Federal Implementation Plan for Nonattainment New Source Review Program; Mojave Desert Air Quality Management District, California

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to promulgate a Federal Implementation Plan (FIP) under the Clean Air Act (CAA) that consists of Nonattainment New Source Review (NNSR) rules for areas within the jurisdiction of the Mojave Desert Air Quality Management District (MDAQMD or “District”) in which air pollutant concentrations are above specific National Ambient Air Quality Standards (NAAQS). The NNSR rules would apply to construction of new major stationary sources and major modifications at existing major stationary sources of air pollution. The proposed FIP, if finalized, would be implemented by the EPA, unless and until it is replaced by an EPA-approved state implementation plan (SIP).

DATES:

Comments must be received on or before August 23, 2024. The EPA will hold a virtual public hearing on July 24, 2024.

ADDRESSES:

You may send comments, identified by Docket ID No. EPA-R09-OAR-2024-0228 via the Federal eRulemaking Portal at https://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments.

Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https://www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

You may register for the hearing at https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on the public hearing.

FOR FURTHER INFORMATION CONTACT:

Tanya Abrahamian, Air and Radiation Division, Rules Office (AIR-3-2), Environmental Protection Agency, Region IX, telephone number: (213) 244-1849; email address: Abrahamian.Tanya@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-R09-OAR-2024-0228 at https://www.regulations.gov (our preferred method). Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to the EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

B. Participation in Virtual Public Hearing

The EPA will begin pre-registering speakers for the hearing no later than 1 business day after publication of this document in the Federal Register . To register to speak at the virtual hearing, please visit https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0 for online registration. The last day to pre-register to speak at the hearing will be July 22, 2024. The EPA will post a general agenda for the hearing that will list pre-registered speakers in approximate order at: https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0.

The virtual public hearing will be held via teleconference on July 24, 2024. The virtual public hearing will convene at 4 p.m. Pacific Time (PT) and will conclude at 7 p.m. PT. The EPA may close the session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. For information or questions about the public hearing, please contact Tanya Abrahamian, per the FOR FURTHER INFORMATION CONTACT section of this document. The EPA will announce further details at https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule. Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to Abrahamian.Tanya@epa.gov. The EPA also recommends submitting the text of your oral comments as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations, but the EPA will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/caa-permitting/public-hearing-federal-implementation-plan-nonattainment-new-source-review-program-0. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact Abrahamian.Tanya@epa.gov, per the FOR FURTHER INFORMATION CONTACT section of this document, to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or special accommodations such as audio description, please pre-register for the hearing and describe your needs by July 22, 2024. The EPA may not be able to arrange accommodations without advance notice.

Policy on Children's Health

In 2021, EPA updated its Policy on Children's Health to reflect that “children's environmental health refers to the effect of environmental exposure during early life: from conception, infancy, early childhood and through adolescence until 21 years of age.” In addition, the policy applies to “effects of early life exposures [that] may also arise in adulthood or in later generations.” In this action, the EPA is proposing to implement our Federal regulations in the nonattainment areas under the MDAQMD. In so far as there is an impact from this action, it will be positive since the deficiencies in the District's program it is meant to rectify would likely result in increased emissions as compared to this FIP and our Federal NNSR regulations.

The information presented in this preamble is organized as follows:

Table of Contents

I. Purpose of This Action

II. Background

A. Standards, Designations, and Classifications

B. Findings and Disapprovals

C. Scope of the EPA's Proposed FIP

III. Proposed FIP Requirements

A. Plan Overview

B. Definitions

C. Applicability

D. Permit Approval Criteria

E. Public Participation Requirements

F. Final Permit Issuance and Administrative and Judicial Review

G. Administration and Delegation of the Major NSR Plan for the MDAQMD

H. SIP Replacement of All or Any Part of This FIP

I. Severability

IV. Environmental Justice Considerations

V. Proposed Action and Request for Public Comment

VI. Statutory and Executive Order Reviews

I. Purpose of This Action

The EPA is proposing an NNSR FIP that will apply to construction of new major sources and major modifications at existing major sources that are located within areas that are designated as not in attainment with specific NAAQS. These are the San Bernardino County portion of the West Mojave Desert ozone nonattainment area and the San Bernardino County and Trona Planning Area PM₁₀ nonattainment areas.

II. Background

The following sections describe the basis for the EPA's determination that an NNSR FIP is necessary for the portion of the West Mojave Desert ozone nonattainment area and the San Bernardino County and Trona Planning Area PM₁₀ nonattainment areas that are located within the jurisdiction of the MDAQMD. The MDAQMD is currently the agency responsible for issuing permits required under the CAA to construct new and modified major stationary sources of air pollution in San Bernardino County and the Palo Verde Valley portion of Riverside County.

A. Standards, Designations, and Classifications

The CAA requires the EPA to set NAAQS for “criteria pollutants.” States are then responsible for developing state implementation plans (SIPs) that contain regulatory measures to prevent air pollution from exceeding those standards, or to bring areas that do not meet those standards into attainment.

