Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65305 

Requirements), sections 6447, ‘‘Methyl 

Bromide-Field Fumigation—General 

Requirements,’’ the undesignated 

introductory text (operative January 25, 

2008; as published in Register 2010, No. 

44); 6447.3, ‘‘Methyl Bromide-Field 

Fumigation Methods’’ (operative 

January 25, 2008); 6448, ‘‘1,3, 

Dichloropropene Field Fumigation— 

General Requirements’’ (operative 

January 25, 2008); 6449, ‘‘Chloropicrin 

Field Fumigation—General 

Requirements’’ (operative January 25, 

2008); 6450, ‘‘Metam-Sodium, 

Potassium N-methyldithiocarbamate 

(metam-potassium), and Dazomet Field 

Fumigation—General Requirements’’ 

(operative January 25, 2008); 6450.2, 

‘‘Dazomet Field Fumigation Methods’’ 

(operative January 25, 2008); 6451, 

‘‘Sodium Tetrathiocarbonate Field 

Fumigation—General Requirements’’ 

(operative January 25, 2008); 6451.1, 

‘‘Sodium Tetrathiocarbonate Field 

Fumigation Methods’’ (operative 

January 25, 2008); 6452, ‘‘Reduced 

Volatile Organic Compound Emissions 

Field Fumigation Methods’’ (operative 

January 25, 2008); 6452.1, ‘‘Fumigant 

Volatile Organic Compound Emission 

Records and Reporting’’ (operative 

January 25, 2008). 

(ii) Additional material. 

(A) California Department of Pesticide 

Regulation. 

(1) Decision, ‘‘In the Matter of 

Proposed Ozone SIP Commitment for 

the San Joaquin Valley,’’ signed by 

Mary-Ann Warmerdam, April 17, 2009, 

including Exhibit A, ‘‘Department of 

Pesticide Regulation Proposed SIP 

Commitment for San Joaquin Valley.’’ 

(2) Memorandum, Rosemary Neal, 

Ph.D., California Department of 

Pesticide Regulation to Randy Segawa, 

California Department of Pesticide 

Regulation, November 5, 2008; Subject: 

Update to the Pesticide Volatile Organic 

Inventory. Estimated Emissions 1990– 

2006, and Preliminary Estimates for 

2007. 

(414) The following plan revisions 

were submitted on August 2, 2011, by 

the Governor’s designee. 

(i) Incorporation by reference. 

(A) California Department of Pesticide 

Regulation. 

(1) California Code of Regulations, 

Title 3 (Food and Agriculture), Division 

6 (Pesticides and Pest Control 

Operations), Chapter 2 (Pesticides), 

Subchapter 4 (Restricted Materials), 

Article 4 (Field Fumigation Use 

Requirements), sections 6448.1, ‘‘1,3- 

Dichloropropene Field Fumigation 

Methods’’ (operative April 7, 2011); 

6449.1, ‘‘Chloropicrin Field Fumigation 

Methods’’ (operative April 7, 2011); 

6450.1, ‘‘Metam-Sodium and Potassium 

N-methyldithiocarbamate (MetamPotassium) Field Fumigation Methods’’ 

(operative April 7, 2011); 6452.2, 

‘‘Fumigant Volatile Organic Compound 

Emission Limits’’ (excluding 

benchmarks for, and references to, 

Sacramento Metro, San Joaquin Valley, 

South Coast, and Southeast Desert in 

subsection (a) and excluding subsection 

(d))(operative April 7, 2011); 6452.3, 

‘‘Field Fumigant Volatile Organic 

Compound Emission Allowances’’ 

(operative April 7, 2011); 6452.4, 

‘‘Annual Volatile Organic Compound 

Emissions Inventory Report’’ (excluding 

reference to section 6446.1 in 

subsection(a)(4))(operative April 7, 

2011). 

(2) California Code of Regulations, 

Title 3 (Food and Agriculture), Division 

6 (Pesticides and Pest Control 

Operations), Chapter 3 (Pest Control 

Operations), Subchapter 2 (Work 

Requirements), Article 1 (Pest Control 

Operations Generally), sections 6624, 

‘‘Pesticide Use Records’’ (excluding 

references in subsection (f) to methyl 

iodide and section 6446.1) (operative 

December 20, 2010); section 6626, 

‘‘Pesticide Use Reports for Production 

Agriculture’’ (operative April 7, 2011). 

