United States Environmental Protection Agency

Region IX Air Division

Technical Support Document

for

EPA's Notice of Proposed Rulemaking

for Revisions to the 

California State Implementation Plan

Ventura County Air Pollution Control District

Proposed Removal of Rule 26.10 – New Source Review – Prevention of Significant 

Deterioration

Proposed Approval of Rule 26.13 – New Source Review – Prevention of Significant 

Deterioration (PSD)

Prepared by: Ya-Ting (Sheila) Tsai

Reviewed by 

Gerardo Rios

September, 2016
I. INTRODUCTION

This technical support document (TSD) addresses a proposed action by the Environmental 

Protection Agency (EPA) on California’s Clean Air Act (CAA or Act) State Implementation 

Plan (SIP) for the Ventura County Air Pollution Control District (VCAPCD or District). This 

action concerns certain preconstruction permitting requirements, also called “New Source 

Review” or “NSR”, in title I of the Act and the implementing regulations at title 40 of the Code 

of Federal Regulations (CFR) part 51, subpart I. Specifically, this TSD will address those NSR 

requirements found in part C of title I of the Act, and the implementing regulations at 40 CFR 

51.166, governing the requirement for SIPs to establish preconstruction permitting programs for 

the prevention of significant deterioration of air quality (PSD) in areas designated as 

“attainment” or “unclassifiable” for the national ambient air quality standards (NAAQS). The 

PSD program requirements under part C apply to “major stationary sources” and “major 

modifications”, as those terms are defined in 40 CFR part 51, subpart I, at sources that would be 

located within areas designated as “attainment” or “unclassifiable”. The PSD requirements apply 

to all “regulated NSR pollutants,” except those pollutants for which an area has been designated 

as “nonattainment.”1

II. SIP REVISION SUBMITTAL

The VCAPCD currently does not have a SIP-approved PSD preconstruction review and 

permitting program; the EPA currently implements the PSD program within the District pursuant 

to 40 CFR 52.21. The California Air Resources Board (CARB) submitted two rule actions from 

the VCAPCD to the EPA as a proposed revision to California’s SIP for the District. The CARB 

is the California governor’s designee for submitting official proposed revisions to the California 

SIP to the EPA for approval. The CARB and the District have requested to add VCAPCD Rule 

26.13 to the California SIP and to remove VCAPCD Rule 26.10 from the SIP. The EPA’s 

approval of District Rule 26.13 into the California SIP and its concurrent removal of Rule 26.10 

from the SIP would transfer authority and responsibility for implementation of the PSD program 

from the EPA to the VCAPCD for sources within the VCAPCD’s jurisdiction. Table 1 below 

provides relevant information concerning these two rule actions taken by the District.

Table 1 –Submitted Rule Actions

Rule # Rule Title Action Action Date Submitted 

Date

26.10 New Source Review – Prevention 

of Significant Deterioration Repealed 6/28/2011 8/23/2011

 

1 This action does not address part D of title I of the Act, and the implementing regulations at 40 CFR 51.165, which 

contain the requirements for areas designated “nonattainment” for a NAAQS. The requirements under part D and its 

implementing regulations, commonly referred to as “nonattainment NSR,” apply to nonattainment pollutants at 

major stationary sources and major modifications at sources located in nonattainment areas. The EPA has previously 

approved VCAPCD Rule 26 to satisfy these requirements (75 FR 1284 (January 11, 2010)). This action also does 

not address the CAA requirements governing the construction and modification of minor stationary sources and 

minor modifications at major sources, to assure that the NAAQS are achieved and/or maintained. These 

preconstruction program requirements are commonly referred to as “minor NSR” (see 40 CFR 51.160-51.164).
1

Rule # Rule Title Action Action Date Submitted 

Date

26.13 New Source Review – Prevention 

of Significant Deterioration (PSD) Revised 11/10/2015 3/11/2016

Completeness Determination

With respect to procedures, CAA sections 110(a) and 110(l) require that revisions to a SIP be 

adopted by the State after reasonable notice and public hearing. The 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, a public hearing on the proposed revisions, a public comment period of at least 

