[Federal Register Volume 86, Number 36 (Thursday, February 25, 2021)]
[Proposed Rules]
[Pages 11482-11485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03481]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0014; FRL-10020-56-Region 9]


Air Plan Approval; California; San Joaquin Valley Unified Air 
Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the San Joaquin Valley Unified Air Pollution 
Control District (SJVUAPCD or ``the District'') portion of the 
California State Implementation Plan (SIP). This revision concerns 
emissions of oxides of nitrogen (NO<INF>X</INF>) and particulate matter 
(PM) from

[[Page 11483]]

indirect sources associated with new development projects as well as 
NO<INF>X</INF> and PM emissions from certain transportation and transit 
development projects. We are proposing to approve a local rule to 
regulate these emission sources under the Clean Air Act (CAA or the 
Act). We are taking comments on this proposal and plan to follow with a 
final action.

DATES: Comments must be received on or before March 29, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0014 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: La Kenya Evans, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3245 or by 
email at <a href="/cdn-cgi/l/email-protection#c2a7b4a3acb1ecaea3a9a7acbba382a7b2a3eca5adb4"><span class="__cf_email__" data-cfemail="eb8e9d8a8598c5878a808e85928aab8e9b8ac58c849d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to the EPA.

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule revision?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. The EPA's Recommendations To Further Improve the Rule
    D. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule addressed by this proposal with the dates 
that it was adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                             Table 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
           Local agency                Rule No.           Rule title              Amended            Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD..........................            9510  Indirect Source        12/21/17 (effective          05/23/18
                                                     Review.                March 21, 2018).
----------------------------------------------------------------------------------------------------------------

    On November 23, 2018, the submittal for SJVUAPCD Rule 9510 was 
deemed by operation of law to meet the completeness criteria in 40 CFR 
part 51 Appendix V, which must be met before formal EPA review.

B. Are there other versions of this rule?

    We approved an earlier version of Rule 9510 into the SIP on May 9, 
2011 (76 FR 26609). The SJVUAPCD adopted revisions to the SIP-approved 
version on December 21, 2017, and the CARB submitted the revised rule 
to the EPA on May 23, 2018. If we take final action to approve the 
December 21, 2017 version of Rule 9510, this version will replace the 
previously approved version of this rule in the SIP.

C. What is the purpose of the submitted rule revision?

    Emissions of NO<INF>X</INF> contribute to the production of ground-
level ozone, smog and PM, which harm human health and the environment. 
Emissions of PM, including PM equal to or less than 2.5 microns in 
diameter (PM<INF>2.5</INF>) and PM equal to or less than 10 microns in 
diameter (PM<INF>10</INF>), contribute to effects that are harmful to 
human health and the environment, including premature mortality, 
aggravation of respiratory and cardiovascular disease, decreased lung 
function, visibility impairment, and damage to vegetation and 
ecosystems. Section 110(a) of the CAA requires states to submit 
regulations that control NO<INF>X</INF> and PM emissions.
    Rule 9510 is an indirect source review (ISR) rule that establishes 
a mechanism to reduce or offset emissions of NO<INF>X</INF> and 
PM<INF>10</INF> in the San Joaquin Valley from the construction and use 
of development projects through design features, on-site measures, and 
off-site measures. The rule requires applicants of new development 
projects to reduce operational and construction equipment 
NO<INF>X</INF> and PM<INF>10</INF> emissions by specific percentages, 
as compared to an unmitigated baseline. The rule requires applicants to 
incorporate design features and on-site measures into the development 
project or pay a mitigation fee for emissions in excess of the 
requirement. SJVUAPCD uses the fees to fund off-site emission reduction 
projects.
    The SIP-approved version of the rule applies to project applicants 
seeking ``final discretionary approval'' for a development project. 
However, through implementation of the existing rule, the District has 
found that projects subject to final discretionary approval can vary 
between public agencies for the same type of project, especially large 
development projects. SJVUAPCD modified Rule 9510 to ensure the rule is 
applied consistently to all large development projects in the San 
Joaquin Valley by adding additional applicability criteria for large 
development projects and making clarifying and editorial changes to the 
rule. ``Grandfathered Large Development Projects'' and previously 
exempt large development projects that received a building permit, 
conditional use permit, or other similar approval by March 21, 2018, 
remain exempt from this rule. The EPA's technical support document 
(TSD) has more information about this rule.

II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rule?

