52236 Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 

(2) For penalties assessed before the 

date that these regulations are published 

as final regulations in the Federal 

Register, § 301.6707A–1 (as contained 

in 26 CFR part 1, revised April 2013) 

shall apply. 

John M. Dalrymple, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2015–21259 Filed 8–27–15; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Parts 700, 701, 773, 774, 777, 

779, 780, 783, 784, 785, 800, 816, 817, 

824, and 827 

[Docket ID: OSM–2010–0018; OSM–2010– 

0021; OSM–2015–0002 S1D1 

SS08011000SX064A000156S180110; 

S2D2SS08011000SX064A00015X501520] 

RIN 1029–AC63 

Stream Protection Rule 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, 

Department of the Interior. 

ACTION: Notice of public hearings. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSMRE), are announcing the schedule 

for public hearings on the proposed 

Stream Protection Rule and the 

accompanying Draft Environmental 

Impact Statement (DEIS). 

DATES: We will be holding public 

hearings on the proposed rule and DEIS 

on September 1, 3, 10, 15, and 17, 2015 

at the locations listed in the 

SUPPLEMENTARY INFORMATION section of 

this notice. 

ADDRESSES: See the SUPPLEMENTARY

INFORMATION section of this notice for 

the addresses at which we will hold the 

public hearings on the proposed rule 

and DEIS. 

FOR FURTHER INFORMATION CONTACT: 

Jessica Villanueva, 1999 Broadway, 

Suite 3320, Denver, Colorado 80201, 

Phone: (303) 293–5057 

Robert Evans, 2675 Regency Road, 

Lexington, Kentucky 40503, Phone: 

(859) 260–3902 

Len Meier, 501 Belle Street, Room 216, 

Alton, Illinois 62002, Phone: (618) 

463–6463 x 5109 

Ben Owens, 3 Parkway Center, 

Pittsburgh, PA 152220, Phone: (412) 

937–2827 

Ian Dye, Jr., 1947 Neeley Road, 

Compartment 116, Suite 220, Big 

Stone Gap, VA 24219, Phone: (276) 

523–0022 x 16 

Roger Calhoun, 1027 Virginia Street 

East, Charleston, West Virginia 25301, 

Phone: (304) 347–7158 

SUPPLEMENTARY INFORMATION: The 

proposed rule, announced on July 16, 

2015 and published on July 27, 2015 (80 

FR 44436–44698), would modernize 

rules that are 32 years old in order to 

better protect people, water quality, and 

the environment from the adverse 

effects of coal mining. We will hold 

public hearings on the proposed Stream 

Protection Rule and the accompanying 

DEIS at the following locations on the 

listed dates: 

Tuesday, September 1, 2015: Jefferson 

County Fairgrounds Event Center, 15200 

W. 6th Ave., Golden, CO 80401. 

Thursday, September 3, 2015: 

Lexington Convention Center, 430 W. 

Vine St., Lexington, KY 40507. 

Thursday, September 10, 2015: St. 

Charles Convention Center, 1 

Convention Center Plaza, St. Charles, 

MO 63303. 

Thursday, September 10, 2015: 

DoubleTree by Hilton Hotel Pittsburgh, 

500 Mansfield Ave., Pittsburgh, PA 

15205. 

Tuesday, September 15, 2015: 

Mountain Empire Community College, 

3441 Mt. Empire Rd., Big Stone Gap, VA 

24219. 

Thursday, September 17, 2015: 

Charleston Civic Center, 200 Civic 

Center Dr., Charleston, WV 25301 

All hearings are scheduled to begin at 

5 p.m. and end at 9 p.m. We will 

provide opportunities for interested 

parties to deliver or write comments 

onsite at each public hearing. We will 

also provide an opportunity for 

participants to speak with a court 

reporter who will transcribe their verbal 

comments for the written record. 

Additionally, the public will be able to 

speak in a public hearing format. Those 

speaking in the public hearing format 

must register to do so at the hearing, and 

will be called on a first-come, firstserved basis as time allows. Verbal 

comments will be limited to two 

minutes in order to allow as many 

people to speak as possible. People are 

encouraged to provide their complete 

detailed comments in writing. 

The primary purpose of the hearings 

is to obtain input on the proposed rule 

and DEIS. Therefore, we encourage you 

to limit your testimony to the merits of 

the provisions of the proposed rule and 

DEIS. 

At the hearing, a court reporter will 

record and prepare a verbatim 

transcription of all comments presented. 

This written record will be made part of 

the docket for the DEIS and/or proposed 

rule. If you have a written copy of your 

comments, we encourage you to provide 

a copy to the moderator to assist the 

court reporter in preparing the written 

record. 

If you are a disabled individual who 

needs reasonable accommodations to 

attend a public hearing, please contact 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

Dated: August 24, 2015. 

Harry J. Payne, 

Acting Assistant Director, Program Support. 

[FR Doc. 2015–21412 Filed 8–27–15; 8:45 am] 

BILLING CODE 4310–05–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2015–0280; FRL–9933–20– 

Region 9] 

Revisions to California State 

Implementation Plan; Bay Area Air 

Quality Management District; 

Stationary Sources Permits 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing a limited 

approval and limited disapproval of 

Regulation 2, Rules 1 and 2 for the Bay 

Area Air Quality Management District 

(BAAQMD or District) portion of the 

California State Implementation Plan 

(SIP) submitted on April 22, 2013. 

These revisions consist of significant 

updates to rules governing the issuance 

of permits for stationary sources, 

including review and permitting of 

major sources and major modifications 

under parts C and D of title I of the 

Clean Air Act (CAA). The intended 

effect of this proposed limited approval 

and limited disapproval action is to 

update the applicable SIP with current 

BAAQMD permitting rules and to set 

the stage for remedying certain 

deficiencies in these rules. If finalized 

as proposed, this limited disapproval 

action would trigger an obligation for 

EPA to promulgate a Federal 

Implementation Plan unless California 

submits and we approve SIP revisions 

that correct the deficiencies within two 

years of the final action, and for certain 

deficiencies the limited disapproval 

would also trigger sanctions under 

section 179 of the CAA unless California 

submits and we approve SIP revisions 

that correct the deficiencies within 18 

months of final action. 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 52237 

1We note that any references to the term ‘‘source’’ 

in Regulation 2, Rules 1 and 2, as well as in the 

District’s other SIP rules, refer to the ‘‘emission 

unit’’ rather than the ‘‘stationary source.’’ 

