission 

offsets unless the offsets can be credited. 

Dairy Cares acknowledges that CH&SC 

section 42301.16(a) requires that 

agricultural sources obtain permits 

‘‘consistent with Federal requirements,’’ 

and that the Clean Air Act generally 

requires certain emission offsets from 

new or expanding Federal major 

sources, but argues that integral to such 

emission offsets requirements is the 

ability to credit emission reductions. To 

the extent there is a conflict between 

sections 42310.16(a) and 42301.18(c), 

Dairy Cares asserts that the more 

specific provision—section 

42301.18(c)—must control. 

Response #1: Dairy Cares is correct 

that EPA’s proposed (limited) approval 

(and limited disapproval) of revised 

District Rule 2201 is predicated in part 

on an interpretation of CH&SC sections 

42301.16(a) and 42301.18(c) to the effect 

that CH&SC section 42301.16(a) limits 

the applicability of the emission offset 

exemption in CH&SC section 

42301.18(c) so as to exclude major 

agricultural sources from the exemption. 

In other words, we have concluded that 

State law requires the District to impose 

the emissions offsets requirements on 

new or modified agricultural sources 

that are considered new major sources 

or major modifications, notwithstanding 

the limitation on District authority set 

forth in CH&SC section 42301.18(c). 

Paragraph 4.6.9 of revised District 

Rule 2201 provides that emission offsets 

shall not be required for: 

‘‘Agricultural sources, to the extent 

provided by California Health and Safety 

Code, section 42301.18(c), except that 

nothing in this section shall circumvent the 

requirements of section 42301.16(a).’’ 

CH&SC section 42301.16(a) provides: 

‘‘In addition to complying with the 

requirements of this chapter, a permit system 

established by a district pursuant to section 

42300 shall ensure that any agricultural 

source that is required to obtain a permit 

pursuant to Title I (42 U.S.C. Sec. 7401 et 

seq.) or Title V (42 U.S.C. Sec. 7661 et seq.) 

of the Federal Clean Air Act is required by 

district regulations to obtain a permit in a 

manner that is consistent with the Federal 

requirements.’’ 

CH&SC section 42301.18(c) provides: 

‘‘A district may not require an agricultural 

source to obtain emissions offsets for criteria 

pollutants for that source if emissions 

reductions from that source would not meet 

the criteria for real, permanent, quantifiable, 

and enforceable emission reductions.’’ 

EPA interprets the reference in 

CH&SC section 42301.16(a) to ‘‘any 

agricultural source that is required to 

obtain a permit pursuant to Title I * * * 

or Title V * * * of the Federal Clean 

Air Act’’ as a reference to sources 

considered ‘‘major sources’’ under the 

Clean Air Act and not to ‘‘minor 

sources’’ because only the former are 

required to obtain a permit. A state may 

exempt new or modified minor sources 

from regulation so long as the overall 

program for regulation of new or 

modified stationary sources assures that 

the NAAQS are achieved. See section 

110(a)(2)(C) of the Act. 

EPA interprets the directive in CH&SC 

42301.16(a) to the Districts to ensure 

that their permit rules require major 

agricultural sources (and major 

modifications of such sources) to obtain 

a permit in a manner ‘‘that is consistent 

with the Federal requirements’’ as 

referring to, in this context, the 

minimum requirements for new or 

modified major sources, including but 

not limited to, emission offsets [see 

CAA section 173(a)(1)] and use of 

emissions control technology 

representing the lowest achievable 

emission rate [see CAA section 

173(a)(2)]. With certain exceptions not 

relevant here (e.g., rocket engines), the 

Act does not exempt any major sources 

or major modifications in nonattainment 

areas from the offset requirement, 

regardless of whether emissions 

reductions for a given source meet the 

criteria for real, permanent, quantifiable, 

and enforceable emission reductions. In 

other words, contrary to Dairy Cares’ 

claim, the ability to credit emission 

reductions is not integral to the 

emissions offset requirements. 