* * * * * 

[FR Doc. 2012–26311 Filed 10–25–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0408; FRL–9726–3] 

Approval of Air Quality Implementation 

Plans; California; San Joaquin Valley 

Unified Air Pollution Control District; 

Prevention of Significant Deterioration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action 

under section 110 of the Clean Air Act 

(CAA or Act) to approve a State 

Implementation Plan (SIP) revision for 

the San Joaquin Valley Unified Air 

Pollution Control District (District) 

portion of the California SIP. This SIP 

revision incorporates District Rule 

2410—Prevention of Significant 

Deterioration (PSD)—into the California 

SIP to establish a PSD permit program 

for pre-construction review of certain 

new and modified major stationary 

sources in attainment or unclassifiable 

areas. EPA is approving this SIP 

revision because Rule 2410 provides an 

adequate PSD permitting program as 

required by section 110 and part C of 

title I of the CAA. 

DATES: This rule is effective on 

November 26, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2012–0408 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California. Some docket materials, 

however, may be publicly available only 

at the hard copy location (e.g., 

voluminous records, maps, 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: Lisa 

Beckham, EPA Region IX, (415) 972– 

3811, beckham.lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

II. EPA’s Evaluation of the SIP Revision 

A. What action is EPA finalizing? 

B. Public Comments and EPA Responses 

III. EPA’s Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

Section 110(a) of the CAA requires 

states to adopt and submit regulations 

for the implementation, maintenance 

and enforcement of the primary and 

secondary national ambient air quality 

standards (NAAQS). Specifically, CAA 

sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 

and 110(a)(2)(J) require the State’s plan 

to meet the applicable requirements of 

section 165 relating to a preconstruction permit program for the 

prevention of significant deterioration of 

air quality and visibility protection. The 

purpose of District Rule 2410— 

Prevention of Significant Deterioration, 

is to implement a pre-construction PSD 

permit program as required by section 

165 of the CAA for certain new and 

modified major stationary sources 

located in attainment areas. EPA is 

currently the PSD permitting authority 

within the District because the State 

does not currently have a SIP-approved 

PSD program within the District. 

Inclusion of this revision in the SIP will 

mean that the District has an approved 

PSD permitting program and will 

transfer PSD permitting authority from 

EPA to the District. EPA would then 

assume the role of overseeing the 

District’s PSD permitting program, as 


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intended by the CAA. For a more 

detailed discussion of District Rule 

2410, please refer to our proposed 

approval. See 77 FR 32493 (June 1, 

2012). 

II. EPA’s Evaluation of the SIP Revision 

A. What action is EPA finalizing? 

EPA is finalizing a SIP revision for the 

San Joaquin Valley portion of the 

California SIP. The SIP revision will be 

codified in 40 CFR 52.220 and 40 CFR 

52.270 by incorporating by reference 

District Rule 2410, as adopted June 16, 

2011 and submitted to EPA by the 

California Air Resources Board (CARB) 

on August 23, 2011. In addition, the 

letter from the District to EPA, dated 

May 18, 2012, providing certain 

clarifications concerning District Rule 

2410 and 40 CFR 51.166, will be 

included as additional material in 40 

CFR 52.220. The regulatory text 

addressing this action also makes it 

clear that EPA is relying, in part, on the 

clarifications provided in the District’s 

May 18, 2012 letter in taking this final 

approval action. As such, the District’s 

implementation of the PSD program in 

a manner consistent with these 

clarifications is a pre-condition of 

today’s final approval of the District’s 

PSD SIP revision. This SIP revision 

provides a federally approved and 

enforceable mechanism for the District 

to issue pre-construction PSD permits 

for certain new and modified major 

stationary sources subject to PSD review 

within the District. 

As discussed in EPA’s proposal 

relating to today’s SIP revision approval 

action, the District has requested 

approval to exercise its authority to 

administer the PSD program with 

respect to those sources located in the 

District that have existing PSD permits 

issued by EPA, including authority to 

conduct general administration of these 

existing permits, authority to process 

and issue any and all subsequent PSD 

permit actions relating to such permits 

(e.g., modifications, amendments, or 

revisions of any nature), and authority 

to enforce such permits. Pursuant to the 

criteria in section 110(a)(2)(E)(i) of the 

CAA, we have determined that the 

District has the authority, personnel, 

and funding to implement the PSD 

program within the District for existing 

EPA-issued permits and therefore are 

transferring authority for such permits 

to the District concurrent with the 

effective date of EPA’s approval of the 

District’s PSD program into the SIP. A 

list of the EPA-issued permits that we 

anticipate will be transferred to the 

District is provided in the docket for 

this action. EPA has already provided a 

copy of each such permit to the District. 