Currently, ozone and related photochemical oxidants and particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers, or “PM₁₀ ,” as well as five other major pollutants, are listed as criteria pollutants. On July 1, 1987, the EPA promulgated two primary standards for PM₁₀ . Effective December 18, 2006, the EPA revoked the annual PM₁₀ NAAQS but retained the 24-hour PM₁₀ NAAQS. On March 27, 2008, the EPA revised the NAAQS for ozone to strengthen the 8-hour primary and secondary standards (“2008 ozone NAAQS”). On March 6, 2015, the EPA issued an implementation rule for the 2008 ozone NAAQS (“2008 Ozone SIP Requirements Rule”). That action amended state planning requirements applicable to ozone nonattainment areas and provided specific deadlines for additional SIP submittals.

As part of their SIPs, states designated as nonattainment for a NAAQS criteria pollutant are required to develop and submit to the EPA for approval NNSR preconstruction permit programs that meet the requirements in CAA sections 172, 173, and 182, as applicable. These permits limit increased emissions from construction of new and modified major stationary sources locating in, or located in, areas designated nonattainment for the NAAQS. The statutory and regulatory NNSR requirements for the 2008 ozone NAAQS are found in CAA sections 172(c)(5), 173, 182, and 40 CFR 51.160 through 51.165. The 2008 Ozone NAAQS SIP Requirements Rule required states to submit an NNSR plan or plan revision no later than three years from the effective date of the nonattainment designation for the 2008 ozone NAAQS, or by July 20, 2015. The EPA later revised the ozone NAAQS in 2015 (“2015 ozone NAAQS”), and thereafter promulgated a similar requirement for NNSR preconstruction permitting for the 2015 ozone NAAQS.

Within the MDAQMD, the “Los Angeles-San Bernardino Counties (West Mojave Desert), CA” area (“West Mojave Desert”) is currently designated to be in Severe nonattainment for the 2008 and 2015 ozone NAAQS. The Trona Planning Area and the remainder of San Bernardino County that is within the MDAQMD's jurisdiction are each designated as Moderate nonattainment areas for the 1987 PM₁₀ NAAQS. The MDAQMD's jurisdiction is designated Attainment/Unclassifiable for all other criteria pollutants. Therefore, the designation of portions of the MDAQMD as Federal ozone and PM₁₀ nonattainment areas triggered the requirement for the District to develop and submit an NNSR program to the EPA for approval into the California SIP.

B. Findings and Disapprovals

On February 3, 2017, the EPA found that the State of California had failed to submit a SIP revision for NNSR rules that apply to a Severe classification for the 2008 ozone NAAQS, as required under subpart 2 of part D of title 1 of the CAA and the 2008 Ozone SIP Requirements Rule. Consistent with the CAA and the EPA regulations, the EPA's finding of failure to submit in February 2017 established deadlines for the imposition of sanctions for the affected ozone nonattainment area. The EPA's finding of failure to submit also triggered an obligation under CAA section 110(c) for the EPA to promulgate a Federal Implementation Plan (FIP) no later than two years from the finding of failure to submit a complete SIP ( i.e., by March 6, 2019). Specifically, the finding stated that if the state did not make the required SIP submission and the EPA did not take final action to approve the submission within two years of the effective date of these findings, the EPA would be required to promulgate a FIP for the affected nonattainment area.

The 2015 Ozone NAAQS Implementation Rule required the MDAQMD to submit an updated NNSR rule to the EPA by August 1, 2021, no later than three years from the effective date of its nonattainment designation. On July 23, 2021, the California Air Resources Board submitted to the EPA the MDAQMD's revised NNSR rules for the 2015 ozone NAAQS, which the MDAQMD adopted in March 2021. On June 30, 2023, the EPA finalized a limited approval and limited disapproval (“LA/LD action”) of the District's NNSR rules. The EPA evaluated the SIP submission to determine its compliance with NNSR requirements for the 2008 and 2015 ozone NAAQS and the 1987 PM₁₀ NAAQS due to the MDAQMD's nonattainment status for those three NAAQS. The EPA's rulemaking for the submitted rules explained that the EPA had determined that the submitted rules contained six deficiencies that did not fully satisfy the relevant requirements for preconstruction review and permitting in nonattainment areas under section 110 and part D of title I of the Act, which therefore prevented full approval. As noted in that final action, this disapproval imposed an obligation for the EPA to promulgate a FIP pursuant to CAA section 110(c) within 24 months of the effective date of the action ( i.e., July 31, 2023, which would make the EPA's deadline to promulgate a FIP no later than July 31, 2025) unless the EPA approved a subsequent SIP revision that corrects the deficiencies. The 2023 final action also noted that the EPA had an existing obligation to promulgate a FIP for any new source review (NSR) SIP elements that the Agency had not taken final action to approve. The EPA is proposing this FIP for the NNSR program in the MDAQMD to fulfill the EPA's statutory duty by the deadline established under a consent decree in a lawsuit brought against the EPA to compel promulgation of a FIP arising from the finding of failure to submit.