We find no statutory or regulatory 

basis to support Dairy Cares’ claim that 

exemption of major agricultural sources 

from the offset requirement does not 

conflict with the Clean Air Act. Dairy 

Cares points to Clean Air Act sections 

173(c) and 182(e)(2), 40 CFR 

51.165(a)(1)(vi)(A) and 40 CFR part 51, 

appendix S as support for the general 

principle that credits are an integral part 

of the statutory and regulatory scheme 

for offsets, and further, that one cannot 

be imposed (emission offsets 

requirements) without allowing for the 

other (credits for emissions reductions 

from the source). 

First, section 173 (‘‘* * * may comply 

with any offset requirement only by 

obtaining emission reductions from the 

same source or other sources * * * ’’) 

provides two basic approaches to 

meeting the emissions offset 

requirement, by obtaining emissions 

reductions from the same source or by 

obtaining emissions reductions from 

other sources. The fact that, for the time 

being, one approach (internal offsets) is 

quite limited (i.e., limited to certain 

discrete units at a farm from which 

emissions reductions are considered 

creditable, e.g., boilers and stationary 

engines and pumps) does not justify a 

full exemption from the emissions offset 

requirement for all major agricultural 

sources. If Congress had intended major 

agricultural sources to be exempt from 

the offset requirement, it could well 

have carved out an exception as it has 

for rocket engines [see CAA section 

173(e)]. Moreover, a new major 

agricultural source is in no different 

position than any other new major 

source in that both have no internal 

emissions reductions to use to comply 

with the offset requirement. 

Two other provisions cited by Dairy 

Cares, CAA section 182(e)(2) (‘‘* * * 

not considered a modification if the 

owner * * * elects to offset the increase 

* * * from discrete operations, units or 

activities within the source’’) and 40 

CFR 51.165(a)(1)(vi)(A) (‘‘net emissions 

increase means * * * any other 

increases and decreases in actual 

emissions that are * * * otherwise 

creditable’’) relate to identification of 

modifications as ‘‘major modifications.’’ 

Dairy Cares is correct in that the limited 

ability by agricultural sources to use 

internal credits may well make it harder 

to avoid ‘‘major modification’’ status and 

the corresponding requirements. 

However, there is simply no language in 

either the statutory provision or 

regulatory provision cited above that 

conditions ‘‘major modification’’ status 

on whether or not the source can credit 

its emissions reductions. Furthermore, 

as noted above, discrete units at 

agricultural sources, such as boilers and 

stationary pumps, can already be used 

for internal credits in a major 

modification applicability 

determination at an agricultural source. 

Dairy Cares points to a provision in 40 

CFR part 51, appendix S, that allows, 

under certain circumstances, emissions 

reduction credits from shutdowns or 

curtailments as further evidence that 

allowance for credits from a source are 

integral to the imposition of the 

emissions offset requirement on the 

source. However, once again, the 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 26109 

provision allowing under certain 

circumstances the use of credits from 

shutdowns or curtailments is but one 

means to comply with the offset 

requirement, and its unavailability to a 

certain category of sources does not 

negate the underlying statutory 

requirement on all new major sources 

and major modifications, including the 

category of sources for which shutdown 

or curtailment credits are unavailable, 

in nonattainment areas to provide 

emissions offsets for the applicable 

nonattainment pollutants. 

Hence, with respect to agricultural 

sources, to be ‘‘consistent with the 

Federal requirements’’ within the 

meaning of CH&SC 42301.16(a) means a 

District permitting program must 

impose an emissions offset requirement 

for new major sources and major 

modifications. We view CH&SC 

42301.16(a) as not only a grant of 

authority to Districts to establish a 

permitting system that, in 

nonattainment areas, requires 

imposition of an emissions offset 

requirement on all agricultural sources 

that are new major sources or major 

modifications, but as an affirmative 

directive to do so. 

Lastly, we recognize that CH&SC 

section 42301.18(c), read in isolation, 

withholds the authority from Districts to 

require emissions offsets from any (i.e., 

major and minor) new or modified 

agricultural sources until agricultural 

source reductions meet the criteria for 

creditability. As explained above, 

however, such a reading would prevent 

District from establishing permitting 

programs for major sources and major 

modifications ‘‘consistent with Federal 

requirements’’ as required by the 

Legislature through CH&SC section 

42301.16(a). 

