6560.50 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR part 52 

[EPA-R09-OAR-2011-0211; FRL-9312-8] 

Approval and Promulgation of Implementation Plans; State of 

California; Interstate Transport of Pollution; Interference with 

Prevention of Significant Deterioration Requirement 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing a limited approval and limited 

disapproval of a State Implementation Plan (“SIP”) revision 

submitted by the State of California on November 17, 2007, for 

the purpose of addressing the “transport SIP” provisions of 

Clean Air Act (“CAA”) section 110(a)(2)(D)(i) for the 1997 8-

hour ozone National Ambient Air Quality Standards (NAAQS or 

standards) and the 1997 fine particulate matter (“PM2.5”) NAAQS. 

Section 110(a)(2)(D)(i) of the CAA requires that each SIP 

contain adequate provisions to prohibit emissions that adversely 

affect air quality in other States through interstate transport. 

EPA is proposing a limited approval and limited disapproval of 

California’s SIP revision for the 1997 8-hour ozone and 1997 
2 

PM2.5 NAAQS with respect to the requirement in CAA section 

110(a)(2)(D)(i)(II) that each SIP contain adequate measures 

prohibiting emissions of air pollutants in amounts which will 

interfere with other States’ measures required under title I, 

part C of the CAA to prevent significant deterioration of air 

quality. Specifically, EPA is proposing to approve California’s 

SIP revision with respect to those Districts in California that 

implement SIP-approved permit programs meeting the approval 

criteria under CAA section 110(a)(2)(D)(i), as discussed in this 

proposal. EPA is simultaneously proposing to disapprove 

California’s SIP revision with respect to those Districts in 

California that do not implement SIP-approved permit programs 

meeting these approval criteria. For any District for which we 

finalize a disapproval, EPA intends to simultaneously promulgate 

a limited Federal Implementation Plan (“FIP”), as discussed in 

this proposal, unless the relevant area is already subject to a 

FIP. 

DATES: Written comments must be received on or before [Insert 

date 30 days after publication in the Federal Register]. 

ADDRESSES: Submit your comments, identified by Docket ID Number 

EPA-R09-OAR-2011-0211, by one of the following methods: 

1. www.regulations.gov: Follow the on-line instructions for 

submitting comments. 
3 

2. E-mail: mays.rory@epa.gov

3. Fax: 415-947-3579 

4. Mail or deliver: Rory Mays (AIR-2), U.S. Environmental 

Protection Agency, Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105-3901. Deliveries are only accepted 

during the Regional Office’s normal hours of operation. 

Instructions: All comments will be included in the public docket 

without change and may be made available online at 

www.regulations.gov, including any personal information 

provided, unless the comment includes Confidential Business 

Information (CBI) or other information whose disclosure is 

restricted by statute. Information that you consider CBI or 

otherwise protected should be clearly identified as such and 

should not be submitted through the www.regulations.gov or email. www.regulations.gov is an anonymous access system, and EPA 

will not know your identity or contact information unless you 

provide it in the body of your comment. If you send email 

directly to EPA, your e-mail address will be automatically 

captured and included as part of the public comment. If EPA 

cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able to 

consider your comment. 
4 

Docket: The index to the docket for this action is 

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

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

California. While all documents in the docket are listed in the 

index, some information may be publicly available only at the 

hard copy location (e.g., copyrighted material), and some may 

not be publicly available in either location (e.g., CBI). To 

inspect the hard copy materials, please schedule an appointment 

during normal business hours with the contact listed directly 

below. 

FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office 

(AIR–2), U.S. Environmental Protection Agency, Region IX, (415) 

972–3227, mays.rory@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, the terms 

“we,” “us,” and “our” refer to EPA. 

TABLE OF CONTENTS 

I. Background 

II. What is the State process to submit these materials to EPA? 

III. What is EPA’s evaluation of the State’s submission? 

A. Evaluation of Measures to Prevent Significant 

Deterioration for 1997 8-hour Ozone NAAQS 

B. Evaluation of Measures to Prevent Significant 

Deterioration for 1997 PM2.5 NAAQS 

C. Evaluation of Measures to Prevent Significant 

Deterioration for Greenhouse Gases 

D. Conclusion Regarding Measures to Prevent Significant 

Deterioration 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 
5 

I. Background 

On July 18, 1997, EPA promulgated new standards for 8-hour 

ozone1 and fine particulate matter2 (“PM2.5”). This proposed 

action is in response to the promulgation of these standards 

(the “1997 8-hour ozone NAAQS” and “1997 PM2.5 NAAQS”). This 

proposed action does not address the requirements of the 2006 

PM2.5 NAAQS or the 2008 8-hour ozone NAAQS; those standards will 

be addressed in future actions. 

Section 110(a)(1) of the CAA requires states to submit SIPs 

to address a new or revised NAAQS within three years after 

promulgation of such standards, or within such shorter period as 

EPA may prescribe. Section 110(a)(2) lists the elements that 

such new SIPs must address, as applicable, including section 

110(a)(2)(D)(i) which pertains to interstate transport of 

certain emissions. 

 

1 See 62 FR 38856. The level of the 1997 8-hour ozone NAAQS is 0.08 parts per 

million (ppm). 40 CFR part 50.10. The 8-hour ozone standard is met when the 

3-year average of the annual 4th highest daily maximum 8-hour ozone 

concentrations is 0.08 ppm or less (i.e., less than 0.085 ppm based on the 

rounding convention in 40 CFR part 50 Appendix I). This 3-year average is 

referred to as the "design value." 

2 See 62 FR 38652. The level of the 1997 PM2.5 NAAQS are 15.0 μg/m3 (annual 

arithmetic mean concentration) and 65 μg/m3 (24-hour average concentration). 

40 CFR part 50.7. The annual standard is met when the 3-year average of the 

annual mean concentrations is 15.0 μg/m3 or less (i.e., less than 15.05 μg/m3

based on the rounding convention in 40 CFR part 50 Appendix N Section 4.3). 

The 24-hour standard is met when the 3-year average annual 98th percentile of 

24-hour concentrations is 65 μg/m3 or less (i.e., less than 65.5 μg/m3 based 

on the rounding convention in 40 CFR part 40 Appendix N Section 4.3). Id.

These 3-year averages are referred to as the annual PM2.5 and 24-hour PM2.5

"design values," respectively. 
6 

The transport SIP provisions in section 110(a)(2)(D)(i) 

(also called "good neighbor" provisions) require each State to 

submit a SIP that prohibits emissions that adversely affect 

another State in the ways contemplated in the statute. Section 

110(a)(2)(D)(i) identifies four distinct elements related to the 

evaluation of impacts of interstate transport of air pollutants. 

In this rulemaking EPA is addressing the third element of 

section 110(a)(2)(D)(i), which requires that each SIP contain 

adequate measures to prohibit emissions of air pollutants from 

sources within the State in amounts that will interfere with any 

other State’s measures required under title I, part C of the CAA 

to prevent significant deterioration of air quality. We refer to 

this requirement as “element (3)” of section 110(a)(2)(D)(i). 