Accordingly, the EPA is proposing this FIP to address the deficiencies identified in the LA/LD action of MDAQMD Rules 1301, 1302, 1303, 1304, and 1305. These rules contain essential components of the MDAQMD's amended NNSR program. Although the EPA is aware that the MDAQMD intends to submit revisions to its NNSR program that would address all but one of the deficiencies in the 2023 LA/LD action, the EPA has not approved into the SIP any corrections that resolve the deficiencies identified in that rulemaking. Therefore, the EPA is proposing the FIP in this action to address the deficiencies identified in the June 30, 2023, LA/LD action.

In that rulemaking, the EPA determined that the MDAQMD program did not satisfy the requirement that permit applicants obtain corresponding reductions in emissions to offset increased emissions from construction at stationary sources. The EPA observed that the calculation procedure used in the District's rules to determine the amount of offsets required in certain situations does not comply with CAA section 173(c)(1) nor the regulations at 40 CFR 51.165(a)(3)(ii)(J) and (a)(1)(vi)(E). Under CAA section 173(c)(1), the SIP must contain provisions to ensure that “the total tonnage of increased emissions of the air pollutant from the new or modified source shall be offset by an equal or greater reduction . . . in the actual emissions of such air pollutant. . . .” The EPA found the MDAQMD's Rule 1304 to be deficient because it allows offsets for each modification at a major source to be calculated as the difference between the pre- and post-modification allowable emissions (also referred to as “potential to emit” or PTE) of a pollutant as opposed to requiring offsets for these modifications based on the difference between pre-modification actual emissions and post-modification allowable emissions. In other words, the MDAQMD's Rule 1304 applies an allowables-to-allowables test (also referred to as a PTE-to-PTE test) for calculating the quantity of “simultaneous emission reductions” (SERs) for offsetting emissions increases from a “Modified Major Facility.” Because SERs calculated using the post-modification PTE to pre-modification PTE test at a Modified Major Facility are calculated using the pre-modification PTE instead of the pre-modification Historic Actual Emissions (HAE) as the baseline, the EPA determined that the District's approach for calculating offsets does not meet minimum SIP requirements. Using actual emissions as the pre-project baseline (as required by the EPA's regulations) would show a higher net emissions increase than a calculation that uses allowable ( i.e., potential) emissions as the pre-project baseline. Consequently, calculating emissions decreases using potential emissions as the baseline allows reductions “on paper” that do not represent real emissions reductions. The EPA determined that this deficiency in the calculation procedures of Rule 1304 also results in deficiencies in Rules 1301, 1302, 1303, and 1305 because those rules contain cross-references to Rule 1304.

The EPA also determined that the definitions for “Major Modification” and “Modification (Modified)” in Rule 1301(NN) and 1301(JJ), respectively, are deficient because they allow permit applicants to calculate a net emissions increase using allowable ( i.e., potential) emissions as the pre-project baseline, rather than actual emissions, as required by the EPA's NNSR regulations. More specifically, Rule 1304(B)(2) allows SERs calculated and verified pursuant to the PTE-to-PTE test under Rule 1304(C)(2) to be subtracted from the total of all “net emissions increases” at any given facility. Due to the same deficiency identified in Rule 1304, the EPA determined that the MDAQMD's approach does not meet minimum SIP requirements because determining the amount of a net emissions increase (by calculating the difference between pre-project and post-project emissions) using actual emissions as the pre-project baseline (as required by the EPA's regulations) will show a higher net emissions increase than a calculation that uses allowable ( i.e., potential) emissions as the pre-project baseline. The MDAQMD definitions of “major modification” and “modification (modified)” in Rules 1301(NN) and 1301(JJ), respectively, are therefore not in compliance with the Federal regulations in 40 CFR 51.165(a)(1)(v)(A)( 1); the calculation procedures for determining offsets pursuant to 40 CFR 51.165(a)(3)(ii)(J); and the criteria for determining the emission decreases that are creditable as offsets pursuant to 40 CFR 51.165(a)(1)(vi)(E)( 1).

Next, the District rules do not include a requirement in CAA section 182(c)(6) that applies to nonattainment areas classified as Serious and above. The CAA provides that increases of ozone precursor emissions (volatile organic compound (VOC) and oxides of nitrogen (NO_X )) resulting from a modification “shall not be considered de minimis for the purposes of determining (NNSR) applicability unless the increases in net emissions . . . from such source does not exceed 25 tons when aggregated with all other net increases in emissions from the source over any period of five consecutive calendar years which includes the calendar year in which such increase occurred.” The EPA found the MDAQMD provisions to be deficient because they did not include this provision.

In addition to the deficiencies described above, the EPA identified deficiencies stemming from the MDAQMD's use of incorrect or undefined words. First, MDAQMD Rule 1304(D)(2)(a)(i) uses the word “proceeds” where the word “precedes” should be used, changing the meaning of the provision. Second, the MDAQMD's rules allow the word “contract,” an undefined term, to act as a substitute for the word “permit.” The EPA found that where it is not clear that permit requirements must be met to obtain such a contract, regulated sources may not need to adhere to SIP requirements they would otherwise have to meet to obtain a permit.