We also do not agree that CH&SC 

section 42301.18(c) is simply a more 

specific statute that should be given 

precedence over the more general 

statute CH&SC section 42301.16(a). The 

two CH&SC sections simply address 

different permitting issues; one 

generally relates to emissions offsets for 

(both major and minor) agricultural 

sources whereas the other generally 

relates to permitting of major sources. 

We see no reason to interpret the two 

statutory provisions in question as in 

direct conflict and thereby to choose 

one provision over the other, but rather 

to give effect to both by interpreting 

CH&SC section 42301.18(c) as 

withholding the authority from Districts 

to impose an emission offset 

requirement on new or modified 

agricultural sources (until emissions 

reductions from such sources are 

creditable) but only with respect to nonmajor agricultural sources and 

modifications. 

Our interpretation of CH&SC sections 

42301.16(a) and 42301.18(c) is further 

supported by our knowledge of the 

regulatory context in which Senate Bill 

700 (SB 700), which established the two 

cited provisions, was promulgated by 

the California Legislature. One of the 

principal purposes for promulgation of 

SB 700 was to respond to a ‘‘SIP call’’ 

under CAA section 110(k)(5) by EPA 

based on the lack of State or District 

authority to carry out the applicable 

nonattainment NSR or PSD portions of 

the SIP with respect to major 

agricultural sources. See 68 FR 37746 

(June 25, 2003). Under Dairy Cares’ 

interpretation, the California Legislature 

would have failed to address this 

deficiency by failing to provide the 

necessary authority with respect to 

nonattainment NSR. However, for the 

reasons stated above, the relevant 

provisions of SB 700, i.e., CH&SC 

sections 42301.16(a) and 42301.18(c), 

need not be interpreted that way. 

Finally, we note that CARB and the 

District interpret the relevant State law 

in the same way as EPA. In a letter to 

Air Pollution Control Officers dated 

September 3, 2008, the CARB Executive 

Officer requests the heads of the various 

air districts in California to update their 

permit rules as they apply to 

agricultural sources in accordance with 

CH&SC 42301.16. In reference to 

agricultural sources that are major, the 

CARB Executive Officer states that 

‘‘Both Federal and State law require 

‘‘best available control technology’’ 

(BACT) and offsets for these sources. 

Any exemption for major sources from 

permit requirements that can arguably 

be considered to be in your District’s 

rule and in the SIP must be removed.’’ 

See page 3 of the CARB September 3, 

2008 letter. Later, in this letter, in 

reference to the offsets exemption in 

CH&SC 42301.18(c), the CARB 

Executive Officer states ‘‘This exemption 

should be narrowly applied, and, in any 

event, cannot be used to exempt major 

Federal sources from offset 

requirements.’’ See page 4 of the CARB 

September 3, 2008 letter. 

The District’s interpretation can be 

found in its response to a similar 

comment as addressed herein, wherein 

the District stated: 

‘‘The District appreciates the opportunity to 

further clarify this very important issue. To 

state it as clearly as possible, the offset 

exemption of section 4.6.9 is NOT [emphasis 

from original] available to agricultural 

sources which are major sources of air 

pollution. Only non-major sources are 

provided any exemption from offsetting 

requirements by this section. 

This is not new language, nor is it new 

interpretation. There is no confusion in the 

legislative history, or in CAPCOA’s white 

paper on SB 700 implementation. The 

purpose of the language of section 

42301.16(a) is to specifically require 

[emphasis from original] offsets from major 

sources of air contaminants, as this was 

specifically necessary to fulfill the mandates 

of the Federal SIP call that the state was 

under at the time. Without this language 

specifically requiring offsets of major 

agricultural sources, the law would not have 

met EPA’s requirement that we subject major 

California agricultural sources to Federal 

permitting requirements, and EPA would not 

have been able to stop the SIP call and the 

impending sanctions. Therefore the 

suggested change cannot be made.’’ 

See the District’s final staff report on 

proposed amendment to Rule 2201 

(page B–12). 