2Parts C and D of the federal Clean Air Act 

regulate the construction of new major stationary 

sources and major modifications. BAAQMD’s NSR 

rules do not distinguish between major sources and 

major modifications in the same way as the federal 

Clean Air Act. Throughout this document, any 

references to major sources or major modifications 

means those new sources and modifications 

exceeding the major source and modification 

thresholds specified in the federal Clean Air Act. 

DATES: Any comments must arrive by 

September 28, 2015. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2015–0280, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the online 

instructions. 

2. Email: R9airpermits@epa.gov. 

3. Mail or deliver: Gerardo Rios (Air– 

3), U.S. Environmental Protection 

Agency, Region 9, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region 9, 75 

Hawthorne Street, San Francisco, 

California. While all documents in the 

docket are listed at 

www.regulations.gov, some information 

may be publicly available only at the 

hard copy location (e.g., copyrighted 

material, large maps), 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: 

Shaheerah Kelly, EPA Region 9, (415) 

947–4156, kelly.shaheerah@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rules did the State submit? 

B. What are the existing BAAQMD rules 

governing stationary source permits in 

the California SIP? 

C. What is the purpose of this proposed 

rule? 

II. EPA’s Evaluation 

A. How is EPA evaluating the rules? 

B. Do the rules meet the evaluation 

criteria? 

1. Minor New Source Review 

Requirements 

2. Prevention of Significant Deterioration 

(PSD) Requirements 

3. Nonattainment New Source Review 

Requirements 

4. Section 110(l) of the Act 

5. Section 189(e) of the Act 

6. Section 193 of the Act 

III. Proposed Action and Public Comment 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

• The word or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

• The word or initials BAAQMD or 

District mean or refer to the Bay Area 

Air Quality Management District. 

• The initials BACT mean or refer to 

Best Available Control Technology. 

• The words Bay Area mean or refer 

to the San Francisco Bay Area. 

• The initials CARB mean or refer to 

the California Air Resources Board. 

• The initials CFR mean or refer to 

Code of Federal Regulations. 

• The initials CO mean or refer to 

carbon monoxide. 

• The initials or words EPA, we, us or 

our mean or refer to the United States 

Environmental Protection Agency. 

• The initials ERC mean or refer to 

Emission Reduction Credit. 

• The initials FIP mean or refer to 

Federal Implementation Plan. 

• The initials FR mean or refer to 

Federal Register. 

• The initials GHG mean or refer to 

greenhouse gases. 

• The initials IBR mean or refer to 

incorporation by reference. 

• The initials LAER mean or refer to 

Lowest Achievable Emission Rate. 

• The initials NAAQS mean or refer 

to National Ambient Air Quality 

Standards. 

• The initials NOX mean or refer to 

oxides of nitrogen. 

• The initials NPOC mean or refer to 

non-precursor organic compound. 

• The initials NSR mean or refer to 

New Source Review. 

• The initials PM10 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than or equal to 10 

micrometers (coarse particulate matter). 

• The initials PM2.5 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than or equal to 2.5 

micrometers (fine particulate matter). 

• The initials PSD mean or refer to 

Prevention of Significant Deterioration. 

• The initials PTE mean or refer to 

potential to emit 

• The initials SIP mean or refer to 

State Implementation Plan. 

• The initials SO2 mean or refer to 

sulfur dioxide. 

• The initials TSD mean or refer to 

the technical support document for this 

action. 

• The initials VOC mean or refer to 

volatile organic compound. 

I. The State’s Submittal 

A. What rules did the State submit? 

On April 22, 2013, CARB submitted 

amended rules, BAAQMD Regulation 2, 

Rules 1 and 2 for approval as a revision 

to the BAAQMD portion of the 

California SIP under the CAA. 

Regulation 2 contains the District’s air 

quality permitting programs. Regulation 

2, Rule 1 contains general requirements 

that apply to all District air quality 

permitting programs. Regulation 2, Rule 

2 contains the District’s New Source 

Review (NSR) permit programs for both 

attainment and nonattainment 

pollutants. This SIP revision submittal 

represents a comprehensive revision to 

BAAQMD’s preconstruction review and 

permitting program and is intended to 

satisfy the requirements of part C (PSD) 

and part D (nonattainment NSR) of title 

I of the Act as well as the general 

preconstruction review requirements for 

minor sources 1 under section 

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

preconstruction review and permitting 

programs are often collectively referred 

to as NSR. 

Table 1 lists the rules addressed by 

this proposal with the dates that they 

were adopted by BAAQMD and 

submitted to EPA by CARB, which is 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
52238 Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 

the governor’s designee for California 

SIP submittals. 

TABLE 1—SUBMITTED RULES

Regulation & Rule No. Rule title Adopted/

Amended Submitted 

Regulation 2, Rule 1 (2–1) ........................................... Permits, General Requirements ................................... 12/19/12 4/22/13 

Regulation 2, Rule 2 (2–2) ........................................... Permits, New Source Review ....................................... 12/19/12 4/22/13 

On June 26, 2013, the April 22, 2013 

submittal of Regulation 2, Rules 1 and 

2 was deemed to meet the completeness 

criteria in 40 CFR part 51, appendix V, 

which must be met before formal EPA 

review. The submittal includes evidence 

of public notice and adoption of the 

amended rules. While we can act only 

on the most recently submitted version 

of each regulation (which supersedes 

earlier submitted versions), we have 

reviewed materials provided with 

previous submittals. Our TSD provides 

additional background information on 

our evaluation of Regulation 2, Rules 1 

and 2. 

B. What are the existing BAAQMD rules 

governing stationary source permits in 

the California SIP? 

The existing SIP-approved NSR 

program for new or modified stationary 

sources in the Bay Area consists of the 

rules identified below in Table 2. 

Collectively, these rules establish the 

NSR requirements for both major and 

minor stationary sources under 

BAAQMD jurisdiction in California, 

including requirements for the 

generation and use of emission 

reduction credits in nonattainment 

areas. 

Consistent with the District’s stated 

intent to have the submitted NSR rules 

replace the existing SIP-approved NSR 

program in its entirety, EPA’s approval 

of the regulations identified above in 

Table 1 would have the effect of entirely 

superseding our prior approval of these 

two rules (including a prior approval of 

a single subsection) in the current SIPapproved program. Table 2 lists the 

existing rules in the California SIP 

governing NSR for stationary sources 

under BAAQMD jurisdiction. 