Finally, MDAQMD Rule 1305 allows for interprecursor trading of ozone precursors, whereas the EPA's rules no longer allow interprecursor trading. Except for the deficiencies regarding the missing applicability threshold provision and ozone interprecursor trading, which only apply to the emission of ozone precursors, the deficiencies identified in this section are relevant for both ozone and PM₁₀ nonattainment in the MDAQMD-administered portion of San Bernardino County.

C. Scope of the EPA's Proposed FIP

The FIP proposed in this action would authorize the EPA to directly implement the NNSR program for construction of new major stationary sources and major modifications at existing stationary sources within (1) the San Bernardino County portion of the West Mojave Desert ozone nonattainment area for the 2008 and 2015 ozone NAAQS and (2) the portions of the San Bernardino County and Trona Planning Area PM₁₀ nonattainment areas, all of which are within the MDAQMD's jurisdiction. The EPA would directly implement the NNSR program in these areas until such time as the EPA approves a SIP submission from the MDAQMD that fully resolves the deficiencies identified in the EPA's June 30, 2023, LA/LD action on the MDAQMD's NNSR program and identifies no new deficiencies.

The proposed FIP requirements are designed to meet the statutory requirements for SIPs and NNSR programs in CAA sections 110(c)(1), 172(c)(5), 173, 182(c) and (d), 189(a)(1)(A) and (e), 301(a), and 302. The provisions of the FIP are also designed to meet the requirements for state plans in the EPA regulations at 40 CFR 51.165, 51.1114, and 51.1314.

The FIP addresses the deficiencies the EPA identified in the MDAQMD's NNSR program by incorporating requirements from 40 CFR part 51, appendix S (“appendix S”), which was developed by the EPA as a transitional program for areas lacking an EPA-approved NNSR program. The deficiencies in the MDAQMD's NNSR program that the EPA identified in the 2023 LA/LD action are broad and affect multiple aspects of the program. For example, the MDAQMD's definition of what constitutes a modification could enable sources that should be subject to NNSR to avoid it, and the undefined term “contract” is potentially unenforceable. These deficiencies create issues at the outset as to whether a source is subject to NNSR. Because of these and the other deficiencies in the MDAQMD's NNSR program ( e.g., the offset calculation deficiencies), the EPA determined that it is most appropriate to propose a FIP that implements all of appendix S until the MDAQMD submits a fully approvable SIP.

The EPA has not, however, applied appendix S as a standalone FIP, so additional requirements are needed for this FIP rule. While appendix S and 40 CFR 51.165 have elements of a FIP that can be readily incorporated into rules applicable to specific jurisdictions, they do not include the application submission requirements and other requirements necessary to make the program administrable. Absent such specific administration requirements in the EPA's Federal NSR regulation, the EPA has looked to other resources to develop the content for this FIP, including the EPA regulations at 40 CFR part 49, which contain a Federal NNSR program for Indian Country.

The NNSR program only applies to pollutants for which an area is designated nonattainment; therefore, this proposed action would apply only in the areas within MDAQMD's jurisdiction that are designated nonattainment. Application of this FIP does not relieve source owners or operators or permit applicants from their obligation to comply with all applicable EPA-approved implementation plan requirements for sources within the jurisdiction of the MDAQMD. As discussed in section II.B of this document, the 2023 LA/LD action disapproved elements of the MDAQMD's NNSR program that the EPA identified as deficient; however, those disapproved elements remain in the SIP. Upon finalization of this FIP, permit applicants would still be required to comply with the MDAQMD SIP and therefore must still submit permit applications to the MDAQMD as that SIP requires, among other requirements. Permit applicants would therefore need to obtain two permits—one permit from the EPA under this FIP and one permit from the MDAQMD under the rules in the SIP. Applicants would not be allowed to begin actual construction until both the EPA and MDAQMD issue the respective permits under this FIP and the SIP; therefore, applicants would be advised to submit applications to each agency simultaneously to ensure parallel processing.

Where permit approval criteria between the MDAQMD's SIP and this FIP conflict—for example, the procedures to determine the quantity of offsets at a major modification, a deficiency in the MDAQMD's NNSR program—permit applicants would need to demonstrate compliance with the requirements of this FIP, since this FIP fills the gaps in the MDAQMD's NNSR program. The EPA does not anticipate that permit requirements in the EPA-issued FIP would be more stringent than the requirements in the SIP except for those that address the deficiencies the EPA identified in the 2023 LA/LD action. To the extent that there are any differences in the required application materials under the FIP versus the SIP, the applicant would need to comply with both requirements when submitting its application.

The EPA would directly implement and enforce the FIP. Enforcement authority is provided under CAA section 113(a), which authorizes the EPA to impose penalties including requiring compliance with the applicable implementation plan within a specified amount of time, payment of a civil penalties or enforcing through a civil judicial action.