In light of EPA’s, CARB’s, and the 

District’s interpretation of CH&SC 

sections 42301.16(a) and 42301.18(c), 

we view paragraph 4.6.9 of revised 

District Rule 2020 as simply, and 

correctly, reflecting current State law as 

set forth in the two cited sections of the 

CH&SC. In other words, with respect to 

the issue of emissions offsets 

requirements, we see no difference 

between the authority granted to the 

District under applicable State law and 

the language found in paragraph 4.6.9 of 

revised District Rule 2020. Thus, we 

disagree with Dairy Care’s assertion that 

we are again making the error of 

approving a rule change that is in 

conflict with California law. 

Comment #2: Earthjustice claims that 

EPA’s rationale for approval of the 

various exemptions being added to the 

District’s NSR rules is flawed because it 

is premised on the false claim that the 

District has a plan that will achieve the 

national standards for particulate matter 

and ozone. 

Response #2: In our January 2010 

proposed rule, we reviewed the status of 

air quality plans in the San Joaquin 

Valley, and relied upon the plans as a 

basis to conclude that the net effect of 

the changes in the rules would not 

interfere with reasonable further 

progress or attainment of any of the 

NAAQS and thus are approvable under 

CAA section 110(l). See sections IV.B.1 

(‘‘Regulatory Context’’) and IV.B.8 (‘‘CAA 

Section 110(l)’’) of the proposed rule. In 

our proposed rule, we noted that EPA 

has not yet taken action on the 

submitted San Joaquin Valley 2007 

Ozone Plan or the submitted San 

Joaquin Valley 2008 PM2.5 Plan. Thus, it 

is incorrect to say that we have based 

our proposed approval of the revised 

District NSR rules on the premise that 

the District has a plan that will achieve 

the national standards for those 


jlentini on DSKJ8SOYB1PROD with RULES
26110 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

pollutants. Instead, we have reviewed 

the plans to ensure that the changes to 

the District’s NSR rules are consistent 

with the assumptions and control 

strategies in these plans and found that 

the changes are indeed consistent with 

the plans and would strengthen the SIP. 

Furthermore, we continue to believe 

that the plans are facially valid, contrary 

to the unsupported claims by 

Earthjustice that they are not 

meaningful plans or that the plans have 

been undermined by the state. 

Our detailed review of the plans and 

subsequent notice-and-comment 

rulemaking may lead to the requirement 

that California adopt additional control 

measures to provide for attainment of 

the ozone and particulate matter 

standards, but California will not 

necessarily be required to extend 

permitting and offsets requirements to 

minor agricultural sources to meet that 

requirement. While certain SIP 

requirements are prescribed by the Act 

and EPA regulations, extending 

permitting and offsets requirements to 

minor agricultural sources would be 

considered a discretionary control 

measure and thus the state may well 

decide to select some other measure. 

Comment #3: Earthjustice claims that 

EPA’s analysis under CAA section 

110(l) of the boilers and steam generator 

exemptions is incomplete because it 

does not address whether the District 

can allow these sources to be 

constructed or expanded with no 

mitigation for emissions increases. 

Response #3: As an initial starting 

point, the exemption in amended Rule 

2020, paragraph 6.1, would not be a new 

permitting exemption. Rather, the 

existing exemption found in the current 

SIP version of paragraph 6.1 of Rule 

2020 is being revised in certain ways, 

only one of which arguably expands the 

exemption. The revision that arguably 

expands the exemption involves 

changes in the maximum sulfur content 

specifications for natural gas and 

liquefied petroleum gas (LPG) 

combusted by the applicable types of 

sources (such as boilers and steam 

generators with maximum input heat 

ratings of 5 million Btu per hour (gross) 

or less). 

With respect to the sulfur content 

specification, the amended rule would 

raise the maximum allowable limit from 

0.75 grains (of total sulfur) per 100 

standard cubic feet (scf) for both natural 

gas and LPG, to 1.0 grain per 100 scf for 

natural gas and 15 grains per 100 scf for 

LPG. The District’s memo dated 

November 13, 2009, which is cited in 

the proposed rule, indicates that the 

reason for the increase is to align the 

maximum sulfur content specification 

in the exemption to the corresponding 

specification used by the relevant 

utilities in their own contracts for 

delivery of natural gas. For LPG, the 

reason for the increase is to align the 

specification in the exemption with the 

corresponding industry standard 

specifications as set by the Gas 

Processors Association (GPA). The 

industry practice by LPG distributors of 

adding odorant for safety purposes 

(typically mercaptan) containing 

between 1 and 3 grains of sulfur per 100 

scf alone exceeds the existing 

specification of 0.75 grains of sulfur. 