On August 15, 2006, EPA issued guidance (herein “2006 

Guidance”) to assist States and EPA Regional offices in 

developing and evaluating, respectively, transport SIPs for the 

1997 8-hour ozone and PM2.5 NAAQS.3 As to element (3) of section 

110(a)(2)(D)(i), the 2006 Guidance states that this requirement 

may be met by the State’s confirmation in a SIP submission that 

major sources and major modifications in the State are subject 

to Prevention of Significant Deterioration (“PSD”) and 

 

3 Memorandum from William T. Harnett, Director, Air Quality Policy Division, 

OAQPS, “Guidance for State Implementation Plan (SIP) Submissions to Meet 

Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour 

Ozone and PM2.5 National Ambient Air Quality Standards,” August 15, 2006. 
7 

Nonattainment New Source Review (“NNSR”) programs that implement 

current requirements.4

The PSD and NNSR permit programs require preconstruction 

permits to protect the air quality within each State and are 

designed to prohibit construction of new major sources and major 

modifications at existing major sources from contributing to 

nonattainment in surrounding areas, including nearby States. 

Specifically, a PSD permit may not be issued unless the new or 

modified source demonstrates that emissions from the 

construction or operation of the facility will not cause or 

contribute to air pollution in any area that exceeds any NAAQS 

or any maximum allowable increase (i.e., PSD increment). 42 

U.S.C. section 7475(a)(3); 40 CFR 51.166(k). An NNSR permit may 

not be issued unless the new or modified source shows it has 

obtained sufficient emissions reductions to offset increases in 

emissions of the pollutants for which an area is designated 

nonattainment, consistent with reasonable further progress 

toward attainment. 42 U.S.C. section 7503(a)(1); 40 CFR 

51.165(a)(3). 

Because the PSD and NNSR permitting programs require a 

demonstration that new or modified sources will not cause or 

contribute to air pollution in excess of the NAAQS in 

 

4 Id. at 6. 
8 

neighboring States or that sources in nonattainment areas 

procure offsets, States may satisfy the requirement of section 

110(a)(2)(D)(i)(II) regarding measures to prevent significant 

deterioration of air quality by submitting SIPs confirming that 

major sources and major modifications in the State are subject 

to PSD and NNSR programs that implement current requirements. 

As such, we have evaluated California’s PSD and NNSR 

preconstruction permitting programs to determine whether these 

programs implement the 1997 8-hour ozone and PM2.5 NAAQS. In 

addition, because stationary sources of greenhouse gas (“GHG”) 

emissions at or above certain thresholds are now subject to PSD 

permitting requirements, we have evaluated California’s PSD 

programs for compliance with the requirements for GHG PSD 

authorities.5 Our evaluation is summarized below (see section III 

of this proposed rule) and described in more detail in the 

technical support document (“TSD”) for this proposed rule, which 

is available in the docket for this action. 

II. What is the State process to submit these materials to EPA? 

 

5 For explanation of the GHG PSD permitting requirements, see “Prevention of 

Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final 

Rule,” 75 FR 31514 (June 3, 2010); “Action To Ensure Authority To Issue 

Permits Under the Prevention of Significant Deterioration Program to Sources 

of Greenhouse Gas Emissions: Findings of Substantial Inadequacy and SIP Call; 

Final Rule,” 75 FR 77698 (December 13, 2010); “Limitation of Approval of 

Prevention of Significant Deterioration Provisions Concerning Greenhouse GasEmitting Sources in State Implementation Plans; Final Rule,” 75 FR 82536 

(December 30, 2010). 
9 

CAA sections 110(a)(2) and 110(l) require that revisions to 

a SIP be adopted by the State after reasonable notice and public 

hearing. EPA has promulgated specific procedural requirements 

for SIP revisions in 40 CFR part 51, subpart F. These 

requirements include publication of notices, by prominent 

advertisement in the relevant geographic area, of a public 

hearing on the proposed revisions, a public comment period of at 

least 30 days, and an opportunity for a public hearing. 

On November 16, 2007, the California Air Resources Board 

(“CARB”) submitted the State Strategy for California’s 2007 

State Implementation Plan to attain the 1997 8-hour ozone and 

PM2.5 NAAQS (“2007 State Strategy”).6 Appendix C of the 2007 State 

Strategy, as modified by Attachment A,7 contains California’s SIP 

revision to address the transport SIP requirements of CAA 

section 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5 NAAQS 

(“2007 Transport SIP”). CARB’s November 16, 2007 submittal 

includes public process documentation for the 2007 State 

Strategy, including the 2007 Transport SIP. In addition, the SIP 

 

6 See transmittal letter dated November 16, 2007, from James N. Goldstene, 

Executive Officer, CARB, to Wayne Nastri, Regional Administrator, EPA Region 

9, with enclosures, and CARB Resolution No. 07–28 (September 27, 2007). 

7 See “Technical and Clarifying Modifications to April 26, 2007 Revised Draft 

Air Resources Board’s Proposed State Strategy for California’s 2007 State 

Implementation Plan and May 7, 2007 Revised Draft Appendices A through G,” 

included as Attachment A to CARB’s Board Resolution 07-28 (September 27, 

2007). 
10 

revision includes documentation of a duly noticed public hearing 

held on September 27, 2007 on the proposed 2007 State Strategy. 

We find that the process followed by CARB in adopting the 

2007 Transport SIP complies with the procedural requirements for 

SIP revisions under CAA section 110 and EPA’s implementing 

regulations. 

III. What is EPA’s evaluation of the State’s submission? 

California’s 2007 Transport SIP states that all areas of 

California are subject to some form of preconstruction 

permitting program for ozone and PM2.5 and that “[t]hese rules 

are as stringent, or more stringent, than the federal 

preconstruction programs (PSD and NNSR).”8 The submittal also 

states that California is on track to submit SIP revisions to 

meet the PSD and NNSR requirements of the Phase 2 Implementation 

Rule for the 1997 8-hour ozone NAAQS (70 FR 71612, November 29, 

2005) (“Phase 2 Rule”) and is implementing preconstruction 

programs for PM2.5 in accordance with EPA’s October 23, 1997 

guidance memorandum entitled “Interim Implementation of New 

Source Review Requirements for PM2.5” (“PM10 Surrogate Policy”). 

Finally, the submittal includes a list of local air districts 

that implement the PSD and NNSR programs throughout the State. 

In sum, the 2007 Transport SIP asserts that California’s 

 

8 See 2007 Transport SIP, Attachment A of 2007 State Strategy at 21-22 

(modifying Appendix C of 2007 State Strategy). 
11 

existing PSD and NNSR programs contain adequate measures to 

prohibit emissions of air pollutants which will interfere with 

any other State’s required measures under title I, part C of the 

CAA, to prevent significant deterioration of air quality, for 

the 1997 8-hour ozone and PM2.5 NAAQS. 