    Rules in the SIP must be enforceable (see CAA section 110(a)(2)), 
must not interfere with applicable requirements concerning attainment 
and reasonable further progress or other CAA

[[Page 11484]]

requirements (see CAA section 110(l)), and must not modify certain SIP 
control requirements in nonattainment areas without ensuring equivalent 
or greater emissions reductions (see CAA section 193).
    The San Joaquin Valley is currently designated and classified as an 
Extreme 1-hour ozone nonattainment area and an Extreme 8-hour ozone 
nonattainment area under the 1997, 2008, and 2015 standards (40 CFR 
81.305). CAA section 172(c)(1) requires ozone nonattainment areas to 
implement all reasonably available control measures (RACM), including 
such reductions in emissions from existing sources in the area as may 
be obtained through the adoption, at a minimum, of reasonably available 
control technology (RACT), as expeditiously as practicable. CAA 
sections 182(b)(2) and 182(f) specify that implementation of RACT under 
CAA section 172(c)(1) is required for all major stationary sources of 
NO<INF>X</INF> in the area.
    Generally, SIP rules must implement Best Available Control Measures 
(BACM), including Best Available Control Technology (BACT), in Serious 
PM<INF>2.5</INF> nonattainment areas (see CAA section 189(b)(1)(B)). 
The SJVUAPCD regulates a PM<INF>2.5</INF> nonattainment area classified 
as Serious for the PM<INF>2.5</INF> for the 1997 annual and 24-hour 
PM<INF>2.5</INF> standards and the 2006 24-hour PM<INF>2.5</INF> 
standards (40 CFR 81.305). A BACM and BACT evaluation is generally 
performed in context of a broader plan. The area is currently 
designated attainment for PM<INF>10</INF>. Accordingly, SJVUAPCD is not 
required to implement BACM or BACT for PM<INF>10</INF> and 
PM<INF>10</INF> precursors.
    Guidance and policy documents that we used to evaluate 
enforceability, revision/relaxation and rule stringency requirements 
for the applicable criteria pollutants include the following:

    1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 
11, 1990).
    2. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).

B. Does the rule meet the evaluation criteria?

    In our May 9, 2011 (76 FR 26609) final rule approval of Rule 9510 
into the SIP, we identified a number of concerns about the 
enforceability of the rule's provisions, e.g., provisions that allow 
project developers to pay a fee instead of implementing on-site 
pollution mitigation plans, and noted that the State would need to 
resolve these enforceability issues before relying on this rule for 
credit in an attainment plan. The District has not addressed these 
concerns in the submitted rule, and we therefore continue to conclude 
that the rule does not qualify for emission reduction credit for the 
purpose of any attainment or progress demonstration in any area.
    As described above, the District revised the rule applicability to 
include large development projects that are not currently subject to 
the rule and made editorial and clarifying changes. The revisions are 
generally clear and strengthen the rule. In addition to addressing the 
enforceability concerns outlined in our prior action, if the District 
plans to rely on emission reductions from this rule for attainment or 
progress demonstrations, the District should revise section 3.17 to 
further clarify which ``Grandfathered Large Development Projects'' are 
exempt from the rule by quantifying ``substantial loss'' and include 
other specific criteria that would allow for these provisions to be 
applied in a consistent and replicable manner.
    With respect to rule stringency, we note that Rule 9510 is an ISR 
rule, and that EPA is prohibited by the CAA from requiring states and 
local air agencies to include ISR programs in SIPs.\1\ Because EPA 
cannot require a state or local air agency to adopt and implement an 
ISR program, the EPA cannot require that such a program meet any 
particular level of stringency. Therefore, we are not evaluating 
amended Rule 9510 for compliance with the RACM/RACT or BACM/BACT 
requirements.
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    \1\ CAA section 110(a)(5)(A)(i).
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    We conclude the rule is consistent with the relevant requirements, 
policy, and guidance regarding SIP relaxations since the rule revisions 
add further applicability and strengthen the current SIP-approved rule. 
However, we continue to conclude that the rule is not fully consistent 
with the relevant requirements, policy, and guidance on enforceability. 
While Rule 9510 does not meet all the evaluation criteria for 
enforceability, the EPA proposes to fully approve the submitted rule 
because it would strengthen the SIP compared to the current SIP-
approved rule. In light of the deficiencies identified in our prior 
action and above, we continue to conclude that the rule should not be 
credited in any attainment and rate of progress/reasonable further 
progress demonstrations. The TSD has more information on our 
evaluation.

C. The EPA's Recommendations to Further Improve the Rule

    The TSD includes recommendations for the next time the local agency 
modifies the rule.

D. Public Comment and Proposed Action

    As authorized in section 110(k)(3) of the Act, the EPA proposes to 
fully approve the submitted rule. We will accept comments from the 
public on this proposal until March 29, 2021. If we take final action 
to approve the submitted rule, our final action will incorporate this 
rule into the federally enforceable SIP.

III. Incorporation by Reference

    In this rulemaking, 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 the San Joaquin Valley Unified Air Pollution 
Control District rule described in Table 1 of this preamble. The EPA 
has made, and will continue to make, these materials available through 
https://www.regulations.gov and at the EPA Region IX Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information).

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely proposes to approve state law 
as meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);

[[Page 11485]]

    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
    <bullet> Does not provide the EPA with the discretionary authority 
to address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

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: February 16, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-03481 Filed 2-24-21; 8:45 am]
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