30 days, and an opportunity for a public hearing. Based on our review of the public process 

documentation included in the submittals listed in Table 1, we find that the VCAPCD has 

provided sufficient evidence of public notice and opportunity for comment and public hearings 

prior to adoption and submittal of these rule actions to the EPA. On the dates listed in Table 2, 

the EPA determined that the SIP submittals for the rule actions listed in Table 1 conformed to the 

completeness criteria in 40 CFR part 51, appendix V, and therefore were complete.

Table 2 – Completeness Dates for SIP Submittals

Rule # Rule Title Completeness 

Date

26.10 New Source Review – Prevention of 

Significant Deterioration

2/23/2012

26.13 New Source Review – Prevention of 

Significant Deterioration (PSD) 4/19/2016

Existing Rules

The EPA approved Rule 26.10, New Source Review – Prevention of Significant Deterioration

into the VCAPCD portion of the California SIP on December 7, 2000 (65 FR 76567). However, 

the EPA’s approval of this rule into the California SIP did not approve a PSD program for the 

VCAPCD. Rather, Rule 26.10 simply confirmed that the new major sources and major 

modifications as defined in 40 CFR 52.21(b) must comply with the applicable requirements for 

federal PSD permitting in 40 CFR 52.21, and provided that any such source must obtain separate 

permits from the District and the EPA.

On June 28, 2011, the VCAPCD adopted Rule 26.13, New Source Review – Prevention of 

Significant Deterioration (PSD) with the intent to assume PSD permitting responsibility for 

sources located in Ventura County upon the EPA’s SIP approval of the rule. On the same date, 

the VCAPCD repealed local PSD Rule 26.10 for purposes of State and local law. In a letter dated 

August 4, 2011, the VCAPCD submitted a request to the CARB that Rule 26.13 be added to the 

Ventura County portion of the SIP and that Rule 26.10 be removed from the SIP. On August 23, 

2011, the CARB submitted a proposed SIP revision to the EPA requesting the approval of Rule 

26.13 into the SIP and the removal of Rule 26.10 from the SIP. 
2

However, EPA staff subsequently determined that the version of Rule 26.13 adopted by the 

District on June 28, 2011 contained certain deficiencies and could benefit from clarifying 

changes, and notified the District about these deficiencies. To address these deficiencies, the 

VCAPCD adopted revisions to Rule 26.13 on November 10, 2015, and the CARB submitted the 

revised version of this rule to the EPA for SIP approval on March 11, 2016. Accordingly, the 

EPA’s proposed action addresses the current version of Rule 26.13, as revised on November 10, 

2015 and submitted to the EPA on March 11, 2016. If the EPA approves Rule 26.13, the EPA 

will add revised Rule 26.13 to the SIP and Rule 26.10 will be removed from the SIP.

III. BACKGROUND

CAA sections 110(a)(2)(C) and 165 establish the general statutory requirements for the PSD 

program. As noted above, 40 CFR 51.166 sets forth the EPA’s regulatory requirements for SIPapproved PSD programs. The PSD program requirements apply to any regulated NSR pollutant 

(as defined in 40 CFR 51.166), except for pollutants designated nonattainment for a NAAQS. 

The CAA defines “nonattainment areas” as air quality planning areas that exceed the primary or 

secondary NAAQS for a given criteria pollutant (or that contribute to ambient air quality in a 

nearby area that does not meet the NAAQS). In some instances the emission increases of a 

particular pollutant may be subject to both the PSD program and the nonattainment NSR 

program. For example, nitrogen oxides (NOx) from a major stationary source in an area 

designated as attainment for the nitrogen dioxide (NO2) NAAQS and nonattainment for the 

ozone NAAQS could be subject to both permitting programs because, in such cases, NOx would 

be a PSD pollutant as well as a precursor to ozone, a nonattainment pollutant.

