The Regional Administrator for EPA Region 9, Jared Blumenfeld, signed the following notice on November 1, 

2012, and EPA is submitting it for publication in the Federal Register (FR). We have taken steps to ensure the 

accuracy of this version, but it is not the official version. Please refer to the official version in a forthcoming FR 

publication, which will appear on the Government Printing Office’s FDSys website 

(https://fdsys.gpo.gov/fdsys/search/home.action) and on Regulations.gov (http://www.regulations.gov) in Docket 

No. EPA-R09-OAR-2010-1078.

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-1078; FRL-____]

Revision to the South Coast Portion of the California State 

Implementation Plan, CPV Sentinel Energy Project AB 1318 

Tracking System

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

SUMMARY: The Environmental Protection Agency (EPA) is taking 

final action to approve a source-specific State Implementation 

Plan (SIP) revision for the South Coast Air Quality Management 

District (“SCAQMD” or “District”) portion of the California SIP.

This source-specific SIP revision is known as the CPV Sentinel 

Energy Project AB 1318 Tracking System (“AB 1318 Tracking 

System”). The SIP revision consists of enabling language and the 

AB 1318 Tracking System to revise the District’s SIP approved 

new source review (NSR) program. The SIP revision allows the 

District to transfer offsetting emission reductions for 

particulate matter less than 10 microns in diameter (PM10) and 

one of its precursors, sulfur oxides (SOx), to the CPV Sentinel 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

Energy Project (“Sentinel”), which will be a natural gas fired 

power plant. 

DATES: This final rule is effective on [insert date of

publication].

Docket: The index to the docket for this final action is 

available electronically at www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, San Francisco, 

California. While generally all categories of documents in the 

docket are listed in the index, some information may be publicly 

available only at the hard copy location (e.g., voluminous

documents, copyrighted material), and some may not be publicly 

available in either location (e.g., CBI). To inspect the hard 

copy materials, please schedule an appointment during normal 

business hours with the contact listed in the FOR FURTHER 

INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA 

Region IX, (415) 972-3524, yannayon.laura@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, “we”, 

“us”, and “our” refer to EPA.

Table of Contents

I. Background

A. The Facility and Prior Actions

B. Description of Final Rule

II. Evaluation of Source-Specific SIP Revision
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A. What action is EPA finalizing?

B. Public Comment and Final Action

III. EPA Action

IV. Statutory and Executive Order Reviews

I. Background

A. The Facility and Prior Actions

The Sentinel Energy Project is designed to be a nominally 

rated 850 megawatt, natural gas-fired electrical generating 

facility covering approximately 37 acres within Riverside 

County, adjacent to Desert Hot Springs in the Palm Springs, 

California area. EPA’s Federal Register notices for the January 

13, 2011 proposal (76 FR 2294), April 20, 2011 final action (76 

FR 22038), and August 23, 2012 supplemental proposal for this 

action (77 FR 50973) contain a detailed description of the 

project and the Clean Air Act’s (CAA) requirements for offsets 

during new source review permitting.

In response to our January 13, 2011 proposed rule, we 

received four comments. We responded to those comments on April 

20, 2011 (76 FR 22038). One commenter, jointly California 

Communities Against Toxics and Communities for a Better 

Environment (jointly “CCAT”) filed a Petition for judicial 

review in the United States Court of Appeals for the Ninth 

Circuit (“9th Circuit”) shortly thereafter and an Opening Brief 

on July 26, 2011. On September 14, 2011, EPA requested the 9th
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have taken steps to ensure the accuracy of this version, but it is not the official version.

Circuit to remand the final rule to us to correct minor errors 

and revise our reasoning on one issue. Motion for a Voluntary 

Remand of the Record, to Vacate the Briefing Schedule, and to 

Stay the Proceedings During Remand, Case No. 11-71127 (Sept. 14, 

2011). CCAT opposed EPA’s motion for voluntary remand. The 9th

Circuit Appellate Commissioner denied EPA’s motion for voluntary 

remand on November 7, 2011, and ordered briefing. After briefing 

and oral argument, the 9th Circuit remanded the final rule 

(without vacatur) to EPA on July 26, 2012. California 

Communities Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012). 