TABLE 2—EXISTING SIP RULES GOVERNING NSR FOR STATIONARY SOURCES UNDER BAAQMD JURISDICTION

Regulation & Rule No. & Section No. Rule title BAAQMD 

adoption date 

EPA 

approval date 

Federal 

Register 

citation 

2–1 .................................................................. Permits, General Requirements ..................... 11/1/1989 1/26/1999 64 FR 3850 

2–1–429 .......................................................... Permits, General Requirements; Federal 

Emissions Statement.

6/15/1994 4/3/1995 60 FR 16799 

2–2 .................................................................. Permits, New Source Review ........................ 6/15/1994 1/26/1999 64 FR 3850 

C. What is the purpose of this proposed 

rule? 

The purpose of this proposed rule is 

to present our evaluation under the 

CAA and EPA’s regulations of the 

amended NSR rules submitted by CARB 

on April 22, 2013, as identified in Table 

1. We provide our reasoning in general 

terms below but provide a more detailed 

analysis in our TSD, which is available 

in the docket for this proposed 

rulemaking. 

II. EPA’s Evaluation 

A. How is EPA evaluating the rules? 

EPA has reviewed BAAQMD 

Regulation 2, Rules 1 and 2 for 

compliance with the CAA’s general 

requirements for SIPs in CAA section 

110(a)(2), part C of title I (sections 160 

through 169) for the PSD program, and 

part D of title I (sections 172, 173, 182(a) 

and 189(e)) for the nonattainment NSR 

program. EPA also evaluated the rules 

for compliance with the CAA 

requirements for SIP revisions in CAA 

sections 110(l), 193 and 302(z). In 

addition, EPA evaluated the submitted 

rules for consistency with the regulatory 

provisions of 40 CFR part 51, subpart I 

(Review of New Sources and 

Modifications) (i.e., 40 CFR 51.160– 

51.166) and 40 CFR 51.307. 

Among other things, section 110 of 

the Act requires that SIP rules be 

enforceable, and provides that EPA may 

not approve a SIP revision if it would 

interfere with any applicable 

requirements concerning attainment and 

reasonable further progress or any other 

requirement of the CAA. Section 

110(a)(2) and section 110(l) of the Act 

require that each SIP or revision to a SIP 

submitted by a State must be adopted 

after reasonable notice and public 

hearing. 

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

requires each SIP to include a program 

to regulate the modification and 

construction of any stationary source 

within the areas covered by the SIP as 

necessary to assure attainment and 

maintenance of the NAAQS. In addition 

to the permit programs required under 

parts C and D of title I of the Act for PSD 

and nonattainment NSR sources, 

respectively, EPA’s regulations at 40 

CFR 51.160–51.164 provide general 

programmatic requirements to 

implement this statutory mandate 

commonly referred to as the ‘‘minor 

NSR program.’’ 

Part C of title I of the Act establishes 

the general statutory requirements for a 

PSD permit program. Additionally, 40 

CFR 51.166 sets forth EPA’s regulatory 

requirements for a SIP-approved PSD 

program. 40 CFR 52.21 is EPA’s FIP 

containing regulatory requirements to 

implement a PSD program and its 

provisions may be incorporated by 

reference into a SIP-approved PSD 

program. 

Part D of title I of the Act contains 

certain procedural requirements for 

developing and revising SIPs, and 

establishes general statutory 

requirements for a nonattainment NSR 

permit program. Subpart 4 of part D of 

title I of the Act includes section 189(e), 

which requires the control of major 

stationary sources of PM10 precursors 

(and hence PM2.5 precursors) ‘‘except 

where the Administrator determines 

that such sources do not contribute 

significantly to PM10 [and PM2.5] levels 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 52239 

3Regulation 2, Rule 6 (Major Facility) contains 

the District Title V operating permit program. 

which exceed the standard in the area.’’ 

Additionally, 40 CFR 51.165 sets forth 

EPA’s regulatory requirements for SIPapproval of a nonattainment NSR permit 

program. 

Our TSD, which can be found in the 

docket for this rule, contains a more 

detailed evaluation and discussion of 

the approval criteria. As described 

below, EPA is proposing a limited 

approval and limited disapproval of the 

submitted NSR rules. 

B. Do the rules meet the evaluation 

criteria? 

With respect to procedural 

requirements, CAA sections 110(a)(2) 

and 110(l) require that revisions to a SIP 

be adopted by the State after reasonable 

notice and public hearing. EPA has 

promulgated specific procedural 

requirements for SIP revisions in 40 

CFR part 51, subpart F. These 

requirements include publication of 

notices, by prominent advertisement in 

the relevant geographic area, of a public 

hearing or notice of an opportunity for 

a public hearing on the proposed 

revisions, and a public comment period 

of at least 30 days. 

Based on our review of the public 

process documentation included in the 

April 22, 2013 submittal, we find that 

the BAAQMD has provided sufficient 

evidence of public notice, and an 

opportunity for comment and a public 

hearing prior to adoption and submittal 

of these rules to EPA. 

With respect to substantive 

requirements, we have evaluated 

Regulation 2, Rules 1 and 2, in 

accordance with the CAA and 

regulatory requirements that apply to: 

(1) General preconstruction review 

programs for minor sources under 

section 110(a)(2)(C) of the Act, (2) PSD 

permit programs under part C of title I 

of the Act, and (3) nonattainment NSR 

permit programs under part D of title I 

of the Act. For the most part, the 

submitted NSR rules satisfy the 

applicable requirements for these three 

permit programs and will strengthen the 

applicable SIP by updating the rules and 

adding requirements to address new or 

revised NSR permitting provisions 

promulgated by EPA in the last several 

years. However, the submitted NSR 

rules also contain a few deficiencies 

which prevent full approval. Below, we 

discuss generally our evaluation of 

BAAQMD’s submitted rules and the 

deficiencies that are the basis for our 

proposed limited disapproval of these 

rules. Our TSD contains a more detailed 

evaluation and recommendations for 

program improvements. 

1. Minor New Source Review 

Requirements 

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

requires that each SIP include a program 

to provide for ‘‘regulation of the 

modification and construction of any 

stationary source within the areas 

covered by the plan as necessary to 

assure that national ambient air quality 

standards are achieved, including a 

permit program as required in parts C 

and D’’ of title I of the Act. Thus, in 

addition to the permit programs 

required in parts C and D of title I of the 

Act, which apply to new or modified 

major stationary sources of pollutants, 

each SIP must include a program to 

regulate the construction and 

modification of any stationary source 

within the area as necessary to assure 

that the NAAQS are achieved. These 

general pre-construction requirements 

are commonly referred to as ‘‘minor 

NSR’’ and are subject to EPA’s 

implementing regulations in 40 CFR 

51.160–51.164. Regulation 2, Rules 1 

and 2 satisfy most of the statutory and 

regulatory requirements for minor NSR 

programs, but we have identified the 

following three deficiencies that form 

part of the basis for our proposed 

limited disapproval. 