The applicability of PSD program requirements to a particular source must be determined in 

advance of construction or modification of the source and is pollutant-specific. The primary 

criterion for PSD program applicability is whether the proposed project is sufficiently large (in 

terms of its emissions) to be a major stationary source or major modification, terms which are 

defined as described below. 

Section 169 of the CAA specifies the emissions threshold, depending on source category, that is 

used to determine whether a source is a “major emitting facility” and subject to PSD program 

review. For PSD purposes, a “major stationary source” is any source belonging to a specified list 

of 28 source categories2 that emits or has the potential to emit (PTE) 100 tons per year (tpy) or 

more of any air pollutant subject to regulation under the CAA, or belonging to any other source 

category that emits or has the PTE for such pollutants in amounts equal to or greater than 250 

tpy. A new source with a PTE at or above the applicable “major stationary source threshold” is 

also subject to the PSD permitting program for any other regulated NSR pollutant emitted in 

“significant” amounts. When the EPA has not set a significance level for a pollutant, the PSD 

program applies to an increase of the regulated pollutant in any amount (that is, in effect, the 

significance level is treated as zero).

The PSD permitting program review also applies to existing major stationary sources that 

undertake a “major modification,” which occurs when: (1) there is a physical change, or change 

 

2 See 40 CFR 51.166(b)(1)(i) for the 28-source category list.
3

in the method of operation, at a “major stationary source;” (2) the change results in a 

“significant” emissions increase of a pollutant subject to PSD regulation (at or above the 

significance level that the EPA has set for the pollutant); and (3) there is a “significant net 

emissions increase” of a pollutant subject to PSD regulation that is at or above the significance 

level (as defined in 40 CFR 51.166(b)(23)). 

The PSD permitting program also applies to certain greenhouse gas (GHG) emissions sources 

when the emissions are “subject to regulation,” as defined in 40 CFR 51.166(b)(48).

Sources subject to PSD permit program review must demonstrate compliance with a number of 

approval criteria to qualify for a PSD pre-construction permit. The most significant of these 

requirements are the application of the best available control technology (BACT) to the source 

and the requirement that the source demonstrate that it will not cause or contribute to a violation 

of the NAAQS or applicable PSD increments.

IV. RULE REVISION SUMMARIES

Request for Removal of VCAPCD Rule 26.10, New Source Review – Prevention of Significant 

Deterioration

As noted above, the EPA’s prior approval of VCAPCD Rule 26.10 into the California SIP did 

not approve a PSD program for the VCAPCD into the SIP. Rule 26.10 simply confirms that new 

major sources and major modifications as defined in 40 CFR 52.21(b) must comply with the 

applicable requirements for federal PSD permitting program in 40 CFR 52.21, and provides that 

any such source must obtain separate permits from the District and the EPA. Because the EPA 

would no longer be the permitting authority within Ventura County as referenced in Rule 26.10 

once the EPA approves VCAPCD’s Rule 26.13 into the SIP, the District and the CARB have 

requested the removal of Rule 26.10, which has already been repealed for purposes of State and 

local law, from the SIP. 

Request for Approval of VCAPCD Rule 26.13, New Source Review – Prevention of Significant 

Deterioration (PSD)

Rule 26.13, as revised on November 10, 2015 and submitted to the EPA by the CARB on March 

11, 2016, applies to major sources and major modifications emitting pollutants designated as 

attainment or unclassifiable within the VCAPCD, as well as other regulated NSR pollutants. 

Consistent with the requirements for a PSD program, Rule 26.13 does not apply to nonattainment 

pollutants. Currently, the District is classified as either attainment or unclassifiable for the 

NAAQS for particulate matter 10 micrometers or less in diameter (PM10), particulate matter 2.5 

micrometers or less in diameter (PM2.5), NO2, sulfur dioxide (SO2), carbon monoxide (CO), and 

lead, and nonattainment for the ozone NAAQS (including NOx and volatile organic compounds 

(VOC) as ozone precursors). 

