46504 Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 

1The San Joaquin Valley includes all of San 

Joaquin, Stanislaus, Merced, Madera, Fresno, Kings 

and Tulare counties, and the western half of Kern 

County, in the State of California. The San Joaquin 

Valley is designated as a nonattainment area for the 

1997 and 2008 8-hour ozone national ambient air 

quality standards (NAAQS) and the 1997 (annual) 

and 2006 (24-hour) fine particulate matter (PM2.5) 

NAAQS and is designated as attainment or 

unclassifiable for the other NAAQS. See 40 CFR 

81.305. The area is further classified as ‘‘extreme’’ 

for the now-revoked 1-hour ozone NAAQS, and the 

1997 and 2008 8-hour ozone NAAQS. 

reimbursement payment was not treated as 

compensation and wages paid to Y, under 

section 274(e)(3)(A) and paragraph 

(f)(2)(iv)(C)(1) of this section Y is not subject 

to the section 274 deduction limitations. 

Under paragraph (f)(2)(iv)(C)(2) of this 

section, C, the payor, is subject to the section 

274 deduction limitations. 

Example 3. (i) The facts are the same as in 

Example 1, except that the written agreement 

between L and C expressly provides that the 

limitations of this section will apply to C. 

(ii) Under paragraph (f)(2)(iv)(D)(2)(b) of 

this section, L and C have established a 

reimbursement or other expense allowance 

arrangement for purposes of paragraph 

(f)(2)(iv)(C) of this section. Because the 

agreement provides that the 274 deduction 

limitations apply to C, under section 

274(e)(3)(B) and paragraph (f)(2)(iv)(C) of this 

section, C and not L is subject to the section 

274 deduction limitations. 

Example 4. (i) The facts are the same as in 

Example 1, except that the agreement 

between L and C does not provide that C will 

reimburse L for travel expenses. 

(ii) The arrangement between L and C is 

not a reimbursement or other expense 

allowance arrangement within the meaning 

of section 274(e)(3)(B) and paragraph 

(f)(2)(iv)(D)(2) of this section. Therefore, even 

though L accounts to C for the expenses, L 

is subject to the section 274 deduction 

limitations. 

(F) Effective/applicability date. This 

paragraph (f)(2)(iv) applies to expenses 

paid or incurred in taxable years 

beginning after August 1, 2013. 

* * * * * 

■ Par. 3. Section 1.274–8 is revised to 

read as follows: 

§ 1.274–8 Effective/applicability date. 

Except as provided in §§ 1.274–2(a), 

1.274–2(e), 1.274–2(f)(2)(iv)(F), and 

1.274–5, §§ 1.274–1 through 1.274–7 

apply to taxable years ending after 

December 31, 1962. 

Beth Tucker, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: June 25, 2013. 

Mark J. Mazur, 

Assistant Secretary of the Treasury (Tax 

Policy). 

[FR Doc. 2013–18559 Filed 7–31–13; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2010–0062; FRL–9837–5] 

Approval and Promulgation of 

Implementation Plans, State of 

California, San Joaquin Valley Unified 

Air Pollution Control District, New 

Source Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

correct the May 2004 approval of a 

version of the New Source Review 

(NSR) rules for the San Joaquin Valley 

Unified Air Pollution Control District 

portion of the California State 

Implementation Plan, consistent with 

the relevant provisions of state law. 

Specifically, EPA is taking final action 

to correct the May 2004 approval by 

limiting the approval, as it relates to 

agricultural sources, to apply the 

permitting requirements only to such 

sources with potential emissions at or 

above a major source applicability 

threshold and to such sources with 

actual emissions at or above 50 percent 

of a major source applicability threshold 

and to apply the emission offset 

requirement only to major agricultural 

sources and major modifications of such 

sources. 

DATES: This rule is effective on 

September 3, 2013. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2010–0062 for 

this action. The index to the docket 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 in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Laura Yannayon, Permits Office (AIR– 

3), U.S. Environmental Protection 

Agency, Region IX, (415) 972–3534, 

yannayon.laura@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background for Today’s Final Action 

A. Actions Proposed in January 29, 2010 

Proposed Rule 

B. Background, Authority and Rationale for 

Proposed Error Correction 

C. Letters from the California Attorney 

General’s Office 

II. Public Comments and EPA’s Responses 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background for Today’s Final Action 

A. Actions Proposed in January 29, 2010 

Proposed Rule 

On January 29, 2010 (75 FR 4745), 

under the Clean Air Act (CAA or ‘‘Act’’), 

we proposed three actions in connection 

with the permitting rules for the San 

Joaquin Valley Unified Air Pollution 

Control District (‘‘District’’) portion of 

the California State Implementation 

Plan (SIP).1 Herein, we refer to our 

January 29, 2010 proposed rule as the 

‘‘proposed rule.’’ As discussed further 

below, we have already finalized the 

second and third actions included in 

our proposed rule, and are taking action 

today to finalize the first action. 

First, in our proposed rule, we 

proposed to correct an error in our May 

2004 final rule approving Rules 2020 

(‘‘Exemptions’’) and 2201 (‘‘New and 

Modified Stationary Source Review 

Rule’’), as amended by the District in 

December 2002, that establish the 

requirements and exemptions for review 

of new or modified stationary sources 

(‘‘new source review’’ or ‘‘NSR’’). 

Herein, we refer to District Rules 2020 

and 2201 as the ‘‘District’s NSR rules.’’ 

In our proposed rule, we explained how 

our error arose from the failure, in light 

of information available at the time, to 

recognize that the District did not have 

the authority under state law to 

implement the District’s NSR rules with 

respect to permitting of minor 

agricultural sources with actual 

emissions less than 50% of the 

applicable ‘‘major source’’ thresholds 

and with respect to the imposition of 

emissions offset requirements for minor 

agricultural sources. 

In addition to the error correction 

described above, our January 2010 

proposed rule also proposed two other 

actions: (a) a limited approval and 

limited disapproval of the District’s NSR 

rules, as further amended in 2007 and 

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Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 46505 

2As discussed in more detail in our proposed 

rule, the amendments to the NSR rules that were 

adopted by the District in 2007 and 2008, among 

other things, aligned the rules explicitly with the 

limitations on the District’s authority under state 

law to permit minor agricultural sources and to 

require emissions offsets for such sources. 75 FR 

4745, at 4749–4750 (January 29, 2010). Thus, as of 

the effective date of EPA approval of the 2007- and 

2008-amended District NSR rules at 75 FR 26102 

(May 11, 2010), the SIP and State law is aligned 

with respect to permitting of agricultural sources 

(and imposition of the emissions offset 

requirement) in San Joaquin Valley. Today’s final 

action thus affects the applicable California plan 

under 40 CFR part 52, subpart F during the period 

of time after the effective date of our May 2004 

approval of the 2002-amended District NSR rules 

(i.e., June 16, 2004) and the effective date of our 

May 2010 approval of the subsequently amended 

NSR rules (i.e., June 9, 2010). During this period, 

a number of CAA enforcement actions were brought 

against San Joaquin Valley agricultural sources for 

failure to secure permits and/or provide emissions 

offsets even though such requirements were beyond 

the authority of the District to impose under State 

law. For additional background on why EPA is 

taking today’s action, please see our January 29, 

2010 proposed rule at 75 FR 4745, at 4748. 

3Rules 2020 and 2201 were adopted by the 

District to meet NSR requirements under the Clean 

Air Act, as amended in 1990, for areas that have not 

attained the National Ambient Air Quality 

Standards (NAAQS). District Rules 2020 and 2201 

replaced existing NSR rules from the individual 

county air pollution control districts that were 

combined into the San Joaquin Valley Unified Air 

Pollution Control District (‘‘District’’) in 1991. 

4 District NSR permitting rules do not adopt the 

distinction between minor sources and major 

sources as set forth under the CAA. District Rules 

2020 and 2201 generally apply to both federal 

minor and major stationary sources. Our limited 

approval and limited disapproval specified that the 

rule deficiency was exempting major agricultural 

sources and major modifications. See 65 FR 58252, 

at 58254 (September 28, 2000). 

5Specifically, under SB 700, minor agricultural 

sources with actual emissions below 50 percent of 

the major source threshold are exempt from 

permitting unless the District makes certain 

findings, while sources at or above 50 percent of the 

major source threshold are subject to permitting 

unless the District makes certain findings. See 

CH&SC section 42301.16(b) and (c). In addition, a 

district may not require an agricultural source to 

obtain emissions offsets for criteria pollutants for 

that source if emissions reductions from that source 

would not meet the criteria for real, permanent, 

quantifiable, and enforceable emission reductions. 

See CH&SC section 42301.18(c). 