The 2007 Transport SIP provides little information to 

support the State’s assertions regarding the adequacy of its 

existing PSD and NNSR permit programs. Furthermore, the 2007 

Transport SIP relied solely on EPA’s 2006 Guidance and, 

therefore, did not fully address certain implementation 

requirements for the 1997 8-hour ozone and PM2.5 NAAQS that are 

now relevant to our evaluation, as discussed further below and 

in our TSD. We have, therefore, conducted an independent 

evaluation of California’s PSD and NNSR programs in relation to 

specific implementation provisions for the 1997 8-hour ozone and 

PM2.5 NAAQS that are necessary for approval of the 2007 Transport 

SIP. We conducted this evaluation for each of the 35 permitting 

authorities (“Districts”)9 in California, which cover the entire 

geographic extent of the State excluding Indian country.10 The 

 

9 Although EPA’s air quality designations for California in 40 CFR 81.305 are 

defined by planning areas, we discuss the relevant PSD and NNSR program 

requirements as they apply to the local permitting agencies that implement 

these requirements in each planning area. We use the term “District” 

throughout this document to refer both to the local agency responsible for 

issuing PSD/NNSR permits and to the geographic area over which that agency 

has jurisdiction. 

10 California’s SIP obligations under the CAA do not apply in Indian country. 
12 

details of our evaluation are provided in the TSD for this 

proposed rule. 

A. Evaluation of Measures to Prevent Significant 

Deterioration for 1997 8-hour Ozone NAAQS 

Fifteen air quality planning areas in California are 

designated nonattainment for the 1997 8-hour ozone NAAQS. See 40 

CFR 81.305. Twenty Districts implement preconstruction permit 

programs in these 15 nonattainment areas. See TSD at 9-12. 

Thirteen air quality planning areas in California are designated 

unclassifiable/attainment for the 1997 8-hour ozone standard. 

See 40 CFR 81.305. Twenty-three Districts implement 

preconstruction permit programs in these 13 

unclassifiable/attainment areas. See TSD at 12, 13. 

1. 8-hour ozone nonattainment areas 

The Phase 2 Rule requires specific revisions to States’ 

NNSR SIPs to implement the requirements of the CAA Amendments of 

1990, as applicable based on each area’s classification for the 

8-hour ozone standard. See 70 FR 71612 at 71675, 71698-71699. 

Specifically, the Phase 2 Rule requires that NNSR SIPs apply all 

NNSR requirements for major sources of volatile organic 

compounds (VOCs) to major sources of nitrogen oxides (NOx) as 

well, except where a NOx waiver applies under section 182(f) of 

the Act. 40 CFR 51.165(a)(8). In addition, NNSR SIPs must 
13 

include provisions establishing the applicable major stationary 

source thresholds, significant emissions rates, and offset 

ratios for VOCs and NOx based on each area’s classification for 

the 8-hour ozone NAAQS. 40 CFR 51.165(a)(1)(iv), (a)(1)(v), 

(a)(1)(x), (a)(8), (a)(9). These SIP revisions were due June 15, 

2007. 70 FR at 71683. 

Among the 20 Districts that are entirely or partially 

designated nonattainment for the 1997 8-hour ozone NAAQS, 12 

Districts have nonattainment areas classified under subpart 2 of 

part D, title I of the CAA. The remaining eight Districts and a 

portion of a ninth District cover areas now referred to as 

“former subpart 1” nonattainment for the 1997 8-hour ozone 

NAAQS. See 40 CFR 81.305; South Coast Air Quality Management 

District v. EPA, 472 F.3d 882 (D.C. Cir. 2006) (vacating certain 

elements of EPA’s Phase 1 ozone implementation rule), reh'g 

denied 489 F.3d 1245. 

For the 12 Districts covering subpart 2 nonattainment 

areas, EPA has reviewed the SIP-approved NNSR rules and 

determined that all but three of these SIP programs meet the 

approval criteria discussed above. See TSD at 9-11. The three 

Districts in which the SIP-approved NNSR programs do not 

currently satisfy these program requirements are the Feather 

River Air Quality Management District (“AQMD”), Placer County 
14 

Air Pollution Control District (“APCD”), and Sacramento 

Metropolitan AQMD. These three agencies implement permit 

programs in the Sacramento Metro ozone nonattainment area, which 

was initially designated and classified as serious nonattainment 

for the 1997 8-hour ozone NAAQS. 69 FR 23858 (April 30, 2004).11

In separate actions, EPA has proposed to approve NNSR SIP 

revisions submitted by the Placer County APCD (“Placer”), 

Feather River AQMD (“Feather River”), and Sacramento 

Metropolitan AQMD (“Sacramento”) to meet the approval criteria 

discussed above.12 See 76 FR 28944 (May 19, 2011) and 76 FR 28942 

(May 19, 2011). We propose to determine that final approval of 

the required NNSR SIP revisions will address element (3) of CAA 

section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS for 

these Districts. Alternatively, for any of these Districts for 

which we cannot finalize approval of the required NNSR 

provisions by our July 10, 2011 Consent Decree deadline13 for 

final action on element (3) of the 2007 Transport SIP, we 

 

11 In this action, we are evaluating the NNSR programs for these Districts in 

accordance with the requirements for “serious” ozone nonattainment areas. We 

note, however, that EPA reclassified the Sacramento Metro area as a “severe15” nonattainment area for the 1997 8-hour ozone standard, effective June 4, 

2010. 75 FR 24409 (May 5, 2010). 

12 These proposals address the NNSR requirements for “severe” ozone 

nonattainment areas, which each of these Districts has submitted in advance 

of the June 4, 2011 submittal deadline established as part of EPA’s action to 

reclassify the Sacramento Metro area from serious to severe-15 nonattainment 

for the 8-hour ozone standard. See 75 FR 24409. 

13 See WildEarth Guardians v. U.S. EPA (Case No. 4:09-CV-02453-CW), Consent 

Decree dated November 10, 2009, as amended by Notice of Stipulated Extensions 

to Consent Decree Deadlines, dated April 28, 2011. 
15 

propose to disapprove the 2007 Transport SIP and to promulgate a 

limited NNSR FIP (for the relevant District) based on 

Sacramento’s Rule 202 and the provisions of 40 CFR part 51, 

Appendix S identifying the major source threshold, significant 

emissions rate, and offset ratio applicable to the area’s 8-hour 

ozone classification. EPA would retain authority to implement 

these requirements for NOx and VOC emission sources in the 

relevant Districts (unless and until EPA delegates such 

authority to the District), while the District would retain 

authority to continue implementing any existing SIP-approved 

NNSR requirements. Our TSD describes the limited FIPs that we 

propose to promulgate for any District for which we cannot 

finalize approval of the required NNSR SIP revisions by July 10, 

2011. See TSD at 10, 11. 

For the nine Districts covering “former subpart 1” 

nonattainment areas, we have reviewed the existing SIPs and 

determined that two of the SIP-approved NNSR programs in these 

areas (for Eastern Kern APCD and San Diego County APCD) 