III. Proposed FIP Requirements

The proposed FIP would apply to construction of new major sources and major modifications at existing major sources located within ozone and PM₁₀ nonattainment areas in the MDAQMD's jurisdiction. The proposed FIP includes the following sections: Plan Overview, Definitions, Applicability, Permit Approval Criteria, Public Participation Requirements, Final Permit Issuance and Administrative and Judicial Review, and Administration and Delegation of the Major NSR Plan for the MDAQMD. The following sections summarize the requirements of the proposed FIP. As explained in section II.C. of this document, the content of this proposed FIP is generally based on appendix S, which is the EPA's transitional program for areas that lack an approved program. This FIP also includes, however, elements of the EPA's Federal Major New Source Review Program for Nonattainment Areas in Indian Country at 40 CFR part 49.

A. Plan Overview

The plan overview paragraph (paragraph (a)) establishes the purpose of the FIP and where it applies, and it sets forth the general provisions that apply to the FIP. The purpose of the FIP is to establish preconstruction permitting requirements for new major stationary sources and major modifications at existing major stationary sources located in the MDAQMD portion of the Los Angeles-San Bernardino County (West Mojave Desert) ozone nonattainment area and the San Bernardino County and Trona Planning Area PM₁₀ nonattainment areas. The FIP would apply until such time as MDAQMD submits a revised SIP that resolves all the deficiencies identified by the EPA and the EPA fully approves the MDAQMD's NNSR SIP.

If the EPA fully approves the MDAQMD's NNSR SIP, the EPA will transition its authority to the MDAQMD. This may include suspending the issuance of Federal NNSR permit decisions under this FIP for permit actions that are pending upon the effective date of the EPA's approval of the MDAQMD's NNSR SIP. The EPA may retain jurisdiction over Federal NNSR permit applications for which the EPA has issued a proposed permit decision, but for which final agency action or the exhaustion of all administrative and judicial appeals processes (including any associated remand actions), or both, have not yet been concluded or completed by the effective date of such approval. The EPA would address these details of the transition in the approval of the MDAQMD's NNSR SIP submission.

If the EPA fully approves the MDAQMD's NNSR SIP, permits issued under this FIP will remain in effect and will be enforceable by the EPA. The EPA will continue to conduct the general administration of such permits and will retain authority to process and issue any and all subsequent NNSR permit actions relating to such permits. The EPA may transition this authority to the MDAQMD following a request from MDAQMD and after the EPA determines under CAA section 110(a)(2)(E)(i) that the MDAQMD has the necessary funding, personnel and authority and that the plan approval includes the authority for the MDAQMD to conduct general administration of such permits, the necessary authority to process and issue subsequent permit actions relating to such permits and the authority to enforce such permits. This detail of the transition would also be addressed in the plan approval action.

B. Definitions

Unless otherwise stated, the definitions in appendix S apply. Paragraph (b) contains additional definitions of the terms “Actual emissions,” “Enforceable as a practical matter,” “Environmental Appeals Board,” “Nonattainment pollutant,” “Reviewing authority,” and “Significant.” The EPA included definitions for these terms to ensure that they are adequate and appropriate for implementing this specific FIP.

The definition of “Actual emissions” is similar to the definition in paragraph II.A.13 of appendix S but does not provide for a reviewing authority to presume that source-specific allowable emissions are equivalent to the source's actual emissions, since that provision is not relevant for the implementation of this FIP.

The EPA included the definition of “Enforceable as a practical matter” because the term is used, but is not defined, in appendix S.

The EPA included the definition of “Environmental Appeals Board” because it is a necessary term for describing the permit appeals process.

The EPA included the definition of “Nonattainment pollutant” to simplify the regulatory language in the FIP and ensure that this FIP would apply to sources emitting nonattainment pollutants in the MDAQMD.

The EPA included the definition of “Reviewing authority” to specify that the EPA administers this FIP unless the EPA has delegated its authority to the MDAQMD as specified in paragraph (g)(2) of § 52.285.

The EPA modified the definition of “Significant” as that term is defined in appendix S to also include applicability threshold in CAA section 182(c)(6), which applies in nonattainment areas classified Serious and above for ozone. Section 182(c)(6) says that a change to the method of operation of a stationary source or a physical change to the source itself cannot be considered de minimis for purposes of determining the applicability of NNSR permitting requirements unless the increase in net emissions of NO_X or VOC from the source does not exceed 25 tons when aggregated with all other net increases in emissions from the source over any period of five consecutive calendar years, which includes the calendar year in which the increase occurred.

C. Applicability

This applicability paragraph (paragraph (c)) is titled “Does the plan apply to me?” This paragraph provides the criteria that a source is required to use for determining whether the FIP applies to the source. It states that the FIP applies to a source that will propose to construct a new major source (as defined in paragraph II.A.4 of appendix S) or a major modification at the permit applicant's existing major source (as defined in paragraph II.A.5 of appendix S). This paragraph also provides requirements concerning any source or modification that becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation that was established after August 7, 1980.

D. Permit Approval Criteria

The permit approval criteria paragraph (paragraph (d)) provides the criteria the EPA will use in reviewing a permitting application and in granting or denying an NNSR permit. The criteria include the requirements specified in CAA section 173 and appendix S. With specific regard to one deficiency that the EPA identified in MDAQMD's NNSR rules as explained in the June 30, 2023, final rule, CAA section 173(c)(1) and 40 CFR 51.165 requires that state permit programs must ensure that emission increases from new or modified major stationary sources are offset by real reductions in actual emissions. These requirements are included in paragraph (d)(2) of § 52.285.