For perspective, we note that the 

sulfur dioxide emissions from natural 

gas combustion at 5 million Btu per 

hour or less amounts to 0.35 lb per day 

and 0.06 tons per year, assuming 

maximum operation 24 hours per day, 

365 days per year (based on AP–42 

(section 1.4) emissions factors, sulfur 

content of 1 grain per 100 cubic feet). 

The corresponding sulfur dioxide 

emissions for LPG are 1.97 lb/day and 

0.36 ton per year, once again, assuming 

maximum continuous operation (based 

on AP–42 (section 1.5) emissions factors 

for propane, and sulfur content of 15 

grains per 100 cubic feet). In other 

words, this particular exemption relates 

to very small emissions sources, that 

would not be subject to BACT under 

District Rule 2201, paragraph 4.1.1 

(‘‘* * * BACT shall be required for 

* * * any new emissions unit * * * 

with a Potential to Emit exceeding 2.0 

pounds in any one day’’), even if such 

sources were subject to permitting. 

Sulfur dioxide is a criteria pollutant 

in its own right, but is also a precursor 

pollutant for PM10 and PM2.5. While San 

Joaquin Valley is designated as 

‘‘attainment’’ for both the sulfur dioxide 

NAAQS and the PM10 NAAQS, the 

valley is designated as nonattainment 

for the PM2.5 NAAQS. Thus, to satisfy 

Federal Clean Air Act requirements 

regarding NSR, the valley must require 

emissions offsets for new major sources 

of sulfur dioxide and major 

modifications at existing major sources 

of sulfur dioxide. The applicable major 

source threshold for sulfur dioxide, as a 

precursor to PM2.5, is 100 tons per year. 

The District’s NSR rule is more broad 

than required in this respect and applies 

the emission offset requirement for 

sulfur dioxide to sulfur dioxide sources 

with emissions exceeding 54,750 

pounds per year (27.4 tons per year). 

See paragraph 4.5.3 of the District Rule 

2201. Clearly, at less than 1 ton of sulfur 

dioxide per year, new sources of the 

type covered by the revised exemption 

would not otherwise be subject to the 

offset requirement unless they were 

located at an existing sulfur dioxide 

source with emissions greater than 27.4 

tons per year. To gain some perspective 

as to the number of facilities with sulfur 

dioxide emissions greater than 27.4 tons 

per year within the valley, we used 

CARB’s California Emission Inventory 

Development and Reporting System 

(CEIDARS) database and reviewed the 

listings of 3,651 facilities and 

discovered a total of only 26 that had 

sulfur dioxide emission greater than 

27.4 tons per year based on actual 

emission in 2007. Based on the low rate 

of sulfur dioxide emissions generated by 

types of sources covered by the revised 

exemption and the small number of 

sources subject to the offset 

requirement, the potential in foregone 

sulfur dioxide emission reductions 

(offsets) due to the installation of the 

types of sources covered by this 

particular exemption is very limited. 

Therefore, for the reasons stated in the 

proposed rule and supplemented 

herein, we continue to believe that the 

relaxed sulfur content specification in 

amended Rule 2020, paragraph 6.1, 

would have no significant impact on 

emissions in the valley. Even if there 

would be some small incremental 

increase in sulfur dioxide emissions due 

to the hypothetical relaxation in an 

otherwise applicable emissions offset 

requirement on account of the revised 

exemption, such an increase would be 

more than offset itself by the reductions 

in emissions that would flow from the 

lower major source emissions 

thresholds and more stringent emissions 

offset requirement for the other PM2.5

precursors, volatile organic compounds 

and nitrogen oxides. Moreover, we have 

concluded that overall set of changes in 

District Rules 2020, 2201, and 2530, 

including the change in the sulfur fuel 

content specification, other changes in 

the permitting and offsets exemptions, 

the lower major source emissions 

thresholds, and the more stringent 

emissions offset requirement, would not 

interfere with reasonable further 

progress or attainment of any of the 

NAAQS and thus are approvable under 

CAA section 110(l). 