implement the 1997 8-hour ozone NAAQS. We propose to determine 

that the existing NNSR programs for these two former subpart 1 

areas are, therefore, adequate to address element (3) of section 

110(a)(2)(D)(i) for this standard. See TSD at 11. 
16 

The remaining seven Districts, which cover five former 

subpart 1 areas (Central Mountain Counties, Chico, Southern 

Mountain Counties, Sutter Buttes, and Western Nevada County), 

are currently subject to the NNSR permitting requirements in The 

Interpretative Rule (40 CFR part 51 Appendix S), except that the 

waiver provisions in section VI of 40 CFR part 51 Appendix S no 

longer apply. See Phase 2 Rule, 75 FR 71612 (November 29, 2005) 

and NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009) (vacating EPA’s 

elimination of the 18-month limitation in 40 CFR part 52.24(k) 

with respect to the waiver provisions in section VI of 40 CFR 

part 51 Appendix S). See TSD at 11, 12. The California SIP 

remains deficient for purposes of 8-hour ozone NNSR requirements 

in these five former subpart 1 areas that do not yet have 

approved NNSR programs under part D, title I of the Act. Thus, 

we propose to disapprove the 2007 Transport SIP with respect to 

element (3) of CAA section 110(a)(2)(D)(i) for the 1997 8-hour 

ozone NAAQS for the seven Districts covering these five former 

subpart 1 areas. 

As discussed above, however, all of these areas are 

currently subject to NNSR permitting requirements under The 

Interpretative Rule in 40 CFR part 51, Appendix S, except for 

the waiver provisions in section VI. These permitting provisions 

will continue to apply in these areas until the State submits 
17 

and EPA approves NNSR SIP revisions addressing the subpart 2 

NNSR requirements that will apply following EPA’s classification 

of each area under subpart 2. See 74 FR 2936 (January 16, 2009) 

(proposing to require States to submit all required SIP elements 

for the areas’ subpart 2 classifications one year after the 

effective date of a final rule classifying the areas). We 

propose to determine that implementation of The Interpretative 

Rule during this interim period adequately addresses the 

requirements of element (3) of section 110(a)(2)(D)(i) in these 

areas and that this discharges EPA’s obligation to promulgate a 

FIP for these limited purposes. This proposal applies only to 

our FIP obligation in this particular circumstance and should 

not be construed as an interpretation of our obligations in 

other nonattainment areas where The Interpretative Rule 

currently applies under 40 CFR 52.24(k). See TSD at 12. 

2. 8-hour ozone unclassifiable/attainment areas 

For areas designated unclassifiable/attainment for the 1997 

8-hour ozone NAAQS, the Phase 2 Rule requires revisions to PSD 

SIPs to require explicit identification of NOx as an ozone 

precursor. 70 FR 71612 at 71679, 71699-71700; 40 CFR 

51.166(b)(1)(ii), (b)(2)(ii), (b)(23)(i), (b)(49)(i). These SIP 

revisions were due June 15, 2007. 70 FR at 71683. In areas 

subject to the Federal PSD program in 40 CFR 52.21, EPA’s 
18 

revisions to 40 CFR 52.21 (including regulation of NOx as an 

ozone precursor) became effective January 30, 2006. 70 FR 71612 

at 71683. 

Fifteen Districts and portions of eight additional 

Districts in California are designated unclassifiable/attainment 

for the 1997 8-hour ozone NAAQS. All but four of these Districts 

are currently subject to the Federal PSD program in 40 CFR 

52.21. 40 CFR 52.270. The California SIP remains deficient for 

purposes of 8-hour ozone PSD requirements in those areas subject 

to the Federal PSD program. Because EPA has already promulgated 

a PSD FIP for these areas, however, no further action is 

required to address element (3) of CAA section 110(a)(2)(D)(i) 

for the 1997 8-hour ozone NAAQS in these areas. 

We reviewed the PSD rules for the four Districts with SIPapproved programs for ozone (Mendocino County AQMD 

(“Mendocino”), Monterey Bay Unified APCD (“Monterey”), North 

Coast Unified AQMD (“North Coast”), and Northern Sonoma County 

APCD (“Northern Sonoma”)). Of these, only Monterey’s existing 

SIP PSD program identifies NOx as an ozone precursor. We propose 

to approve the 2007 Transport SIP with respect to element (3) of 

CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS for 

Monterey. See TSD at 12, 13. 
19 

The SIP-approved PSD programs for the other three Districts 

(Mendocino, North Coast, and Northern Sonoma) do not currently 

identify NOx as an ozone precursor. However, by direct final rule 

on May 6, 2011, EPA approved PSD SIP revisions submitted by 

Mendocino and Northern Sonoma to explicitly identify NOx as an 

ozone precursor. See 76 FR 26192 and 76 FR 26224 (May 6, 2011). 

We propose to determine that these PSD SIP revisions satisfy the 

requirements of element (3) of CAA section 110(a)(2)(D)(i) for 

the 1997 8-hour ozone NAAQS in these Districts. If, however, 

either of these approvals is withdrawn and does not become 

effective by our July 10, 2011 Consent Decree deadline for final 

action on element (3) of the 2007 Transport SIP, we propose to 

disapprove the 2007 Transport SIP for the relevant area and to 

promulgate a limited PSD FIP based on the provisions of 40 CFR 

52.21 identifying NOx as an ozone precursor. EPA would retain 

authority to implement the applicable requirements of 40 CFR 

52.21 for NOx emission sources in the relevant area (unless and 

until EPA delegates such authority to the District), while the 

District would retain authority to continue implementing any 

existing SIP-approved PSD requirements. See TSD at 13. 

Finally, although North Coast has also submitted PSD SIP 

revisions to address this requirement, among others, we are 

proposing to disapprove the 2007 Transport SIP with respect to 
20 

element (3) of CAA section 110(a)(2)(D)(i) for the 1997 8-hour 

ozone NAAQS and to promulgate a limited PSD FIP for North Coast 

because we do not expect to finalize approval of that PSD 

submittal by our July 10, 2011 Consent Decree deadline for final 

action on element (3) of the 2007 Transport SIP. Thus, for North 

Coast, we are proposing to promulgate a limited PSD FIP based on 

the provisions of 40 CFR 52.21 regulating NOx as an ozone 

precursor. EPA would retain authority to implement the 

applicable requirements of 40 CFR 52.21 for NOx emission sources 

in North Coast (unless and until EPA delegates such authority to 

the District), while the District would retain authority to 

continue implementing any existing SIP-approved PSD 

requirements. See TSD at 13. This limited FIP would apply only 

until EPA approves a PSD SIP revision for North Coast addressing 

this requirement. 

B. Evaluation of Measures to Prevent Significant 

Deterioration for 1997 PM2.5 NAAQS 

Two air quality planning areas in California (the San 

Joaquin Valley and the Los Angeles-South Coast Air Basin) are 

designated nonattainment for the 1997 PM2.5 NAAQS. See 40 CFR 

81.305. Two Districts (San Joaquin Valley APCD and South Coast 

AQMD) implement preconstruction permit programs in these two 

nonattainment areas. See TSD at 13, 14. Twenty-five air quality 
21 

planning areas that cover the rest of the State are designated 

unclassifiable/attainment for the 1997 PM2.5 NAAQS. See 40 CFR 

81.305. Thirty-four Districts implement preconstruction permit 

programs in these 25 unclassifiable/attainment areas. See TSD at 

14, 15. 