This paragraph also adopts by reference requirements from 40 CFR part 51, appendix S. Major new sources or major modifications locating in areas designated as nonattainment for a pollutant for which the source or modification would be major may be allowed to construct only if the conditions set forth in appendix S are met. These requirements are incorporated in section (d) of the proposed FIP.

In addition to these requirements, the proposed paragraph also requires an applicant to submit certain information in its permit application to ensure that the information necessary to process the permit application is provided to the reviewing authority, consistent with the CAA requirements. This paragraph also requires the submission of information necessary for determining the potential effects on federally listed endangered or threatened species or designated critical habitats, and on historic properties. Additionally, the paragraph provides instructions for submitting a permit application to the EPA. Finally, the proposed paragraph specifies that the reviewing authority shall require monitoring, recordkeeping, and reporting conditions in a permit as necessary to facilitate compliance with the terms of a permit and make them enforceable as a practical matter.

E. Public Participation Requirements

The public participation paragraph (paragraph (e)) identifies the information for a project that must be made publicly available. It also describes how the public will be notified of a draft permit and how the public can comment and request a public hearing. These requirements are necessary to ensure that the FIP meets the requirements of the CAA and the EPA regulations, which require reviewing authorities to afford adequate opportunities for public participation in agency decision-making.

F. Final Permit Issuance and Administrative and Judicial Review

Paragraph (f) specifies when the final permit will be effective and addresses opportunities for administrative and judicial review of permitting decisions. Generally, a final permit becomes effective 30 days after service of the final permit decision, unless (1) a later effective date is specified in the permit; (2) review of the final permit is requested according to the appeal procedures in 40 CFR 124.19; or (3) no comments requested a change in the draft permit or a denial of the permit, in which case the reviewing authority may make the permit effective immediately upon issuance.

This paragraph also provides general requirements concerning the administrative record for the final permit decision, explaining the required contents of the administrative record, which is the basis for permit decisions by the reviewing authority. This paragraph also includes the requirements for permit reopenings and rescissions. Permit reopenings must provide for public notice and an opportunity for public comment, except for reopenings that do not increase emission limitations. Permit rescissions, which the reviewing authority may grant at the source's request if an application for rescission shows that the provisions of this paragraph would not apply to the source or modification, require public notice.

G. Administration and Delegation of the Major NSR Plan for the MDAQMD

Paragraph (g) specifies that the EPA is the reviewing authority for the FIP. It also provides a process for delegating the administration of the FIP to the MDAQMD, publication of notice of a delegation agreement, and revision or revocation of a delegation agreement.

H. SIP Replacement of All or Any Part of This FIP

The MDAQMD may submit revisions to its SIP at any time to address deficiencies identified by the EPA and the CAA requirements that are covered by the FIP. If the EPA approves such a SIP submittal, the approved MDAQMD rules would apply rather than the FIP, in whole or in part, as appropriate. SIP replacement of part of this FIP would still require the permit applicant to comply with the portion of the FIP that has not been replaced by the approved SIP. For the EPA to remove all FIP provisions, the MDAQMD would need to address of the deficiencies identified in the EPA's June 2023 final rulemaking action. As mentioned earlier in this document, the EPA is aware that the MDAQMD intends to submit revised rules to partially correct the deficiencies the EPA identified in the June 2023 final rulemaking action, which, if approved, could replace the corresponding requirements of this FIP. Until such time, permit applicants would be required, upon finalization of this FIP action, to comply with the FIP as well as the MDAQMD's SIP-approved NNSR regulation. As explained in section II.C of this document, this means permit applicants would need to submit permit application materials to both the EPA for review under the FIP and, separately, to the MDAQMD.

I. Severability

This FIP is a multifaceted regulatory instrument that addresses different NNSR requirements under the CAA, as detailed in the specific sections of this document that focus on the discrete contents of this FIP. The EPA intends the portions of this FIP to be severable from other portions, though the EPA took the approach of including all the parts in one rulemaking rather than promulgating multiple rules.

For example, the permit approval criteria state that the reviewing authority shall not approve a permit application unless it meets criteria required under the CAA and appendix S. Those criteria include:

—the lowest achievable emission rate requirement;

—the certification that all existing major sources owned or operated in California are in compliance or on a schedule for compliance with all applicable emission limitations and standards under the CAA;

—the requirement to obtain offsets from existing sources in the area of the proposed source such that there will be reasonable progress toward attainment of the applicable NAAQS;

—the requirement to demonstrate that the offsets will provide a net air quality benefit in the affected area as required under part 51, appendix S, paragraph IV.A, Condition 4;

—the requirement to demonstrate that emissions reductions otherwise required by the CAA are not credited for purposes of satisfying the offset requirements of the FIP; and

—the analysis of alternative sites, sizes, production processes, and environmental control techniques to demonstrate that the benefits of the source or modification significantly outweigh the environmental and social costs imposed as a result of the source's location, construction, or modification.