EPA published a supplemental proposal on August 23, 2012, (77 FR 

50973) and took comment on the supplemental proposal through 

September 24, 2012. Copies of the comments on the supplemental 

proposal have been added to the docket and are accessible at 

www.regulations.gov. Comment letters from the South Coast Air 

Quality Management District (“SCAQMD” or “District”) and CPV 

Sentinel LLC (“Sentinel”) support EPA’s approval of the AB 1318 

Tracking System as a source-specific SIP revision. A comment 

letter from CCAT opposes our proposal and supplemental proposal 

to approve of the source-specific SIP revision.

B. Description of Final Rule

We are finalizing our proposal and supplemental proposal to 

approve the AB 1318 Tracking System into the SIP as a sourcespecific SIP revision. Even with the slight revision to 
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Attachment A discussed below, the District transferred more 

offsets into the AB 1318 Tracking System than the amount that is 

needed to allow Sentinel to operate. We are finalizing our 

approval because the offsets listed in the Revised Attachment A 

meet the federal offset integrity criteria, including proper 

quantification and surplus adjustment. We are finalizing the 

reasoning in our supplemental proposal for finding that the 

offsets meet the requirement in 40 CFR Part 51, Appendix S and 

40 CFR 51.165(a)(3)(ii)(C)(1)(ii) for offsets resulting from 

facilities or sources shutting down to have occurred after the 

base-year for SIP planning purposes. We are interpreting this 

provision to refer to the 2003 AQMP for PM10 for the South Coast 

and the Coachella Valley Air Basins. 

In response to CCAT’s comments on September 24, 2012, EPA 

is making a slight revision to Attachment A to the Technical 

Support Document for our supplemental proposal. Attachment A 

contains tables showing our evaluation of a subset of all of the 

facilities from which the District transferred offsets into its 

AB 1318 Tracking System. In this final rule, we are attaching a 

slightly revised version of Attachment A to our Response to 

Comments document. The only change in the Revised Attachment A 

is that we have applied a more conservative assumption of zero 

emissions for the data missing for the facilities listed in 

Attachment A, Section II.B. The facilities listed in Section 
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II.B were missing Year 2 data. Our supplemental proposal assumed 

that the Year 2 data would be the same as the reported Year 1 

data for these offsets. Based on comments we received from CCAT, 

we changed the assumption for this group of facilities. In our 

Revised Attachment A, we are assuming that Year 2 data for these 

facilities is zero. This change means that we are using the most 

conservative approach (zero emissions) to quantify the offsets.

This revision lowers the quantity of offsets listed in 

Attachment A by 306 pounds for PM10 and 2 pounds for SOx. Even 

with this adjustment the quantity of offsets listed in Revised 

Attachment A exceeds the quantity that Sentinel needs for 

operation. Because the District is committed to retiring all of 

the remaining offsets in the AB 1318 Tracking System, including 

those not listed in Attachment A, the net effect will be a 

greater reduction in emissions than is required by the CAA. 

For additional background information, please see the 

January 13, 2011 notice of proposed rule for this action (76 FR 

2294), the notice of final rule (which was remanded without 

vacatur on July 26, 2012) (76 FR 22038 Apr. 20, 2011) and the 

August 23, 2012 supplemental proposal (77 FR 50974).

II. Evaluation of Source-Specific SIP Revision

A. What action is EPA is finalizing?

EPA is finalizing our approval of a SIP revision for the 

South Coast portion of the California SIP. The SIP revision is
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codified in 40 CFR 52.220(c)(384) and incorporates by reference 

the CPV Sentinel Energy Project AB 1318 Tracking System, as 

adopted by the District. 

The SIP revision provides a federally approved and 

enforceable mechanism for the District to transfer PM10 and SOx

offsets from the District’s internal bank to the AB 1318 

Tracking System for use by the Sentinel Energy Project.

B. Public Comment and Final Action

Our detailed response to all significant comments is 

contained in the Response to Comments (“RTC”) document in the

docket for this action. The RTC can be accessed through 

www.regulations.gov and a very brief summary of our responses to 

certain comments is provided below. Please refer to our RTC 

document for our complete response to all comments.