First, the definition of ‘‘Agricultural 

Source’’ in section 2–1–239 and the 

provision concerning the loss of an 

exemption in section 2–1–424 crossreference and rely on requirements in 

other District rules that are not 

approved in the SIP. Specifically, 

subsection 2–1–239.1 and section 2–1– 

424 rely on requirements in Regulation 

2, Rule 10 (Large Confined Animal 

Facility Operations). In addition, 

subsection 2–1–239.3 relies on 

requirements in Regulation 2, Rule 6 

(Major Facility),3 which is also not 

approved in the SIP. The District may 

resolve this deficiency by incorporating 

the specific threshold(s) or 

requirement(s) from these District rules 

into Regulation 2, Rule 1. 

Second, section 2–2–308 specifies 

that the District’s APCO shall not issue 

an Authority to Construct (ATC) for a 

new or modified emission unit or 

stationary source that will result in a 

‘‘significant net increase’’ (i.e., a major 

modification) in emissions of any 

NAAQS pollutant unless the APCO 

determines that such increase will not 

cause or contribute to an exceedance of 

any NAAQS for that pollutant. Because 

this provision only prohibits issuance of 

an ATC for a source or project that will 

result in a ‘‘significant net increase’’ 

rather than any projects (i.e., both minor 

or major modifications) that would 

cause or contribute to a NAAQS 

violation, this provision does not satisfy 

the requirements of 40 CFR 51.160(a) 

and is therefore deficient. 

Lastly, the rule submittal is deficient 

because it does not contain a 

prohibition on the issuance of an ATC 

if the project does not meet all 

applicable requirements of the control 

strategy as required in 40 CFR 51.160(a). 

Compared to the provisions in the 

existing SIP that are used to implement 

the minor NSR program, the submitted 

rule revisions represent an overall 

strengthening of BAAQMD’s minor NSR 

program. For example, the rule revisions 

include: (1) more specific criteria for 

permit applications and conditions for 

permit issuance, (2) new provisions to 

prevent emissions from new or modified 

sources from causing or contributing to 

a violation of a NAAQS, (3) new 

provisions for public notification and 

comment for minor NSR projects that 

result in a significant net emission 

increase, and (4) new and revised 

provisions that clarify what new and 

modified sources are exempt from 

obtaining an ATC permit. Overall, we 

expect the submitted revisions will 

allow for more effective implementation 

and enforcement of the requirements 

applicable to minor stationary sources 

in the Bay Area. 

2. Prevention of Significant 

Deterioration (PSD) Requirements 

Part C of title I of the Act contains the 

provisions for the prevention of 

significant deterioration of air quality in 

areas designated ‘‘attainment’’ or 

‘‘unclassifiable’’ for the NAAQS, 

including preconstruction permit 

requirements for new major sources or 

major modifications proposing to 

construct in such areas. EPA’s 

regulations for PSD permit programs are 

found in 40 CFR 51.166. EPA’s FIP 

implementing the PSD program in areas 

without a SIP-approved program is 

found at 40 CFR 52.21. BAAQMD is 

currently designated as ‘‘attainment’’ or 

‘‘unclassifiable/attainment’’ for all 

NAAQS pollutants, except for the 2008 

8-hour ozone (marginal) and 2006 24- 

hour PM2.5 (moderate) NAAQS. 

Regulation 2, Rules 1 and 2 contain 

the requirements for review and 

permitting of PSD sources. Regulation 2, 

Rule 1 contains some general NSR 

definitions, the major modification 

applicability determination procedures, 

and certain administrative requirements 

that apply to the issuance of all permits 

covered under Regulation 2, including 

PSD permits. Regulation 2, Rule 2 

contains most of the NSR and PSD 

definitions, and all of the substantive 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
52240 Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 

4While 40 CFR 51.166(i)(2) provides that the PSD 

program requirements contained in paragraphs (j) 

through (r) need not apply to nonattainment 

pollutants, PSD major source applicability must be 

determined for all regulated NSR pollutants, as 

defined in 51.166(b)(49), which includes all 

pollutants for which a NAAQS has been 

promulgated. 

5On June 21, 2004, the EPA issued a PSD 

delegation agreement, which was updated on 

January 20, 2006, February 4, 2008, and March 9, 

2011. 

6The BAAQMD was designated nonattainment of 

both the 1-hour ozone (moderate) and 1997 8-hour 

ozone (marginal) NAAQS at the time those 

standards were revoked. While BAAQMD is no 

longer ‘‘designated’’ nonattainment for these two 

revoked standards, certain requirements based on 

these previous designations may still apply if those 

requirements are more stringent than those imposed 

under the current nonattainment designations. 

and administrative requirements for 

review of PSD permit applications and 

for the approval of PSD permits. These 

rules satisfy most of the statutory and 

regulatory requirements for PSD permit 

programs, thus forming part of the basis 

for our limited approval. However, these 

rules also contain four deficiencies that 

form part of the basis for our proposed 

limited disapproval, as discussed below. 

First, subsection 2–1–234.2.2 provides 

an adequate definition of major 

modification by incorporating 40 CFR 

51.166(b)(2) by reference. However, the 

second sentence of section 2–1–234.2 

attempts to satisfy these requirements 

by incorporating by reference the 

substantive requirements of the PSD 

applicability procedures for determining 

if a project will result in a major 

modification. (See 40 CFR 51.166(a)(7)) 

The BAAQMD rules cannot incorporate 

40 CFR 51.166(a)(7) by reference 

because it consists of instructions to the 

State and not requirements for an 

applicant seeking a PSD permit. When 

provisions are incorporated by 

reference, the exact wording of the 

provision is read into the text of the 

rule. Therefore, the text of 40 CFR 

51.166(a)(7) does not contain the 

necessary wording to require a source to 

perform the calculations required by the 

PSD applicability procedures in 40 CFR 

51.166(a)(7). Similarly, the 

recordkeeping provisions required when 

projected actual emissions are used to 

determine emission increases are set 

forth in 40 CFR 51.166(r)(6) and (r)(7). 

For the same reason, these provisions 

cannot be incorporated by reference. 

These deficiencies may be resolved by 

incorporating by reference the 

provisions contained in 40 CFR 52.21 

for specifying the applicability 

procedures, applicable definitions, and 

recordkeeping requirements. 