As described in our proposal, EPA will 

retain PSD permit implementation 

authority for those specific sources 

within the District that have submitted 

PSD permit applications to EPA and for 

which EPA has issued a proposed PSD 

permit decision, but for which final 

agency action and/or the exhaustion of 

all administrative and judicial appeals 

processes (including any associated 

remand actions) have not yet been 

concluded or completed upon the 

effective date of EPA’s final SIP 

approval action for Rule 2410. The 

District will assume full PSD 

responsibility for the administration and 

implementation of such PSD permits 

immediately upon notification from 

EPA that all administrative and judicial 

appeals processes and any associated 

remand actions have been completed or 

concluded for any such permit 

application. 

B. Public Comments and EPA Responses 

In response to our June 1, 2012 

proposed rule, we received two 

comment letters, one from the Western 

States Petroleum Association (WSPA) 

and one from Earthjustice on behalf of 

a consortium of environmental groups 

(Medical Advocates for Healthy Air, the 

Kern-Kaweah Chapter of the Sierra 

Club, the Center for Race, Poverty, and 

the Environment, and the Central Valley 

Air Quality Coalition). Copies of each 

comment letter have been added to the 

docket for this action and are accessible 

at www.regulations.gov. The comment 

letter from WSPA supports EPA’s 

analysis and proposal to approve 

District Rule 2410 into the SIP. The 

comment letter from Earthjustice 

opposes the SIP revision and raises 

several specific objections. We have 

summarized the comments received and 

provided a response to the comments 

below. 

Comment 1: WSPA expresses its 

support for EPA’s expeditious approval 

of District Rule 2410, and recommends 

that such approval be completed as soon 

as possible in order to ensure that 

permitting is not unduly impacted for 

facilities subject to PSD review. 

Response 1: EPA appreciates the 

commenter’s support. We agree that 

EPA’s proceeding expeditiously with its 

final action on the District’s PSD SIP 

revision, after careful consideration of 

public comments received on its 

proposed action, will serve to facilitate 

timely processing of PSD permit 

decisions for facilities within the 

District that are subject to PSD review. 

Comment 2: Earthjustice states that 

CAA sections 110(a)(2)(A) and (C) 

require SIPs to include enforceable 

measures to regulate the construction 

and modification of stationary sources. 

The commenter believes that District 

Rule 2410 includes loopholes for 

enforcing District compliance with its 

permitting requirements because 

currently, within the District, interested 

parties are able to seek judicial review 

of final PSD permitting decisions under 

section 307 of the Act, whereas under 

Rule 2410 and California state law there 

is no right to judicial review of 

permitting decisions for power plants 

licensed by the California Energy 

Commission (CEC). The commenter 

asserts that under California Public 

Resources Code (CPRC) section 25531, 

judicial review of such CEC approvals 

may only be had at the discretion of the 

State Supreme Court, and there is no 

guaranteed right of review. The 

commenter states that this legal 

conclusion regarding the limited 

availability of judicial review for power 

plant permitting decisions has been 

repeatedly asserted by the CEC and the 

District. The commenter concludes that 

approval of Rule 2410 would open the 

door for abuse and noncompliance in 

PSD permitting decisions, and does not 

comply with the requirements of section 

110(a)(2) of the Act because it does not 

guarantee judicial enforceability. 

Response 2: As EPA has stated 

previously, we interpret the CAA to 

require an opportunity for judicial 

review of a decision to grant or deny a 

PSD permit, whether issued by EPA or 

by a State under a SIP-approved or 

delegated PSD program. See 61 FR 1880, 

1882 (Jan. 24, 1996) (EPA’s proposed 

disapproval of Virginia’s PSD program 

SIP revision due to State law standing 

requirements that limited judicial 

review); 72 FR 72617, 72619 (December 

21, 2007) (in approving South Dakota’s 

PSD program, EPA stated: ‘‘We interpret 

the statute and regulations to require at 

minimum an opportunity for state 

judicial review of PSD permits’’). EPA 

continues to interpret the relevant 

provisions of the Act as described in 

these prior rulemaking actions. We 

believe that Congress intended for state 

judicial review of PSD permit decisions 

to be available for members of the 

public who can satisfy threshold 

standing requirements under Article III 

of the Constitution. See 61 FR 1882, 

January 24, 1996. 

The commenter argues that 

California’s judicial review procedures 

under CPRC 25531 for PSD permit 

decisions subject to the CEC 

certification process do not satisfy the 

CAA’s requirements for judicial review. 

The commenter states that these State 

judicial review procedures are 

inadequate because such review may 


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1The term ‘‘facility’’ within the meaning of CPRC 

25531 refers to ‘‘any electric transmission line or 

thermal powerplant, or both electric transmission 

line and thermal powerplant,’’ and the term ‘‘site’’ 

refers to ‘‘any location on which a facility is 

constructed or is proposed to be constructed.’’ 