1. PM2.5 nonattainment areas 

For areas designated nonattainment for the 1997 PM2.5 NAAQS, 

the NSR Implementation Rule for PM2.5, 73 FR 28321 (May 16, 2008) 

(“PM2.5 NSR Rule”), establishes new requirements under 40 CFR 

part 51.165 for States to include in their SIP-approved NNSR 

programs to address the PM2.5 NAAQS. These NNSR SIP revisions 

were due May 16, 2011. See 73 FR 28321 (May 16, 2008). Under 40 

CFR part 52.24(k), during the period of time allowed for States 

to amend their existing NNSR programs to address the new PM2.5

requirements, States are allowed to rely on the procedures under 

40 CFR part 51 Appendix S (“The Interpretative Rule”) to issue 

permits to new or modified major stationary sources proposing to 

locate in a PM2.5 nonattainment area.14 Both the San Joaquin 

Valley APCD and South Coast AQMD have confirmed to EPA that they 

are implementing and will continue to implement the requirements 

 

14 Note that for purposes of the 1997 PM2.5 NAAQS, the waiver provisions in 

section VI of 40 CFR part 51 Appendix S expired in October 2006, i.e., 18 

months after the April 2005 effective date of each area’s designation as 

nonattainment for this standard. See Phase 2 Rule, 75 FR 71612 (November 29, 

2005) and NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009) (vacating EPA’s 

elimination of the 18-month limitation in 40 CFR 52.24(k) with respect to the 

waiver provisions in section VI of 40 CFR part 51 Appendix S). 
22 

of The Interpretative Rule to any prospective project that 

triggers PM2.5 NSR requirements during this interim period.15

Thus, with respect to element (3) of CAA section 110(a)(2)(D)(i) 

for the 1997 PM2.5 NAAQS, we propose to approve the 2007 Transport 

SIP for the San Joaquin Valley and the Los Angeles-South Coast 

Air Basin based on a determination that current implementation 

of The Interpretative Rule in these areas adequately addresses 

the 1997 PM2.5 NAAQS. See TSD at 13, 14. 

2. PM2.5 unclassifiable/attainment areas 

For areas designated unclassifiable/attainment for the 1997 

PM2.5 NAAQS, the PM2.5 NSR Rule establishes new PSD requirements 

under 40 CFR 51.166 for SIP-approved PSD programs to implement 

the new PM2.5 requirements. These SIP revisions were due May 16, 

2011. 73 FR 28321 at 28341 (May 16, 2008). In areas subject to 

the Federal PSD program in 40 CFR 52.21, the PM2.5 requirements 

of 40 CFR 52.21 became effective July 15, 2008. 73 FR at 28340, 

28343. 

Thirty-four Districts implement preconstruction permit 

programs in the 25 air quality planning areas designated as 

unclassifiable/attainment for the 1997 PM2.5 NAAQS. In all but 

five of these Districts, the Federal PSD program in 40 CFR 52.21 

 

15 See Policy Memorandum Dated October 27, 2009, “San Joaquin Valley Unified 

APCD: Interim New Source Review Requirements for PM2.5”; email dated September 

4, 2010, from Mohsen Nazemi, South Coast AQMD to Gerardo Rios, U.S. EPA 

Region 9, “Appendix S Implementation of NSR for PM2.5.” 
23 

applies. 40 CFR 52.270. Under the PM2.5 NSR Rule, the PM2.5

requirements of 40 CFR 52.21 became applicable in these 29 

Districts as of July 15, 2008, including regulation of SO2 and 

NOx as precursors. See 73 FR at 28340, 28343 (May 16, 2008). 

Because the California SIP remains deficient with respect to PSD 

requirements in these areas generally, we propose to disapprove 

the 2007 Transport SIP with respect to element (3) of CAA 

section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS for these areas. 

Because EPA has already promulgated a PSD FIP for these areas, 

however, no further action is required to address element (3) of 

CAA section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS in these 

areas. 

The remaining five Districts (Mendocino, Monterey, North 

Coast, Northern Sonoma, and Sacramento) have SIP-approved PSD 

programs. We have reviewed the PSD rules for each of these 

Districts and determined that all five of these SIP PSD programs 

require owners and operators of sources and permitting 

authorities to conduct permit-related PM2.5 analyses. We propose 

to approve the 2007 Transport SIP with respect to element (3) of 

CAA section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS for these 

areas based on a determination that these five SIP-approved PSD 

programs implement the 1997 PM2.5 NAAQS. See TSD at 14, 15. 
24 

C. Evaluation of Measures to Prevent Significant 

Deterioration for Greenhouse Gases

Three Districts (Mendocino, North Coast, and Northern 

Sonoma) were subject to EPA’s recently promulgated rule, 

Limitation of Approval of Prevention of Significant 

Deterioration Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans (“PSD SIP Narrowing Rule”) 

(75 FR 82536, Dec. 30, 2010). In the PSD SIP Narrowing Rule, EPA 

withdrew its previous approval of California’s PSD programs for 

these three Districts to the extent that the programs applied 

PSD permit requirements to GHG emissions increases from GHGemitting sources below the thresholds set in EPA’s June 3, 2010 

Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule (“Tailoring Rule”) (75 FR 31514). 

California’s 2007 Transport SIP relies, in part, on the PSD 

programs for Mendocino, North Coast, and Northern Sonoma as of 

November 2007 — which was before December 30, 2010, the 

effective date of the PSD SIP Narrowing Rule — to satisfy 

element (3) of CAA section 110(a)(2)(D)(i). On April 21, May 5, 

and May 9 of 2011, respectively, Mendocino, Northern Sonoma, and 

North Coast each submitted letters clarifying that the 2007 

Transport SIP should be read with respect to CAA section 

110(a)(2)(D)(i)(II) to reflect each of their PSD programs as 
25 

they are currently federally approved as a result of the PSD SIP 

Narrowing Rule, 75 FR 82536 (Dec. 30, 2010).16 EPA proposes, 

therefore, to fully approve the 2007 Transport SIP for 

Mendocino, North Coast, and Northern Sonoma with respect to 

element (3) of CAA section 110(a)(2)(D)(i). 

In addition, Monterey has confirmed that its SIP provides 

GHG PSD permitting authority at thresholds consistent with the 

Tailoring Rule. See Monterey Bay Unified APCD, Rule 207 (as 

approved February 4, 2000, 65 FR 5433); see also letter dated 

July 28, 2010, from Richard Stedman, Monterey Bay Unified APCD 

to Jared Blumenfeld, EPA Region 9, re: “Implementation of 

Greenhouse Gas Tailoring Rule.” We propose, therefore, to fully 

approve the 2007 Transport SIP for Monterey with respect to 

element (3) of CAA section 110(a)(2)(D)(i). 