Second, the definition of ‘‘PSD 

Pollutant’’ in section 2–2–223 begins by 

referencing EPA’s definition of a 

regulated NSR pollutant in 40 CFR 

52.21(b)(50). However, section 2–2–223 

then excludes from the definition any 

pollutants for which the Bay Area has 

been designated as nonattainment for a 

NAAQS. Excluding nonattainment 

pollutants conflicts with the federal 

definition of ‘‘regulated NSR pollutant’’ 

in 40 CFR 52.21(b)(50) which includes 

all NAAQS pollutants, regardless of 

attainment status. Because this 

definition is used for determining 

whether a source is a ‘‘Major PSD 

Facility,’’ as defined in subsection 2–2– 

224.1, the rule is deficient for PSD 

applicability purposes. A stationary 

source is considered a major stationary 

source if any pollutant emitted by the 

source exceeds the applicable major 

source thresholds (100 or 250 tpy), 

regardless of the area’s designation.4

Additionally, since the definition of 

‘‘PSD Pollutant’’ is used for determining 

whether a modification to a stationary 

source is a ‘‘PSD Project’’ pursuant to 

section 2–2–224, we also find that 

section 2–2–224 is deficient. To resolve 

this deficiency, the District may remove 

the exclusion of nonattainment 

pollutants from the definition of ‘‘PSD 

Pollutant’’ or address applicability as it 

relates to nonattainment pollutants in 

determining whether a source is a 

‘‘Major PSD Facility’’ in subsection 2–2– 

224.1. 

Third, the air quality analysis and 

modeling requirements in subsection 2– 

2–305.3 provide that where an air 

quality model specified in 40 CFR part 

51, appendix W (Guideline on Air 

Quality Models) is inappropriate, the 

model may be modified or another 

model substituted upon written 

approval by the Air Pollution Control 

Officer (APCO) after public notice and 

opportunity for public comment under 

the procedures set forth in section 2–2– 

404. This provision is deficient because 

subsection 3.2.2 of 40 CFR 51, appendix 

W, regarding the use of alternative 

models, requires written approval by the 

Administrator prior to using any 

modification or substitution of a model, 

and subsection 2–2–305.3 does not 

require this approval. The District may 

resolve this deficiency by revising 

subsection 2–2–305.3 such that it 

requires approval by the EPA, as well as 

the APCO. 

Finally, the fugitive emission 

calculation procedure in Section 2–2– 

611 provides that fugitive emissions 

shall be included only if the facility is 

in one of the 28 source categories listed 

in section 169(1) of the Act. However, 

40 CFR 51.166(b)(1)(iii)(aa) includes an 

additional source category: ‘‘any other 

stationary source category which, as of 

August 7, 1980, is being regulated under 

section 111 or 112 of the Act.’’ 

Therefore, we find that Regulation 2, 

Rule 2 is deficient for PSD purposes 

because it does not require fugitive 

emissions from all listed source 

categories. 

Although BAAQMD’s existing SIP 

rules in Regulation 2, Rule 2 contained 

certain PSD-related provisions, the 

District has never had a SIP-approved 

PSD permitting program. The BAAQMD 

has been conducting PSD evaluations 

and issuing PSD permits under a 

delegation agreement between the 

District and the EPA pursuant to 40 CFR 

52.21(u).5 Accordingly, the applicable 

requirements governing the issuance of 

PSD permits in the BAAQMD are 

currently the FIP implementing the PSD 

program at 40 CFR 52.21. The EPA’s 

approval of Regulation 2, Rules 1 and 2 

into the California SIP, if finalized, will 

give the District a SIP-approved PSD 

permit program. 

Approval of Regulation 2, Rules 1 and 

2 represents an overall strengthening of 

BAAQMD’s SIP rules because it 

includes updated PSD provisions, is 

mostly consistent with EPA’s 

requirements in the CAA and 40 CFR 

51.166, and results in a SIP-approved 

PSD program to regulate new or 

modified major stationary sources of 

attainment or unclassifiable NAAQS 

pollutants. 

3. Nonattainment New Source Review 

Requirements 

Part D of title I of the Act contains the 

general requirements for areas 

designated ‘‘nonattainment’’ for a 

NAAQS, including preconstruction 

permit requirements for new major 

sources or major modifications 

proposing to construct in such 

nonattainment areas, commonly referred 

to as ‘‘Nonattainment New Source 

Review’’ or ‘‘NSR.’’ EPA’s regulations 

for NSR permit programs are found in 

40 CFR 51.165. BAAQMD is currently 

designated nonattainment for the 2008 

8-hour ozone (marginal) and 2006 24- 

hour PM2.5 (moderate) NAAQS.6 (See 40 

CFR 81.305.) 

Regulation 2, Rules 1 and 2 contain 

the NSR requirements for review and 

permitting of major sources and major 

modifications located in the Bay Area. 

Similar to the District’s PSD program, 

Regulation 2, Rule 1 contains some 

general NSR definitions, the major 

modification applicability procedures, 

and certain administrative requirements 

that apply to the issuance of all permits 

covered under Regulation 2, including 

major nonattainment NSR permits. 

Regulation 2, Rule 2 contains most of 

the NSR-specific definitions, and most 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 52241 

7As discussed below in section II.B.5 and in our 

TSD, with respect to the PM2.5 precursors 

applicable to the Bay Area, the District’s current 

SIP-approved rule already included BACT 

provisions in section 2–2–302 for VOC, NOX and 

SO2. Additionally, the rule already included offset 

requirements for VOC and NOX, and the District 

incorporated new offset provisions in section 2–2– 

303 for SO2. 

of the substantive and administrative 

requirements for review of major 

nonattainment NSR applications and for 

the approval of these permits. These 

rules satisfy most of the statutory and 

regulatory requirements for NSR permit 

programs, thus forming part of the basis 

for our limited approval. However, these 

rules also contain seven deficiencies 

that form part of the basis for our 

proposed limited disapproval, as 

discussed below. 

First, the language in subsection 2–1– 

234.2.1 for nonattainment pollutants 

fails for the same reasons discussed 

above for the PSD program. Specifically, 

while it is appropriate to incorporate 40 

CFR 51.165(a)(1)(v) by reference, the 

second sentence of this subsection 

cannot incorporate the applicability 

procedures in 40 CFR 51.165(a)(2) by 

reference because it provides direction 

to States rather than to applicants 

seeking a nonattainment NSR permit. 

For the same reason, the recordkeeping 

requirements of 40 CFR 51.165(a)(6) and 

(a)(7) cannot be incorporated by 

reference. These deficiencies may be 

resolved by including the specific 

requirements contained in 40 CFR 

51.165(a)(2), as well as (a)(6), and (a)(7). 