(CPRC 25110, 25119.) 

only be had at the discretion of the State 

Supreme Court, and there is no 

guaranteed right of judicial review. 

CPRC section 25531(a) provides: ‘‘The 

decisions of the [CEC] on any 

application for certification of a site and 

related facility are subject to judicial 

review by the Supreme Court of 

California.’’ 1 California courts have 

found that California Supreme Court 

review of a power plant certification 

decision under CPRC section 25531 is a 

decision on the merits. Santa Teresa 

Citizen Action Group v. California 

Energy Commission, 105 Cal. App. 4th 

1441, 1447–1448 (2003); see also In re 

Rose, 22 Cal.4th 430, 444 (2000) (when 

the sole means of review is a petition in 

the California Supreme Court, even the 

court’s denial of the petition—with or 

without an opinion—reflects a judicial 

determination on the merits). EPA 

believes that the opportunity provided 

by CPRC 25531 to seek review of a PSD 

permit decision for a CEC-certified 

facility before the California Supreme 

Court and to obtain that court’s judicial 

determination on the merits satisfies the 

CAA requirement that an opportunity 

for judicial review be provided under 

State law for PSD permits in SIPapproved PSD programs. We recognize 

that the judicial review process under 

CPRC 25531 differs in a number of 

respects from the administrative and 

judicial review processes available for 

PSD permit decisions under 40 CFR part 

124 (opportunity to petition for 

administrative review by the EPA’s 

Environmental Appeals Board (EAB)) 

and section 307(b) of the CAA 

(opportunity to seek review before 

Circuit Court of Appeals) when EPA or 

a delegated agency under 40 CFR 52.21 

is the PSD permit issuer. However, the 

CAA does not require that the process 

for judicial review of the grant or denial 

of a PSD permit issued under a SIPapproved PSD program be identical to 

that provided when EPA or a delegated 

agency under 40 CFR 52.21 is the PSD 

permit issuer. 

Comment 3: Earthjustice suggests that 

District Rule 2410 does not meet the 

public participation requirements of 40 

CFR 51.166(q), citing sections 

110(a)(2)(A) and (C) of the Act. The 

commenter states that EPA notes that 

Rule 2410 does not, on its face, comply 

with various public participation 

requirements in 40 CFR 51.166(q). The 

commenter further states that EPA 

dismisses these defects by relying on 

commitments in a letter from the 

District’s Permitting Director to comply 

with the public participation 

requirements for issuing PSD permits. 

The commenter states that these 

commitments are not enforceable, are 

insufficient to support approval, and are 

not proposed to be codified into the SIP 

or other approved regulatory language. 

The commenter also states that it has 

not been established through any legal 

reference that the District’s Permitting 

Director is authorized or empowered to 

bind the District legally to any 

particular practice, and that should the 

District fail to adhere to the processes 

outlined in its letter, stakeholders 

would have no recourse for ensuring the 

District’s adherence. The commenter 

also states that the District has 

relinquished some of its permit 

processing responsibilities to the CEC, 

and that the CEC would not be bound 

by the District’s commitments. 

Response 3: We disagree that Rule 

2410 does not comply with the public 

participation requirements of 40 CFR 

51.166(q). Section 5.0 of Rule 2410 

requires the District to follow the public 

participation requirements identified in 

certain sections of District Rule 2201 

prior to issuing a PSD permit. District 

Rule 2201 is enforceable because it is 

already approved into the California SIP 

(see, e.g., 75 FR 26102 (May 11, 2010)). 

EPA asked the District to provide a 

letter clarifying, among other things, 

how Rule 2201 addresses certain 

specific requirements of 40 CFR 51.166 

relating to the District’s implementation 

of a number of PSD procedural 

requirements. EPA believes this written 

clarification is appropriate to support 

our analysis of and conclusions 

concerning Rule 2410. As noted above 

in Section II.A, the District provided a 

clarification letter dated May 18, 2012 to 

EPA that reflects the District’s and 

EPA’s interpretation of the District’s 

public participation processes 

consistent with 40 CFR 51.166(q). The 

letter memorializes the proper intended 

reading of the provisions at issue, and 

the regulatory text that EPA is finalizing 

in this action expressly states that EPA 

is basing its approval of the District’s 

PSD SIP, in part, on the clarifications 

regarding the District’s implementation 

of the PSD program contained in the 

District’s May 18, 2012 letter. EPA is 

also including this letter in the 

additional materials that will be 

referenced in the CFR as part of this SIP 

revision approval action. Because the 

District’s implementation of the PSD 

program in a manner consistent with 

these clarifications, including those 

related to the District’s public 

participation processes, is clearly a precondition of today’s final approval of 

the District’s PSD SIP revision, the 

clarifications provided in this letter 

concerning District Rule 2410 are 

binding and enforceable, and the 

District must adhere to the positions 

taken in the letter. In sum, District Rule 

2410 meets the public participation 

requirements of 40 CFR 51.166(q) and is 

therefore consistent with section 110(a) 

of the Act in this regard. 

Finally, with respect to the argument 

that the District has relinquished some 

of its permit processing responsibilities 

for power plants to the CEC, we are not 

aware of any particular PSD public 

participation requirements related to 40 

CFR 51.166(q) that the District will be 

relying on the CEC to meet on the 

District’s behalf, and the commenter has 

not specifically identified any such 

requirement. The District must adhere 

to the public participation requirements 

in Rule 2410 prior to issuing a PSD 

permit. 

Comment 4: Earthjustice asserts that 

EPA has not demonstrated, as required 

by section 110(l) of the Act, that the 

federal PSD program, as ‘‘reformed’’ 

through the addition of the flexibility 

provisions in 2002, will not interfere 

with the maintenance of the national 

ambient air quality standards. The 

commenter disagrees with EPA’s 

analysis that ‘‘the requirements of the 

PSD SIP revision are essentially 

equivalent to * * * those of the 

[Federal Implementation Plan] codified 

in 40 CFR 52.21’’ in support of EPA’s 

determination that its proposed SIP 

approval action here would be 

consistent with section 110(l). The 

commenter states that the problem with 

this argument is that there has not been 

any analysis of whether these PSD 

regulations, with the various flexibilities 

that allow sources to be constructed 

without offsetting emission reductions, 

without best available control 

technology to minimize emission 

increases, and often without any 

obligation to ensure that the emissions 

will not cause or contribute to a 

violation of any national ambient air 

quality standards, are sufficient to 

prevent deterioration of air quality and 

sliding the District into nonattainment. 

The commenter notes that the PSD 

program being approved into the SIP 

has never been a part of the SIP and 

therefore has never been analyzed for its 

consistency with a plan for maintaining 

compliance with the national standards. 

The commenter believes it is 

meaningless to say that the permitting 

program will not get any worse once it 

is approved into the SIP because it has 


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2EPA understands the comment regarding the 

‘‘various flexibilities’’ allowing sources to be 

constructed without BACT and air quality 

assessment to be directed at NSR Reform’s revisions 

to the method of determining what changes are 

deemed to be major modifications under EPA and 

San Joaquin’s rules and therefore subject to PSD 

review. Plainly, once a change is deemed a major 

modification, 40 CFR 52.21 and the District’s rule 

incorporating 52.21 by reference have provisions for 

BACT and air quality assessments required by PSD. 

never been demonstrated that this 

permitting program is adequate to 

prevent the deterioration of air quality 

in the District. 

The commenter states that the 

California legislature has specifically 

rejected EPA’s finding that the 2002 

New Source Review (NSR) Reforms 

could benefit air quality because permit 

requirements have impeded or deterred 

upgrades to sources, citing California 

Health and Safety Code sections 

42501(e) and (f) (finding that the 

revisions to the federal regulations 

drastically reduce the circumstances 

under which modifications at an 

existing source would be subject to 

federal new source review and rejecting 

the argument that this would be 

beneficial to air quality because this 

claim is contradicted by California’s 

experience). The commenter believes 

that the 2002 NSR Reforms to the PSD 

regulations allow growth to increase 

with fewer mitigation requirements and 

fewer safeguards for assessing air 

quality impacts. 

The commenter also notes that 

although the District is attainment or 

unclassifiable for particulate matter 10 

micrometers (mm) in diameter and 

smaller (PM10), nitrogen dioxide (NO2), 

sulfur dioxide (SO2), carbon monoxide 

(CO), and lead, EPA has approved a 

maintenance plan only for PM10 in the 

last 10 years since the revisions to the 

PSD regulations. The commenter asserts 

that without such a plan there is no 

basis for assessing how a permitting 

program that allows significant 

modifications of major sources to avoid 

control and air quality analysis 

requirements will ensure that increased 

emissions from these sources will not 

interfere with attainment of the national 

standards. The commenter argues that 

blind reliance on the District’s parallel 

nonattainment new source review 

permitting is no substitute for the 

missing analysis because the District 

allows sources to offset emission 

increases with ‘‘pre-baseline’’ emission 

reduction credits—meaning current air 

quality sees only an increase in 

emissions—and to offset emission 

increases of one pollutant with 

decreases of another, which may or may 

not be relevant to maintenance of the 

particular national standard. 

The commenter asserts that EPA 

needs to provide its argument and 

analysis under section 110(l) of the Act 

for review and comment, as the 

proposed rule provides no rational basis 

for believing that the District’s PSD 

program is sufficient to prevent growth 

in emissions that could interfere with 

attainment and maintenance of the 

national ambient air quality standards 

in the Valley. 

Response 4: We disagree with the 

commenter’s contentions that EPA has 

not conducted the analysis required by 

section 110(l) of the Act and that EPA’s 

analysis does not provide adequate 

assurance that approval of the District’s 

PSD program would not interfere with 

maintenance of the NAAQS. As stated 

in the Federal Register notice for our 

proposed approval of the District’s PSD 

SIP revision, EPA included an analysis 

under section 110(l) in the technical 

support document (TSD) for the 

proposed rulemaking for this SIP 

revision approval action. In the TSD, we 

stated that our approval of the submittal 

would comply with CAA section 110(l), 

because the SIP, as revised to reflect the 

submitted revision, would provide for 

reasonable further progress and 

attainment of the NAAQS, and the 

requirements of the PSD SIP revision are 

essentially equivalent to, and at least as 

stringent as, those of the Federal 

Implementation Plan (FIP) codified in 

40 CFR 52.21 and used to date by EPA 

to implement the required PSD program 

within the District. EPA noted that 

approval of the District’s PSD SIP 

submittal would merely result in the 

transfer of authority for the PSD 

program from the EPA to the District, 

and therefore would not result in any 

substantive changes to the PSD program 

requirements, other CAA requirements, 

or air quality. We believe that our 110(l) 

analysis was adequate and appropriate, 

for the following reasons. 

Section 110(l) of the CAA states that 

‘‘[t]he Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable requirement of this chapter.’’ 

42 U.S.C. 7410(l). EPA does not 

interpret section 110(l) to require a full 

attainment or maintenance 

demonstration before any changes to a 

SIP may be approved. Generally, a SIP 

revision may be approved under section 

110(l) if EPA finds that it will at least 

preserve status quo air quality, 

particularly where, as here, the 

pollutants at issue are those for which 

an area has not been designated 

nonattainment. 

In response to the commenter’s 

concern that approval of the District’s 

PSD SIP submittal including NSR 

Reform would allow fewer projects to be 

subject to PSD review,2 meaning that 

fewer sources must demonstrate that 

their emission increases will not cause 

or contribute to a violation of the 

NAAQS or apply the best available 

control technology to those emission 

increases, we note that our approval of 

the District’s PSD program, which 

incorporates by reference 40 CFR 52.21, 

into the SIP will not result in a change 

to the status quo. As stated in our TSD, 

the PSD program has been implemented 

within the District by EPA in 

accordance with the provisions of 40 

CFR 52.21, which incorporated the NSR 

Reform provisions to which the 

commenter refers since their inception. 

Even if the provisions of 40 CFR 52.21 

as revised through NSR Reform were not 

already in place within the District, EPA 

is not aware of any basis for concluding 

that the PSD program under 40 CFR 

52.21, including NSR Reform, that has 

been incorporated by reference by the 

District would interfere with the 

maintenance of the NAAQS within the 

District, nor has the commenter 

provided specific information 

demonstrating that such interference 

would occur. The commenter refers to a 

general legislative statement by the 

California legislature that appears to 

have been adopted in 2003 that 

disagrees generally with NSR Reform 

but which is not specific as to what 

changes in air quality, if any, would 

occur as a result of EPA’s approval of 

the District’s PSD program. 

NSR Reform affects only permitting of 

modifications to existing sources, and 

more specifically, modifications to 

existing emissions units. Any growth 

occurring from new, greenfield sites 

would be controlled and permitted in 

the same manner both pre- and postreform. Therefore, any concerns about 

NSR Reform would be related to 

unregulated growth from existing major 

sources. In the specific case of the 

District, modifications that are not 

subject to PSD review generally have 

been, and will continue to be, subject to 

review under the District’s minor NSR 

program, which is approved into the 

California SIP through District Rule 

2201. Rule 2201 contains the District’s 

permit program for all increases in 

pollutants subject to a NAAQS, whether 

classified as attainment, nonattainment, 

or unclassifiable by EPA. The rule 

includes pre-construction permitting 

requirements for sources that are not 

required to be permitted under title I, 


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Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65309 

3Under the District’s rules, CO emissions from a 

new or modified emissions unit at a stationary 

source with a post project potential to emit of less 

than 100 tons per year are exempt from the 

requirement to apply BACT. In addition, the 

District’s definition of BACT is at least as stringent 

as the federal definitions for Lowest Achievable 

Emission Rate (LAER). 

4The Supplemental Analysis is available at 

http://epa.gov/nsr/documents/nsr-analysis.pdf, and 

has also been added to the docket for this action. 

It is incorporated into these responses by reference. 

5To the extent the commenter may be referring 

to the District’s minor NSR program as it relates to 

nonattainment pollutants, as noted in more detail 

above, the District’s minor NSR program is quite 

comprehensive and will impose permit 

requirements on numerous sources not subject to 

major nonattainment NSR or PSD review by the 

District, and, accordingly, will provide additional 

protection of the NAAQS beyond that provided by 

the District’s PSD program. 

parts C and D of the Act as new major 

stationary sources or major 

modifications at existing major 

stationary sources in attainment or 

nonattainment areas, which are 

commonly referred to as ‘‘minor NSR,’’ 

although this term is not used in Rule 

2201. A modification in the District that 

is not required to obtain a PSD permit 

(whether due to the application of the 

NSR Reform provisions or not) would 

still be subject to the preconstruction 

permit requirements of the District’s 

minor NSR program in Rule 2201, 

including any associated testing, 

monitoring, recordkeeping and 

reporting requirements. All 

modifications within the District are 

required to obtain a permit revision 

prior to modification of the applicable 

units. Generally, for any new or 

modified emissions unit, the District’s 

NSR program begins applying BACT for 

emission increases of two pounds per 

day (0.4 tons per year).3 See District 

Rule 2201, Sections 4.1 and 4.2. The 

District’s NSR program also generally 

requires a demonstration that emissions 

from certain new or modified stationary 

sources, including minor sources, will 

not cause or make worse the violation 

of an ambient air quality standard. See 

District Rule 2201, Section 4.14. EPA’s 

approval of the District’s PSD program 

will not change the level of review that 

is conducted for modifications not 

subject to PSD review within the 

District. The District’s robust minor NSR 

permitting program for such sources 

provides additional assurance that 

EPA’s approval of the District’s PSD SIP 

revision, which incorporates NSR 

Reform, will not interfere with 

maintenance of the NAAQS within the 

District. 

We note that at the time EPA adopted 

NSR Reform, we provided an analysis of 

the environmental impacts of the 

‘‘various flexibilities’’ the commenter 

discusses. Based on examples and 

modeling, we concluded that NSR 

Reform would likely have a neutral to 

positive effect on air quality relative to 

the pre-Reform provisions. See generally 

Supplemental Analysis of the 

Environmental Impact of the 2002 Final 

NSR Improvement Rules (Nov. 21, 2002) 

(Supplemental Analysis).4 This analysis 

applied at the time the NSR Reforms 

became effective within the District, 

March 3, 2003. See 67 FR 80186. The 

commenter has provided no specific 

data that leads EPA to conclude that this 

initial analysis was incorrect. 

Considering the District’s minor NSR 

program, which was not a part of the 

above-mentioned national analysis, the 

environmental impacts of continuing to 

implement the NSR Reform should not 

be different from the effect modeled in 

the analysis. 

In sum, as EPA concluded in its TSD 

for the proposed rulemaking, the 

transfer of the PSD program under 40 

CFR 52.21 from EPA to the District is 

not expected to result in any substantive 

changes to the PSD program 

requirements, other CAA requirements, 

or air quality within the District, and 

EPA continues to believe that its 

approval of the District’s PSD SIP 

revision would not interfere with 

attainment and maintenance of the 

NAAQS within the District, or with any 

other applicable requirement of the 

CAA. EPA bases this conclusion on the 

fact that the District’s PSD program will 

be no less stringent than the federal PSD 

program under 40 CFR 52.21 that it is 

replacing. In addition, EPA has taken 

into consideration the District’s 

extensive minor source permitting 

program that will impose control 

requirements on sources that are not 

major under the PSD program. EPA 

finds that the approval of this SIP 

revision is entirely consistent with the 

development of a plan for the District to 

attain and maintain the NAAQS. 

Last, it is unclear to EPA what the 

basis is for the commenter’s statement 

that relying on the existing District 

nonattainment NSR program is not a 

substitute for the necessary analysis 

under CAA section 110(l) in terms of 

maintenance of the NAAQS, or how the 

commenter’s concerns with the 

District’s nonattainment NSR permitting 

process relate to EPA’s CAA section 

110(l) analysis in this case. We assume 

that the commenter is referring in this 

statement to the District’s major 

nonattainment NSR program.5 For the 

reasons outlined above, EPA believes 

that its 110(l) analysis for this action is 

appropriate, and we have not 

specifically relied on the District’s major 

nonattainment NSR program to support 

our 110(l) analysis here because our 

approval action addresses the District’s 

PSD permitting program, which 

regulates only those pollutants for 

which the District has been designated 

attainment or unclassifiable. General 

concerns about the District’s major 

nonattainment NSR permitting process 

are outside the scope of this PSD SIP 

revision approval action. 

III. EPA’s Final Action 

EPA is approving CARB’s August 23, 

2011 submittal of District Rule 2410— 

Prevention of Significant Deterioration 

(PSD)—into the California SIP to 

establish a PSD permit program for preconstruction review of certain new and 

modified major stationary sources in 

attainment or unclassifiable areas. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, 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). Thus, in reviewing 

SIP submissions, EPA’s role is to 

approve State choices, provided that 

they meet the criteria of the CAA. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• 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.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 


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65310 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

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

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 26, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action 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 CAA 

section 307(b)(2).) 

List of Subjects in 40 CFR part 52 

Air pollution control, Carbon 

monoxide, Environmental protection, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: August 30, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52 [AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding new paragraph (c)(415) to read 

as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(415) New and amended regulations 

were submitted on August 23, 2011 by 

the Governor’s designee. Final approval 

of these regulations is based, in part, on 

the clarifications contained in a May 18, 

2012 letter from the San Joaquin Valley 

Unified Air Pollution Control District 

regarding specific implementation of 

parts of the Prevention of Significant 

Deterioration program. 

(i) Incorporation by reference. 

(A) San Joaquin Valley Unified Air 

Pollution Control District. 

(1) Rule 2410, ‘‘Prevention of 

Significant Deterioration,’’ adopted on 

June 16, 2011. 

(ii) Additional materials. 

(A) San Joaquin Valley Unified Air 

Pollution Control District (SJVUAPCD). 

(1) Letter dated May 18, 2012 from 

David Warner, SJVUAPCD, to Gerardo 

Rios, United States Environmental 

Protection Agency Region 9, regarding 

Clarifications of District Rule 2410 and 

40 CFR 51.166. 

■ 3. Section 52.270 is amended by 

adding new paragraph (b)(5) to read as 

follows: 

§ 52.270 Significant deterioration of air 

quality. 

* * * * * 

(b) * * * 

(5) Rule 2410, ‘‘Prevention of 

Significant Deterioration,’’ adopted on 

June 16, 2011, for the San Joaquin 

Valley Unified Air Pollution Control 

District (SJVUAPCD) is approved under 

Part C, Subpart 1, of the Clean Air Act, 

based, in part, on the clarifications 

provided in a May 18, 2012 letter from 

the San Joaquin Valley Unified Air 

Pollution Control District described in 

§ 52.220(c)(415). For PSD permits 

previously issued by EPA pursuant to 

§ 52.21 to sources located in the 

SJVUAPCD, this approval includes the 

authority for the SJVUAPCD to conduct 

general administration of these existing 

permits, authority to process and issue 

any and all subsequent permit actions 

relating to such permits, and authority 

to enforce such permits, except for: 

(i) Those specific sources within the 

SJVUAPCD that have submitted PSD 

permit applications to EPA and for 

which EPA has issued a proposed PSD 

permit decision, but for which final 

agency action and/or the exhaustion of 

all administrative and judicial appeals 

processes (including any associated 

remand actions) have not yet been 

concluded or completed by November 

26, 2012. The SJVUAPCD will assume 

full responsibility for the administration 

and implementation of such PSD 

permits immediately upon notification 

from EPA to the SJVUAPCD that any 

and all administrative and judicial 

appeals processes (and any associated 

remand actions) have been completed or 

concluded for any such permit decision. 

Prior to the date of such notification, 

EPA is retaining authority to apply 

§ 52.21 for such permit decisions, and 

the provisions of § 52.21, except 

paragraph (a)(1), are therefore 

incorporated and made a part of the 

State plan for California for the 

SJVUAPCD for such permit decisions 

during the identified time period. 

(ii) [Reserved]. 

[FR Doc. 2012–26294 Filed 10–25–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–HQ–OAR–2007–0562; FRL–9746–6] 

Additional Air Quality Designations for 

the 2006 24-Hour Fine Particle National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Supplemental amendments; 

final rule. 

SUMMARY: The EPA is taking final action 

to establish the initial 2006 24-hour fine 

particle (PM2.5) national ambient air 

quality standards (NAAQS) air quality 

designations for the Ak-Chin Indian 

Community located in Pinal County, 

Arizona, and the Gila River Indian 

Community located in Pinal County and 

Maricopa County, Arizona. On 

November 13, 2009, and February 3, 

2011, the EPA promulgated air quality 

designations nationwide for all but 

these two areas for the 2006 24-hour 

PM2.5 NAAQS. The EPA deferred initial 

PM2.5 air quality designations for the 


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