Finally, Sacramento was subject to EPA’s recently 

promulgated rule, Findings of Substantial Inadequacy and SIP 

Call (“PSD GHG SIP Call”) (75 FR 77698, Dec. 13, 2010). In the 

PSD GHG SIP Call, EPA determined that Sacramento’s PSD program 

was substantially inadequate because it did not apply to GHGemitting sources, and established a deadline of January 31, 

 

16 See letter dated April 21, 2011, from Christopher D. Brown, APCO, Mendocino 

County AQMD, to Gerardo Rios, EPA Region 9, re: “Clarification of the 2007 

Transport SIP as it relates to the PSD Program in Mendocino County”; letter 

dated May 5, 2011, from Barbara A. Lee, Northern Sonoma APCD, to Gerardo 

Rios, EPA Region 9, re: “Clarification of the CA Transport SIP submittal”; 

letter dated May 9, 2011, from Richard Martin, APCO, North Coast Unified 

AQMD, to Gerardo Rios, EPA Region 9. 
26 

2011, for Sacramento to submit its corrective SIP revision. 

Sacramento submitted the corrective SIP revision on January 28, 

2011, and in a separate action EPA has proposed to approve that 

SIP revision. See 76 FR 28942 (May 19, 2011). We propose, 

therefore, to fully approve the 2007 Transport SIP for 

Sacramento with respect to element (3) of CAA section 

110(a)(2)(D)(i) if Sacramento’s corrective SIP revision to 

address GHG permitting requirements receives final EPA approval. 

All other areas in California are subject to current 

Federal PSD requirements for GHG emissions in 40 CFR 52.21. 

Because the California SIP remains deficient for purposes of GHG 

PSD requirements in these areas, we propose to disapprove the 

2007 Transport SIP with respect to element (3) of CAA section 

110(a)(2)(D)(i) for these areas. Because these areas are already 

subject to the Federal PSD program, however, we propose to 

determine that no further action is required to address element 

(3) of CAA section 110(a)(2)(D)(i) in these areas. See TSD at 

15, 16. 

D. Conclusion Regarding Measures to Prevent Significant 

Deterioration 

Based on our review of the NNSR and PSD programs that 

currently apply in each of California’s 35 Districts, we propose 

a limited approval and limited disapproval of the 2007 Transport 
27 

SIP with respect to the requirement in CAA section 

110(a)(2)(D)(i) to prohibit emissions of air pollutants which 

will interfere with other States’ required measures to prevent 

significant deterioration of air quality for the 1997 8-hour 

ozone and 1997 PM2.5 NAAQS. 

Specifically, we propose the following actions with respect 

to element (3) of CAA section 110(a)(2)(D)(i) for the 1997 8-

hour ozone NAAQS. For nine Districts17 that are designated 

nonattainment and classified under subpart 2 of part D, title I 

of the CAA and that have SIP-approved NNSR programs meeting the 

approval criteria discussed above, we propose to approve the 

2007 Transport SIP. For three Districts18 with nonattainment 

areas classified under subpart 2 for which NNSR SIP revisions 

are necessary to meet the approval criteria discussed above, we 

propose to approve the 2007 Transport SIP if we finalize 

approval of the required NNSR SIP revisions by our July 10, 2011 

deadline for final action on element (3) of the 2007 Transport 

SIP. Alternatively, for any of these Districts for which we 

cannot approve the required NNSR SIP revision by our July 10, 

2011 deadline, we propose to disapprove the 2007 Transport SIP 

with respect to element (3) of CAA section 110(a)(2)(D)(i) for 

 

17 Antelope Valley AQMD, Bay Area AQMD, El Dorado APCD, Imperial County APCD, 

Mojave Desert AQMD, San Joaquin Valley APCD, South Coast District, Ventura 

County APCD, and Yolo-Solano AQMD. 

18 Placer County APCD, Feather River AQMD, and Sacramento Metropolitan AQMD. 
28 

the 1997 8-hour ozone NAAQS and to promulgate a limited NNSR FIP 

addressing the relevant requirements. 

For two Districts19 with “former subpart 1” nonattainment 

areas that implement SIP-approved NNSR programs meeting the 

approval criteria discussed above, we propose to approve the 

2007 Transport SIP. For seven Districts20 with “former subpart 1” 

nonattainment areas that do not yet have SIP-approved NNSR 

programs, we propose to disapprove the 2007 Transport SIP but to 

determine that implementation of The Interpretative Rule during 

this interim period pending EPA’s final subpart 2 

classifications of these areas adequately addresses the 

requirements of element (3) of CAA section 110(a)(2)(D)(i) and, 

therefore, discharges EPA’s obligation to promulgate a FIP for 

these limited purposes. 

For Monterey, which is designated unclassifiable/attainment 

and has a SIP-approved PSD program meeting the approval criteria 

discussed above, we propose to approve the 2007 Transport SIP. 

For two Districts21 with unclassifiable/attainment areas for 

which we have recently approved PSD SIP revisions meeting these 

requirements by direct final rule, we propose to approve the 

2007 Transport SIP. If, however, either of these direct final 

 

19 Eastern Kern APCD and San Diego County APCD. 

20 Amador County APCD, Butte County AQMD, Calaveras County APCD, Feather River 

AQMD, Northern Sierra AQMD, Mariposa County APCD, and Tuolumne County APCD. 

21 Mendocino County AQMD and Northern Sonoma County APCD. 
29 

rules is withdrawn and does not become effective by our July 10, 

2011 Consent Decree deadline for final action on element (3) of 

the 2007 Transport SIP, we propose to disapprove the 2007 

Transport SIP for the relevant District and to promulgate a 

limited PSD FIP for that District based on the provisions of 40 

CFR 52.21 identifying NOx as an ozone precursor. EPA would retain 

authority to implement the requirements of 40 CFR 52.21 in the 

relevant District, for NOx emission sources only, unless and 

until it delegates such authority to the District. For North 

Coast, we propose to disapprove the 2007 Transport SIP and to 

promulgate a limited PSD FIP for NOx emission sources only, as 

discussed above. For the rest of the State, which is designated 

unclassifiable/attainment for the 1997 8-hour ozone NAAQS and 

subject to the Federal PSD program in 40 CFR 52.21, we propose 

to disapprove the 2007 Transport SIP but to determine that no 

further action is required to address element (3) of CAA section 

110(a)(2)(D)(i) because EPA has already promulgated a PSD FIP 

for these areas. 

We propose the following actions with respect to element 

(3) of CAA section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS. For 

two Districts22 that are designated nonattainment, we propose to 

approve the 2007 Transport SIP based on a determination that 

 

22 San Joaquin Valley APCD and South Coast AQMD (excluding Coachella Valley 

part). 
30 

implementation of The Interpretative Rule during the SIPdevelopment period adequately addresses the requirements of 

element (3) of CAA section 110(a)(2)(D)(i). For five Districts23

that are designated unclassifiable/attainment and that have SIPapproved PSD programs meeting the approval criteria discussed 

above, we propose to approve the 2007 Transport SIP. For the 

rest of the State, which is designated unclassifiable/attainment 

and subject to the Federal PSD program in 40 CFR 52.21, we 

propose to disapprove the 2007 Transport SIP but to determine 

that no further action is required to address element (3) of CAA 

section 110(a)(2)(D)(i) because EPA has already promulgated a 

PSD FIP for these areas. 