Our TSD has a further discussion of this 

issue and potential remedies. 

Second, subsection 2–2–401.4 

requires any application for a new major 

stationary source or major modification 

located in or within 100 km of a Class 

I area, to provide an analysis of 

potential impacts to air quality related 

values (including visibility) for each 

affected Class I area. However, 

Regulation 2, Rule 2 is deficient because 

it only requires a visibility analysis for 

sources that are located within 100 km 

of a Class I area, rather than for any 

source that ‘‘may have an impact on 

visibility in any mandatory Class I 

Federal Area,’’ as required by 40 CFR 

51.307(b)(2). The NSR program must 

include this requirement as it pertains 

to any new major stationary source or 

major modification subject to 

nonattainment NSR permitting. 

Third, subsection 2–2–411.2, 

pertaining to offset refunds, allows the 

District to provide an ‘‘offset refund’’ to 

a stationary source if excess offsets were 

provided at the time of permit issuance 

or for an emission unit that has not been 

constructed (or is constructed but never 

operated) and for which offsets have 

been provided. The provision does not 

specify a time after which a stationary 

source can no longer obtain an offset 

refund. It would not be appropriate to 

allow a source to request such a refund 

years after the project has been 

completed or canceled. To correct this 

deficiency, BAAQMD must remove this 

provision or amend the rule to provide 

an appropriate timeframe for obtaining 

an offset refund. 

Fourth, the ‘‘Demonstration of NOX

and POC Offset Program Equivalence’’ 

required by section 2–2–412 is deficient 

because it does not provide a remedy if 

the District fails to make the required 

demonstration. BAAQMD must add a 

remedy provision, and identify a 

deadline to eliminate any offset shortfall 

if the District’s Small Facility Banking 

Account does not contain sufficient 

surplus emission reductions to 

demonstrate that Rule 2 provides offset 

program equivalence. Such a remedy, at 

a minimum must provide that the 

offsets for any new or modified major 

stationary source must comply with all 

federal offset criteria, rather than the 

offset criteria provided in the rule, until 

equivalence is re-established. 

Fifth, subsection 2–2–605.2 is 

deficient because it allows existing 

‘‘fully-offset’’ sources to generate ERCs 

based on the difference between the 

post-modification PTE and the surplus 

adjusted pre-modification PTE. ERCs 

intended to be used as offsets for 

emissions from new major sources or 

major modifications are only creditable 

if they are reductions of actual 

emissions, consistent with the 

requirement in CAA section 173(c)(1), 

not reductions in the PTE of the source. 

To resolve this deficiency, BAAQMD 

may revise the calculation method for 

‘‘fully offset’’ sources to be the same as 

for sources that are not ‘‘fully offset’’. 

Alternatively, BAAQMD may add 

provisions to differentiate between state 

and federally compliant ERCs (i.e., ERCs 

based on actual emission reductions) 

and provide that new major sources and 

major modifications must use federally 

compliant ERCs. 

Sixth, subsection 2–2–606.2 is 

deficient as it applies to major 

modifications because it allows ‘‘fullyoffset’’ sources to calculate the emission 

increases from a proposed modification 

based on the difference between the 

post-modification PTE and premodification adjusted PTE. 40 CFR 

51.165(a)(3)(ii)(J) requires that offsets 

must be provided for the actual increase 

in emissions from a major modification 

based on an actual to PTE emissions 

increase test. BAAQMD may resolve this 

deficiency by developing separate 

procedures based on the difference 

between the allowable emissions (i.e. 

PTE) after the modification and the 

actual emissions before the modification 

for calculating the quantity of offsets 

required for an emission unit or 

modification subject to the major NSR 

preconstruction review requirements. 

Alternatively, BAAQMD may revise the 

offset equivalency provisions of Section 

2–2–412 to track the difference in the 

quantity of offsets required under the 

rule and as required by the CAA, and 

demonstrate that in the aggregate, an 

equivalent amount of offsets are 

provided. We note that if the District 

addresses this deficiency in section 2– 

2–412, offsets must be addressed for 

PM2.5 and the PM2.5 precursors (NOX

and SO2) in addition to the ozone 

precursors already addressed in this 

provision. 

Finally, for the same reasons stated 

above in our evaluation of the PSD 

program, we find that section 2–2–611 

of Regulation 2, Rule 2 is deficient 

because it does not require fugitive 

emissions from all listed source 

categories to be included when 

determining major source applicability 

for major nonattainment NSR review. 

Compared to the provisions in the 

existing SIP, the submitted rule 

revisions represent an overall 

strengthening of BAAQMD’s 

nonattainment NSR program. For 

example, the rule revisions include: (1) 

Incorporation of new requirements (e.g., 

District BACT (equivalent to federal 

LAER), offsets, and emissions 

measurement methods for regulating 

PM2.5 emissions and the applicable 

PM2.5 precursors,7 (2) new requirements 

for ensuring protection of air quality 

related values in Class I areas, (3) 

specific calculation procedures for 

determining if a project will result in a 

major modification, and (4) several 

minor revisions that clarify definitions 

of important NSR terms, and substantive 

and administrative procedures 

consistent with EPA’s requirements in 

40 CFR 51.165. 

4. Section 110(l) of the Act 

We are proposing to find that 

Regulation 2, Rules 1 and 2 satisfy the 

requirements of section 110(a)(2)(C) and 

parts C and D of title I of the Act. 

Section 110(l) of the CAA states that 

each SIP revision submitted by a State 

shall be adopted by such State after 

reasonable notice and public hearing. It 

also states that the Administrator shall 

not approve a SIP revision if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other CAA applicable 

requirement. 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
52242 Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 

8 80 FR 1816, Approval and Promulgation of 

Implementation Plans; Designation of Areas for Air 

Quality Planning Purposes; California; San Joaquin 

Valley Moderate Area Plan and Reclassification as 

Serious Nonattainment for the 2006 PM2.5 NAAQS; 

(Proposed Rule), January 13, 2015, page 1822. 80 FR 

24281, Approval of Air Quality Implementation 

Plans; California; South Coast Air Quality 

Management District; Stationary Source Permits; 

May 1, 2015. 

9See BAAQMD’s Fine Particulate Matter Data 

Analysis and Modeling in the Bay Area, Research 

and Modeling Section Publication No. 200910–004– 

PM, October 2009. 