Comment Letter from South Coast Air Quality Management District

Comment: The District supported EPA’s proposal and supplemental 

proposal to approve the AB 1318 Tracking System based on the 

quantification and surplus adjustment of the offsets listed in 

Attachment A to the Technical Support Document for the 

supplemental proposal. The District commented that its 2003 PM10

Air Quality Management Plan (AQMP) was the appropriate plan and 

attainment demonstration to establish the base-year for SIP 

planning as set forth in 40 CFR 51.165(a)(3)(ii)(C)(1)(ii). The 
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have taken steps to ensure the accuracy of this version, but it is not the official version.

District also commented that growth was added to the 2007 AQMP 

for PM2.5.

Response: EPA agrees with the District’s comments, as discussed 

in the RTC document provided in the docket for this rule.

Comment Letter from Sentinel Energy LLP

Comment: Sentinel also supported EPA’s proposal and 

supplemental proposal to approve the SIP revision on generally 

the same basis as the District.

Response: EPA agrees with Sentinel’s comments, as discussed in 

the RTC document provided in the docket for this rule.

Comment: On October 26, 2012, Sentinel submitted a late comment 

letter in which it requested EPA to use the good cause exception 

set forth in section 553(d)(3) of the Administrative Procedures 

Act, 5 U.S.C. 553(d)(3) to make this final rule effective 

immediately upon publication in the Federal Register. Sentinel 

stated that the purpose of the usual 30-day delay for rule 

effectiveness is to allow the regulated entity an opportunity to 

make any changes necessary to be in compliance with the rule. 

Sentinel stated that it has been aware of what would be required 

of it as a result of this rule for 18 months. Sentinel 

anticipates beginning its commission period in November 2012. 

Sentinel added that if the power plant is on-line next summer, 

it will help the region avoid any potential electricity 

shortfalls.
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Response: EPA has discretion to accept late comments and will 

accept the comment submitted by Sentinel. EPA agrees with 

Sentinel that it has demonstrated good cause for EPA to issue 

this final rule with an immediate effective date. Sentinel has 

been constructing the power plant for the past 12 to 18 months 

in anticipation of beginning its commissioning period in 

November 2012. Sentinel and the District provided information 

regarding the potential effects of delaying commissioning and 

operations beyond this date in the briefs submitted in the 9th

Circuit ligation pertaining to this rulemaking. Sentinel has 

indicated that it will not be harmed by the immediate effective 

date. Therefore the final rule will become effective upon 

publication.

Comment Letter from California Communities Against Toxics (CCAT)

and Communities for a Better Environment (CBE) (collectively 

CCAT)

Comment: CCAT contends that it was arbitrary and capricious for 

EPA to publish a supplemental proposal to approve the sourcespecific SIP revision after the 9th Circuit remanded the 

rulemaking to EPA without vacatur. 

Response: CCAT is incorrect. EPA has discretion under Section 

553 of the Administrative Procedures Act to supplement its 

existing proposed approval of the source-specific SIP revision.

We provided notice of the supplemental proposal and a 30-day 
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period for comments. The 9th Circuit’s Opinion in California 

Communities Against Toxics v. EPA, 688 F.3d at 989 did not 

indicate that EPA could not supplement its prior proposal.

Comment: CCAT states: “The Planning Year for the Failed 2003 

AQMP Cannot be the Base Year for Valid Offsets: In the Absence 

of an Approved Attainment Demonstration for PM10, Only 

Replacement Capacity Can offset New Emissions.”

Response: EPA disagrees. CCAT asserts that the 2003 AQMP is “no 

longer valid” because the South Coast and Coachella Air Basins 

failed to be re-designated to attainment for PM10 in 2006. Based 

on this presumption, CCAT argues that the SCAQMD is prohibited 

from relying on offsets resulting from sources that shut down, 

unless the new source of emissions is replacement capacity for 

the facility or source that is shutting down. CCAT’s presumption 

is incorrect. Failure to attain a National Ambient Air Quality 

Standard (“NAAQS”) by the attainment date does not invalidate 

the plan and attainment demonstration – in this case the 2003 

PM10 AQMP. The control measures and strategies remain in effect 

and enforceable along with the emissions inventories and 

attainment demonstration. Therefore, there is no prohibition on 

using offsets from facilities or sources that have shut down 

after the 1997 base-year from the 2003 PM10 AQMP to allow new 

source emissions growth in the South Coast and Coachella Air 

Basins.
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Comment: CCAT states: “The 2007 AQMP Applies to PM10 as well as 

PM2.5 Attainment.”

Response: EPA disagrees with CCAT. The District adopted the 

2007 AQMP to demonstrate attainment with the PM2.5 NAAQS. EPA 

approved the 2007 AQMP to demonstrate attainment with the PM2.5

NAAQS. The minor references to PM10 in the 2007 AQMP for PM2.5 are 

included for a variety of reasons, including to comply with 

California state law and to ensure continued emissions control 

at one particular PM10 air quality monitor. Minor references to 

PM10 for limited purposes do not mean that the 2007 AQMP 

establishes a new base-year for PM10. EPA does not consider the 

incidental inclusion of PM10 control measures or updated 

emissions inventory for a future maintenance plan to be the same 

as adopting a new AQMP for PM10. EPA’s approval of the 2007 AQMP 

does not mention PM10.

Comment: CCAT states: “The 2007 AQMP Was Final At All Relevant 

Times.”

Response: Our supplemental proposal notes that the EPA had not 

approved the 2007 AQMP at the time the SCAQMD approved 

transferring the offsets into the AB 1318 Tracking System. EPA 

has not found any authority establishing the correct date for an 

approved air quality plan to apply. EPA reasonably determined 

that the date of transfer of the offsets (i.e. when the offsets 
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become enforceable) is an appropriate date to establish what 

AQMP applies.

Comment: CCAT states “EPA Cannot Rely on the Failed, Superseded 

2003 AQMP for a Base Year.”

Response: CCAT appears to have raised the same argument in an 

earlier portion of its comment letter. EPA considers this 

section to provide additional argumentation of the same point 

presented in the earlier paragraphs. EPA disagrees with CCAT’s 

additional discussion. CCAT has mischaracterized the Court’s 

holding in NRDC v. EPA, 571 F.3d 1245, 1267 (D.C. Cir. 2009).

The Court held that the base-year should be established by an 

“approved” AQMP and it did not use the term “valid.” As 

discussed elsewhere, the CAA does not define air quality plans 

as “valid” and EPA does not consider the term to be dispositive 

or persuasive regarding the appropriate AQMP to establish the 

base-year. CCAT also comments at length on the appropriate 

method for adding new source growth in the absence of an 

approved attainment demonstration. EPA considers this portion of 

CCAT’s discussion to be irrelevant because the 2003 PM10 AQMP is 

the approved attainment demonstration for PM10 for the South 

Coast and Coachella Air Basins.

Comment: CCAT states: “The Offsets Transferred into the 1318 

Tracking System are Not Quantifiable.”
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Response: EPA disagrees with CCAT and is finalizing our 

proposal and supplemental proposal to approve the AB 1318 

Tracking System because the District transferred more properly 

quantified and surplus adjusted PM10 and SOx offsets than 

Sentinel needs to offset its PM10 and SOx emissions. CCAT 

contends that EPA is required to use two years of emissions data 

to quantify offsets. CCAT also asserts that two years of 

emissions data cannot be satisfied with a conservative (i.e. 

fewer offsets) assumption being used for missing data. Nothing 

in the CAA or EPA’s regulations requires EPA to use two years of 

emissions data to quantify offsets or prohibits the use of a 

conservative approach for filling in missing data. EPA is 

reasonably interpreting our regulations to allow the District to 

exercise discretion to use a conservative approach to quantify 

offsets where emissions data is missing. Here, we have concluded 

that the District’s quantification of offsets using a 

conservative approach -- specifically, by substituting zero 

emissions when data is missing – is reasonable and consistent 

with the CAA and applicable regulations.

EPA is revising our final approval slightly from our 

supplemental proposal to ensure that the most conservative 

estimation of data is made regardless of whether the facility is 

missing Year 1 or Year 2 data. This means that EPA is reducing 

the amount of offsets we are determining are properly quantified 
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in Attachment A, Section II.B. to reduce it by 306 pounds of PM10

and 2 pounds of SOx. Therefore, whether a facility is missing 

Year 1 or Year 2 data, EPA is assuming the emissions for the 

missing data are zero.

Comment: CCAT states: “The Offsets Are Not Surplus.”

Response: EPA disagrees. The offsets listed in Attachment A to 

the TSD for the supplemental proposal are properly surplus 

adjusted to comply with the CAA.

Comment: CCAT states: “Rule 1315, Which EPA Did Not Apply, 

Dictates How the Surplus Adjustment after Deposit Occurs.”

Response: EPA disagrees. The District removed the offsets in 

the AB 1318 Tracking System from its internal accounts and 

evaluated each facility to determine if the offsets required 

surplus adjustment. Rule 1315 requires the District to make an 

annual aggregate adjustment to offsets in its Rule 1315 internal 

accounts. All of the offsets in Attachment A, as revised, to the 

TSD for EPA’s supplemental proposal are properly quantified and 

surplus adjusted.

Comment: CCAT states: “If Rule 1315 Were Not Applicable, EPA’s 

Analysis Is Entirely Incomplete.”

Response: EPA disagrees. Rule 1315 does not apply to this 

source-specific SIP revision for the offset package for a single 

power plant. All of the offsets in Revised Attachment A are 

properly surplus adjusted.
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III. EPA Action

This source-specific SIP revision complies with all 

relevant CAA requirements and is consistent with EPA’s 

regulations and guidance. Therefore, as authorized in section 

110(k)(3) of the Act, EPA is fully approving this sourcespecific SIP revision into the California SIP. The changes in 

this final rule from EPA’s proposal and supplemental proposal 

are described above in Section I.B. EPA’s interpretation of the 

CAA and our regulations is provided more fully in our RTC.

Our initial approval of this SIP revision and its related 

incorporation by reference into the Code of Federal Regulations 

was previously codified at 40 CFR 52.220(c)(384). Because the 

SIP submittal has not changed since the initial approval and 

related codification, and because the previous final rule was 

not withdrawn, we are not revising the codification of our 

approval at 40 CFR 52.220(c)(384) in this final action.

This rule is effective immediately upon publication in the 

Federal Register. Section 553(d) of the Administrative Procedure 

Act (APA), 5 U.S.C. 553(d), generally provides that rules may 

not take effect earlier than 30 days after they are published in 

the Federal Register. However, APA section 553(d)(3) provides an 

exception when the agency finds good cause exists for a rule to 

take effect in less than 30-days. 
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The purpose of the APA's 30-day effective date provision is 

to give affected parties time to adjust their behavior before 

the final rule takes effect. The Sentinel Energy Project, to 

which this rulemaking applies, requested in a comment letter to 

EPA that the rule be made effective upon Federal Register

publication. 

We find good cause exists here to make this rule effective 

upon publication because implementing a 30-day delayed effective 

date would interfere with CPV Sentinel’s ability to begin 

commissioning in November 2012 as scheduled. Such interference 

would delay Sentinel from becoming fully operational by the 

summer of 2013, which is when the California Energy Commission 

is expecting the plant to come on line. This delay could result 

in significant impacts to electrical reliability and air 

quality. 

In addition, this rule is not a major rule under the 

Congressional Review Act (CRA). Thus, the 60-day delay in 

effective date required for major rules under the CRA does not 

apply.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory 

Review 13563
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This action will approve the source-specific SIP revision 

known as the CPV Sentinel Energy Project AB 1318 Tracking System 

into the California SIP. This type of action is exempt from 

review under Executive Orders 12866 (58 FR 51735, October 4, 

1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act 

This action does not impose an information collection 

burden under the provisions of the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an 

agency to conduct a regulatory flexibility analysis of any rule 

subject to notice and comment rulemaking requirements unless the 

agency certifies that the rule will not have a significant 

economic impact on a substantial number of small entities. Small 

entities include small businesses, small not-for-profit 

enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a 

substantial number of small entities because SIP approvals under 

section 110 and subchapter I, part D of the CAA do not create 

any new requirements but simply approve requirements that the 

State is already imposing. Therefore, because the Federal SIP 

approval does not create any new requirements, I certify that 
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this action will not have a significant economic impact on a 

substantial number of small entities. 

Moreover, due to the nature of the Federal-State 

relationship under the CAA, preparation of flexibility analysis 

would constitute Federal inquiry into the economic 

reasonableness of State action. The CAA forbids EPA to base its 

actions concerning SIPs on such grounds. Union Electric Co., v. 

U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a) (2).

D. Unfunded Mandates Reform Act

Under sections 202 of the Unfunded Mandates Reform Act of 

1995 (“Unfunded Mandates Act”), signed into law on March 22, 

1995, EPA must prepare a budgetary impact statement to accompany 

any proposed or final rule that includes a Federal mandate that 

may result in estimated costs to State, local, or tribal 

governments in the aggregate; or to the private sector, of $100 

million or more. Under section 205, EPA must select the most 

cost-effective 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 this final 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 
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the aggregate, or to the private sector. This Federal action 

proposes to approve pre-existing requirements under State or 

local law, and imposes no new requirements. Accordingly, no 

additional costs to State, local, or tribal governments, or to 

the private sector, result from this action.

E. Executive Order 13132, Federalism

Federalism (64 FR 43255, August 10, 1999) revokes and 

replaces Executive Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental Partnership). Executive Order 

13132 requires EPA to develop an accountable process to ensure 

“meaningful and timely input by State and local officials in the 

development of regulatory policies that have federalism 

implications.” “Policies that have federalism implications” is 

defined in the Executive Order to include regulations that have 

“substantial direct effects on the States, on the relationship 

between the national government and the States, or on the

distribution of power and responsibilities among the various 

levels of government.” Under Executive Order 13132, EPA may not 

issue a regulation that has federalism implications, that 

imposes substantial direct compliance costs, and that is not 

required by statute, unless the Federal government provides the 

funds necessary to pay the direct compliance costs incurred by 

State and local governments, or EPA consults with State and 

local officials early in the process of developing the proposed 
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regulation. EPA also may not issue a regulation that has 

federalism implications and that preempts State law unless the 

Agency consults with State and local officials early in the 

process of developing the proposed regulation.

This rule will not have substantial direct effects on the 

States, on the relationship between the national government and 

the States, or on the distribution of power and responsibilities 

among the various levels of government, as specified in 

Executive Order 13132, because it merely approves a State rule 

implementing a Federal standard, and does not alter the 

relationship or the distribution of power and responsibilities 

established in the CAA. Thus, the requirements of section 6 of 

the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (65 FR 67249, 

November 9, 2000), requires EPA to develop an accountable 

process to ensure “meaningful and timely input by tribal 

officials in the development of regulatory policies that have 

tribal implications.” This final 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, 
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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 
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applicable when developing programs and policies unless doing so 

would be inconsistent with applicable law or otherwise 

impractical.

The EPA believes that VCS are inapplicable to this action.

Today’s action does not require the public to perform activities 

conducive to the use of VCS.

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome 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.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. section 801 et seq., 

as added by the Small Business Regulatory Enforcement Fairness 

Act of 1996, generally provides that before a rule may take 
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This document is a pre-publication version, signed by Regional Administrator, Jared Blumenfeld on 11/1/2012. We 

have taken steps to ensure the accuracy of this version, but it is not the official version.

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. 

Section 804, however, exempts from section 801 the following 

types of rules: rules of particular applicability; rules 

relating to agency management or personnel; and rules of agency 

organization, procedure, or practice that do not substantially 

affect the rights or obligations of non-agency parties. 5 U.S.C. 

804(3). Because this is a rule of particular applicability, EPA 

is not required to submit a rule report regarding this action 

under section 801.

L. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for 

judicial review of this action must be filed in the United 

States Court of Appeals for the appropriate circuit by [Insert 

date 60 days from date of publication of this document in the 

Federal Register]. 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)).
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This document is a pre-publication version, signed by Regional Administrator, Jared Blumenfeld on 11/1/2012. We 

have taken steps to ensure the accuracy of this version, but it is not the official version.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, 

Intergovernmental relations, Particulate matter, Reporting and 

recordkeeping requirements.

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

__November 1, 2012 ___/signed by/_______

Dated: Jared Blumenfeld

Regional Administrator,

Region IX