Finally, with respect to PSD authority to regulate GHGs, we 

propose to take the following actions. For three Districts24 that 

were subject to the PSD SIP Narrowing Rule (75 FR 82536, Dec. 

30, 2010), we propose to fully approve the 2007 Transport SIP 

with respect to element (3) of CAA section 110(a)(2)(D)(i) based 

on the Districts’ letters clarifying that the 2007 Transport SIP 

should be read with respect to CAA section 110(a)(2)(D)(i)(II) 

to reflect each of their PSD programs as they are currently 

federally approved as a result of the PSD SIP Narrowing Rule. 

 

23 Mendocino County AQMD, Monterey Bay Unified AQMD, North Coast Unified AQMD, 

Northern Sonoma County APCD, and Sacramento Metropolitan AQMD. 

24 Mendocino County AQMD, Monterey Bay Unified AQMD, and North Coast Unified 

AQMD. 
31 

For Monterey, which has confirmed that its SIP provides GHG PSD 

permitting authority at thresholds consistent with the Tailoring 

Rule, we propose to fully approve the 2007 Transport SIP with 

respect to element (3) of CAA section 110(a)(2)(D)(i). For 

Sacramento, which was subject to the PSD GHG SIP Call (75 FR 

77698, Dec. 13, 2010), we propose to fully approve the 2007 

Transport SIP with respect to element (3) of CAA section 

110(a)(2)(D)(i) if Sacramento’s corrective SIP revision to 

address GHG permitting requirements receives final EPA approval. 

For all other areas in California, which are subject to the 

Federal PSD program in 40 CFR 52.21, we propose to disapprove 

the 2007 Transport SIP but to determine that no further action 

is required to address element (3) of CAA section 

110(a)(2)(D)(i) because EPA has already promulgated a PSD FIP 

for these areas. 

For a more detailed discussion of each of these proposed 

actions, see our TSD. 

IV. Proposed Action 

As authorized in CAA sections 110(k)(3) and 301(a), EPA is 

proposing a limited approval and limited disapproval of the 2007 

Transport SIP with respect to the requirement in CAA section 

110(a)(2)(D)(i) to prohibit emissions of air pollutants in 

amounts which will interfere with any other State’s measures 
32 

required under title I, part C of the CAA to prevent significant 

deterioration of air quality. CARB submitted the 2007 Transport 

SIP on November 17, 2007, to address the requirements of CAA 

section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 1997 PM2.5

NAAQS. Specifically, for those Districts in California that 

implement SIP-approved PSD or NNSR permit programs meeting the 

approval criteria discussed above, EPA is proposing to approve 

the 2007 Transport SIP with respect to element (3) of CAA 

section 110(a)(2)(D)(i). For those Districts in California with 

SIP-approved PSD or NNSR permit programs that do not meet the 

approval criteria discussed above, or that are subject to the 

Federal PSD program in 40 CFR 52.21, EPA is simultaneously 

proposing to disapprove the 2007 Transport SIP with respect to 

element (3) of CAA section 110(a)(2)(D)(i) and to promulgate 

limited FIPs as appropriate. 

Under section 179(a) of the CAA, final disapproval of a 

submittal that addresses a requirement of part D, title I of the 

CAA (CAA sections 171-193) or is required in response to a 

finding of substantial inadequacy as described in CAA section 

110(k)(5) (SIP Call) starts a sanctions clock. The 2007 

Transport SIP was not submitted to meet either of these 

requirements. Therefore, if we take final action to disapprove 

this submittal, no sanctions will be triggered. Disapproval of a 
33 

required SIP revision also triggers the requirement under CAA 

section 110(c) that EPA promulgate a FIP no later than 2 years 

from the date of the disapproval unless the State corrects the 

deficiency, and the Administrator approves the plan or plan 

revision before the Administrator promulgates such FIP. For any 

District in California for which we finalize a disapproval of 

the 2007 Transport SIP, EPA intends to simultaneously promulgate 

a limited PSD or NNSR FIP, as discussed in this proposal, unless 

the relevant area is already subject to the Federal PSD program 

in 40 CFR 52.21. 

This proposed action does not apply to the remaining three 

elements of CAA section 110(a)(2)(D)(i) regarding significant 

contribution to nonattainment in any other State, interference 

with maintenance in any other State, and interference with 

measures required to protect visibility in any other State. In 

separate actions, EPA has fully approved the 2007 Transport SIP 

for purposes of these three additional elements of CAA section 

110(a)(2)(D)(i). See Final Rule signed May 9, 2011, “Approval 

and Promulgation of Air Quality Implementation Plans; State of 

California; Regional Haze State Implementation Plan and 

Interstate Transport Plan; Interference with Visibility 

Requirement”; Final Rule signed May 10, 2011, “Approval and 

Promulgation of Implementation Plans; State of California; 
34 

Interstate Transport of Pollution; Significant Contribution to 

Nonattainment and Interference with Maintenance Requirements.” 

EPA is soliciting public comments on this proposal and will 

accept comments until the date noted in the “DATES” section 

above. 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866, Regulatory Planning and Review

The Office of Management and Budget (OMB) has exempted this 

regulatory action from Executive Order 12866, entitled 

“Regulatory Planning and Review.” 

B. Paperwork Reduction Act 

This action does not impose an information collection 

burden under the provisions of the Paperwork Reduction Act, 44 

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

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an 

agency to prepare a regulatory flexibility analysis of any rule 

subject to notice and comment rulemaking requirements under the 

Administrative Procedures Act or another statute 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. 
35 

For purposes of assessing the impacts of this proposal on 

small entities, small entity is defined as: (1) A small business 

that is a small industrial entity as defined in the U.S. Small 

Business Administration (SBA) size standards (See 13 CFR 

121.201); (2) a small governmental jurisdiction that is a 

government of a city, county, town, school district, or special 

district with a population of less than 50,000; or (3) a small 

organization that is any not-for-profit enterprise that is 

independently owned and operated and is not dominant in its 

field. 

After considering the economic impacts of this proposed 

rule on small entities, I certify that this action will not have 

a significant economic impact on a substantial number of small 

entities. Although this rule may eventually lead to Federal 

permitting requirements for a handful of sources, EPA believes 

that in such an event, there will not be a significant economic 

impact on the potentially affected sources and that any such 

impacts would not affect a substantial number of sources, 

regardless of size. In this proposal, EPA is not proposing any 

requirements beyond those with which existing sources are 

already required to comply. 

In the case of Mendocino and Northern Sonoma, EPA has 

already separately approved, by direct final rule, the SIP 
36 

revisions necessary to make NOx a precursor for ozone under the 

SIP-approved PSD program. For these areas, EPA is only proposing 

a narrow FIP to take effect in the event that EPA receives 

adverse comment that require additional notice and comment 

rulemaking to take final action on those SIP submissions. In 

this action, EPA is proposing a FIP that would effectively only 

impose a federal requirement that sources in these districts 

must already meet pursuant to existing state or local 

requirements. For this reason, EPA does not anticipate that such 

sources would be subject to any additional burden as a result of 

such a FIP and we expect that if there is any such burden, it 

would be minimal. Accordingly, EPA does not believe that such a 

FIP would have a significant economic impact on any sources in 

these areas, regardless of size. 