With respect to the procedural 

requirements of CAA section 110(l), 

based on our review of the public 

process documentation included in the 

April 22, 2013 SIP submittal package, 

we find that BAAQMD has provided 

sufficient evidence of public notice and 

opportunity for comment and public 

hearings prior to adoption and submittal 

of these rules to EPA. See the TSD for 

additional details. 

With respect to the substantive 

requirements of section 110(l), we have 

determined that our approval of the 

BAAQMD NSR SIP submittal, as 

described in more detail in our TSD, 

represents a strengthening of 

BAAQMD’s NSR program as compared 

to the District’s current SIP-approved 

NSR program that was approved on 

January 26, 1999 (64 FR 3850), and that 

our limited approval of this SIP 

submittal would not interfere with any 

applicable requirement concerning 

attainment and RFP or any other 

applicable requirement of the Act. 

Therefore we are proposing limited 

approval and limited disapproval of the 

BAAQMD SIP revision under section 

110(l) of the Act. 

5. Section 189(e) of the Act 

CAA title I, Part D, subpart 4 includes 

section 189(e), which requires the 

control of major stationary sources of 

PM10 and PM2.5 precursors ‘‘except 

where the Administrator determines 

that such sources do not contribute 

significantly to PM10 levels which 

exceed the standard in the area.’’ The 

provisions of subpart 4, do not define 

the term ‘‘precursor’’ for purposes of 

PM2.5, nor does subpart 4 explicitly 

require the control of any specifically 

identified particulate matter precursor. 

The statutory definition of ‘‘air 

pollutant,’’ however, provides that the 

term ‘‘includes any precursors to the 

formation of any air pollutant, to the 

extent the Administrator has identified 

such precursor or precursors for the 

particular purpose for which the term 

‘‘air pollutant’’ is used.’’ (See CAA 

section 302(g)) The EPA has identified 

the main precursor gases associated 

with PM2.5 formation as SO2, NOX, VOC, 

and ammonia. Accordingly, the 

nonattainment NSR permit program for 

PM2.5 presumptively must apply to 

emissions of all four precursors listed 

above, and direct PM2.5, when emitted 

from major sources in the Bay Area. The 

BAAQMD’s revisions to Regulation 2, 

Rule 2 regulate SO2, NOX and VOC, but 

not ammonia. 

With respect to VOC and NOX

emissions, both new and modified 

sources of these emissions are subject to 

BAAQMD’s BACT requirements 

(equivalent to federal LAER) at a 10 lb/ 

day emission rate threshold under its 

nonattainment NSR program. Also, 

Section 2–2–302 of the District’s revised 

Rule 2 requires VOC and NOX emissions 

to be offset at a 1:1 ratio for any facility 

with a PTE greater than 10 tpy but less 

than 35 tpy of NOX or VOC, and a 1:1.15 

ratio for any facility with a PTE of 35 

tpy or more of NOX or VOC. These 

applicability thresholds are well below 

the BACT and offset thresholds of 100 

tpy for new sources and 40 tpy for major 

modifications that would be required 

under federal requirements for a PM2.5

precursor. The offset ratio for sources 

with a PTE of 35 tpy or more is also 

higher than the 1:1 offset ratio required 

federally for PM2.5 precursors. In 

addition, Regulation 2, Rule 2, also 

requires BACT (equivalent to federal 

LAER) and offsets for major sources and 

modifications of SO2 in sections 2–2– 

301 and 2–2–303. 

Because Regulation 2, Rule 2 contains 

control and offset requirements for VOC, 

NOX and SO2 that are consistent with, 

or more stringent than, the federal 

nonattainment NSR requirements for 

those PM2.5 precursors, we are 

proposing to approve Regulation 2, Rule 

2 as satisfying the requirements of CAA 

section 189(e) for VOC, NOX and SO2. 

The only PM2.5 precursor that is not 

regulated by Regulation 2 is ammonia, 

which the BAAQMD has excluded. In 

reviewing any determination of the 

State (in this case the BAAQMD) to 

exclude a PM2.5 precursor (in this case 

ammonia) from the required evaluation 

of potential nonattainment NSR 

applicability and regulation, the EPA 

considers both the magnitude of the 

precursor’s contribution to ambient 

PM2.5 concentrations in the 

nonattainment area and the sensitivity 

of ambient PM2.5 concentrations in the 

area to reductions in emissions of that 

precursor.8 To determine if the District 

appropriately excluded ammonia 

emissions from the requirements of 

Regulation 2, Rule 2, EPA is relying 

primarily on three sources of 

information: (1) The District’s December 

22, 2014 letter regarding compliance 

with PM2.5 precursor requirements in 

CAA Title I, Part D, Subpart 4 (District 

189(e) letter); (2) the District’s July 15, 

2015 letter regarding the quantity of 

ammonia emitted from major sources 

compared to the overall ammonia 

emission inventory (District EI letter); 

and (3) EPA’s PM2.5 Clean Data 

Determination for the BAAQMD, 

published in the Federal Register on 

January 9, 2013 (78 FR 1760) (CDD). 

First, the District’s EI letter indicates 

that the magnitude of actual ammonia 

emissions from major sources in the San 

Francisco Bay Air Basin is small. There 

are only three major sources of ammonia 

emissions (i.e., 100 tpy or greater of 

actual ammonia emissions). These three 

major sources contribute 686 tpy of 

ammonia emissions while all sources of 

ammonia in the Bay Area Air Basin emit 

12,407 tpy. The relative contribution of 

the existing major sources to the overall 

ammonia emissions in the area, 

therefore, is 5.5 percent. 

Second, the District’s 189(e) letter 

states that the District evaluated the 

impacts that ammonia emissions within 

the Bay Area may have on secondary 

particulate matter formation. The 

District conducted a modeling study in 

2009 to evaluate this issue, and based 

on that study the District concluded that 

ammonia was not a significant 

contributor to secondary particulate 

matter formation that warranted 

inclusion in the District’s NSR program 

at the time of the study.9 This study 

showed the ammonia emissions are 

predominately from area sources. 

Modeling results from the study showed 

that a 20 percent reduction in ammonia 

emissions (around 15 tons per day) 

would reduce secondary PM2.5 levels by 

an average of 2 percent. 

Third, based on EPA’s PM2.5 Clean 

Data Determination, EPA has 

determined that the Bay Area is 

currently attaining the 2006 24-hour 

PM2.5 NAAQS. 