Comment #4: Earthjustice contends 

that, in addition to the relaxations 

highlighted by EPA in the notice of 

proposed rulemaking, the District is also 

relaxing its equivalency demonstration 

outlined in section 7.0 of Rule 2201 by 

removing the requirement to 

demonstrate equivalency with the 

Federal new source review program that 

was in effect in December 2002. 

Earthjustice asserts that the purpose of 

this provision was to enshrine 

equivalency with the Federal program 

prior to the relaxations adopted by EPA 

as part of NSR Reform and that the 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 26111 

9Nonetheless, we affirm our statement that, prior 

to our 2004 approval of the District’s NSR rules 

(Rules 2020 and 2201), the District portion of the 

California SIP included a broad exemption from 

permitting for all agricultural sources. This is 

because our 2001 action on previous versions of 

District Rule 2020 and 2201 was a limited approval 

and limited disapproval action and that the version 

of Rule 2020 approved in 2001 included a full 

exemption from permitting for agricultural sources 

consistent with state law at the time. See paragraph 

4.1.2 of District Rule 2020, as amended on 

September 17, 1998, and approved on July 19, 2001. 

We identified the agricultural permitting exemption 

as one of the deficiencies that prevented our full 

approval of the rules and that triggered a ‘‘sanctions 

clock.’’ As explained in our July 2001 final rule, the 

limited approval and limited disapproval action 

incorporated the rules into the SIP, as they were 

submitted, with no exception as to those provisions 

that we found deficient. We generally take limited 

approval and limited disapproval actions where a 

given SIP revision is not composed of separable 

parts, and while the overall submittal strengthens 

the SIP, there are deficiencies that prevent full 

approval. See 66 FR 37587, at 37590 (July 19, 2001). 

District now seeks to take advantage of 

the less stringent NSR Reform 

provisions governing major 

modifications. Earthjustice claims that 

the change to section 7.1.1 means that 

fewer offsets will be required in order to 

demonstrate equivalence, that EPA’s 

analysis completely fails to address this 

relaxation, and that EPA needs to 

quantify the reduction in offsets this 

change will allow and explain how this 

growth in emissions can be reconciled 

with the fact that the District has no real 

strategy for attaining the national 

standards. 

Response #4: Earthjustice claims that 

the revisions to Rule 2201 have the 

effect of (1) relaxing the equivalency 

demonstration required in Section 7.0 of 

Rule 2201, because it removed the 

requirement to demonstrate equivalency 

with the Federal NSR program that was 

in effect in December 2002, i.e., prior to 

the effective date of EPA’s NSR reform 

rules, and (2) now requires 

demonstration with current ‘‘less 

stringent’’ Federal NSR program 

requirements. EPA disagrees with both 

of these claims. First, the only 

significant revisions made to Section 7.0 

was to remove the December 2002 date 

reference as to which version of 40 CFR 

51.165 should be used for determining 

equivalency with Federal offset 

requirements. The underlying 

requirements for demonstrating 

equivalency with the Federal NSR 

program offset requirements remain 

unchanged. 

Second, regarding the claim that the 

current Federal NSR regulations are less 

stringent, and therefore fewer Federal 

offsets are now required, we do not 

agree that fewer offsets necessarily 

means that the San Joaquin Valley NSR 

program would achieve fewer emissions 

reductions overall. Even if the District’s 

implementation of revised NSR rules 

that incorporate NSR reform requires 

fewer emissions offsets, EPA concludes 

that any such foregone offsets are 

themselves offset by the new lower 

‘‘major modification’’ threshold of zero 

for ozone precursors, down from 25 tons 

per year under the existing SIP District 

Rule 2201, and higher offset ratio of 1.5 

to 1, up from 1.2 to 1. Moreover, the 

regional air quality plans do not take 

credit for reductions and mitigations 

required under the District’s NSR rules 

in that they do not reduce future year’s 

emissions by taking credit for emissions 

reductions provided through permitting 

actions. See, e.g., page D–4, of appendix 

D to the San Joaquin Valley 2007 Ozone 

Plan. 