Rule 26.13 essentially incorporates by reference the federal PSD program as codified in 40 CFR 

52.21, which is the Federal Implementation Plan (FIP) used by the EPA to implement the 

required PSD program in areas that do not have a SIP-approved PSD program. VCAPCD Rule 
4

26.13 is composed of five sections: 

A. Purpose 

B. Applicability

C. Incorporation by Reference

D. Requirements

E. Public Participation

Section A indicates that the intent of the rule is to adopt the PSD program by incorporating the 

federal PSD program by reference. Section B contains an applicability provision that establishes 

that the rule is applicable to any source (and source owner and operator) subject to any 

requirement in 40 CFR 52.21 as incorporated into Rule 26.13. With some minor revisions and 

exceptions, Section C incorporates by reference the provisions of 40 CFR 52.21 as in effect on 

September 1, 2015. Section D lists certain requirements necessary to administer the PSD 

program. And, Section E includes public notice and comment procedures for issuing PSD 

permits.

V. EPA EVALUATION OF DISTRICT RULE 26.13

We reviewed Rule 26.13,: New Source Review – Prevention of Significant Deterioration (PSD), 

as revised on November 10, 2015 and submitted to the EPA by the CARB on March 11, 2016, to 

ensure that it meets the requirements of title I of the Act, specifically part C (sections 160 

through 169B), and current implementing regulations at 40 CFR 51.166. The EPA has condensed 

a discussion of the approval criteria contained in these regulations in this TSD, which describes 

the basis for our proposed action on the rule submittals.3

The Act requires all states to submit a PSD permit program consistent with the requirements of 

40 CFR 51.166. The EPA’s more detailed evaluation of VCAPCD Rule 26.13 and how it meets

the requirements for the PSD program is included in the attached document, Evaluation of CA 

PSD Rules and VCAPCD PSD Rule (see Attachment 1). In general, VCAPCD Rule 26.13 meets

the requirements of 40 CFR 51.166 by incorporating by reference the specific provisions of 40 

CFR 52.21 that are necessary to implement a state PSD program. As mentioned above, 40 CFR 

52.21 contains the requirements of the FIP used by the EPA to implement the required PSD 

program in areas that do not have a SIP-approved PSD program. The EPA considers the 

provisions of 40 CFR 52.21 to generally be consistent with the requirements of 40 CFR 51.166. 

Therefore, only those provisions of these rules that warrant additional review are discussed 

below.

 

3 As discussed above, the VCAPCD has repealed District Rule 26.10 for purposes of State and local law, and the 

VCAPCD and the CARB have requested that the EPA remove this rule from the SIP. As part of this action, the EPA 

is proposing to remove VCAPCD Rule 26.10 from the SIP upon our approval of VCAPCD Rule 26.13 into the SIP. 

Rule 26.10 merely reiterates the applicability of the requirements of 40 CFR 52.21 to major sources and major 

modifications in attainment areas within the District in the absence of a SIP-approved PSD program for the District. 

With the EPA’s approval of the District’s Rule 26.13 into the SIP, the requirements of the PSD FIP at 40 CFR 52.21 

would no longer be applicable. Thus, the removal of Rule 26.10 from the SIP would be appropriate at that time. 
5

V.1 Exclusions

VCAPCD Rule 26.13 excludes the following paragraphs from its incorporation by reference of 

40 CFR 52.21: 

• (a)(1) – Plan disapproval

• (b)(55-58) and (cc) – equipment replacement program (ERP) provisions which were 

vacated by the United States Circuit Court of Appeals for the District of Columbia on 