In the case of North Coast, EPA has not yet proposed to 

approve the SIP revision necessary to make NOx a precursor for 

ozone in the context of PSD permitting. For this area, EPA is 

likewise only proposing a narrow FIP to fill the gap with 

respect to requiring PSD permits to address NOx as a precursor 

for ozone. To EPA’s knowledge, in the past ten years there have 

been no major sources or major modifications in this area 

subject to PSD permitting requirements for NOx emissions. EPA 

does not anticipate that there will be additional sources that 
37 

would require such a permit in the future, and EPA is not 

required to analyze theoretical future impacts. It would be 

speculative to estimate potential impacts on sources based 

solely on theoretical future sources. Based on this fact, EPA 

does not believe that such a FIP would have an impact on a 

substantial number of sources, regardless of size. 

EPA is also proposing a FIP for the Feather River, Placer, 

and Sacramento areas, to take effect in the event that EPA is 

not able to finalize its proposed approval of SIP submissions 

for these areas with respect to the nonattainment NSR permitting 

requirements for ozone. The affected sources in these three 

areas are already required to meet essentially the same 

applicable requirements under state or local regulations 

contained within the SIP submissions that EPA has proposed to 

approve, even if EPA were not to finalize the approval of such 

regulations into the SIPs for these areas. Because the sources 

are already required to comply with the same substantive 

requirements by existing regulatory regimes, the proposed FIPs 

would not impose an additional burden. Thus, in these 

circumstances, EPA believes that were it to impose such a FIP on 

any of these areas in the final action on this proposal, it 

would not impose a significant economic impact on any source, 

regardless of size. 
38 

We continue to be interested in the potential impacts of 

the proposed rule on small entities and welcome comments on 

issues related to such impacts.

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 the approval action proposed does 

not include a Federal mandate that may result in estimated costs 

of $100 million or more to either State, local, or tribal 

governments in the aggregate, or to the private sector. This 

Federal action proposes to approve pre-existing requirements 

under State or local law, and imposes no new requirements. 
39 

Accordingly, no additional costs to State, local, or tribal 

governments, or to the private sector, result from this action. 

E. Executive Order 13132, Federalism

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

replaces Executive Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental Partnership). Executive Order 

13132 requires EPA to develop an accountable process to ensure 

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

development of regulatory policies that have federalism 

implications.” “Policies that have federalism implications” is 

defined in the Executive Order to include regulations that have 

“substantial direct effects on the States, on the relationship 

between the national government and the States, or on the 

distribution of power and responsibilities among the various 

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

issue a regulation that has federalism implications, that 

imposes substantial direct compliance costs, and that is not 

required by statute, unless the Federal government provides the 

funds necessary to pay the direct compliance costs incurred by 

State and local governments, or EPA consults with State and 

local officials early in the process of developing the proposed 

regulation. EPA also may not issue a regulation that has 

federalism implications and that preempts State law unless the 
40 

Agency consults with State and local officials early in the 

process of developing the proposed regulation. 

This rule will not have substantial direct effects on the 

States, on the relationship between the national government and 

the States, or on the distribution of power and responsibilities 

among the various levels of government, as specified in 

Executive Order 13132, because it merely approves a State rule 

implementing a Federal standard, and does not alter the 

relationship or the distribution of power and responsibilities 

established in the Clean Air Act. Thus, the requirements of 

section 6 of the Executive Order do not apply to this rule. 

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (65 FR 67249, 

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

process to ensure “meaningful and timely input by tribal 

officials in the development of regulatory policies that have 

tribal implications.” This proposed rule does not have tribal 

implications, as specified in Executive Order 13175. It will not 

have substantial direct effects on tribal governments, on the 

relationship between the Federal government and Indian tribes, 

or on the distribution of power and responsibilities between the 
41 

Federal government and Indian tribes. Thus, Executive Order 

13175 does not apply to this rule. 

EPA specifically solicits additional comment on this 

proposed rule from tribal officials. 

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 
42 

regulation. To comply with NTTAA, EPA must consider and use 

“voluntary consensus standards” (VCS) if available and 

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. 

List of Subjects in 40 CFR Part 52

Air pollution control, Environmental protection, 

Intergovernmental relations, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and recordkeeping requirements, 

Volatile organic compounds. 

___May 20, 2011__ ______Keith Takata____________ 

Dated: 

 Deputy Regional Administrator, 

Region IX 
43 

Title 40, chapter I, of the Code of Federal Regulations is 

proposed to be 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 52.233 is amended by adding paragraph (h) to read as 

follows: 

§ 52.233 Review of new sources and modifications. 

* * * * * 

(h) Regulation for review of major stationary sources and major 

modifications for nitrogen oxides. 

(1) Upon the effective date of this regulation, the requirements 

of this paragraph are applicable to any source under the 

jurisdiction of the APCDs listed below that is a major 

stationary source or major modification for nitrogen oxides in a 

“serious” ozone nonattainment area under 40 CFR part 51, 

Appendix S, and that is not otherwise subject to new source 

review under the applicable SIP for the area. 

(i) Feather River AQMD. 

(ii) Placer County APCD. 
44 

(iii) Sacramento Metropolitan AQMD. 

(2) Except for a major stationary source that is subject to new 

source review under the applicable SIP for the area, no owner or 

operator shall commence construction of a new stationary source 

that emits or has the potential to emit 50 tons per year or more 

of nitrogen oxides, without first obtaining approval from the 

Administrator. 

(3) Except for a major modification that is subject to new 

source review under the applicable SIP for the area, no owner or 

operator shall commence construction of a modification to an 

existing stationary source that results in a net emissions 

increase of 25 tons per year or more of nitrogen oxides, without 

first obtaining approval from the Administrator. 

(4) For any major stationary source or major modification 

subject to this paragraph in accordance with the emission 

thresholds identified in paragraphs (h)(2) and (3) of this 

section, the Administrator shall approve the construction of 

such source or modification if the owner or operator 

demonstrates that construction of such source or modification 

satisfies the requirements of Sacramento Metropolitan AQMD Rule 

202, as approved on June 19, 1985 (50 FR 25417). 

* * * * * 
45 

3. Section 52.270 is amended by adding paragraphs (b)(2)(iv), 

(b)(3)(iv), and (b)(4)(iv) to read as follows: 

§ 52.270 Significant deterioration of air quality. 

* * * * * 

(b) * * * 

(2) * * * 

(iv) Those projects which are major stationary sources or major 

modifications for nitrogen oxides as precursors to ozone under § 

52.21. 

(3) * * * 

(iv) Those projects which are major stationary sources or major 

modifications for nitrogen oxides as precursors to ozone under § 

52.21. 

(4) * * * 

(iv) Those projects which are major stationary sources or major 

modifications for nitrogen oxides as precursors to ozone under § 

52.21.