Comment #5: AIR takes issue with 

EPA’s statement in the proposed rule 

that the Agency’s 2001 limited approval 

and limited disapproval of Rule 2020 

had the effect of exempting all 

agricultural sources from permitting in 

the San Joaquin Valley portion of the 

SIP. AIR contends that EPA’s statement 

is at odds with the plain language of the 

Clean Air Act, which neither exempts 

major agricultural stationary sources nor 

affords EPA the authority to grant an 

exemption through a limited approval/ 

limited disapproval action. 

Response #5: AIR is objecting to 

EPA’s background discussion 

concerning the effect of EPA’s approval 

(in 2001) of the versions of the District’s 

NSR rules that preceded the versions of 

the rules in the current applicable SIP 

(which were approved in 2004), and 

thus AIR’s comment has no direct 

bearing on today’s final action on 

amended District NSR rules, as 

submitted in 2008 and 2009.9

III. Final Action 

Under CAA sections 110(k)(2) and 

301(a) and for the reasons set forth 

above and in our January 29, 2010 

proposed rule, we are finalizing a 

limited approval and limited 

disapproval of amended District NSR 

Rules 2020 and 2201, as submitted on 

March 7, 2008 and March 17, 2009, 

respectively. The amended District 

Rules 2020 and 2201 revise certain 

existing exemptions; establish an 

exemption from permitting, and from 

offsets, for certain minor agricultural 

operations; establish applicability 

thresholds (for major sources and major 

modifications) and offset thresholds 

consistent with a classification of 

‘‘extreme’’ for the ozone standard; and 

implement NSR Reform. 

We are finalizing a limited approval 

and limited disapproval action, because 

the individual provisions within District 

Rules 2020 and 2201 are not separable, 

and, because, although the rule 

amendments would strengthen the SIP 

and meet all but one of the applicable 

requirements for SIPs in general and 

NSR SIPs in particular, they contain 

unacceptably ambiguous references to 

statutory provisions that prevent full 

approval. This action incorporates 

amended Rules 2020 and 2201 into the 

District portion of the Federally 

enforceable California SIP, including 

those provisions identified as deficient. 

The amended Rules 2020 and 2201 

approved herein supersede the versions 

of the corresponding rules that were 

approved in May 2004 in the applicable 

SIP. 

The final limited disapproval triggers 

a sanctions clock and EPA’s obligation 

to promulgate a Federal implementation 

plan. Sanctions will be imposed unless 

EPA approves subsequent SIP revisions 

that correct the rule deficiencies within 

18 months of the effective date of this 

action. These sanctions will be imposed 

under section 179 of the Act according 

to 40 CFR 52.31. In addition, EPA must 

promulgate a FIP under section 110(c) 

unless we approve subsequent SIP 

revisions that correct the rule 

deficiencies within 24 months. Note 

that the submitted rules have been 

adopted by the District, and EPA’s final 

limited disapproval does not prevent 

the local agency from enforcing it. 

With respect to amended District Rule 

2530, as submitted on March 17, 2009, 

we are taking final action to approve the 

amended rule because we find that it 

has been appropriately modified to 

reflect the decrease in the major source 

threshold for VOC and NOX consistent 

with an ‘‘extreme’’ classification. This 

action incorporates amended Rule 2530 

into the District portion of the Federally 

enforceable California SIP. The 

amended Rule 2530 approved herein 

supersedes the previous version of the 

corresponding rule that was approved in 

April 1996 in the applicable SIP. 

EPA is also removing certain obsolete 

conditions placed on 1980’s era 

approvals by EPA on various 

nonattainment plans submitted by 

California for the San Joaquin Valley. 

Lastly, we have decided to defer 

further action on the Agency’s January 

2010 proposal to correct a previous 

approval of the District NSR rules 

pending receipt from California of a 

legal interpretation of the extent of 

District authority with respect to 

agricultural sources under state law. 


jlentini on DSKJ8SOYB1PROD with RULES
26112 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

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 and 

limited approvals/limited disapprovals 

under section 110 and subchapter I, part 

D of the Clean Air Act do not create any 

new requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because this 

limited approval/limited disapproval 

action and approval action 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 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act 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 section 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 limited 

approval/limited disapproval action and 

approval action promulgated today do 

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 

approves 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 Clean 

Air Act. 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 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. 

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 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 26113 

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. 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 action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). 

K. Petitions for Review of This Action 

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 July 12, 2010. 

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 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Oxides of nitrogen, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: April 12, 2010. 

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 paragraphs (c)(354)(i)(E)(14) and 

(c)(363)(i)(A)(5) and (6) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(354) * * * 

(i) * * * 

(E) * * * 

(14) Rule 2020, ‘‘Exemptions,’’ 

adopted on September 19, 1991 and 

amended on December 20, 2007. 

* * * * * 

(363) * * * 

(i) * * * 

(A) * * * 

(5) Rule 2201, ‘‘New and Modified 

Stationary Source Review Rule,’’ 

adopted on September 19, 1991, and 

amended on December 18, 2008. 

(6) Rule 2530, ‘‘Federally Enforceable 

Potential to Emit,’’ adopted on June 15, 

1995, and amended on December 18, 

2008. 

* * * * * 

■ 3. Section 52.232 is amended by 

removing and reserving paragraphs 

(a)(6), (a)(10), and (a)(11) and by 

revising paragraph (a)(5)(i) to read as 

follows: 

§ 52.232 Part D conditional approval. 

(a) * * * 

(5) * * * 

(i) For PM: 

(A) By November 19, 1981, the NSR 

rules must be revised and submitted as 

an SIP revision. The rules must satisfy 

section 173 of the Clean Air Act and 40 

CFR Subpart I, ‘‘Review of new sources 

and modifications.’’ In revising Kern 

County’s NSR rules, the State/APCD 

must address all the requirements in 

EPA’s amended regulations for NSR (45 

FR 31307, May 13, 1980 and 45 FR 

52676, August 7, 1980) which the APCD 

rules do not currently satisfy including 

those deficiencies cited in EPA’s 

Evaluation Report Addendum which 

still apply despite EPA’s new NSR 

requirements (contained in document 

File NAP–CA–07 at the EPA Library in 

Washington, DC and the Regional 

Office). 

* * * * * 

[FR Doc. 2010–10925 Filed 5–10–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2009–0512; FRL–9147–2] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Indiana; Redesignation of 

Lake and Porter Counties to 

Attainment for Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking several related 

actions affecting Lake and Porter 

Counties and the State of Indiana for the 

1997 8-hour ozone National Ambient 

Air Quality Standard (NAAQS or 

standard). EPA is approving a request 

from the State of Indiana to redesignate 

Lake and Porter Counties, the Indiana 

portion of the Chicago-Gary-Lake 

County, Illinois-Indiana (IL–IN) 8-hour 

ozone nonattainment area, to attainment 

of the 1997 8-hour ozone NAAQS. In 

addition, EPA is approving, as a 

revision to the Indiana State 

Implementation Plan (SIP), the State’s 

plan for maintaining the 1997 8-hour 

ozone NAAQS through 2020 in Lake 

and Porter Counties and in the ChicagoGary-Lake County, IL–IN ozone 

nonattainment area. EPA is also 

approving the 2002 Volatile Organic 

Compounds (VOC) and Nitrogen Oxides 

(NOX) emission inventories for Lake and 

Porter Counties as a SIP revision and as 

meeting the requirements of the Clean 

Air Act (CAA). Finally, EPA finds 

adequate and is approving the State’s 

2010 and 2020 VOC and NOX Motor 

Vehicle Emission Budgets (MVEBs) for 

Lake and Porter Counties. 

DATES: This final rule is effective May 

11, 2010. 

ADDRESSES: EPA has established a 

docket for this action: Docket ID No. 

EPA–R05–OAR–2009–0512. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

i.e., 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 either electronically in http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 


jlentini on DSKJ8SOYB1PROD with RULES