Each of these requirements is independent and may be severable. Should the MDAQMD submit a SIP revision that corrects some, but not all, of the deficiencies identified in our June 30, 2023 rulemaking, the permit approval criteria for this FIP could be limited to the remaining deficiencies the EPA identified. As described in section II.C of this document, permit applicants would still need to comply with any portions of the FIP that remain after the EPA approves the MDAQMD's revised rules in the SIP. Likewise, if a court invalidates any one of these elements of the FIP, the EPA intends the remainder of this action to remain effective, as the EPA finds each portion of it to be appropriate even if one or more parts of it have been set aside.

IV. Environmental Justice Considerations

This section summarizes environmental justice data for areas that would be impacted by this proposed action for informational and transparency purposes only. The EPA notes that the following discussion about environmental justice data is not a basis for this action and is distinct from the statutory obligations discussed in this proposal under the CAA. The CAA and applicable implementing regulations neither prohibit nor require an evaluation of environmental justice and consideration of environmental justice did not inform the regulatory requirements included in this proposal. The EPA identified environmental burdens and susceptible populations in communities with potential environmental justice concerns in the MDAQMD portion of the West Mojave Desert ozone nonattainment area and the San Bernardino County and Trona Planning Area PM₁₀ nonattainment areas using a screening-level analysis for ozone and PM₁₀ in the West Mojave Desert using the EPA's environmental justice screening and mapping tool (“EJSCREEN”). The EJSCREEN information and related supporting documentation for this action are available in the public docket for this action.

The area in which the FIP would apply is a large portion of San Bernardino County, California (all but the southwest portion of the County). The EPA used EJSCREEN to look at existing major stationary sources located in the 15 cities in the portion of San Bernardino County that is in the MDAQMD's jurisdiction. EJSCREEN shows that the population of San Bernardino County, California is 2,192,817, although a significant portion of the population lives in the area that is outside the jurisdiction of the MDAQMD and therefore outside of the geographic area that would be subject to this proposed FIP. The 15 cities (and their populations as provided in EJSCREEN) are Daggett (553), Oro Grande (4,899), Ivanpah (1), Hinkley (436), Barstow (27,835), Victorville (94,380), Trona (1,546), Adelanto (19,567), Kelso (1), Newberry Springs (488), Needles (7,844), Lucerne Valley (2,778), Edwards Air Force Base (6,579), Hesperia (60,788), and China Lake (32,020).

The EJSCREEN results show 13 of the 15 cities (except for the cities of Needles and Oro Grande) have percentiles above the general 80th percentile nationally for the ozone EJ index or the supplemental ozone EJ index. None of the cities exceeds the general 80th percentile nationally for the PM EJ index or the supplemental PM EJ index.

The EPA also looked at the EJSCREEN's socioeconomic indicators called “demographic index,” “limited English-speaking households,” and “less than high school education.” For the “demographic index,” the results show that 7 or the 15 cities have percentiles that exceed the general 80th percentile nationally. These cities are Daggett, Ivanpah, Barstow, Victorville, Adelanto, Kelso, and Hesperia. The “demographic index” is generally the average of an area's percent minority and percent low-income population.

For the “limited English-speaking households” socioeconomic indicator, the results show that 4 of the 15 cities exceed the general 80th percentile nationally; these cities are Ivanpah, Hinkley, Kelso, and Lucerne Valley. For the “less than high school education” socioeconomic indicator, the results show that 8 of the 15 cities exceeded the general 80th percentile nationally; these cities are Hinkley, Adelanto, Lucerne Valley, Ivanpah, Victorville, Kelso, and Hesperia.

The EPA intends to address any potential EJ-related concerns that may be associated with the socioeconomic indicators for the “demographic index,” “limited English-speaking households,” and “less than high school education” through outreach and public participation for the permits issued under the FIP. This work includes announcing the opportunity to comment on each permit and making proposed permit actions available to the public during the public comment period with an opportunity for a public hearing. Given that the implementation and public participation methods are similar to those in the District's currently applicable permit program, the EPA does not anticipate any change to these requirements resulting from the finalization of this FIP as proposed.

V. Proposed Action and Request for Public Comment

In accordance with CAA sections 110(c) and 301(a), the EPA is proposing to promulgate a FIP for the NNSR program for the MDAQMD portion of the West Mojave Desert ozone nonattainment area and the San Bernardino County and Trona Planning Area PM₁₀ nonattainment areas. The FIP would apply only to construction of new major stationary sources and major modifications at existing major stationary source in these nonattainment areas. The proposed FIP implements statutory requirements in CAA sections 110(c)(1), 172(c)(5), 173, 179(b), 182(c) and (d), 189(a)(1)(A) and (e), 301(a), and 302.

The FIP will be directly implemented and enforced by the EPA. The proposed FIP authorizes the EPA to delegate implementation of the FIP to the MDAQMD if the District requests such delegation. The FIP would apply until the MDAQMD revises its SIP to address deficiencies identified by the EPA and the EPA fully approves the MDAQMD's NNSR SIP.

The EPA will accept comments from the public on this proposed FIP for the next 45 days. The deadline and instructions for submission of comments are provided in the DATES and ADDRESSES sections at the beginning of this proposed rule.