As noted above, section 189(e) of the 

Act requires nonattainment NSR to 

apply to major stationary sources of 

PM2.5 precursors ‘‘except where the 

Administrator determines that such 

sources do not contribute significantly 

to [PM2.5] levels which exceed the 

standard in the area.’’ Given the 

relatively small amount of ammonia 

emissions from major point sources, the 

District’s 2009 modeling analysis 

showing that ammonia was not a 

significant contributor to secondary 

particulate matter formation and the fact 

that the BAAQMD is currently attaining 

the PM2.5 NAAQS, we are proposing to 

conclude that the PM2.5 impacts from 

major stationary sources of ammonia 

emissions are insignificant and do not 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 52243 

contribute significantly to PM2.5 levels 

that exceed the PM2.5 NAAQS in the Bay 

Area nonattainment area. Therefore, this 

requirement is satisfied. 

6. Section 193 of the Act 

Section 193 of the Act, which was 

added by the Clean Air Act 

Amendments of 1990, includes a 

savings clause which provides, in 

pertinent part: ‘‘No control requirement 

in effect, or required to be adopted by 

an order, settlement agreement, or plan 

in effect before November 15, 1990, in 

any area which is a nonattainment area 

for any air pollutant may be modified 

after November 15, 1990, in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant.’’ 

We have reviewed the provisions 

included in BAAQMD’s NSR SIP 

submittal and find that they would 

ensure equivalent or greater emission 

reductions compared to the current SIPapproved NSR program. The BACT and 

offset requirements, which are the 

primary control requirements of a NSR 

program, are equivalent or more 

stringent in the submitted rules as are 

contained in the existing SIP approved 

NSR rules. Therefore, we can approve 

the submitted NSR program under 

section 193 of the Act. Our TSD 

contains a more detailed evaluation. 

III. Proposed Action and Public 

Comment 

Because the rule deficiencies 

described above are inappropriate for 

inclusion in the SIP, EPA cannot grant 

full approval of this rule under section 

110(k)(3) of the Act. Pursuant to section 

110(k)(3) of the Act, EPA is proposing 

a limited approval and limited 

disapproval of the submitted rules. We 

are proposing to approve the submitted 

rules based on our determination that 

the most of the rules satisfy the 

applicable statutory and regulatory 

provisions governing regulation of 

stationary sources under CAA section 

110(a)(2)(C), including the permitting 

requirements for major stationary 

sources in parts C and D of title I of the 

Act. In support of this proposed action, 

we have concluded that our limited 

approval of the submitted rules would 

comply with sections 110(l) and 193 of 

the Act because the amended rules as a 

whole would not interfere with 

continued attainment of the NAAQS in 

the Bay Area, and do not relax control 

technology and offset requirements. We 

recommend limited disapproval to 

correct the deficiencies listed above. 

The intended effect of our proposed 

limited approval and limited 

disapproval action is to update the 

applicable SIP with current BAAQMD 

rules and to set the stage for remedying 

the rule deficiencies. If we finalize this 

action as proposed, our action would be 

codified through revisions to 40 CFR 

52.220 (identification of plan). 

If finalized as proposed, our limited 

disapproval action would trigger an 

obligation on EPA to promulgate a 

Federal Implementation Plan unless the 

deficiencies are corrected, and EPA 

approves the related plan revisions, 

within two years of the final action. 

Additionally, for those deficiencies that 

relate to the nonattainment NSR 

requirements under part D of title I of 

the Act, the offset sanction in CAA 

section 179(b)(2) would apply in the 

Bay Area nonattainment area 18 months 

after the effective date of a final limited 

disapproval, and the highway funding 

sanctions in CAA section 179(b)(1) 

would apply six months after the offset 

sanction is imposed. Neither sanction 

will be imposed under the CAA if 

California submits and we approve, 

prior to the implementation of the 

sanctions, SIP revisions that correct the 

deficiencies that we identify in our final 

action. 

IV. Incorporation by Reference 

In this rule, the EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference 

BAAQMD Regulation 2, Rule 1 (Permits, 

General Requirements) and BAAQMD 

Regulation 2, Rule 2 (Permits, New 

Source Review) which are discussed in 

section I.A. of this preamble. The EPA 

has made, and will continue to make, 

this document generally available 

electronically through 

www.regulations.gov and in hard copy 

at the appropriate EPA office (see the 

ADDRESSES section of this preamble for 

more information). 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the EO. 

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., because this 

proposed SIP disapproval under section 

110 and subchapter I, part D of the 

Clean Air Act will not in-and-of itself 

create any new information collection 

burdens but simply disapproves certain 

State requirements for inclusion into the 

SIP. 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. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant impact on a 

substantial number of small entities. 

This rule does not impose any 

requirements or create impacts on small 

entities. This proposed SIP disapproval 

under section 110 and subchapter I, part 

D of the Clean Air Act will not in-andof itself create any new requirements 

but simply disapproves certain State 

requirements for inclusion into the SIP. 

Accordingly, it affords no opportunity 

for EPA to fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

The fact that the Clean Air Act 

prescribes that various consequences 

(e.g., higher offset requirements) may or 

will flow from this disapproval does not 

mean that EPA either can or must 

conduct a regulatory flexibility analysis 

for this action. Therefore, this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

We continue to be interested in the 

potential impacts of this proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
52244 Federal Register / Vol. 80, No. 167 / Friday, August 28, 2015 / Proposed Rules 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. EPA 

has determined that the proposed 

disapproval action does not include a 

Federal mandate that may result in 

estimated costs of $100 million or more 

to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This action proposes to 

disapprove 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 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), 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.’’ 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely disapproves certain State 

requirements for inclusion into the SIP 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, Executive Order 13132 

does not apply to this action. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP EPA is proposing 

to disapprove would not apply on any 

Indian reservation land or in any other 

area where EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction, and EPA notes that it will 

not impose substantial direct costs on 

tribal governments or preempt tribal 

law. Thus, Executive Order 13175 does 

not apply to this action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it is not an 

economically significant regulatory 

action based on health or safety risks 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997). This proposed 

SIP disapproval under section 110 and 

subchapter I, part D of the Clean Air Act 

will not in-and-of itself create any new 

regulations but simply disapproves 

certain State requirements for inclusion 

into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not subject to 

Executive Order 13211 (66 FR 28355, 

May 22, 2001) because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

The EPA believes that this action is 

not subject to requirements of Section 

12(d) of NTTAA because application of 

those requirements would be 

inconsistent with the Clean Air Act. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629, Feb. 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

rulemaking. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements. 

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

Dated: August 19, 2015. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2015–21401 Filed 8–27–15; 8:45 am] 

BILLING CODE 6560–50–P 


Lhorne on DSK5TPTVN1PROD with PROPOSALS