March 17, 2006

• (g) – Redesignation

• (i)(1)(i-v, ix-x) and (i)(6-8) – Exemptions

• (p)(6-8) – Class I variances by the Governor

• (q) – Public participation

• (s) – Environmental impact statements

• (t) – Disputed permits or redesignations

• (u) – Delegation of authority

• (v) – Innovative control technology

• (w) – Permit rescission

• (f), (x), (y), and (z) – “[Reserved]” 

The EPA has reviewed these exclusions and concurs that these excluded paragraphs are not 

necessary to implement a state PSD program. We note, however, that 40 CFR 51.166(q)

specifies public participation requirements for SIP-approved PSD permitting programs that are 

similar to the public participation requirements for the federal PSD program found at 40 CFR 

52.21(q). To address the requirements in 40 CFR 51.166(q), VCAPCD Rule 26.13 specifies 

certain public participation requirements applicable to the District’s PSD permit program. The 

public participation requirements for SIP-approved PSD permitting programs are further 

discussed in Section V.4 of this TSD.

V.2 Revised Terms and Definitions

1) Administrator

The VCAPCD revises the term “administrator” incorporated by reference from 40 CFR 52.21, as 

follows:

• the term “administrator” is defined to mean “USEPA administrator” in 40 CFR 

52.21(b)(17), (b)(37)(i), (b)(43), (b)(48)(ii)(c), (b)(50)(i), (b)(51), (l)(2), and (p)(2),

and otherwise the term “administrator” is defined to mean “Air Pollution Control 

Officer”, as defined in other District rules.

Because 40 CFR 52.21 was written to provide a framework for the EPA to administer the PSD 

program in areas that do not have a SIP-approved PSD program, the term “Administrator” as 

used in section 52.21 refers to the EPA Administrator. Upon the EPA’s approval of Rule 26.13, 

the District will be administering the PSD program, but certain authorities are retained for the 

EPA Administrator, per 40 CFR 51.166. Therefore, the District revisions described above are 
6

intended to differentiate between those provisions that will apply to the District as the entity that 

will administer the PSD program and those that will continue to refer to the EPA. We find these 

revisions acceptable.

2) References to 40 CFR 52.21(q)

As noted above, Rule 26.13 excludes from its incorporation by reference 40 CFR 52.21(q), the 

public participation provision that applies when the EPA is the PSD permitting authority. 40 

CFR 52.21(q), in turn, directs the EPA to follow the applicable procedures of 40 CFR part 124 

when the EPA processes PSD permit applications. In place of the federal public participation 

procedures applicable to the EPA under 40 CR 52.21(q) and 40 CFR part 124, Rule 26.13 

specifies public participation procedures applicable to the District’s PSD program. However, the 

VCAPCD’s rules incorporate by reference paragraphs (l)(2) and (p)(1) of 40 CFR 52.21 and

cross-reference 40 CFR 52.21(q). Accordingly, the District PSD rule changes the crossreferences in the incorporated 52.21 provisions from “paragraph (q) of this section” to “the 

public notice and comment provisions of Rule 26.13 Section E.” We find these revisions 

acceptable.

V.3 Additional Requirements

Within the “Requirements” section of Rule 26.13 Section D, the District has included additional 

rule provisions, beyond the language incorporated from 40 CFR 52.21, that the District finds

necessary and appropriate to include in its PSD program. These provisions include: 

• PSD permits are required pursuant to Rule 26.13 prior to beginning actual 

construction of a new major stationary source, a major modification, or a plant wide 

applicability limitation (PAL) major modification, as defined in 40 CFR 52.21(b); 

• The air pollution control officer (APCO) shall require compliance with Rule 26.13

prior to issuing a PSD permit;

• Applicants are required to pay the applicable fees specified;

• The APCO is required to provide written notice of any permit application for a 

proposed major stationary source or major modification to the USEPA administrator 

under the required timeline;

• The APCO is required to determine whether an application is complete and provide 

notification under the required timeline;

• Greenhouse gas emissions are not subject to the requirements of subsections (k) or 

(m) of 40 CFR 52.21; and

• Except for power plants licensed by the California Energy Commission and upon the 

District’s discretion, the PSD requirements of Rule 26.13 shall be incorporated into 
7

and made enforceable through Authority to Construct permits and Permits to Operate 

according to the VCAPCD’s permitting requirements.

The EPA has reviewed these requirements and determined they are consistent with the 

requirements of 40 CFR 51.166.

In addition, the District has not excluded from its incorporation by reference of 40 CFR 52.21 

certain provisions that are not required by or directly analogous to provisions in 40 CFR 51.166. 

These provisions include:

• A definition of Reasonably available control technology (RACT) as defined in 40 

CFR 51.100(o) (language incorporated from 40 CFR 52.21(b)(54);

• Provisions concerning the expiration of approval to construct under certain 

circumstances, including where construction has not commenced within 18 months 

after receipt of PSD approval, unless an extension of time is granted (language 

incorporated from 40 CFR 52.21(r)(2))

• Provisions concerning air quality monitoring data for an air quality analysis for any 

PSD permit application that became complete (except as to certain requirements) 

between June 8, 1981 and February 9,1982 or between December 1, 1988 and August 

1, 1989 (language incorporated from 40 CFR 52.21(m)(1)(v) and (vii); and

• A provision relating to air quality monitoring of PM10 under paragraphs (i)(11)(i) and 

(ii) of 40 CFR 52.21 (language incorporated from 40 CFR 52.21(m)(1)(viii)).

We find the inclusion of these provisions in the District’s PSD program to be acceptable. We 

note that with respect to the final District rule provision discussed above, the federal rule at 40 

CFR 52.21(m)(1)(viii) appears to be obsolete, so neither 40 CFR 52.21(m)(1)(viii) nor the 

District’s provision incorporating this provision by reference would have any legal effect at this 

time.

V.4 Public Participation

The EPA’s Evaluation provides an analysis showing that Rule 26.13 meets the requirements of 

40 CFR 51.166(q) for public participation. Rule 26.13 requires the District to meet certain public 

participation requirements prior to issuing a PSD permit. These requirements are generally 

consistent with the public participation requirements listed in 40 CFR 51.166(q). Only those 

requirements that warrant additional discussion are described below.

1) Notifying applicants of application completeness

40 CFR 51.166(q)(1) provides: The reviewing authority shall notify all applicants within a 

specified time period as to the completeness of the application or any deficiency in the 

application or information submitted. In the event of such a deficiency, the date of receipt of the 

application shall be the date on which the reviewing authority received all required information. 
8

The provisions of Section D.5 of Rule 26.13 meet this requirement.

2) Final action within one year of a complete application

40 CFR 51.166(q)(2) requires that the reviewing authority make a final determination whether 

construction should be approved, approved with conditions, or disapproved within one year after 

receipt of a complete application. 

The provisions of Section E of Rule 26.13 meet this requirement.

3) Notifying the public of the opportunity for a public hearing

40 CFR 51.166(q)(2)(iii) requires that the public notification for a preliminary determination 

include notice of the opportunity for comment at a public hearing. 40 CFR 51.166(q)(2)(v) 

requires an opportunity for a public hearing. 

The provisions of Sections E.3 and E.5 of Rule 26.13 meet these requirements.

V.5 Notice to the EPA – 40 CFR 51.166(p)(1)

40 CFR 51.166(p)(1) requires the reviewing authority to provide the EPA with a copy of each 

PSD permit application and to provide notice to the EPA of every action related to the 

consideration of a PSD permit. 

The provisions of Section D.4 of Rule 26.13 meet this requirement.

V.6 Biomass Deferral Rule

On July 20, 2011, the EPA finalized a rulemaking entitled “Deferral for CO2 Emissions From 

Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) 

and Title V Programs (Biomass Deferral Rule)”. See 76 FR 43490. This rule excluded biogenic 

CO2 emissions4 until July 21, 2014 from the determination of CO2 emissions for bioenergy and 

other biogenic stationary sources under the PSD and title V programs’ definition of “subject to 

regulation” in 40 CFR 52.21(b)(49) and 40 CFR 70.2, respectively. The rule also allowed States 

the option to adopt the Biomass Deferral Rule into their SIPs and proceed accordingly. The 

Biomass Deferral Rule was effective on the same date that it was published, July 20, 2011. 

VCAPCD Rule 26.13 adopted the Biomass Deferral Rule exclusion by incorporating by 

reference the language in 40 CFR 52.21(b)(49)(ii)(a).

 

4 Emissions of CO2 from a stationary source directly resulting from the combustion or decomposition of 

biologically-based materials other than fossil fuels and mineral sources of carbon (e.g., calcium carbonate) and 

biologically-based material (nonfossilized and biodegradable organic material originating from plants, animals or 

micro-organisms [including products, by-products, residues and waste from agriculture, forestry and related 

industries as well as the nonfossilized and biodegradable organic fractions of industrial and municipal wastes, 

including gases and liquids recovered from the decomposition of non-fossilized and biodegradable organic 

material]).
9

On July 12, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit 

Court) in Center for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013), vacated the 

EPA’s Biomass Deferral Rule. On November 13, 2013, however, the D.C. Circuit Court granted 

a motion to extend the deadline for rehearing petitions concerning its decision until 30 days after 

the United States Supreme Court’s (Supreme Court) decision in Utility Air Regulatory Group v. 

EPA, No. 12-1146, et al. After the Supreme Court issued that decision in June 2014, the D.C. 

Circuit Court further extended the deadline for rehearing petitions on the Biomass Deferral Rule 

decision until after further proceedings in Coalition for Responsible Regulation v. EPA, No. 09-

1322, as the decision in the Coalition for Responsible Regulation case was partially reversed by 

the Supreme Court in its Utility Air Regulatory Group v. EPA decision. Those proceedings ended 

on April 10, 2015 when the D.C. Circuit Court issued an amended judgment. Coalition for 

Responsible Regulation, Inc. v. EPA, No. 09-1322, (D.C. Cir. April 10, 2015) (Amended 

Judgment). Subsequently, on May 11, 2015, intervenors in the Center for Biological Diversity v. 

EPA case filed petitions for rehearing. The D.C. Circuit denied the intervenors’ petition for panel 

rehearing on July 24, 2015, and the Court’s mandate issued on August 10, 2015. Accordingly, it 

would be inconsistent with the decision of the Court for a permit-issuing authority to rely on the 

Biomass Deferral Rule. 

The fact that District Rule 26.13 incorporates by reference the Biomass Deferral Rule that was 

vacated by the Court could potentially raise concerns about the EPA’s approval of this rule. 

However, the exclusion in the Biomass Deferral Rule expired by its own terms on July 21, 2014. 

As the District rule in question incorporates the language in 40 CFR 52.21(b)(49)(ii)(a), the 

District rule likewise incorporates the July 21, 2014 expiration date. Because the biomass 

exclusion in District Rule 26.13 does not apply after this date, our proposed approval of this rule 

into the SIP after the expiration of the Biomass Deferral Rule on July 21, 2014 is not inconsistent 

with the Court’s opinion concerning the Biomass Deferral Rule. 

VI. PROGRAM TRANSFER AND IMPLEMENTATION ISSUES

The VCAPCD provided information regarding its authority, personnel, and funding to carry out 

the PSD program pursuant to CAA section 110(a)(2)(E)(i), and the District’s request to 

implement the PSD program with respect to existing PSD permits issued by the EPA.5

The VCAPCD has confirmed that, as part of, and concurrent with, the EPA’s approval of its PSD 

program into the SIP, the District is requesting approval to exercise its authority to administer the 

PSD program with respect to the existing sources located in the District that have an existing 

PSD permit issued by the EPA. This would include authority to conduct general administration 

of these existing permits, authority to process and issue any and all subsequent PSD permit 

actions relating to these permits including, for example, modifications, amendments, or revisions 

of any nature, and authority to enforce such permits. 

Consistent with section 110(a)(2)(E)(i) of the Act, the District’s SIP submittal and clarification 

letter dated August 10, 2016 shows that the VCAPCD has the authority under State statute and 

 

5 See letter dated August 10, 2016 from the VCAPCD.
10

rule to administer the PSD permit program, including but not limited to the authority to 

administer, process and issue any and all permit decisions, and enforce PSD permit requirements 

within the District. This applies to PSD permits that the VCAPCD will issue and to existing PSD 

permits issued by the EPA that are to be transferred to the District upon the effective date of the 

EPA’s approval of Rule 26.13 into the SIP.

The EPA intends to provide a copy of the existing permits to the VCAPCD prior to the effective 

date of final SIP approval of Rule 26.13. Upon approval of the VCAPCD’s PSD SIP submittal, 

the EPA would assume an oversight role of the District’s PSD permitting programs, as intended 

by the Act.

We have also determined that the District has adequate personnel and funding to implement the 

PSD program.

VII. SECTIONS 110(a), 110(l), AND 193 OF THE ACT

CAA section 110(a) requires, among other things, that the requirements of SIP rules be 

enforceable. Sources subject to Rule 26.13 are required to meet emission limits and other 

measures for the prevention of significant deterioration of air quality, which meets the 

enforceability requirement in section 110(a).

We have also evaluated Rule 26.13 to determine whether its approval into the SIP along with the 

concurrent removal of Rule 26.10 from the SIP would interfere with any applicable requirement 

concerning attainment and reasonable further progress (RFP) or any other applicable requirement 

of the Act (CAA section 110(l)) or whether it would modify, in a nonattainment area, any SIPapproved control requirement in effect before November 15, 1990 (CAA section 193).

We find that our approval of this SIP submittal would comply with CAA section 110(l), because 

the SIP, as revised to incorporate Rule 26.13, would provide for RFP and attainment of the 

NAAQS, and the requirements of Rule 26.13 are essentially equivalent to, and at least as 

stringent as, those of the FIP codified in 40 CFR Part 52.21 and used to date by the EPA to 

implement the required PSD program within the District. As described elsewhere in this 

document, approval of Rule 26.13 would merely result in the transfer of authority for the PSD 

program from the EPA to the VCAPCD, and therefore would not result in any substantive 

changes to the PSD program requirements, other CAA requirements, or air quality.

Further, section 193 of the CAA does not apply because incorporation of the PSD program 

requirements in Rule 26.13 into the SIP would not address nonattainment pollutants.

VIII. RECOMMENDATIONS

Pursuant to section 110(k)(3) of the Act, we recommend full approval into the SIP of VCAPCD 

Rule 26.13: New Source Review – Prevention of Significant Deterioration (PSD). We 

recommend approval based on our determination that the submittal complies with the applicable 

statutory and regulatory provisions requiring regulation of major stationary sources, in particular, 

the requirements of part C of title I of the Act and the implementing regulations for SIP-
11

approved PSD programs at 40 CFR 51.166. We also recommend removal of VCAPCD Rule 

26.10 from the SIP for the reasons explained above. If we finalize this action as proposed, our 

action would be codified through revisions to 40 CFR 52.220 – Identification of plan and 40 

CFR 52.270 – Significant deterioration of air quality. 

IX. ATTACHMENTS

Attachment 1 – Evaluation of CA PSD Rules and VCAPCD PSD Rule, EPA Region 9, August 

2016

Attachment 2 – VCAPCD Rule 26.13, revised Nov. 11, 2015 submitted by the CARB on March 

11, 2016

Attachment 3 –VCAPCD Staff Report on Rule 26.13, Oct. 2015

Attachment 4 –VCAPCD Clarification letter dated August 10, 2016