6See Letter from Bill Lockyer, Attorney General, 

California Office of the Attorney General, to 

Marianne Horinko, Acting Administrator, EPA, 

dated November 3, 2003. 

2008 and a full approval of amended 

District Rule 2530 (‘‘Federally 

Enforceable Potential to Emit’’); and (b) 

rescission of certain obsolete permitting 

requirements from the District portion 

of the California SIP. 

On May 11, 2010 (75 FR 26102), we 

finalized the proposed action on the 

2007 and 2008 amendments to the 

District’s NSR rules,2 District Rule 2530, 

and the proposed rescission of obsolete 

permitting requirements, but we 

deferred final action on the proposed 

error correction pending receipt from 

the California Attorney General of an 

interpretation of the District’s legal 

authority with respect to agricultural 

sources under state law. 

B. Background, Authority, and 

Rationale for Proposed Error Correction 

In our proposed rule, we provided a 

detailed background discussion 

regarding the District’s NSR rules and 

related EPA SIP actions. See pages 

4746–4747 of our proposed rule. In the 

following paragraphs, we provide a 

summary of this information. For more 

details, please see our proposed rule. 

EPA originally approved the District’s 

NSR rules as part of the California SIP 

in 2001.3 See 66 FR 37587 (July 19, 

2001). EPA’s 2001 action was a limited 

approval and limited disapproval 

reflecting our conclusion that the rules 

could not be fully approved as meeting 

all applicable requirements because, 

among other reasons, District Rule 2020 

exempted all agricultural sources from 

District permitting requirements. 66 FR 

at 37590. At that time, District Rule 

2020, citing California Health & Safety 

Code (CH&SC) section 42310(e), 

included a permitting exclusion for 

‘‘any equipment used in agricultural 

operations in the growing of crops or the 

raising of fowl or animals,’’ except for 

certain orchard and citrus grove heaters 

in the southern portion of the District. 

Our limited disapproval stated that the 

District could not exempt major 

stationary sources or major 

modifications at existing major sources 

from NSR requirements and be found to 

meet applicable CAA requirements.4

To correct this deficiency, in 

December 2002, the District amended 

their NSR rules to eliminate the 

agricultural permitting exemption in its 

entirety, and, later that same month, the 

California Air Resources Board (CARB) 

submitted the District’s amended NSR 

rules to EPA as a revision to the 

California SIP. Shortly thereafter, EPA 

proposed approval of the amended 

District NSR rules, see 68 FR 7330 

(February 13, 2003), even though we 

recognized that ‘‘California Health & 

Safety Code 42310(e) continues to 

preclude the District, as well as all other 

districts in California, from permitting 

agricultural sources under either title I 

or title V of the CAA.’’ See 68 FR 7330, 

at 7335. We did so in light of a proposed 

‘‘SIP Call’’ that we issued on the same 

day as we proposed approval of the 

amended District NSR rules. See 68 FR 

7327 (February 13, 2003). The SIP Call 

was based on our finding that the 

California SIP was substantially 

inadequate by failing to provide the 

necessary assurances under CAA 

section 110(a)(2)(E) that the State had 

the legal authority to carry out its NSR 

permitting obligations under the CAA 

with respect to major agricultural 

sources. EPA finalized the SIP Call in 

mid-2003, and thereby required 

California to submit the necessary 

assurances of authority to support an 

affirmative finding by EPA under CAA 

section 110(a)(2)(E). 68 FR 37746 (June 

25, 2003). 

Later in 2003, the California 

legislature enacted Senate Bill (SB) 700, 

which the Governor of California signed 

on September 22, 2003. SB 700 removed 

the wholesale exemption from 

permitting for agricultural sources 

provided under CH&SC section 42310(e) 

and subjected major agricultural sources 

to permit requirements. SB 700, 

however, retained a limited exemption 

for new source permitting at certain 

minor agricultural sources, and limited 

the ability of districts to require minor 

agricultural sources to obtain offsets.5

California notified EPA of the 

legislature’s action by letter dated 

November 3, 2003 and enclosed a copy 

of SB 700.6

On May 17, 2004, EPA took final 

action approving the District’s NSR 

rules, as amended by the District and 

submitted by CARB in 2002. See 69 FR 

27837 (May 17, 2004). These rules, as 

approved by EPA, did not on their face 

exempt any agricultural sources from 

permitting or limit the applicability of 

offset requirements. EPA’s final 

approval stated that the District had 

removed its exemption for agricultural 

sources and that the state had also 

‘‘removed a similar blanket exemption, 

thereby providing the District with 

authority to require air permits for 

agricultural sources, including federally 

required NSR permits.’’ See 69 FR 

27837, at 27838. EPA’s final approval 

cited SB 700 in a footnote, but did not 

note the limited scope of authority for 

permitting and offset requirements 

under SB 700, which allowed 

permitting of only certain minor 

agricultural sources and continued the 

exemption for other minor agricultural 

sources. 

In our proposed rule, under CAA 

section 110(k)(6), we found that (1) our 

May 2004 final full approval of District’s 

NSR rules was in error in that our 

approval of the rules should have 

ensured that the authority in those rules 

was consistent with the authority 

granted by SB 700 and that (2) the 

District did not, as of May 2004, have 

the authority under SB 700 to require 

permits for new or modified minor 

agricultural sources with actual 

emissions less than 50 percent of the 

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46506 Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 

7See letters from Jared Blumenfeld, Regional 

Administrator, EPA Region IX, to Mary D. Nichols, 

Chairwoman, California Air Resources Board, dated 

April 12, 2010 and April 26, 2012. 

8See letters dated November 14, 2012 and March 

18, 2013 from Robert W. Byrne, Senior Assistant 

Attorney General, to Jared Blumenfeld, Regional 

Administrator, EPA Region IX. 

9 In its March 1, 2010 comment letter, AIR also 

provided comments germane to a separate EPA 

rulemaking also proposed on January 29, 2010 

(‘‘Approval and Promulgation of Implementation 

Plans: State of California; Legal Authority,’’ and 

published at 75 FR 4742. We responded to AIR’s 

comments germane to that separate rulemaking in 

a final rule published at 75 FR 27938 (May 19, 

2010) and do not reopen those issues through 

today’s final action. 

major source threshold or to require 

new minor agricultural sources or minor 

modifications to agricultural sources to 

obtain emission reduction offsets, 

notwithstanding the absence of explicit 

exemptions in the District’s NSR rules. 

Moreover, we noted in our proposed 

rule that California submitted a copy of 

SB 700 in November 2003, and thus we 

had information indicating that the 

District did not have the authority to 

implement the NSR rules to the extent 

that the language of the District’s rule 

appeared to allow (i.e., to require 

permits and offsets from all new or 

modified agricultural sources, including 

those exempt under SB 700) prior to the 

time we took final action. In our 

proposed rule, we explained that we 

should have limited our approval of the 

District’s NSR rules in May 2004 to 

conform with SB 700, and promulgated 

language in 40 CFR part 52 codifying 

that limitation on our approval. 

To correct this error, we proposed to 

limit our approval of the District’s NSR 

rules to exclude applicability to 

agricultural sources exempt from new 

source permitting under SB 700 (i.e., 

minor sources with actual emissions 

less than 50 percent of the major source 

threshold). We also proposed to limit 

our approval to require offsets only for 

major agricultural sources, because at 

the time of our 2010 proposed action, 

we believed that the District had not 

found emissions reductions from 

agricultural sources to meet the criteria 

for real, permanent, quantifiable, and 

enforceable emissions reductions and 

thus had not lifted the restriction 

otherwise provided in SB 700 (and 

codified in CH&SC section 42301.18(c)) 

on the imposition of the emissions offset 

requirement on new minor agricultural 

sources or minor modifications of 

agricultural sources. 

For more information about our 

proposed determination of error and our 

proposed correction, please see pages 

4747–4748 of our proposed rule. 

C. Letters From the California Attorney 

General’s Office 

In response to our proposed rule, 

several comments were submitted that 

objected to our proposed error 

correction action and the interpretation 

of state law upon which it was based, 

and raised significant questions as to the 

extent of District authority with respect 

to agricultural sources under state law. 

Specifically, the commenters who 

objected to our proposed correction 

cited ‘‘savings’’ clauses in state law that 

they contend ratified the District’s NSR 

rules that contain no permitting or 

offsets exemptions for agricultural 

sources notwithstanding other 

provisions in state law that would 

otherwise limit District authority over 

those sources. 

To ensure our final action would be 

informed by the State’s interpretation of 

the relevant provisions of state law, we 

requested that CARB provide us with a 

legal interpretation from the California 

Attorney General of the extent of 

District authority with respect to 

agricultural sources under state law.7

More specifically, we requested that 

CARB provide us a legal interpretation 

from the California Attorney General of 

SB 700 as it applies to the District NSR 

rules adopted in December 2002 and 

approved by EPA in May 2004. By 

letters dated November 14, 2012 and 

March 18, 2013, the California Attorney 

General’s Office has now provided us 

the requested interpretation of state 

law.8

II. Public Comments and EPA’s 

Responses 

Our proposed rule (75 FR 4745) 

provided for a 30-day comment period. 

During that period, we received adverse 

comments from three groups: (1) 

Greenberg-Glusker law firm, on behalf 

of Dairy Cares, a coalition of California’s 

dairy producer and processor 

associations (referred to herein as 

‘‘Dairy Cares’’), by letter dated March 1, 

2010; (2) Earthjustice, by letter dated 

March 1, 2010; and (3) the Center on 

Race, Poverty & the Environment, on 

behalf of the Association of Irritated 

Residents and other community and 

environmental groups (referred to 

herein as ‘‘AIR’’), by letter dated March 

1, 2010. AIR joins in the comments from 

Earthjustice, but also adds comments of 

its own. 

All three comment letters cited above 

included comments on one or more 

aspects of our proposed rule (e.g., on 

our proposed limited approval and 

limited disapproval of the District’s NSR 

rules, as further amended in 2007 and 

2008) in addition to comments on the 

proposed error correction. With respect 

to the comments germane to the other 

aspects of our proposed rule, we 

provided responses in our final action 

published on May 11, 2010 (75 FR 

26102) and do not reopen those issues 

through today’s final action.9 Rather, in 

the following paragraphs, we summarize 

the significant comments that relate to 

the proposed error correction that we 

are taking final action on today, and 

provide our responses. 

Earthjustice Comment #1: EPA has 

incorrectly interpreted State law in 

proposing the error correction, and EPA 

should ask the State to provide the 

necessary assurances that the District 

has the authority under State law to 

permit all sources covered by Rule 2201. 

Response to Earthjustice Comment #1: 

EPA requested that the California 

Attorney General provide an 

interpretation of SB 700 as applied to 

the District’s NSR rules, as amended by 

the District in December 2002, and as 

noted above, the California Attorney 

General’s Office has responded to EPA’s 

request in the form of two letters, one 

dated November 14, 2012 and one dated 

March 18, 2013. EPA has taken the 

State’s interpretation into account in 

responding to comments on our 

proposed error correction and in taking 

today’s final action. 

Earthjustice Comment #2: The 

District’s authority to permit 

agricultural sources under the Clean Air 

Act is not limited to sources above 50 

percent of any applicable major source 

threshold. EPA reads CH&SC section 

42301.16(a) as only authorizing permits 

for major agricultural sources. Nothing 

in section 42301.16(a) refers to ‘‘major’’ 

sources or limits the CAA provisions 

referenced to ‘‘major source’’ 

requirements. To the contrary, the 

language refers to permits required for 

‘‘any’’ source and instead of referring 

only to part D of Title I, as EPA suggests, 

refers to all of Title I beginning with 

section 101 of the Act. EPA’s 

interpretation cannot be reconciled with 

the plain language of the CH&SC. 

Response to Earthjustice Comment #2: 

Earthjustice is correct that our proposed 

error correction is predicated in part on 

the interpretation that CH&SC section 

42301.16(a) refers to ‘‘major sources’’ as 

defined under the CAA, i.e., sources 

that emit or have the potential to emit 

at or above the major source threshold, 

notwithstanding the fact that an explicit 

reference to ‘‘major sources’’ is not 

found in CH&SC section 42301.16(a). 

See footnote #7 on page 4747 in the 

proposed rule. 

CH&SC section 42301.16(a) provides: 

‘‘In addition to complying with the 

requirements of this chapter, a permit 

system established by a district 

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10As noted in footnote #5 of this document, 

under CH&SC section 42301.16(b) and (c), minor 

agricultural sources with emissions below 50 

percent of the major source threshold are exempt 

from permitting unless the District makes certain 

findings, while sources at or above 50 percent of the 

major source threshold are subject to permitting 

unless the District makes certain findings. 

pursuant to Section 42300 shall ensure 

that any agricultural source that is 

required to obtain a permit pursuant to 

Title I . . . or Title V . . . of the federal 

Clean Air Act is required by district 

regulation to obtain a permit in a 

manner that is consistent with the 

federal requirements.’’ In proposing the 

error correction, we interpreted the 

reference to permits required under 

Title I as meaning permits for major 

sources covered under parts C or D of 

Title I, and not minor sources. This is 

because, under the relevant SIP content 

provisions under Title I [section 

110(a)(2)(C)], while SIPs must provide 

for the ‘‘regulation of the modification 

and construction of any stationary 

source,’’ i.e., including minor sources, 

the only explicit permitting requirement 

is for a ‘‘permit program as required in 

part C and D’’ of Title I. Thus, under 

Title I, a permit program is only 

explicitly required for sources covered 

under parts C and D, and the sources 

covered under parts C and D are major 

sources. 

Moreover, a State must identify the 

types and sizes of minor stationary 

sources which will be subject to review 

[see 40 CFR 51.160(e)]. As such, States 

are authorized to exempt certain minor 

stationary sources from such review. No 

such exemptions are allowed for review 

of new or modified major sources. Thus, 

permits for ‘‘major sources’’ can be 

considered to be ‘‘required’’ in a way 

that permits for minor sources are not. 

In addition, our interpretation of 

CH&SC section 42301.16(a) is consistent 

with the fact that the California 

legislature adopted SB 700 in part in an 

effort to avoid sanctions that were set in 

motion by EPA’s final determination 

that the California SIP was 

‘‘substantially inadequate’’ because 

State law did not provide the legal 

authority allowing State and local 

permitting agencies to meet the 

permitting obligations under parts C and 

D of title I with respect to major 

agricultural sources. Lastly, we note that 

our interpretation of CH&SC section 

42301.16(a) is consistent with 

California’s interpretation. See the 

memorandum from James N. Goldstene, 

Executive Director, CARB, to Air 

Pollution Control Officers, dated 

September 3, 2008; and the letter from 

Robert W. Byrne, Acting Senior 

Assistant Attorney General, to Jared 

Blumenfeld, dated November 14, 2012. 

For the reasons given above, therefore, 

we continue to interpret CH&SC section 

423016(a) as referring to major sources 

under Titles I and V of the CAA. 

Earthjustice Comment #3: Even if one 

were to accept EPA’s interpretation of 

CH&SC section 42301.16(a) as being 

limited to title I part D requirements, 

permitting of minor agricultural sources 

in the District would still be authorized 

because Rule 2201 relies on non-major 

source permitting to fulfill the 

requirements of part D. The District has 

chosen not to impose Part D 

requirements on major sources and has 

claimed instead (with EPA’s approval) 

that its permitting of non-major sources 

can be credited to show that in the 

aggregate Rule 2201 is ‘‘equivalent’’ to 

the program required under part D for 

major sources. By relying on credit from 

its permitting of non-major sources to 

meet federal NSR requirements, the 

District has eliminated any lines 

between what portion of Rule 2201 is 

meant to comply with major source 

permit requirements and what part is 

not derived from or in satisfaction of the 

part D major source provisions. The 

same is true for agricultural sources. It 

is only by permitting both major and 

minor sources that the District can claim 

to satisfy part D. Having allowed this 

demonstration of compliance with 

major source requirements ‘‘in the 

aggregate,’’ EPA cannot now claim that 

the permitting of certain non-major 

source is not authorized under Title I. 

Response to Earthjustice Comment #3: 

Earthjustice is correct that EPA has 

approved an equivalency tracking 

system that the District uses to assess 

overall equivalency of its NSR program 

with CAA nonattainment NSR (i.e., part 

D) requirements on an annual basis. 69 

FR 27837 (May 17, 2004). The 

requirements for the tracking system are 

set forth in District Rule 2201, section 

7.0 (‘‘Annual Offset Equivalency 

Demonstration and Pre-Baseline ERC 

Cap Tracking System’’). The goal of the 

tracking system is to show that, 

notwithstanding certain differences 

between the District and Federal NSR 

program, the District’s NSR rules would 

require offsets that are, in the aggregate, 

equivalent to offsets required under the 

Federal program. 68 FR 7330, at 7332 

(February 13, 2003). 

To make the equivalency 

demonstration, the District can use, 

among other sources of emissions 

reductions, emission reductions used to 

meet offset requirements imposed on 

minor sources. However, the fact that 

the District can rely, and has relied, on 

minor source offsets to demonstrate 

equivalency does not mean that permits 

for new or modified minor agricultural 

sources are required under part D of 

Title I and therefore subject to District 

permitting authority under CH&SC 

section 42301.16(a). The District has 

demonstrated equivalency each year 

since the tracking system was approved 

and has never relied on offsets from new 

minor agricultural sources or minor 

modifications of agricultural sources to 

do so. Thus, we disagree with 

Earthjustice’s contention that the 

District’s reliance on minor source (nonagricultural source) offsets to 

demonstrate equivalency of the 

District’s NSR program with Federal 

NSR requirements makes all minor 

source permits, including minor source 

permits for agricultural sources, 

required under part D of Title I and thus 

‘‘required’’ for the purposes of CH&SC 

section 42301.16(a). 

Earthjustice Comment #4: EPA’s 

interpretation of State law regarding 

District permitting authority over 

agricultural sources fails to reconcile 

and give meaning to CH&SC section 

39011.5. Under paragraphs (b) and (c) of 

CH&SC section 39011.5, the authority to 

permit any agricultural source under the 

terms of Rule 2201 as it was revised in 

December 2002 is expressly preserved 

and made applicable to agricultural 

sources. There is no dispute that, under 

the terms of Rule 2201, the District had 

jurisdiction over the permitting of all 

agricultural sources on January 1, 2003, 

and there is no dispute that Rule 2201 

was adopted and submitted for EPA 

approval to satisfy the requirements of 

the CAA. Nothing in the language of 

CH&SC section 39011.5(b) and (c) 

suggests that the permitting authority 

conferred by these preserved regulations 

is subject to the limitations in CH&SC 

section 42301.16(c) 10 or elsewhere. To 

the contrary, the CH&SC uses broad 

language making ‘‘any’’ existing district 

regulation applicable to agricultural 

sources and ensuring that ‘‘nothing’’ 

limits existing district authority. If the 

District truly lacked authority to 

regulate sources with actual emission 

less than 50 percent of a major source 

threshold, there would be no need for 

these sections preserving the authority 

of existing regulations. State law could 

have been silent and allowed the 

permitting of these sources only to the 

extent authorized by SB 700. The only 

way to reconcile these provisions is to 

limit the effect of CH&SC section 

42301.16(c) to future regulation (i.e., 

post enactment of SB 700) of these 

sources. 

Response to Earthjustice Comment #4: 

We disagree with the contention that, 

under the terms of Rule 2201, the 

District had jurisdiction over the 

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11See California Attorney General Office’s Letter, 

November 14, 2013, page 4. 

permitting of all agricultural sources on 

January 1, 2003. At that time, State law 

excluded all agricultural sources from 

District permitting authority. The 

absence of an exemption in Rule 2201 

as adopted by the District in December 

2002 did not imbue the District with 

authority otherwise denied under State 

law. In the following paragraphs, we 

explain how our interpretation of 

District permitting authority over 

agricultural sources can be reconciled 

with CH&SC section 39011.5. We also 

find further support for our view in the 

California Attorney General office’s 

interpretation of the relevant sections of 

SB 700. 

CH&SC section 39011.5(a) defines 

‘‘agricultural source of pollution’’ and 

‘‘agricultural source’’ for the purposes of 

Division 26 (‘‘Air Resources’’) of the 

CH&SC. As noted in our proposed rule 

(75 FR at 4752), California law defines 

‘‘agricultural source’’ as a source of air 

pollution or group of sources used in 

the production of crops or the raising of 

fowl or animals located on contiguous 

property under common ownership or 

control that is a confined animal facility 

(e.g., barn, corral, coop); is an internal 

combustion engine used in the 

production of crops or the raising of 

fowl or animals (e.g., irrigation pumps, 

but excluding nonroad vehicles such as 

tractors); or is a title V source or is a 

source that is otherwise subject to 

regulation by a district or the federal 

Clean Air Act. See CH&SC section 

39011.5(a). As such, agricultural sources 

include both combustion sources (such 

as, internal combustion engines and 

boilers) and non-combustion sources 

[e.g., confined animal facilities and onand off-field vehicular activity (e.g., 

tilling and harvesting)]. Among the noncombustion agricultural sources, some 

by their nature generate fugitive 

emissions such as tilling, harvesting, 

and vehicle travel over unpaved farm 

roads. 

CH&SC section 39011.5(b) provides 

that: ‘‘Any district rule or regulation 

affecting stationary sources on 

agricultural operations adopted on or 

before January 1, 2004, is applicable to 

an agricultural source.’’ In proposing the 

error correction, we were aware of 

CH&SC section 39011.5(b) but did not 

interpret that statutory provision as 

conferring authority to the District to 

require permits for all new or modified 

agricultural sources on January 1, 2004 

(i.e., the effective date of SB 700). 

Under our interpretation, the savings 

clause in CH&SC section 39011.5(b) 

preserves general prohibitory and 

permitting rules affecting agricultural 

sources and adopted prior to the 

effective date of SB 700 (i.e., January 1, 

2004) but does not authorize the 

application of District permitting 

requirements inconsistent with the 

limited exemptions set forth in other 

sections of SB 700 [specifically, CH&SC 

section 42301.16(c) and 42301.18(c)]. 

That is, CH&SC section 39011.5(b) 

simply preserves District rules affecting 

agricultural sources that were adopted 

prior to SB 700 and avoids the need to 

re-adopt such rules after the effective 

date of SB 700. Under this view, CH&SC 

section 39011.5(b) preserved the ability 

of the District to administer its NSR 

rules and apply them to agricultural 

sources consistent with SB 700 upon the 

effective date of SB 700 notwithstanding 

the fact that the NSR rules were adopted 

prior to the effective date of SB 700 and 

thus could not be applied to agricultural 

sources (because of the preclusion from 

District permitting for agricultural 

sources in then-current CH&SC section 

42310(e)) at the time the District 

adopted them. 

The California Attorney General’s 

office shares this view: 

‘‘. . . . Although California before SB 700’s 

enactment exempted agricultural sources 

from New Source Review permitting 

requirements, California law did not 

preclude districts from adopting emissionsreduction rules of general application 

(independent of the New Source Review 

process) that would apply to agricultural 

stationary sources. Some districts had such 

rules and, following SB 700’s enactment, 

section 39011.5, subdivision (b) preserved 

them. For example, where air pollution 

control districts had regulated stationary 

diesel engines or generators, those 

regulations were not limited or diminished 

by SB 700 merely because the regulated 

equipment happened to be located on or 

involved in what SB 700 now termed 

‘agricultural sources.’ Therefore, section 

39011.5, subdivision (b) has a limited and 

distinct purpose; it preserves and validates 

those existing equipment-governing 

regulations of general application, that, 

without such a savings clause, might be 

construed as invalid because the regulated 

equipment was included as part of SB 700’s 

‘agricultural sources.’ Subdivision (b) does 

not authorize district New Source Review 

rules that conflict with the sections of SB 700 

that address the New Source Review 

permitting process.’’ 11

Thus, EPA’s interpretation of CH&SC 

section 39011.5(b) is consistent with 

that expressed by the California 

Attorney General’s office. Moreover, in 

the excerpt provided above, the 

California Attorney General’s office 

explains the need for the savings clause. 

CH&SC section 39011.5(c) provides in 

relevant part: ‘‘Nothing in this section 

limits the authority of a district to 

regulate a source, including, but not 

limited to, a stationary source that is an 

agricultural source, over which it 

otherwise has jurisdiction pursuant to 

this division, or pursuant to the federal 

Clean Air Act (42 U.S.C. Sec. 7401 et 

seq.) or any rules or regulations adopted 

pursuant to that act that were in effect 

on or before January 1, 2003, or . . . .’’ 

Similar to CH&SC section 39011.5(b), 

EPA did not view CH&SC section 

39011.5(c) as validating the application 

of District permitting requirements to all 

new or modified agricultural sources 

inconsistent with the limited 

exemptions found in other sections of 

SB 700 [specifically, CH&SC section 

42301.16(c) and 42301.18(c)]. Under our 

view, the phrase ‘‘nothing in this 

section’’ limits the reach of CH&SC 

section 39011.5(c) to the other 

provisions in CH&SC section 39011.5, 

i.e., the definition of ‘‘agricultural 

source’’ in CH&SC section 39011.5(a) 

and the savings clause in CH&SC 

section 39011.5(b), discussed above. As 

such, we view CH&SC section 

39011.5(c) as ensuring that the 

definition of ‘‘agricultural source’’ and 

the savings clause in paragraph (b) does 

not inadvertently limit the authority of 

districts to regulate sources, including 

agricultural sources, over which the 

districts otherwise have jurisdiction 

pursuant to rules adopted before 

January 1, 2003, and does not inform 

our interpretation of other sections of 

SB 700, such as CH&SC section 

42301.16(c) and 42301.18(c). Thus, 

CH&SC 39011.5(c) in no way 

undermines our determination in the 

proposed rule that the District’s 

authority to permit agricultural sources 

and to impose emissions offset 

requirements on such sources was 

limited under State law notwithstanding 

the absence of such limiting language in 

the District’s NSR rules as adopted in 

December 2002 and approved by EPA in 

May 2004. 

The California Attorney General’s 

office agrees that CH&SC section 

39011.5(c) does not authorize NSR rules 

that conflict with other sections of SB 

700 that expressly address the NSR 

permitting process. The California 

Attorney General’s office explains: 

‘‘Likewise, [CH&SC section 39011.5(c)] 

does not authorize district New Source 

Review rules that conflict with SB 700’s 

provisions concerning the New Source 

Review process. Subdivision (c) provides that 

nothing in that section limits a district’s 

authority to regulate a source over which it 

otherwise has jurisdiction under the Clean 

Air Act or any Clean Air Act rules or 

regulations that were in effect on or before 

January 1, 2003. That is, subdivision (c) 

clarifies that section 39011.5 itself does not 

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Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 46509 

12See California Attorney General Office’s Letter, 

November 14, 2013, pages 4 and 5. 

13Earthjustice cites a letter from W. Thomas 

Jennings, Chief Counsel, CARB, to Brent Newell, 

Center on Race, Poverty and the Environment, May 

30, 2007. 

14See letter from the California Attorney 

General’s office, dated March 18, 2013. We 

recognize that the California Attorney General’s 

Office’s November 2012 letter states that CH&SC 

section 42301.18(c) ‘‘does not create an exemption’’ 

but merely ‘‘disqualifies any offsets that do not 

meet the offset criteria and forbids the district from 

requiring these deficient offsets.’’ We find this 

statement difficult to reconcile with that Office’s 

March 2013 letter that states that CH&SC section 

42301.18(c) serves to ‘‘suspend the duty of a minor 

agricultural source to offset emissions from that 

source.’’ We believe that ‘‘exemption’’ and 

‘‘suspend the duty’’ are essentially the same, and 

thus both statements cannot be correct, but we 

place greater weight on the March 2013 statement 

Continued 

limit a district’s existing authority, but 

subdivision (c) does not concern whether 

some other provision of SB 700 might limit 

a district’s authority. Therefore, the only 

effect of subdivision (c) is to assure that 

section 39011.5, by defining the term 

‘agricultural source,’ did not inadvertently 

limit the validity or reach of any existing 

district rules. Subdivision (c) does not grant 

authority, and does not authorize New 

Source Review rules that conflict with other 

sections of SB 700 that expressly address the 

New Source Review permitting process.’’ 12

Thus, we continue to read the savings 

clauses of CH&SC section 39011.5(b) 

and (c) as not validating the application 

of District permitting requirements to all 

new or modified agricultural sources 

inconsistent with the limited 

exemptions found in other sections of 

SB 700, and as consistent with our 

finding in the proposed rule that the 

absence of the limited exemptions in SB 

700 for agricultural sources in the 

District’s NSR rules resulted in a 

mismatch between the SIP and the 

District’s authority under State law 

when we approved the District’s NSR 

rules in May 2004. 

Earthjustice Comment #5: There is no 

requirement that the District make 

specific findings before requiring offsets 

from agricultural sources. First, EPA’s 

interpretation of CH&SC section 

42301.18(c) has no basis in the language 

of that section. There is nothing in 

CH&SC section 42301.18(c) that requires 

some ‘‘finding’’ by the District before 

imposing offsets. Second, EPA’s 

interpretation is inconsistent with 

CARB’s explanation that the issue in 

CH&SC 42301.18(c) is ‘‘whether the 

emissions reductions meet the generic 

criteria that the U.S. EPA and the ARB 

and air district have, since 1976, 

required of sources in order for the 

reductions to ‘count’ for purposes of 

attaining ambient standards’’ and ‘‘[t]he 

existence of a District rule allowing 

such offsets to be generated is not 

germane. . . .’’ 13

Response to Earthjustice Comment #5: 

We start with the words of CH&SC 

section 42301.18(c): ‘‘A district may not 

require an agricultural source to obtain 

emissions offsets for criteria pollutants 

for that source if emissions reductions 

from that source would not meet the 

criteria for real, permanent, quantifiable, 

and enforceable emission reductions.’’ 

Earthjustice is correct that EPA did read 

CH&SC section 42301.18(c) as 

exempting new minor agricultural 

sources or minor modifications of 

existing agricultural sources from the 

emissions offset requirement pending a 

determination on the part of the District. 

Based on that understanding, EPA 

proposed to limit the Agency’s prior 

approval in such a way as to give effect 

to the absence of such a determination 

during the period in which the relevant 

version of District’s NSR rules were in 

effect as part of the SIP, i.e., mid-2004 

through mid-2010. 

In response to this comment, we 

reviewed again the language of CH&SC 

section 42301.18(c) and acknowledge 

that it does not specify any particular 

process for determining when the 

criteria, that would authorize 

imposition by a District of the emission 

offset requirement for a new or modified 

minor agricultural source, have been 

met for the given minor agricultural 

source. We also reviewed the CARB 

reference cited above in Earthjustice 

Comment #5, and agree that it does not 

support EPA’s understanding that a 

determination by the District is a 

prerequisite to the District’s authority to 

impose the emissions offset requirement 

to new or modified minor agricultural 

sources under CH&SC section 

42301.18(c), to the extent that the 

‘‘determination’’ consists of a regulatory 

protocol or District rule allowing such 

offsets to be generated. In the CARB 

reference cited by Earthjustice, CARB 

writes: 

‘‘With respect to our interpretation of 

[CH&SC section 42301.18(c)], we believe that 

section 42301.18(c) does not ask whether or 

not the District has a regulatory protocol to 

verify whether ERC’s offered by agricultural 

source are creditable, but rather sets forth the 

objective, generic criteria that must be 

satisfied by an agricultural source seeking 

credits for its emission reductions. If the 

proffered reductions were real (i.e., surplus 

to required reductions), quantifiable, and 

enforceable, then the source would be able to 

use (or bank) them as credits and the District 

may, therefore, require the source to provide 

offsets. The use of the subjective ‘‘would not 

meet’’ is critical in interpreting this 

provision; it focuses the inquiry on whether 

the emissions reductions meet the generic 

criteria that the U.S. EPA and the ARB and 

air districts have, since 1976, required of 

sources in order for the reductions to ‘‘count’’ 

for purposes of attaining ambient standards 

and to qualify for use as offsets. The 

existence of a District rule allowing offsets to 

be generated is not germane to determining 

whether emission reductions from a given 

agricultural source ‘‘would’’ meet the criteria 

for real, permanent, quantifiable, and 

enforceable.’’ 

However, whether emissions 

reductions from a given agricultural 

source meet the relevant criteria is not 

self-evident or self-implementing. Some 

determination is necessary. For 

instance, the District is the agency 

responsible for allowing the emissions 

reductions from a given agricultural 

source to be banked or used for the 

purpose of offsetting emissions 

increases from new or modified 

stationary sources that are subject to the 

offset requirement under an approved 

NSR program. If the District allowed 

emission reductions to be banked or 

used for offsetting emission increases, 

then the District would thereby be 

determining that the emissions 

reductions are ‘‘real, permanent, 

quantifiable, and enforceable’’ since 

those are the basic criteria for judging 

the creditability of emission reductions 

for use as NSR offsets. The District’s 

authority to impose the offset 

requirement on new or modified minor 

agricultural sources would vest as to 

those agricultural sources for which it 

has allowed banking or use of emission 

reductions for NSR offset purposes. 

Thus, while no protocol or District rule 

specifically directed at agricultural 

sources need be adopted for the offset 

authority to vest, some determination is 

necessary. Because no such 

determination was made during the 

relevant period between the effective 

date of EPA’s 2004 approval of the 

previous version of District NSR rules 

and the effective date of EPA’s 2010 

approval of District NSR rules that align 

such rules with SB 700, EPA continues 

to believe that limiting its approval to 

exempt new minor agricultural sources 

and minor modifications to existing 

agricultural sources from the offset 

requirement is warranted. 

EPA’s position is supported by the 

California Attorney General’s Office. In 

its March 2013 letter, the California 

Attorney General’s Office writes: ‘‘It is 

our understanding that currently 

emissions reductions from minor 

agricultural sources do not meet the 

criteria for real, permanent, quantifiable 

and enforceable emission reductions. 

On these facts, the plain language of 

[CH&SC section 42301.18(c)] serves to 

suspend the duty of a minor agricultural 

source to offset emissions from that 

source.’’ 14 If emission reductions from 

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46510 Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 

because it was prepared specifically to respond to 

the relevant issue addressed herein, i.e., the 

application of CH&SC section 42301.18(c) to minor 

agricultural sources. 

15See letter from James N. Goldstene, Executive 

Officer, CARB, to ‘‘Air Pollution Control Officers,’’ 

September 3, 2008, page 4. CARB draws a 

distinction between SIP credit and NSR offset 

credit, a distinction that we also draw. Some 

prohibitory rules or control measures are credited 

in the SIP, particularly those related to mobile 

sources and non-traditional stationary sources, that 

do not necessarily qualify for NSR offset credit. For 

example, a programmatic level of documentation 

may be acceptable to support quantification of 

emissions reductions from mobile sources and nontraditional stationary sources for general SIP 

attainment demonstration purposes, but that same 

documentation may be insufficient to validate ERCs 

for owners or operators of individual mobile 

sources or individual non-traditional stationary 

sources for NSR offset purposes. 

16Earthjustice cites EPA guidance memorandum 

titled ‘‘Processing of State Implementation Plan 

(SIP) Submittals,’’ dated July 9, 1992, from John 

Calcagni, Director, Air Quality Management 

Division, EPA Office of Air Quality Planning and 

Standards. 

17As discussed in more detail in our proposed 

rule, the District amended the NSR rules in 2007 

and 2008 to, among other things, align the rules 

explicitly with the District’s authority to permit 

minor agricultural sources and to require emissions 

offsets for such sources. 75 FR 4745, at 4749–4750 

(January 29, 2010). EPA approved the amended 

NSR rules in May 2010, effective June 10, 2010. 75 

FR 26102 (May 11, 2010). Thus, our action today 

need only correct the mismatch between the District 

NSR rules and the District’s authority with respect 

to minor agricultural sources under SB 700 from the 

effective date of our May 2004 approval of the 2002- 

amended District NSR rules (i.e., June 16, 2004) 

through June 9, 2010. 

minor agricultural sources do not meet 

the criteria in March 2013, then they 

certainly did not meet the criteria 

during the relevant period affected by 

today’s error correction action (mid2004 through mid-2010). 

The California Attorney General’s 

Office, in its March 2013 letter, 

maintains that its reading of CH&SC 

section 42301.18(c) is consistent with 

CARB’s letter to the California Air 

Pollution Control Officers, dated 

September 3, 2008, which was included 

as an attachment to the California 

Attorney General office’s letter, dated 

March 18, 2013, and which provides the 

following guidance with respect to 

CH&SC section 42301.18(c): 

‘‘This limited exemption from the offset 

requirement means that agricultural sources 

that are not amenable to District prohibitory 

rules or control measures that would qualify 

for SIP credit—or that are unable to generate 

emission reductions that would qualify as 

offsets—because they fail to meet one or 

more of the basic criteria for a creditable rule 

or for offset credit cannot be required to 

provide offsets. 

We believe this exemption is based upon 

considerations of equity. If a source cannot 

get credit for its emission reductions in the 

SIP or cannot quantify its surplus emission 

reductions for banking and later use as 

offsets, it should not be required to provide 

offsets. This exemption should be narrowly 

applied, and in any event, cannot be used to 

exempt major federal sources from offset 

requirements.’’ 15

During the relevant time period, EPA 

approved several District rules affecting 

agricultural sources, and several District 

air quality plans that reflect emissions 

reductions from implementation of 

those rules. For example, EPA approved 

District Rule 4550 (‘‘Conservation 

Management Practices’’) and its 

associated List of Conservation 

Management Practices at 71 FR 7683 

(February 14, 2006), District Rule 4570 

(‘‘Confined Animal Facilities’’) at 75 FR 

2079 (January 14, 2010), the 2003 San 

Joaquin Valley PM10 Plan at 69 FR 

30006 (May 26, 2004), the 2004 San 

Joaquin Valley Extreme Ozone 

Attainment Demonstration Plan at 75 FR 

10420 (March 8, 2010), and the 2007 

San Joaquin Valley PM10 Maintenance 

Plan and Redesignation Request at 73 

FR 66759 (November 12, 2008). 

However, the use of the conjunction 

‘‘or’’ by CARB in its discussion of 

CH&SC section 42301.18(c), quoted 

above, means that, under CARB’s 

interpretation, even if SIP credit were 

approved for prohibitory rules or 

control measures, new or modified 

minor agricultural sources could not be 

required to provide emissions offsets if 

they are unable to generate emission 

reductions that would qualify as offsets. 

Thus, we find that CARB’s 

interpretation of CH&SC section 

42301.18(c) supports EPA’s limitation 

on its May 2004 approval to exempt 

new minor agricultural sources and 

minor modifications of existing 

agricultural sources from the emissions 

offset requirement because, under that 

provision of State law, the District did 

not have the authority to require such 

sources to provide emissions offsets 

because such sources were unable to 

generate emissions reductions that 

qualify as offsets during the relevant 

time period. 

Earthjustice Comment #6: EPA’s use 

of section 110(k)(6) to correct this error 

is unlawful. EPA cannot use section 

110(k)(6) to achieve a result that EPA 

could not have achieved if it had acted 

‘‘correctly’’ at the outset. EPA can point 

to no authority that allows EPA to adopt 

such a limitation when acting on this or 

any other SIP approval. To the contrary, 

such attempts to rewrite the rule 

submitted to EPA for approval violate 

well-established prohibitions against 

piecemeal approval of rule submittals. 

See Bethlehem Steel Corp. v. Gorsuch, 

742 F.2d 1028 (7th Cir. 1984). 

Section 110(k)(6) does not allow EPA 

to revise the rule itself, only the action 

used to approve the rule. The ‘‘actions’’ 

on a SIP submittal are outlined in 

section 110(k)(3) and include full and 

partial approval or disapproval. First, 

there should be little question that EPA 

could not have partially approved the 

District’s NSR rules as submitted in 

2002. The other option theoretically 

available to EPA at the time of the 2004 

action was the ‘‘limited approval/ 

limited disapproval,’’ but EPA guidance 

cautions against use of that option to 

approve any rule that is unenforceable 

for all situations.16 None of the options 

available to EPA when acting on a SIP 

submittal allow EPA to do what it is 

proposing to do here. EPA cannot 

‘‘limit’’ the approval by rewriting the 

applicability of the rule as submitted. 

Section 110(k)(6) does not create new 

options for EPA to act on SIP submittals 

and cannot be used to circumvent the 

limitations on EPA actions provided by 

the plain language of section 110(k)(3). 

Response to Earthjustice Comment #6: 

First of all, we agree that we cannot use 

section 110(k)(6) to revise the District’s 

NSR rules that we previously approved, 

but we are not doing so in this action. 

Our action to limit our approval would 

in no way change the language of the 

District NSR rules that we approved in 

May 2004. Instead, it would revise the 

scope of our approval in such a way as 

to align our approval with the limits of 

District permitting authority under State 

law at the time we initially approved 

the rules and thus does not conflict with 

the decision in Bethlehem Steel. 

In doing so, our action amounts to a 

revision to the approved California SIP 

that was applicable between June 2004 

and June 2010.17 EPA is not changing 

the District rule component of the SIP. 

We believe that our action finalized 

today is the appropriate revision to 

make to the California SIP under CAA 

section 110(k)(6) to address the error 

that we made in our May 2004 final 

action. 

Second, we agree that there are 

significant obstacles to correcting our 

May 2004 action on the District’s NSR 

rules by revising the action from a full 

approval to a ‘‘partial approval/partial 

disapproval’’ or ‘‘limited approval/ 

limited disapproval.’’ For instance, a 

‘‘partial approval/partial disapproval’’ 

action is problematic in this instance 

because, as a general matter, NSR rules 

are not separable. Correcting our action 

from a full approval action to a ‘‘limited 

approval/limited disapproval’’ action is 

problematic in that it would incorporate 

the entire rule into the California SIP, 

and thus would not remedy the problem 

of the mismatch between the District 

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Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 46511 

NSR rules in the SIP and the District’s 

authority with respect to agricultural 

sources under SB 700. 

We disagree, however, that we could 

not have limited our approval in May 

2004 under section 110(k)(3) in the 

same manner as we are doing today, but 

in any event, for today’s action, we are 

relying on section 110(k)(6), not on 

section 110(k)(3). We believe that the 

action we proposed to limit our 

previous approval and that we are 

finalizing today is authorized under the 

broad discretionary language of CAA 

section 110(k)(6): 

‘‘Whenever the Administrator determines 

that the Administrator’s action approving, 

disapproving, or promulgating any plan or 

plan revision (or part thereof), . . . was in 

error, the Administrator may in the same 

manner as the approval, disapproval, or 

promulgation revise such action as 

appropriate without requiring any further 

submission from the State. Such 

determination and the basis thereof shall be 

provided to the State and public.’’ 

The key provisions are that the 

Administrator has the authority to 

‘‘determine[ ]’’ when a SIP approval 

was in ‘‘error,’’ and when he does so, he 

may then revise the SIP approval ‘‘as 

appropriate,’’ in the same manner as the 

approval, and without requiring any 

further submission from the state. 

With this action, EPA is determining 

that its action approving the District’s 

NSR rules in May 2004 was ‘‘in error’’ 

due to the mismatch between the facial 

applicability in the NSR rules of the 

permitting and emission offset 

requirements to minor agricultural 

sources and the limits on District 

authority under State law applicable at 

the time of our SIP approval. Given the 

mismatch between the exclusions and 

exemptions apparent from the words of 

the District NSR rules and the limits 

under State law, EPA was in error in 

fully approving the NSR rules because 

the SIP and SIP revisions must be 

supported by necessary assurances by 

the State that, in this context, the 

District will have adequate authority 

under State law to carry out such SIP or 

SIP revisions and the State of California 

could not have provided such necessary 

assurances in May 2004 with respect to 

minor agricultural sources because of 

the limits on District authority at the 

time manifest in SB 700. See CAA 

section 110(a)(2)(E) and our January 29, 

2010 proposed rule at pages 4747–4748. 

EPA is further determining that the 

appropriate action EPA can take—in 

light of the broad discretion conferred 

by the phrase, ‘‘revise such action as 

appropriate,’’—is to limit our previous 

approval of the District’s NSR rules, as 

it relates to agricultural sources, (1) to 

the extent that the permit requirements 

apply to agricultural sources with 

potential emissions at or above a major 

source applicability threshold and to 

agricultural sources with actual 

emissions at or above 50 percent of a 

major source applicability threshold; 

and (2) to the extent that the offset 

requirements apply to major agricultural 

sources and major modifications of such 

sources. We have also conducted this 

limiting of our prior approval through 

notice-and-comment rulemaking, which 

is the same manner as EPA conducted 

the prior approval. 

In limiting our previous approval in 

this manner, we are taking an approach 

analogous to the one EPA took with 

respect to the Agency’s previous SIP 

approvals of certain State programs for 

the Prevention of Significant 

Determination (PSD) to the extent those 

programs applied PSD to greenhouse gas 

(GHG) emitting sources below the 

thresholds in the final ‘‘Tailoring Rule’’ 

published at 75 FR 31514 on June 3, 

2010. See our final rule, ‘‘Limitation of 

Approval of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in 

State Implementation Plans,’’ referred to 

as the PSD SIP ‘‘Narrowing Rule,’’ at 75 

FR 82536 (December 30, 2010). In the 

case of the previous approvals of State 

PSD programs, EPA determined that its 

action approving the PSD SIP provisions 

was ‘‘in error’’ due to the mismatch 

between the PSD applicability 

provisions and the state’s ‘‘necessary 

assurances’’ under CAA section 

110(a)(2)(E) of adequate resources and 

further determined that the ‘‘appropriate 

action’’ to correct the error was to 

narrow its approval of the PSD programs 

to the extent they applied PSD to GHGemitting sources below the Tailoring 

Rule threshold. 

Here, in this action, EPA is 

determining that its action approving 

the District’s NSR rules was ‘‘in error’’ 

due to the mismatch between the 

applicability provisions of the District 

NSR rules and the state’s ‘‘necessary 

assurance’’ under CAA section 

110(a)(2)(E) of adequate legal authority 

and is further determining that the 

‘‘appropriate action’’ to correct the error 

is to limit its previous approval of the 

District’s NSR rules in May 2004 to 

align the permitting applicability and 

offset requirement in the approved SIP 

to the authority granted the District 

under State law. EPA’s PSD SIP 

‘‘Narrowing Rule’’ contains a detailed 

discussion (see pages 82543–82545) 

justifying the reliance on CAA section 

110(k)(6) to narrow previous SIP 

approvals and we incorporate that 

discussion herein. 

Lastly, Earthjustice would agree that 

EPA could have disapproved the 

District’s NSR rules as submitted in 

December 2002, and thus would agree 

that we could now, under section 

110(k)(6), change our former ‘‘approval’’ 

to ‘‘disapproval,’’ but such an action 

would have the deleterious effect of 

removing the December 2002 version of 

the NSR rules from the SIP entirely 

notwithstanding the significant 

strengthening they represented relative 

to the then-existing SIP District NSR 

rules approved in 2001 (66 FR 37587, 

July 19, 2001) that included a blanket 

exemption for agricultural sources. Our 

action to limit our approval is narrowly 

tailored to retain the strengthening 

aspects of the December 2002 version of 

the NSR rules while still addressing the 

mismatch between the language of the 

NSR rules and the District’s authority 

under State law. Our purpose in doing 

so is to align the SIP approved by EPA 

in May 2004 with the intent of both EPA 

and the State of California to address the 

deficiencies in the District’s NSR rules, 

including the previous blanket 

exemption for agricultural sources as it 

applied to major agricultural sources. 

The mismatch created in the applicable 

California SIP between the NSR rules 

and the authority vested in the District 

under State law with respect to minor 

agricultural sources was inadvertent, 

and section 110(k)(6) provides EPA with 

the broad discretionary authority to take 

action to fix the problem caused by the 

Agency’s previous erroneous SIP action. 

CRP&E Comment #1: The proposed 

rule conflicts with Safe Air for Everyone 

v. EPA, 488 F.3d 1088 (9th Cir. 2007) 

(‘‘Safe Air’’). The SIP means exactly that 

which the December 2002 version of 

District’s NSR rules say it means, and 

EPA made no statement of 

administrative intent that would 

contradict that plain meaning. As such, 

the purported exemption in SB 700 

cannot, as a matter of law, be part of the 

EPA-approved SIP. 

Response to CRP&E Comment #1: We 

agree that we cannot simply interpret 

the California SIP to include statutory 

limitations not manifest in the SIP itself 

nor manifest in EPA’s expressed intent 

or understanding at the time we 

conducted rulemaking to approve the 

December 2002 version of the District’s 

NSR rules. However, agreement on this 

point simply highlights the need for 

EPA to take the action it is finalizing 

today. We have conducted this error 

correction action through a notice-andcomment rulemaking and have made 

our administrative intent manifest 

through that process. Also, we want to 

make clear that we are not changing the 

language of the District’s NSR rules that 

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46512 Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 

we approved in May 2004. Instead, our 

action will revise the scope of our 

approval in such a way as to align our 

approval with the limits of District 

permitting authority under State law at 

the time we approved the rules. In doing 

so, our action amounts to a revision to 

the California SIP applicable between 

June 2004 and June 2010. EPA is not 

changing the District rule component of 

the SIP. We believe that our action 

finalized today is the appropriate 

revision to make to the California SIP 

under CAA section 110(k)(6) to address 

the error that we made in our May 2004 

final action. 

CRP&E Comment #2: EPA lacks the 

power to amend the SIP to conform to 

EPA’s interpretation of the District’s 

state law permitting authority. Nothing 

in the CAA authorizes EPA to 

substantively amend a SIP or SIP 

revision, so EPA cannot accomplish that 

through a ‘‘correction’’ under section 

110(k)(6). 

Response to CRP&E Comment #2: 

Please see EPA’s Response to 

Earthjustice Comment #6. 

CRP&E Comment #3: Even if EPA 

could make an end-around Safe Air and 

could amend the SIP, SB 700 itself gives 

the District the authority to implement 

and enforce the December 2002 version 

of the District’s NSR rules. EPA 

rationalizes its correction on the ground 

that the District lacked statutory 

authority to implement and enforce the 

December 2002 version of the District’s 

NSR rules. EPA, however, fails to 

recognize the authority given to the 

District by CH&SC sections 39011.5(b) 

and (c). 

Response to CRP&E Comment #3: 

Please see EPA’s Response to 

Earthjustice Comment #4. 

Dairy Cares Comment #1: Dairy Cares 

agrees that EPA erred in failing to 

expressly acknowledge the limitations 

imposed on the District’s authority 

pursuant to SB 700, because the SB 700 

exemptions plainly limited the District’s 

permitting authority over agricultural 

sources and agrees that EPA’s SIP 

correction is appropriate under section 

110(k)(6) of the CAA. Dairy Cares, 

however, believes that because EPA’s 

2004 SIP action implicitly and 

necessarily included all of the 

expansion and limitation of District 

authority contained in SB 700, 

including the exemptions, the SIP, as it 

currently exists, should be read to 

include the exemptions. 

Response to Dairy Cares Comment #1: 

EPA notes that the argument that 

limitations on authority under State law 

implicitly and necessarily determine the 

applicability of rules and regulations 

approved by EPA as part of a SIP, even 

if those statutory limitations are not also 

approved as part of the SIP, is not 

supported by case law. In Safe Air for 

Everyone v. EPA (488 F.3d 1088 (9th 

Cir. 2007), the Ninth Circuit held that 

‘‘SIPs are interpreted based on their 

plain meaning when such a meaning is 

apparent, not absurd, and not 

contradicted by the manifest intent of 

EPA, as expressed in the promulgating 

documents available to the public.’’ Id. 

at 1100. In this instance, the absence of 

limited exemptions for minor 

agricultural sources with respect to 

permitting and offsets in the version of 

the District’s NSR rules approved in 

2004 is plain, not absurd, nor 

contradicted by EPA in taking the action 

in 2004 to approve the rules. Moreover, 

SB 700 itself is not approved into the 

California SIP. Thus, we continue to 

believe that is appropriate to correct our 

previous approval of the District’s NSR 

rules to reconcile that approval with the 

limitations on District authority that 

were established by the California 

legislature in SB 700. 

III. Final Action 

After due consideration of the 

comments submitted on our proposed 

action, and in light of California’s 

interpretation of SB 700 as it applies to 

the District’s NSR rules, we are taking 

final action under CAA section 110(k)(6) 

to correct our erroneous approval in 

May 2004 of San Joaquin Valley District 

NSR rules, Rule 2020 (‘‘Exemptions’’) 

and Rule 2210 (‘‘New and Modified 

Stationary Source Review Rule’’), as 

amended by the District in December 

2002. In doing so, we are determining 

that such previous approval was in error 

for the purposes of CAA section 

110(k)(6) because we failed to recognize 

that the State could not provide the 

necessary assurances under CAA 

section 110(a)(2)(E) that the District had 

the authority to implement its amended 

NSR rules as those rules applied to 

agricultural sources given that the 

District’s NSR rules, as adopted in 2002, 

did not reflect the qualified permitting 

and emissions offset exemptions 

provided in SB 700 with respect to 

minor agricultural sources. 

To correct this error, we are revising 

our previous action by limiting our 

previous approval, as it relates to 

agricultural sources, to the extent that 

the permit requirements apply (1) to 

agricultural sources with potential 

emissions at or above a major source 

applicability threshold and (2) to 

agricultural sources with actual 

emissions at or above 50 percent of a 

major source applicability threshold. 

We are also limiting our previous 

approval, as it relates to agricultural 

sources, to the extent that the emission 

offset requirements apply to major 

agricultural sources and major 

modifications of such sources. 

To codify the new limitation on our 

previous approval, we are adding a new 

section to 40 CFR part 52 (‘‘Approval 

and promulgation of implementation 

plans’’), subpart F (‘‘California’’). The 

new section is 40 CFR 52.245 (‘‘New 

Source Review Rules’’). 

IV. 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 conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because error correction actions 

under section 110(k)(6) of the Clean Air 

Act do not create any new requirements 

but simply approve requirements that 

the State is already imposing. Therefore, 

because this error correction action does 

not create any new requirements, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under section 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

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Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 46513 

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 costeffective 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 error 

correction action promulgated today 

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 

aligns requirements under Federal law 

with those under state and local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Executive Order 13132, 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 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 corrects an error in a previous 

EPA rulemaking, 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 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 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

corrects a previous EPA approval of a 

State rule implementing a Federal 

standard. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

K. Petitions for Review of This Action 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 30, 

2013. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Oxides of nitrogen, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

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46514 Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Rules and Regulations 

Dated: July 12, 2013. 

Alexis Strauss, 

Acting Regional Administrator, Region IX. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 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 52.245 is added to read as 

follows: 

§52.245 New Source Review rules. 

(a) Approval of the New Source 

Review rules for the San Joaquin Valley 

Unified Air Pollution Control District 

Rules 2020 and 2201 as approved on 

May 17, 2004 in 

§ 52.220(c)(311)(i)(B)(1), and in effect for 

Federal purposes from June 16, 2004 

through June 10, 2010, is limited, as it 

relates to agricultural sources, to the 

extent that the permit requirements 

apply: 

(1) To agricultural sources with 

potential emissions at or above a major 

source applicability threshold; and 

(2) To agricultural sources with actual 

emissions at or above 50 percent of a 

major source applicability threshold. 

(b) Approval of the New Source 

Review rules for the San Joaquin Valley 

Unified Air Pollution Control District 

Rules 2020 and 2201 as approved on 

May 17, 2004 in 

§ 52.220(c)(311)(i)(B)(1), and in effect for 

Federal purposes from June 16, 2004 

through June 10, 2010, is limited, as it 

relates to agricultural sources, to the 

extent that the emission offset 

requirements apply to major agricultural 

sources and major modifications of such 

sources. 

[FR Doc. 2013–18413 Filed 7–31–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2011–0884, FRL–9841–1] 

Approval and Promulgation of 

Implementation Plans; Oregon: 

Infrastructure Requirements for the 

1997 and 2006 Fine Particulate Matter 

and 2008 Ozone National Ambient Air 

Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is approving the 

State Implementation Plan (SIP) 

submittals from the State of Oregon to 

demonstrate that the SIP meets the 

infrastructure requirements of the Clean 

Air Act (CAA) for the National Ambient 

Air Quality Standards (NAAQS) 

promulgated for fine particulate matter 

(PM2.5) on July 18, 1997, and October 

17, 2006, and for ozone on March 12, 

2008. The EPA is finding that the 

Federally-approved provisions currently 

in the Oregon SIP meet the CAA 

infrastructure requirements for the 1997 

PM2.5, 2006 PM2.5, and the 2008 ozone 

NAAQS. The EPA is also finding that 

the Federally-approved provisions 

currently in the Oregon SIP meet the 

interstate transport requirements of the 

CAA related to prevention of significant 

deterioration for the 2008 ozone 

NAAQS, and related to visibility for the 

2006 PM2.5 and 2008 ozone NAAQS. 

This action does not approve any 

additional provisions into the Oregon 

SIP but is a finding that the current 

provisions of the Oregon SIP are 

adequate to satisfy the above-mentioned 

infrastructure elements required by the 

CAA. 

DATES: This action is effective on 

September 3, 2013. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R10–OAR–2011–0884. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information may not be publicly 

available, i.e., Confidential Business 

Information or other information the 

disclosure of which is restricted by 

statute. Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

EPA Region 10, Office of Air, Waste and 

Toxics (AWT–107), 1200 Sixth Avenue, 

Suite 900, Seattle, WA 98101. The EPA 

requests that you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The Regional Office’s 

official hours of business are Monday 

through Friday, 8:30 to 4:30, excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kristin Hall at (206) 553–6357, 

hall.kristin@epa.gov, or the above EPA, 

Region 10 address. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, it is 

intended to refer to the EPA. 

Information is organized as follows: 

Table of Contents 

I. Background 

II. Response to Comment 

III. Action 

IV. Statutory and Executive Order Reviews 

I. Background 

On March 21, 2013, the EPA proposed 

to approve the September 25, 2008, 

December 23, 2010, August 17, 2011, 

and December 19, 2011 SIP submittals 

from the State of Oregon to demonstrate 

that the SIP meets the requirements of 

CAA sections 110(a)(1) and (2) for the 

NAAQS promulgated for fine particulate 

matter (PM2.5) on July 18, 1997, and 

October 17, 2006, and for ozone on 

March 12, 2008 (78 FR 17304). In our 

March 21, 2013, notice of proposed 

rulemaking (NPR), we proposed to 

approve the SIP submittals and to find 

that the Federally-approved provisions 

currently in the Oregon SIP meet the 

following CAA section 110(a)(2) 

infrastructure elements for the 1997 

PM2.5, 2006 PM2.5, and 2008 ozone 

NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). We also 

proposed to find that the Federallyapproved provisions currently in the 

Oregon SIP meet the requirements of 

CAA section 110(a)(2)(D)(i)(II) as it 

applies to prevention of significant 

deterioration for the 2008 ozone 

NAAQS, and CAA section 

110(a)(2)(D)(i)(II) as it applies to 

visibility for the 2006 PM2.5 and 2008 

ozone NAAQS. An explanation of the 

CAA requirements and implementing 

regulations that are met by these SIP 

submittals, a detailed explanation of the 

submittals, and the EPA’s reasons for 

approving the submittals and making 

the above-described findings were 

provided in the NPR, and will not be 

restated here. The public comment 

period for this proposed rule ended on 

April 22, 2013. The EPA received one 

comment on the NPR. 

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