VI. Statutory and Executive Order Reviews

Additional information about these statutes and Executive orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review

This action is not a significant regulatory action as defined in Executive Order 12866 (58 FR 51735, October 1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023), and was, therefore, not subject to a requirement for Executive Order 12866 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.) because the proposed rule implements existing requirements under the CAA and 40 CFR 51.160 through 51.165. The Office of Management and Budget (OMB) has previously approved the information collection activities in the existing prevention of significant deterioration (PSD) and NNSR regulations under OMB control number 2060-0003. The burden associated with obtaining an NNSR permit for a major stationary source undergoing a major modification is already accounted for under the approved information collection requests. Thus, the EPA is not conducting an information collection request for this action.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action is unlikely to impact small entities because the permitting requirements implemented through this action are applicable only to construction or modification of major stationary sources of air pollution. In the MDAQMD, major sources are those that emit, or have the potential to emit 25 tons per year or more of NO_X, SO_X, or VOC; or 15 tons per year or more of PM₁₀. To the extent that any small entities would own or operate sources capable of emitting this much air pollution, the requirements of this action apply only to construction of new major sources, or major modifications to existing major sources, located in the portions of the MDAQMD that are subject to the requirements of this action. The EPA does not have information to suggest that there currently are a substantial number of major stationary sources located in the MDAQMD that are owned or operated by small entities. The Agency also does not have any information on future modifications that any such existing major sources may engage in after finalization of this FIP. Further, the Agency does not have information that suggests one or more small entities will seek to construct a new major stationary source in the MDAQMD.

Even if the Federal permitting requirements established in this FIP could be applicable to one or more small entities, these requirements would not have significant economic impact on such a small entity. Furthermore, any impact would not affect a substantial number of small entities. This proposed FIP ensures that such small entities and other sources subject to the FIP requirements meet CAA requirements to which these sources should have already been subject. Upon finalization of this action, sources applying for a permit will be required to submit application materials to the EPA in compliance with the proposed FIP. These sources are already subject to NNSR requirements under the District's SIP, including, the requirements to submit applications, to obtain offsets, and to install pollution control technology that satisfies Federal standards. Consequently, the incremental impact associated with application of the specific requirements of the NNSR regulations for certain sources emitting nonattainment criteria pollutants or its precursors is expected to be de minimis, primarily pertaining to the amount of offsets needed.

D. Unfunded Mandates Reform Act (UMRA)

This proposed action does not contain an unfunded mandate of $100 million or more, as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It 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.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175, because this proposed rule would not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that the tribe has jurisdiction, and it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

Executive Order 13045 directs Federal agencies to include an evaluation of the health and safety effects of the planned regulation on children in Federal health and safety standards and explain why the regulation is preferable to potentially effective and reasonably feasible alternatives. This action is not subject to Executive Order 13045 because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866. The EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because it implements specific standards established by Congress in statutes.

However, EPA's Policy on Children's Health applies to this action. Information on how the Policy was applied is available under “Children's Environmental Health” in the Supplementary Information section of this preamble.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (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 (NTTAA)

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations and Executive Order 14096: Revitalizing our Nation's Commitment to Environmental Justice for All

The EPA believes that it is not practicable to assess whether the human health or environmental conditions that exist prior to this action result in disproportionate and adverse effects on communities with environmental justice concerns. While the EPA can identify the existing major sources in the nonattainment areas that would be impacted by this action, the EPA cannot quantify the number or types of sources that will undertake major modifications in the future. Additionally, the EPA cannot know whether new major sources will locate in the nonattainment area and what emissions these sources may have. The impacts of the proposal on are likely to vary greatly depending on the source category, number and location of facilities, and the pollutants and potential controls addressed. Therefore, while the EPA cannot quantify the precise baseline conditions and impacts, to the extent that this action will have impacts, it will not result in disproportionate and adverse effects on communities with EJ concerns as compared with baseline human health and environmental conditions.

Upon finalization of this action, the EPA would replace the MDAQMD in implementation of the District's NNSR program through the FIP. Therefore, the EPA does not anticipate that this action, upon finalization, will result in any negative impacts to human health and the environment negative impacts. If this action has any impact on human health or the environment it will be beneficial in so far as the FIP action will address deficiencies associated with the calculation of emission offsets in the NNSR program. As explained in section II of this NPRM, this FIP is being promulgated to address several deficiencies with the MDAQMD's NNSR program. While the EPA has not analyzed the health impacts nor the emissions impacts from these deficiencies, the deficient provisions are less stringent than the Federal NNSR requirements that the EPA will be applying if this proposed FIP is finalized. Therefore, in so far as the EPA can qualitatively identify impacts to human health and the environment, the EPA expects this action, if finalized, would ensure the protections provided by the CAA and EPA's implementing regulations will be fully realized.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Ammonia
• Incorporation by reference
• Intergovernmental relations
• Nitrogen oxides
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

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

For the reasons stated in the preamble, part 52 of title 40 of the Code of Federal Regulations is proposed to be 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 52.285 is added to read as follows: