[Federal Register Volume 88, Number 125 (Friday, June 30, 2023)]
[Rules and Regulations]
[Pages 42258-42271]
[FR Doc No: 2023-13393]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0338; FRL-10269-02-R9]

Approval, Limited Approval and Limited Disapproval of California
Air Plan Revisions; Mojave Desert Air Quality Management District;
Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing an
approval and a limited approval and limited disapproval of revisions to
the Mojave Desert Air Quality Management District (MDAQMD or
``District'') portion of the California State Implementation Plan
(SIP). These revisions concern the District's New Source Review (NSR)
permitting program for new and modified sources of air pollution under
part D of title I of the Clean Air Act (CAA or ``Act''). This action
updates the District's portion of the California SIP with ten revised
rules. Under the authority of the CAA, this action simultaneously
approves local rules that regulate emission sources and directs the
District to correct rule deficiencies.

DATES: This rule is effective July 31, 2023.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2022-0338. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure 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 through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If

you need assistance in a language other than English or if you are a
person with a disability who needs a reasonable accommodation at no
cost to you, please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: La Weeda Ward, Permits Office (Air-3-
1), U.S. Environmental Protection Agency, Region IX,<PHONE_NUMBER>,
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On November 25, 2022 (87 FR 72434), the EPA proposed approval of
five rules and a limited approval and limited disapproval of five rules
that were submitted for incorporation into the California SIP. Table 1
shows the rules in the California SIP that will be removed or
superseded by this action, while Table 2 shows the rules that the State
submitted for inclusion in the California SIP.\1\
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    \1\ In the incorporation by reference (IBR) section of our
proposed action (87 FR 72434) inadvertently refers to Table 1 as
opposed to Table 2 for the list of submitted rules that are intended
to replace the rules in the SIP. However, we explain in Section C of
our proposed rulemaking that ``the rules listed in Table 2 are
intended to replace the SIP-approved rules listed in Table 1.'' We
also state in Section F of our proposed rulemaking that, ``[i]f
finalized, this action would incorporate into the SIP the submitted
rules listed in Table 2 for which we have proposed approval or
limited approval/limited disapproval . . .''

                                                       Table 1--Rules To Be Removed or Superseded
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                                                                                EPA action
                 Rule No.                           Rule title            Adoption date  Submittal date       date          Federal Register citation
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206--San Bernardino County...............  Posting of Permit to Operate  \a\ 02/01/1977      06/06/1977      11/09/1978  43 FR 52237
206--Riverside County....................  Posting of Permit to Operate      02/06/1976      04/21/1976      11/09/1978  43 FR 52237
219--San Bernadino County................  Equipment Not Requiring a     \a\ 02/01/1977        6/6/1977       11/9/1978  43 FR 52237
                                            Permit.
219--Riverside County....................  Equipment Not Requiring a         09/04/1981      10/23/1981      07/06/1982  47 FR 29231
                                            Written Permit Pursuant to
                                            Regulation II.
1300.....................................  General.....................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133
1301.....................................  Definitions.................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133
1302.....................................  Procedure...................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133
1303.....................................  Requirements................      03/25/1996       7/23/1996      11/13/1996  61 FR 58133
1304.....................................  Emissions Calculations......      03/25/1996       7/23/1996      11/13/1996  61 FR 58133
1305.....................................  Emission Offsets............      03/25/1996       7/23/1996      11/13/1996  61 FR 58133
1306.....................................  Electric Energy Generating        03/25/1996       7/23/1996      11/13/1996  61 FR 58133
                                            Facilities.
1402.....................................  Emission Reduction Credit         06/28/1995       8/10/1995      01/22/1997  62 FR 3215
                                            Registry.
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\a\ These rules were adopted by California Air Resources Board (CARB) Ex. Ord. G-73 on 2/1/1977 and substituted into the 6/6/1977 submittal to the EPA
  after the original adoption date of 1/9/1976 because the two versions were identical, and the earlier version was submitted on behalf of the Southern
  California Air Pollution Control District (SoCalAPCD) (42 FR 1273).

                                            Table 2--Submitted Rules
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                                                                                Submitted date
                  Rule No.                                Rule title               Amended date         \a\
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206.........................................  Posting of Permit to Operate......      02/22/2021      10/15/2021
219.........................................  Equipment Not Requiring a Permit..      01/25/2021      07/23/2021
1300........................................  New Source Review General.........      03/22/2021      07/23/2021
1301........................................  New Source Review Definitions.....      03/22/2021      07/23/2021
1302 \b\....................................  New Source Review Procedure.......      03/22/2021      07/23/2021
1303........................................  New Source Review Requirements....      03/22/2021      07/23/2021
1304........................................  New Source Review Emissions             03/22/2021      07/23/2021
                                               Calculations.
1305........................................  New Source Review Emission Offsets      03/22/2021      07/23/2021
1306........................................  New Source Review for Electric          03/22/2021      07/23/2021
                                               Energy Generating Facilities.
1402........................................  Emission Reduction Credit Registry      05/19/1997      08/05/1997
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\a\ The submittal for Rules 219, 1300, 1301, 1302, 1303, 1304, 1305, and 1306 was transmitted to the EPA via a
  letter from CARB dated July 22, 2021, and received by the EPA on July 23, 2021. Rule 206 was transmitted
  electronically on October 15, 2021, as an attachment to a letter dated October 14, 2021. Rule 1402 was
  submitted on August 1, 1997, and received by the EPA on August 5, 1997.
\b\ As we stated in section 5.9.1 of our technical support document (TSD), the State did not submit for
  inclusion in the SIP subsections (C)(5) and (C)(7)(c) of Rule 1302.

    In our proposal, we proposed approval of Rules 206, 219, 1300,
1306, and 1402 as authorized under section 110(k)(3) of the Act. As
authorized in sections 110(k)(3) and 301(a) of the Act,\2\ we proposed
a limited approval and limited disapproval of Rules 1301, 1302, 1303,
1304, and 1305 because although they fulfill most of the relevant CAA
requirements and strengthen the SIP, they also contain six
deficiencies, summarized below, that do not fully satisfy the relevant
requirements for preconstruction review and permitting under section
110 and part D of the Act:
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    \2\ If a portion of a plan revision meets all the applicable CAA
requirements, CAA sections 110(k)(3) and 301(a) authorize the EPA to
approve the plan revision in part and disapprove the plan revision
in part.

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    1. The use of the term ``contract'' in the District's rules as
interchangeable with the term ``permit'' is a deficiency because, as
used in the specific contexts we identified in our proposed action, the
term ``contract'' is not an acceptable alternative to the term
``permit.''
    2. The calculation procedures used in the District's rules to
determine the amount of offsets required in certain situations do not
comply with CAA section 173(c)(1) or 40 CFR 51.165(a)(3)(ii)(J) or
(a)(1)(vi)(E). Rule 1304 uses a potential-to-potential test for
calculating the quantity of ``simultaneous emission reductions'' (SERs)
that can be used as offsets for a ``Modified Major Facility.'' Pursuant
to Rule 1304(C)(2)(d), SERs at a Modified Major Facility are calculated
using the potential to emit (PTE) in place of Historic Actual Emissions
(HAE). Calculating emissions decreases using potential emissions as the
baseline allows reductions ``on paper'' that do not represent real
emissions reductions. The deficiency in Rule 1304, through cross-
references, also causes related deficiencies in Rules 1301, 1302, 1303,
and 1305.
    3. The definitions for ``Major Modification'' and ``Modification
(Modified)'' pursuant to Rule 1301(NN) and 1301(JJ), respectively, are
deficient because they do not conform with Federal requirements. The
definition of ``Modification (Modified)'' excludes modifications that
do not result in a ``Net Emissions Increase,'' which is defined in Rule
1301(QQ) as: ``An emission change as calculated pursuant to District
Rule 1304(B)(2) which exceeds zero.'' If there is no net emissions
increase, as defined in Rule 1301(QQ) and Rule 1304(B)(2), a permit
applicant can avoid NSR requirements entirely (i.e., best available
control technology (BACT), offsets, visibility, etc.) because it can
effectively exclude the proposed project from being considered a
``Modification'' and hence a ``Major Modification,'' using calculation
procedures that do not conform to the Federal definition for Major
Modification pursuant to 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 pursuant to 40 CFR
51.165(a)(1)(vi)(E)(1).
    4. The District's use of the term ``proceed'' in Rule 1304 is a
deficiency because the word ``precede'' (or a synonym of ``precede'')
should be used.
    5. The provision in Rule 1305 allowing for interprecursor trading
(IPT) for ozone precursors is a deficiency because IPT is no longer
permissible.
    6. The District rules do not contain the de minimis plan
requirements contained in CAA section 182(c)(6) that apply to areas
classified as Severe nonattainment.\3\
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    \3\ CAA Section 182(d), which was added by the Clean Air Act
Amendments of 1990, details plan submission requirements for Severe
non-attainment areas and includes all the provisions under section
182(c) for Serious non-attainment areas.
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    As discussed in our proposal, this action is consistent with CAA
sections 110(l) and 193. It will not relax any existing SIP provision,
and it will not interfere with applicable attainment and reasonable
further progress requirements or other applicable CAA requirements.
This action will not relax any pre-November 15, 1990 requirements in
the SIP, and therefore changes to the SIP resulting from this action
will ensure greater or equivalent emissions reductions of ozone and its
precursors and PM10 and its precursors in the District.
    Finally, we proposed to approve, under 40 CFR 51.307, the
District's visibility provisions for sources subject to the District's
nonattainment new source review (NNSR) requirements. Accordingly, we
also proposed to revise 40 CFR 52.281(d) to add the District to the
list of areas not subject to the visibility Federal Implementation Plan
(FIP) at 40 CFR 52.28, to clarify that the FIP does not apply to the
District.
    The EPA's proposal and technical support document (TSD) for this
action have more information and analysis on the District's submittal,
the deficiencies, and our proposed approvals.

II. Public Comments and EPA Responses

    The public comment period on the proposed rule opened on November
25, 2022, the date of its publication in the Federal Register, and
closed on December 27, 2022. During this period, the EPA received one
comment letter submitted by the Mojave Desert Air Quality Management
District (MDAQMD or the ``District''). A copy of the District's comment
letter is included in the docket for this action and is accessible at
www.regulations.gov. In this section, we provide a summary of and
response to the MDAQMD's comments.
    Comment #1: The District states that portions of the EPA's proposed
action are inopportune. The District states that the EPA did not
communicate with its staff on any substantive issues during its
evaluation of CARB's submittal of the District's revisions to its NSR
program despite previously working with its staff to address identified
deficiencies from a prior submittal. The District states that the only
communication it received from the EPA after adopting rule revisions
were requests for copies of various SIP rules and accompanying
information, most of which the District had previously provided to the
EPA in the rule development process. The District states that the EPA
could have communicated trivial deficiencies to the District prior to
publishing the proposed action, which would have allowed the District
to provide commitments to amend its rules and that such a process would
have allowed issues to be narrowed to those that truly require
interpretation or judicial review.
    Response to Comment #1: The EPA does not read this comment as
asserting that our proposed action on the submitted rules was legally
or technically deficient; rather, we understand the comment to express
dissatisfaction with the EPA's communication after CARB's submittal of
the revised rules on July 23, 2021.
    The EPA values its relationships with state, local, and tribal air
agencies and strives to maintain open and transparent communications
with them. Prior to our receipt of the District's submittal, the EPA,
the District, and CARB committed significant resources to meeting, on a
bi-weekly basis from approximately March 2020 to June 2021, for
detailed discussions of the NSR program deficiencies we identified in a
letter to the District dated December 19, 2019.\4\ After the conclusion
of this process, and following CARB's submission of the District's
revised rules, the EPA identified a few additional issues not
identified in our December 19, 2019 letter. EPA staff are available to
continue to work with the District to address questions and concerns
with revisions necessary to correct the deficiencies, with the goal of
full approval of revisions to the District's

rules and a fully approved NSR program.
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    \4\ 87 FR 72434 (November 25, 2022). Technical Support Document,
page 11. The December 19, 2019 letter, from Lisa Beckham to Brad
Poiriez, which the District mentions in footnote 17 of its comment
letter, follows our October 10, 2019 letter from Gerardo Rios,
Manager, Air Permits Office, EPA Region IX, to Brad Poiriez, Air
Pollution Control Officer, MDAQMD, in which we provided feedback in
response to the MDAQMD's invitation to review and comment on the
District's proposed adoption of its ``70 ppb Ozone Standard
Implementation Evaluation: RACT SIP Analysis; Federal Negative
Declarations; Certification of Nonattainment New Source Review
Program; and, Emission Statement Certification (70 ppb O3
Evaluation).'' In the October 10, 2019 letter, we stated that we
would send a comprehensive list of issues to ``provide the District
sufficient time to adopt the necessary rule revisions and make a new
NSR submittal to meet the implementation requirements of the 2015
ozone NAAQS [national ambient air quality standards].''
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    In addition, we understand the District's reference to
``commitments'' to suggest that the EPA could have proposed a
conditional approval under CAA section 110(k)(4) rather than proposing
a limited approval and limited disapproval. As authorized under CAA
sections 110(k)(3) and 301(a), we are taking action to finalize a
limited approval and limited disapproval of the submitted rules that
contain the deficient provisions we identified in our proposed action.
    Comment #2: The District states that the EPA's proposed rulemaking
does not fully identify its existing NSR program. The District states
that Table 1 in the proposed action and Table 2 in the accompanying
Technical Support Document (TSD) are incomplete because they fail to
mention SIP-approved Rules 201, ``Permit to Construct,'' 202,
``Temporary Permit to Operate,'' 203, ``Permit to Operate,'' and 204,
``Permit Conditions.'' The District points out that Rules 201, 202,
203, and 204 are currently in the SIP, but states that they should have
been listed in the proposed action because they are important for
understanding portions of the District's NSR program. The District then
requests that the EPA officially acknowledge that Rules 201, 202, 203,
and 204 are part of District's NSR Program.
    Response to Comment #2: The EPA acknowledges that SIP-approved
Rules 201, 202, 203, and 204 are part of the District's SIP-approved
NSR program and clarifies that the purpose of Table 1 in our proposed
action and Table 2 in the TSD is to present the submitted rules and the
current SIP-approved versions of the submitted rules.
    Comment #3: The District states that the EPA's proposed rulemaking
identifies deficiencies that are present in the current SIP-approved
rules and does not explain why these previously approved provisions are
no longer approvable. The District states that it would appreciate a
more detailed explanation of the underlying provisions of the CAA that
have changed to make the previously approved SIP provisions, which were
adequate for SIP approval in 1996, not approvable now. The District
states that it is not aware of any amendments to the CAA since 1990,
therefore it requests an updated, specific analysis with appropriate
citations, documentation, and rationale for the changes to EPA's
interpretations that render previously approved NSR program provisions
not approvable. The District states that it would appreciate a more
detailed analysis--not mere citations of current regulations--regarding
the specific changes in the EPA regulations and policy that now render
previously approved provisions deficient. The District states that the
TSD associated with the EPA's proposed action does not provide a
sufficient explanation of the EPA's interpretation of the CAA
requirements.
    Response to Comment #3: We disagree with the District's comment
that our proposed action does not provide sufficient explanation or
analysis of the deficiencies identified. The EPA provided its rationale
as to why the submitted revisions to the SIP-approved rules, while
deficient, represent an overall strengthening of the SIP.\5\ Our
proposed action and the TSD cite to specific provisions in the CAA and
its implementing regulations in 40 CFR part 51 that form the basis for
the EPA's disapproval of specific provisions in the District's revised
NSR rules.
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    \5\ See 87 FR 72436-38; TSD Sections 5-10.
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    As the District notes, the EPA last approved the District's
Regulation XIII into the SIP in 1996. In 2002, the EPA revised its NSR
regulations at 40 CFR 51.165.\6\ These revisions included the addition
of 40 CFR 51.165(a)(3)(ii)(J). As we discuss in this document and in
our proposed action and accompanying TSD, the District's submitted
rules are inconsistent with the requirements in 40 CFR
51.165(a)(3)(ii)(J) and are therefore deficient.\7\ In particular, our
proposed action explains that 40 CFR 51.165(a)(3)(ii)(J) requires
offsets for each major modification at a major source based on the
difference between pre-modification actual emissions and post-
modification PTE.\8\ Our responses to Comments 5 and 6 below provide
additional explanation of this issue. The EPA's interpretation of this
provision is reasonable and is consistent with our actions regarding
other submittals of NSR rules for SIP approval.\9\
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    \6\ 67 FR 80185 (December 31, 2002).
    \7\ We explained in our TSD that the calculation of the offset
quantity to use an actual emissions baseline is applicable to
offsets that are being used to allow construction of new major
sources or major modifications. The District can offset its minor
sources and minor modifications differently than the required
methods specified for major sources and major modifications.
    \8\ See, e.g., ``Response 4,'' 81 FR 50339, 50340 (August 1,
2016).
    \9\ See, e.g., 81 FR 50339 (August 1, 2016), in which we
finalized a limited approval/limited disapproval action on the Bay
Area Air Quality Management District's NSR program. The Bay Area Air
Quality Management District subsequently revised and resubmitted its
rules, which the EPA approved in the rulemaking titled: ``Revisions
to California State Implementation Plan; Bay Area Air Quality
Management District; Stationary Sources; New Source Review,'' 83 FR
8822 (March 1, 2018). See also ``Revision of Air Quality
Implementation Plan; California; Sacramento Metropolitan Air Quality
Management District; Stationary Source Permits,'' 78 FR 53270
(August 29, 2013).
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    Comment #4a (Inaccuracies regarding Rule 219): The District states
that the EPA's TSD contains inaccuracies and misstatements regarding
MDAQMD Rule 219. The District states that the EPA's statement in the
TSD that Rule 219 exempts certain emission units from NSR is
``manifestly untrue.'' The District describes its permitting program as
emissions unit-based, and distinguishes it from the Federal regulatory
scheme, which the District describes as facility-based. The District
states that the ``net result'' is that while a specific emissions unit
may be exempt from permitting requirements, it ``will still undergo the
NSR process.'' The District cites Rules 1301 and 1304 to support its
position that its NSR program requires emissions changes to be
determined both on an emissions unit by emissions unit basis and in
regard to the facility as a whole, and it cites to Rule 219(B)(4) to
support its position that Rule 219 requires emissions from exempt
equipment to be included in NSR calculations. The District further
states that while Rule 219 exempts certain emissions units from
obtaining ``paper'' permits, it does not exempt emissions units or an
entire facility containing such units from other District requirements,
such as specific emissions limits and monitoring, recordkeeping, and
source testing requirements, as well as the requirement to undergo at
least a portion of the NSR analysis as set forth in Rule 1302, among
others.
    The District states that ``USEPA has expressed concerns in the
past'' that a facility could escape NSR review if it were composed
entirely of exempt equipment and explains that there are several
backstops that prevent facilities that consist solely of equipment that
is potentially exempt under Rule 219 from escaping review, such as
actions undertaken by enforcement personnel and local land use agencies
pursuant to state law. The District requests that the notation
regarding the nature and effect of Rule 219 as part of its NSR program
be corrected or clarified in the EPA's TSD.
    Response to Comment #4a (Inaccuracies regarding Rule 219): The EPA
proposed to fully approve Rule 219 as amended on January 25, 2021,
because we have determined that it satisfies all relevant CAA
requirements. We do not interpret the District's comment as an
assertion that our proposed action to fully approve Rule 219 is
incorrect; rather, the EPA understands the District's comment to take
issue with a statement in section

5.7 of our TSD, specifically, that Rule 219 ``is a rule that specifies
which sources are exempt from the New Source Review program for
regulated NSR pollutants.'' \10\ We agree that this statement warrants
clarification that we determined the District's NSR program requires a
facility-level review of emissions from a proposed project, including
emissions from equipment otherwise exempt from permitting requirements,
and that Rule 219 is consistent with 40 CFR 51.160(e), which allows
states to exclude some sources from NSR requirements (i.e., lowest
achievable emission rate (LAER) and offsets), as well as public notice,
by not requiring those sources to obtain a permit. There is a
distinction between sources subject to NSR requirements and sources
that are simply part of the District's NSR program. Even emissions from
equipment that is exempt from permitting requirements must be included
when making a major source determination. Rules 201 and 203 require
that essentially all sources must obtain an authority to construct and
a permit to operate, but Rule 219 specifies which sources do not need
to obtain a permit, and therefore do not need to undergo NSR review,
even if their emissions are included in determining if a source is
major.
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    \10\ 87 FR 72434 (November 25, 2022). Technical Support
Document, ``Notice of Proposed Rulemaking Revisions to the
California State Implementation Plan, MDAQMD, NSR Rules 206, 219,
1300, 1301, 1302, 1303, 1304, 1305, 1306, 1402.'' Page 13.
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    The District's comment refers to concerns that the EPA has
expressed ``in the past.'' Although the EPA may have expressed concerns
with a previous version of Rule 219, our review of the submitted
version of Rule 219 did not identify any remaining concerns and found
that the rule is approvable.\11\ Therefore, we do not find it necessary
to address the merits of the ``backstops'' involving District
enforcement and State laws that the District asserts would mitigate
such a problem.
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    \11\ See, ``Email Communication between Gerardo Rios (EPA) and
Brad Poiriez (District) on 3/28/2019,'' Docket No. C.12, expressing
concerns with a previous version of Rule 219 that is not the subject
of this rulemaking. (We have since corrected the inadvertent
omission of portions of document C.12 from the docket and we note
that substantive portions of document No. C.12 were included in a
different document, ``Spreadsheet of identified deficiencies and
changes made discussed during 11/17/20 Working Group Call with
representatives from EPA, the District and CARB,'' Docket No. C.15.)
As we discussed in our proposed rule, and TSD section 5.7 and TSD
Attachment 3, we found that Rule 219 as revised on January 25, 2021,
and submitted to the EPA on July 23, 2019, to be consistent with CAA
requirements.
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    Comment #4b (Use of the term ``contract''): The District comments
that the EPA failed to sufficiently communicate a deficiency identified
in our proposed action, specifically, that Rules 1302 and 1304 allow
for the interchangeable use of the terms ``contract'' and ``permit.''
The District states that, had the EPA communicated this deficiency, the
District could have provided assurances to the EPA to remove the
deficiency. The District states that it can and will be able to provide
a commitment to modify the deficient provisions in a subsequent local
action, but it requests specific guidance from the EPA on whether it is
appropriate to provide the EPA a commitment to modify at this time.
    Response to Comment #4b (Use of the term ``contract''): We do not
interpret the District's comment to assert a legal or technical basis
that our proposed action to disapprove this rule is incorrect. The
District states that the term ``contract'' was most likely
inadvertently retained and that it can commit to modify the specific
provisions to address the issue. We appreciate the District's
willingness to address this deficiency. It is not necessary for the
District to provide additional commitments. Following this final
action, the EPA remains available to discuss necessary revisions, with
the goal of full approval of revisions to the District's rules and a
fully approved NSR program.
    Comment #5: Regarding the second deficiency the EPA identified in
the proposed rulemaking, the calculation procedures the District uses
to determine the amount of offsets required in certain situations, the
District first states that the EPA partially mischaracterizes Rule
1304(C)(2)(d) as a ``potential to emit to new potential to emit after
modification'' calculation. According to the District, this provision
is more correctly characterized as ``current fully offset allowable
emissions'' to ``potential new emissions.'' The District further states
that the provision was intended to only be used to reduce the amount of
offsets needed as opposed to a determination of whether offsets are
required. The District also states that the structure of its NSR
regulation is designed to ensure that emissions reductions are greater
than those required by the Federal CAA provisions, and to meet specific
requirements of the California Clean Air Act and states that the de
minimis provisions in CAA section 182 could result in increased
emissions. The District states that the provision allowing for the use
of SERs has been in active use within the District since 1993, and that
over that time, the number and extent of NAAQS exceedances has declined
within its jurisdiction despite significant increases in economic
activity and population. Therefore, the District states, the decline in
NAAQS exceedances would not have occurred if its NSR program was not
achieving reductions at least as stringent as those under strict CAA
methodology. The District also states that ``it has provided clear and
convincing evidence in its Staff Report and elsewhere that the entire
NSR Program as formulated requires not only BACT but also Offsets in a
number of situations where they would not be required under a strict
[Federal] CAA calculation methodology thus resulting in a more
stringent set of requirements overall.'' The District states that,
despite its assertion of the adequacy of the current SIP submission, it
would appreciate specific guidance regarding the type and nature of
evidence the EPA would consider appropriate to show equivalent
stringency with the requirements of the CAA.
    Response to Comment #5: The EPA does not agree with the District's
comment. Preliminarily, the EPA notes that Rule 1303(B) imposes offset
obligations for new or modified facilities that emit or have the
potential to emit above specified thresholds ``as calculated pursuant
to District Rule 1304.'' \12\ Rule 1304, ``New Source Review Emission
Calculations,'' sets forth ``the procedures and formulas to calculate
increases and decreases in emissions'' to determine applicability of
offset obligations and to calculate SERs, which are ``reductions
generated within the same facility.'' \13\ Rule 1304(B)(1) specifies
``General emission change calculations,'' and Rule 1304(B)(2) specifies
``Net Emissions Increase Calculations.'' Notably, Rule 1304(B)(2)(c)
provides that the net emissions increase calculation must subtract SERs
``as calculated and verified pursuant to Section C below.'' Rule
1304(C) specifies the calculation of SERs. The EPA proposed to
disapprove Rule 1304(C)(2)(d). This provision applies to modification
projects at existing major sources that involve emissions units that
``have been previously offset in a documented prior permitting
action.'' Thus, Rule 1304(C)(2)(d) relates to the calculation of a net
emissions increase to establish offset obligations.
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    \12\ Rule 1303(B)(1). See also, EPA TSD at 17. Rule 1303(A)
specifies control obligations, i.e., Best Available Control
Technology.
    \13\ Rule 1304(A). In addition, Rule 1304 sets forth
``procedures and formulas'' to calculate BACT obligations. See Rule
1304 (A)(1)(a)(i). See also, EPA TSD at 17-18.

---------------------------------------------------------------------------

    The EPA's proposed action explains that Rule 1304(C)(2)(d) is
deficient because, for certain projects, it allows the amount of
required offsets to be calculated using a pre-project baseline using
potential emissions (generally, the emissions allowed by a permit),\14\
whereas the CAA requires a pre-project baseline based on actual
emissions.\15\ As the EPA explained, CAA section 173(c)(1) requires the
SIP to contain provisions to ensure that emission increases from new or
modified major stationary sources are offset by real reductions in
actual emissions. In addition, 40 CFR 51.165(a)(3)(ii)(J) requires
that, for major modifications, the total quantity of increased
emissions that must be offset shall be determined by summing the
difference between the allowable emissions after the modification and
the actual emissions before the modification for each emissions unit.
---------------------------------------------------------------------------

    \14\ Rule 1304(C)(2)(d)(i) states that the PTE for an emissions
unit is specified in a federally enforceable emissions limitation.
Therefore, in the context of this rulemaking action, the terms
``allowable'' and ``potential'' are generally interchangeable.
    \15\ We note that District's comment includes the following
incorrect statement, ``Specifically, USEPA is objecting to the use
of Simultaneous Emissions Reductions (SERs) which are created as
part and parcel of an NSR action at a Major Facility to in effect
`self-fund' the necessary offsetting emissions reductions by
reducing emissions elsewhere in the Major Facility.'' The deficiency
identified by the EPA is the District's calculation methodology to
determine the quantity of offsets required, which inappropriately
allows for the use of reductions that occurred in the past and are
not necessarily ``simultaneous.''
---------------------------------------------------------------------------

    Rule 1304(C)(2)(d) is not consistent with statutory and regulatory
requirements that the pre-project baseline utilize actual emissions to
calculate offset obligations. Instead, for emissions from units that
have been ``previously offset in a documented prior permitting
action,'' Rule 1304(C)(2)(d) allows the pre-project baseline to use the
unit's potential to emit (the unit's allowable emissions) as reflected
in a permit:

    [Historic Actual Emissions] for a specific Emission Unit(s) may
be equal to the Potential to Emit for that Emission Unit(s), [if]
the particular Emissions Unit have [sic] been previously offset in a
documented prior permitting action so long as: (i) The PTE for the
specific Emissions Unit is specified in a Federally Enforceable
Emissions Limitation; and (ii) The resulting Emissions Change from a
calculation using this provision is a decrease or not an increase in
emissions from the Emissions Unit(s) and (iii) Any excess SERs
generated from a calculation using this provision are not eligible
for banking pursuant to the provision [sic] of District Regulation
XIV.

    The District states that the EPA partially mischaracterizes Rule
1304(C)(2)(d) as allowing the use of the potential-to-potential test
because the provision is more correctly characterized as ``current
fully offset allowable emissions'' to ``potential new emissions.'' It
is true that Rule 1304(C)(2)(d) allows the use of a pre-project
baseline based on currently fully offset allowable emissions, because
it is clear that the rule equates allowable emissions and potential to
emit. However, the District's statements regarding the use of allowable
emissions or potential emissions as the pre-project baseline are not
relevant to the point presented in our proposed action: Rule 1304 is
not consistent with Federal requirements because it does not require
the use of actual emissions as the pre-project baseline, rather than
allowable emissions.\16\
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    \16\ See, e.g., 40 CFR 51.165(a)(3)(ii)(J) [requiring offsets
for each major modification at a major source in an amount equal to
the difference between pre-modification actual emissions, not
allowable (i.e., potential) emissions].
---------------------------------------------------------------------------

    Allowable emissions are generally set higher than anticipated
actual emissions to allow for normal fluctuations in emissions to occur
without violating the permit conditions. The use of allowable emissions
as the pre-project baseline means that the difference between pre-
project and post-project emissions will be smaller than a calculation
applying the EPA's requirement to use actual emissions as the pre-
project baseline. Therefore, the District's rule, when using this
provision, is likely to under-calculate the quantity of offsets
required.
    The District's assertion that only units that are already fully
offset can use the allowable-to-potential offset quantification method
does not remedy this deficiency, as fully offset units are still likely
to have allowable emission limits above their actual emissions.\17\
Furthermore, the District's assertion that the allowable-to-potential
methodology is only available to generate ``self-funded'' reductions
for use as offsets also fails to remedy this problem, since Federal
requirements require actual emissions to be used as the baseline for
offsets calculations in all instances, including those in which a
facility internally generates its own emissions reductions to satisfy
its offset obligations. Similarly, the District's statement that its
rule does not allow an increase in allowable emissions is irrelevant.
CAA 173(c)(1) and 40 CFR 51.165(a)(3)(ii)(J) require that the quantity
of offsets must be based on increases above actual emissions.
---------------------------------------------------------------------------

    \17\ Relatedly, Rule 1304(C)(d)(2) allows the use of allowable
(i.e., potential) emissions if the unit's emissions ``have been
previously offset in a documented permitting action,'' but does not
specify a timeframe for such previous permitting actions, which is
inconsistent with Rule 1304(B)(2)(c)'s provision that SERs must
occur ``at the same time or in connection with the same permitting
action.'' The District's Staff Report also states, on pages 44-45:
``If the Facility has fully offset Emissions Units it may in effect
`reuse' its previously provided offsets in a different capacity.''
CAA sections 173(a)(1)(A) and 173(c) and EPA's NSR regulations,
however, do not allow facilities to use the same emissions
reductions more than once; if a facility relies upon emissions
reductions for a prior NNSR action, under 40 CFR
51.165(a)(3)(ii)(G), they are not eligible for use again in a future
NNSR permit action.
---------------------------------------------------------------------------

    A real-world example that illustrates how the District's rules are
less stringent than Federal requirements is a modification project
reviewed by the District to upgrade three existing natural gas-fired
combustion turbines at a power plant. The District's analysis of the
project presents the facility's actual emissions of NOX in
the five-year period from 2016 to 2020 as ranging from 83.6 tons per
year (tpy) to 103.9 tpy.\18\ The District's analysis also presents the
``pre-modification PTE'' of NOX as 205 tpy. The District's
analysis states that the ``post-modification PTE'' of NOX is
204.5 tpy.\19\ Per the EPA's requirements, the required quantity of
offsets for this project would be approximately 131 tpy (204.5 tpy
minus the highest emissions rate of 103.9 tpy, multiplied by 1.3 for
Severe nonattainment areas, as required under CAA section 182(d)(2)).
Per the District's rules, however, the required quantity of offsets
calculated is minimal because there is virtually no difference between
pre-project allowable emissions and post-project allowable (i.e.,
potential) emissions (in fact, the District's analysis indicates a 0.55
tpy decrease in emissions resulting from the project).\20\
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    \18\ MDAQMD, ``Preliminary Determination/Decision--Statement of
Basis for Minor Modification to and Renewal of FOP Number: 104701849
For: High Desert Power Project, LLC.'' December 21, 2022, p. A-52
(PDF p. 72), Table 9.
    \19\ MDAQMD, ``Preliminary Determination/Decision--Statement of
Basis for Minor Modification to and Renewal of FOP Number: 104701849
For: High Desert Power Project, LLC.'' December 21, 2022, p. A-54
(PDF p. 74), Table 14.
    \20\ See also, Letter dated June 16, 2022, from Jon Boyer,
Director, Environmental, Health, and Safety, Middle River Power, to
Lisa Beckham, EPA Region IX, Subject: ``Prevention of Significant
Deterioration (PSD) Applicability Analysis for Turbine Upgrades at
the High Desert Power Project (Revised),'' (``HDPP PSD Analysis'').
The same project was analyzed as a modification under the Federal
PSD program, which uses the baseline actual emissions to projected
actual emissions methodology for determining applicability of the
Federal NNSR program. The submitted PSD analysis shows that the
project will result in an increase in actual emissions. For
NO2, projected actual emissions would be 35.25 tpy
greater than baseline actual emissions. HDPP PSD Analysis, Table 7,
p. 8.

---------------------------------------------------------------------------

    Regarding the District's statement that ``USEPA is objecting to the
use of Simultaneous Emissions Reductions (SERs) which are created as
part and parcel of an NSR action at a Major Facility to in effect
`self-fund' the necessary offsetting emissions reductions by reducing
emissions elsewhere in the Major Facility,'' the EPA disagrees. This
statement is inaccurate because the EPA did not categorically reject
the District's use of SERs; rather, we identified the District's SERs
calculation methodology as inconsistent with Federal requirements.\21\
As has been noted, the EPA identified as a deficiency Rule
1304(C)(2)(d), which provides that the pre-project baseline can be
equal to allowable (i.e., potential to emit, or potential emissions) if
the emissions unit has been ``previously offset in a documented prior
permitting action.'' Thus, the deficiency that the EPA identified is
the District's use of SERs as a means to deviate from the Federal
requirement to use actual emissions for the pre-project baseline.
Instead, Rule 1304(C)(2)(d) uses a pre-project baseline using allowable
(i.e., potential) emissions for units with previously offset emissions.
Moreover, the EPA's regulations at 40 CFR 51.165(a)(3)(ii)(J) plainly
apply to each proposed major modification.
---------------------------------------------------------------------------

    \21\ 87 FR 72434, 72437. We identified several District rules as
not fully approvable because they do not ensure compliance with
Federal regulations for calculation of required offsets, stemming
from cross-references to Rule 1304(C)(2)(d). See, e.g., TSD Table 4,
``Summary of Deficiencies Due to Cross References.''
---------------------------------------------------------------------------

    The District also states that SERs created from currently existing
fully offset permit units at an existing major facility can only be
used for changes at the same facility and cannot be banked. The fact
that SERs cannot be bought and sold between facilities does not address
the deficiency identified by the EPA that Rule 1304(C)(2)(d) allows the
calculation of required offsets to use a baseline of allowable (i.e.,
potential) emissions, not the federally required baseline of actual
emissions.\22\
---------------------------------------------------------------------------

    \22\ Arguably, the District allows facilities to ``bank''
emission reductions for their own internal future use, even if the
District prohibits use of banked emission reductions between
facilities.
---------------------------------------------------------------------------

    The District also states that Rule 1304(C)(2)(d) is intended to be
used only to reduce the amount of offsets needed as opposed to a
determination of whether offsets are required. This statement, however,
appears to be a distinction without a difference. For example, any
scenario in which the District's calculation of the amount of offsets
required is zero (as in the real-world example described above) is
tantamount to a determination that no offsets are required.
    The District asserts ``that it requires Best Available Control
Technology (BACT) and offsets in more cases and on a greater number of
Emissions Units'' than the CAA requires. The District, however,
provides no demonstration to support this claim, nor does the District
provide any basis on which EPA could find that the District's NSR
program ensures equivalency with Federal offset requirements.\23\
Similarly, the references in the District's comment letter to its Staff
Report are not sufficient to demonstrate that its NSR program offsets
emissions increases in a manner that is at least as stringent as
Federal requirements. For example, Table 4 of the Staff Report compares
BACT and offset requirements, but the information does not demonstrate
how implementation of the District's NSR program is imposing an
equivalent quantity of offsets.\24\ In addition, the last row of Table
4 states that offsets are required for significant modifications at
existing major facilities, but it does not address the difference
between the District's program and the Federal regulations in
calculating the necessary quantity of offsets for such projects.
---------------------------------------------------------------------------

    \23\ See 40 CFR 51.165(a)(1), (a)(2)(ii).
    \24\ MDAQMD Staff Report p. 38-40.
---------------------------------------------------------------------------

    The District also asserts that the EPA previously approved the
provision we now find deficient and that, since 1993, when this
provision came into active use, the number and extent of NAAQS
exceedances has declined. The District also asserts that the decline in
emissions could not have occurred if its NSR program was not achieving
reductions at least as stringent as those that would occur if the
District followed the requirements of the CAA. We do not agree with
this comment. NSR programs primarily regulate construction and
modification of stationary sources, and improvements in air quality can
and do result from regulation of existing stationary sources (e.g.,
reasonably available control technology (RACT), reasonably available
control measure (RACM), and best available control measure (BACM)
requirements) as well as from regulation of mobile sources such as
passenger vehicles and trucks, and non-road engines such as diesel
engines used in agriculture and construction. The EPA also notes that
the District is currently classified as Severe nonattainment for the
2008 and 2015 NAAQS; therefore, the CAA requires the District to
implement rules consistent with Federal nonattainment NSR requirements
at CAA section 173 and 40 CFR 51.165.
    We address MDAQMD's point regarding the De Minimis provisions at
CAA 182(c)(6) in response to Comments 9 and 10 below.
    Comment #6: The District disagrees with the EPA's proposed
disapproval of Rule 1301's definitions of the terms ``Major
Modification'' and ``Modification (Modified).'' The District summarizes
the EPA's concern that these terms allow the use of reductions from
previously offset emissions units as SERs in such a way that a source
might avoid entirely offset requirements. The District states that the
EPA is correct that the Net Emissions Increase calculation under Rule
1304(B)(2)(c) includes SERs, but that the EPA failed to consider that
Rule 1302 ``very clearly sets out a flow for analysis in which one step
occurs after another in sequence,'' referring to the ``Final NSR Staff
Report.'' The District also states that the EPA also failed to consider
Rule 1303(A)(4), which excludes the use of SERs in determining
emissions increases for the purpose of applying BACT.
    The District admits that Rule 1304(C)(2)(d) could be interpreted
incorrectly ``without the procedural sequence that Rule 1302 sets
forth.'' The District asserts that these provisions have been in active
use since 1993 with demonstrable results in overall air quality. The
District states that, despite its assertion of the adequacy of the
submitted provisions, it would appreciate guidance from the EPA
regarding methods to clarify that SERs derived from previously fully
offset activities can be used only to reduce the amount of offsets
required and not for any other purpose.
    Response to Comment #6: The EPA disagrees with the District's
assertions that the EPA's proposed disapproval of Rule 1301's
definitions for ``Major Modification'' and ``Modification (Modified),''
is incorrect. We note that Rule 1301 defines both terms using the term
``Net Emissions Increase,'' and, as explained in our proposed action,
Rule 1301(QQ) defines the term ``Net Emissions Increase'' as an
emission increase calculated per Rule 1304(B)(2) that exceeds zero.\25\
Rule 1304(B)(2) prescribes the calculation methodologies for net
emissions increases, and provides that net emissions increases must
subtract SERs ``as calculated and verified pursuant to Section C
below.'' \26\ As noted in our proposed action and in our response to
Comment 5, Rule 1304(C)(2)(d) allows 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 regulations.\27\ As we have explained in our response to Comment
5 above, the District's approach is less stringent than Federal
requirements because actual emissions are almost always lower than
allowable (i.e., potential) emissions. Therefore, an evaluation of a
net emissions increase (which is essentially a comparison of pre-
project and post-project emissions) that uses 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.
---------------------------------------------------------------------------

    \25\ 87 FR 72434, 72437.
    \26\ Rule 1304(B)(2)(c).
    \27\ 40 CFR 51.165(a)(2).
---------------------------------------------------------------------------

    We further note that Rule 1303, ``New Source Review Requirements,''
sets forth Best Available Control Technology (BACT) requirements \28\
at subsection (A), and subsections (A)(2) and (A)(3) impose BACT
requirements through the use of the term ``Modified,'' defined at Rule
1301(NN).\29\ As we explained in our proposed action, Rule 1301(NN)
defines ``Modified'' in terms of whether a project will result in a
``Net Emissions Increase.'' \30\ As a result, a project that does not
result in a ``Net Emissions Increase'' will not meet the criteria for
``Modified.'' Therefore, projects can potentially avoid the
applicability of the BACT requirement because Rule 1303 uses the term
``Modified'' and, indirectly, the term ``Net Emissions Increase,'' to
impose this requirement.
---------------------------------------------------------------------------

    \28\ We acknowledge that the District's definition of Best
Available Control Technology in Rule 1301(J) is consistent with the
definition of ``lowest achievable emission rate'' in CAA section
171(3) and 40 CFR 51.165(a)(1)(xiii).
    \29\ Rule 1303(A)(2) and (A)(3) use the term ``Modified Permit
Unit''; Rule 1301 separately defines the terms ``Modification
(Modified)'' at subsection (NN) and ``Permit Unit'' at subsection
(AAA).
    \30\ 87 FR 72437.
---------------------------------------------------------------------------

    Similarly, Rule 1303(B)(2) imposes offset requirements using the
term ``Major Modification,'' which is defined at Rule 1301(JJ). Rule
1301(JJ) defines ``Major Modification'' using the term ``Net Emissions
Increase.'' \31\ As a result, a project that does not result in a ``Net
Emissions Increase'' will not meet the criteria for a ``Major
Modification'' and therefore can potentially avoid the applicability of
offset requirements because Rule 1303 uses the term ``Major
Modification'' and, indirectly, the term ``Net Emissions Increase,'' to
impose this obligation.
---------------------------------------------------------------------------

    \31\ Rule 1301(JJ) refers to a ``Significant Net Emissions
Increase''; Rule 1301 separately defines ``Significant'' at
subsection (NNN) and ``Net Emissions Increase'' at subsection (QQ).
---------------------------------------------------------------------------

    The District states, ``the existence of Rule 1302 . . . very
clearly sets out a flow for analysis in which one step occurs after
another in sequence . . . First you determine `Emissions Change' under
1302(C)(1) on both an Emission Unit and Facility wide basis using
1304(B)(1) . . . No SERs are used in this calculation.'' The EPA does
not agree with these statements. Rule 1302(C)(1) does not specifically
reference Rule 1304(B)(1)--it references, more generally, Rules 1304
and 1600.\32\ This point is significant because Rule 1302(C)(1)'s
general cross-reference to Rule 1304 encompasses not just Rule
1304(B)(1), which might be helpful, but also the deficient provisions
of Rule 1304(C)(2)(d), which, as explained above, calculate SERs using
a pre-project baseline of allowable (i.e., potential) emissions, which
results in improper calculations of net emissions increases.
---------------------------------------------------------------------------

    \32\ Rule 1302(C)(1)(a) states: ``The APCO shall analyze the
application to determine the specific pollutants, amount, and change
(if any) in emissions pursuant to the provisions of District Rules
1304 and 1600.''
---------------------------------------------------------------------------

    The District, in its comment letter, ``admits that the provisions
as expressed in 1304(C)(2)(d) could, in the abstract and absent the
procedural sequence set forth in 1302, potentially be interpreted
incorrectly.'' The EPA does not agree that Rule 1302 contains a
``procedural sequence.'' We also do not find any such sequence in Rule
1304. Rule 1304 identifies several different types of emissions
calculations but does not specify an analytical framework for their
use.
    The District's comment also repeatedly refers to its Staff Report.
In general, references to non-regulatory sources can be helpful to
explain regulatory text; however, the District's reliance on its Staff
Report in this instance is not sufficient to correct the fact that the
rules fail to ensure proper analysis and implementation of Federal
requirements.
    Therefore, Rule 1302's broad cross reference to Rule 1304 is
insufficient to establish a sequence or an ``analysis flow'' such as
that asserted by the District. The ambiguity in the District's rules
means that they do not ensure a proper analysis of emissions changes,
such as, for example, correctly evaluating whether a project will
result in an ``Emissions Change'' before evaluating whether it will
result in a ``Net Emissions Increase.'' Such sequence is essential to
correctly identifying whether a project would result in a net emissions
increase under 40 CFR 51.165(a)(1)(vi), which the District currently
uses as a basis for determining whether a project is a ``Major
Modification.''
    In reviewing SIP submissions, the EPA must ensure that the plain
language of the rule under review is clear and unambiguous. In a
September 23, 1987 memorandum, the ``Potter memo,'' the EPA stated its
criteria regarding the enforceability of SIPs and SIP revisions.\33\
The Potter memo states that SIP rules must be clear in terms of their
applicability, and that ``[v]ague, poorly defined rules must become a
thing of the past.'' \34\ It also states that ``SIP revisions should be
written clearly, with explicit language to implement their intent. The
plain language of all rules . . . should be complete, clear, and
consistent with the intended purpose of the rules.'' \35\ The EPA can
only approve rule language that is clear on its face, and the sequence
the District uses for determining emissions changes and net emissions
increases is not sufficiently clear. The clarification in the Staff
Report cannot supplant vague rule language. The District makes the
statement that it has been using the provisions at issue ``since 1993
with demonstrable results in overall air quality.'' Even if air quality
improved during this period, the rules must be clarified to ensure they
are interpreted properly. It is speculative to assume that any air
quality improvements occurred as a result of the way the rules are
currently written.
---------------------------------------------------------------------------

    \33\ Memorandum dated September 23, 1987, from J. Craig Potter,
Assistant Administrator for Air and Radiation, to EPA Regional
Administrators and Regional Counsels, Regions I-X, ``Review of State
Implementation Plans and Revisions for Enforceability and Legal
Sufficiency.''
    \34\ Id. at 3.
    \35\ Id. at 4.
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    Additionally, the District's comment letter states that ``USEPA
also conveniently ignores the provisions of 1303(A)(4) which excludes
the use of SERs in determining emissions increases for purpose [sic] of
applying BACT.'' Rule 1303(A)(4) includes an appropriately specific
cross-reference to Rule 1304(B)(1), regarding ``General Emissions
Change Calculations.'' Rule 1304(B)(1) provides for proper calculation
of a project's emissions changes. However, the BACT requirement is also
implemented by Rule 1303(A)(2) and (A)(3), which, as described above,
use the term ``Modified,'' which is problematically defined by Rule
1301(NN), specifically because of its cross-reference to the term ``Net
Emissions Increase,'' which is in turn deficient because of its cross-
reference to Rule 1304's calculation

methodologies, including Rule 1304(C)(2)(d). As we described in our
response to Comment 5, the District determined that a project did not
trigger BACT because there was no net emissions increase and therefore
the facility was not ``Modified'' as defined in Rule 1301(NN). It
appears that the District used the SERs-related provisions of Rule
1304(C)(2)(d) to calculate ``Net Emission Increase'' to conclude that
the project was not ``Modified'' and as a result it did not require
BACT.\36\ We note that such a conclusion appears inconsistent with Rule
1303(A)(4), but apparently resulted from the ambiguities in Rules 1301,
1302, 1303, and 1304 described above. Under the District's submitted
NSR program, it is difficult to envision a scenario in which a ``fully
offset'' emissions unit, using the District's terminology, would ever
need to install BACT or obtain offsets as long as the facility does not
increase its allowable emissions. Therefore, we confirm the
determinations in our proposed action that the definitions of
``Modification (Modified)'' and ``Major Modification'' in Rule 1301(QQ)
and (NN) are deficient.
---------------------------------------------------------------------------

    \36\ The District's analysis of this project states: ``The
permitting action is classified as an NSR Modification as defined in
Rule 1301(NN). As there are no net emissions increases associated
with NOX [nitrogen oxides], VOC [volatile organic
compounds], or PM10 [particulate matter], the emissions
unit and the facility are not Modified as defined in Rule 1301 with
respect to those pollutants and current BACT is not triggered.''
(Emphasis in original.) MDAQMD, ``Preliminary Determination/
Decision--Statement of Basis for Minor Modification to and Renewal
of FOP Number: 104701849 For: High Desert Power Project, LLC.''
December 21, 2022, p. 8. We note that the District makes two
logically inconsistent statements in its analysis of the project:
first, that the project is an NSR Modification under Rule 1301(NN),
and second, that the project is not Modified as defined in Rule
1301(NN).
---------------------------------------------------------------------------

    Comment #7: Regarding the EPA's fourth identified deficiency, the
use of the word ``proceed'' in the definition of ``Historic Actual
Emissions,'' the District agrees that the deficiency is probably an
overlooked typographical error, but that it has been in the rule for
several iterations, dating back to 1996. The District states that it
could have provided to the EPA a commitment to correct this deficiency
prior to the publication of the EPA's action if the EPA had provided
prior notification of the issue. The District states that it would
appreciate specific guidance from the EPA regarding whether a
commitment to modify the deficient provision would be appropriate at
this time.
    Response to Comment #7: The District does not appear to disagree
with the EPA's proposed determination that this issue is a deficiency;
rather, the District appears to take issue with the way the EPA
provided notification of it. The EPA appreciates the coordination and
cooperation demonstrated over the period of joint work by our agencies
to improve the District's NSR rules. We remain available to discuss
revisions necessary to address the deficiencies with the goal to full
approval of revisions to the District's rules and a fully approved NSR
program. The District may address this deficiency, along with all other
identified deficiencies, in its next revised SIP submittal of its NSR
program rules.
    Comment #8: This comment concerns the use of interprecursor
trading, which is provided for in Rule 1305(C)(6). The District first
states that the EPA is concerned that a court decision and subsequent
change to 40 CFR 51.165(a)(11) make interprecursor trading
impermissible. The District notes that it revised Regulation XIII
(including Rule 1305) after the court decision but before the EPA
revised 40 CFR 51.165(a)(11). The District states that it is unclear
whether the revision to 40 CFR 51.165(a)(11) has been challenged and
observes that the EPA could have chosen to revise the provision
differently. The District states that the EPA did not provide any
indication in the TSD on the current status of this particular
regulatory provision other than a citation. The District references a
footnote as providing sufficient warning and requiring compliance with
the applicable provisions to ensure that interprecursor trading among
ozone precursors does not occur in a subsequent NSR action. The
District states that prompt communication on the EPA's part ``would
have obliviated [sic] the need for this comment'' as the District could
have committed to clarifying the deficient provision in a subsequent
rulemaking. The District then requests specific guidance from the EPA
regarding whether the provision of a commitment of modify the deficient
provision would be appropriate at this time.
    Response to Comment #8: To the extent the District's comment might
be read as asserting that the EPA's proposed limited approval/limited
disapproval of Rule 1305 is incorrect, the EPA does not agree. As the
District acknowledges in its comment, on January 29, 2021, the D.C.
Circuit Court of Appeals issued a decision in Sierra Club v. USEPA,
which vacated an EPA regulation that allowed the use of reductions of
an ozone precursor to offset increases in a different ozone precursor,
i.e., ``interprecursor trading.'' \37\ On July 19, 2021, the EPA
removed the ozone interprecursor trading provisions in 40 CFR
51.165(a)(11).\38\
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    \37\ See, Sierra Club v. EPA, 21 F.4th 815, 819-823 (D.C. Cir.
2021).
    \38\ 86 FR 37918 (July 19, 2021).
---------------------------------------------------------------------------

    Rule 1305(C)(6) allows for the use of interprecursor trading. This
fact is not changed by a footnote in the rule that acknowledges the
January 2021 court decision without clearly prohibiting the use of
interprecursor trading to satisfy offset obligations.\39\ To the extent
the District is suggesting that the timing of the EPA's revisions to 40
CFR 51.165(a)(11) or the possibility of subsequent legal challenges to
those revisions somehow affects the EPA's conclusion that Rule
1305(C)(6) is not consistent with Federal law, we disagree. Therefore,
the EPA's proposed limited approval/limited disapproval of Rule 1305 is
appropriate. Following this final action, the EPA remains available to
discuss necessary revisions, with the goal of full approval of
revisions to the District's rules and a fully approved NSR program.
---------------------------------------------------------------------------

    \39\ The footnote attached to Rule 1305 states: ``Use of this
section subject to the ruling in Sierra Club v. USEPA (D.C. Cir.
Case #15-1465 (1/29/2021), Document #1882662 and subsequent guidance
by USEPA.''
---------------------------------------------------------------------------

    Comment #9: The District summarizes the EPA's proposed action as
asserting that CAA section 182(c)(6) ``mandates the inclusion of a so
called `De Minimis' provision'' and also as appearing to assert that
CAA 182(c)(6) overrides the District's ability to implement rules that
are more stringent than the requirements of the CAA pursuant to CAA
section 116. The District notes that the previous version of Rule 1303,
as amended on September 24, 2001, contained a provision that satisfied
this requirement, but that it removed the provision from the current
version because it was unworkable. The District asserts that the EPA
did not bring up this issue during the rule development period. The
District states that the inclusion of the ``de minimis'' provision, as
required under CAA section 182, would allow major facilities to
increase their actual emissions without providing offsets, increasing
NOX and VOC emissions by as much as 750 tons per year. The
District asserts that its removal of the ``de minimis'' provision from
Rule 1303 strengthens the rule and results in its NSR program being
more stringent than the CAA requirements. The District also states
that, despite its assertion of the adequacy of the current submissions,
it requests specific guidance regarding the

type and nature of evidence the EPA would consider appropriate to show
greater stringency of the District's NSR program than that provided by
the ``de minimis'' provision.
    Response to Comment #9: The EPA does not agree with the comment.
CAA section 182(c)(6) (``the De Minimis Rule'') specifies a mandatory
requirement for state NSR programs in nonattainment areas classified as
Serious and above.\40\ It requires such areas to evaluate whether a
particular physical change or change in the method of operation is a
major modification by considering net emissions increases from that
change and all other net emissions increases during the preceding five
calendar years. If the total of all such increases is greater than 25
tons, the particular change is subject to the area's SIP-approved NNSR
program, according to the plain text of CAA section 182(c)(6).
---------------------------------------------------------------------------

    \40\ Nonattainment area classifications for the ozone NAAQS are
established under CAA section 181.
---------------------------------------------------------------------------

    The District does not dispute the EPA's determination that the
District's NSR program does not include provisions specified in CAA
section 182(c)(6).\41\ Instead, the District asserts that the inclusion
of language to satisfy the De Minimis Rule provision would result in
emissions increases at major facilities, possibly totaling as much as
750 tons each of NOX and VOC over a five-year period without
requiring offsets. This assertion, however, reflects the District's
misinterpretation of CAA 182(c)(6). CAA section 182(c)(6) requires NNSR
programs in nonattainment areas to require facilities to aggregate
project emissions over a rolling five-year period to ensure adequate
regulatory review of NSR requirements such as those for control
technologies and offsets. Contrary to the District's assertions, CAA
section 182(c)(6) does not allow facilities to increase actual
emissions by greater than 25 tons without offsetting them.
---------------------------------------------------------------------------

    \41\ The District also concedes that it revised Rule 1303 to
remove a provision that previously provided such assurance.
---------------------------------------------------------------------------

    The District does not explain how the ``no net increase''
requirement of California Health and Safety Code section 40918(a)(1),
which it references in footnote 73 of its comment letter, conflicts
with the ``De Minimis'' requirements. The District's comment does not
change the EPA's understanding that the De Minimis Rule operates
independently of these requirements, and therefore the District's
implementation of it would not weaken the District's current NNSR
program. As the District's rules are currently written, BACT
requirements apply when an emission unit has an emission increase or
PTE of greater than 4.56 tpy (25 lb/day) (Rule 1303(A)(1) and (2)), or
when the emission increase or PTE of all emission units exceed 25 tpy
(Rule 1303(A)(3)). For example, a new facility with five emission
units, each with a PTE of 4 tpy, would not be subject to BACT
requirements under state or Federal NSR requirements. However, if
during the next five years, the source proposed to add three additional
emission units, each with a PTE of 4 tpy, BACT would still not be
triggered under the current rule, since the State 4.56 tpy emission
unit and the Federal 25 tpy project thresholds have not been exceeded.
However, under the ``De Minimis'' requirements, the new project would
be considered a major modification, with an aggregated emission
increase of 32 tpy, and therefore, trigger both BACT and offset
requirements for the current project. This is because the aggregated
emissions from the two projects occurring within a five-year time frame
exceed the 25 tpy threshold. The District's rules fail to ensure that
such a scenario is not treated as de minimis, as CAA section 182(c)(6)
requires. The Federal De Minimis Rule prevents a series of smaller
projects, with emissions equivalent to the major modification
threshold, from avoiding the major modification requirements of BACT
and offsets. California law does not ensure conformity with the De
Minimis Rule; therefore, the District's NSR program must include
provisions to ensure compliance with it.
    The District asserts that its submitted rules would be more
stringent than implementing the De Minimis Rule and other aspects of
EPA's NNSR requirements and seeks guidance from the EPA on how to make
this demonstration. In general, to make a demonstration that a program
is at least as stringent as Federal NNSR program requirements, the
District would need to demonstrate that the requirements of its rule
would trigger LAER and offsets requirements in all cases that would
trigger these same requirements pursuant to the provisions of CAA
section 182(c)(6). The EPA does not believe such a demonstration is
possible, given the variety of project scenarios, which, depending on
the facts (timing and emission rates from individual groups of emission
units), would show that each set of rules is more and less stringent
than the other in some cases. As we discussed in our responses to
Comments 5 and 6, the District's rules are flawed in that they allow
for improper calculation of net emissions increases, which affects the
implementation of NSR requirements. Our responses to Comments 5 and 6
also describe the District's analysis of a permit application for a
project involving a power plant and its determination that the project
was not a modification because it would result in an emissions
decrease, even though the project would increase actual emissions. We
do not agree that the District's approach of not considering this
project or other similar projects to be a modification constitutes a
more stringent program.
    As to the District's statement regarding the EPA not raising this
issue earlier, the EPA appreciates the coordination and cooperation
demonstrated over the period of joint work by our agencies to improve
the rules. We remain available to discuss revisions necessary to
address the deficiencies with the goal of full approval of revisions to
the District's rules and a fully approved NSR program.
    Comment #10: The District states that the De Minimis Rule ``would
have a profound negative effect on air quality'' because not only would
facilities be able to increase allowable emissions by up to 25 tons per
rolling five-year period, but the rule would also cause other
detrimental practices such as ``emissions spiking'' and delayed
equipment upgrades.
    Response to Comment #10: The District's hypothetical assertions
that CAA 182(c)(6) would encourage ``emissions spiking'' to
artificially increase actual emissions prior to making a modification
are unsupported. As a practical matter, a source operating for two
years above its actual needed operations to get as close as possible to
its allowable emissions would likely incur significant costs in the
process to unnecessarily operate the equipment. We do not see this
scenario as providing a realistic incentive, in fact, implementation of
CAA section 182(c)(6) would create no greater incentive for a source to
increase its actual emissions prior to making a change that may require
the source to undergo NNSR than the limited incentive that exists under
the District's current rules. Similarly, the District's hypothetical
assertion that the De Minimis Rule would discourage facilities from
upgrading equipment is outside the scope of our proposed action, which
is to ensure the District's NSR rules comply with Federal NNSR program
requirements regarding the calculation of emission reductions and

the quantity of offsets required for significant emission
increases.\42\
---------------------------------------------------------------------------

    \42\ We also note that the District's current NSR program fails
to adequately address increases in actual emissions that might
result from delayed equipment upgrades because the rules allowing
net emissions increases to be evaluated using a baseline of pre-
project allowable emissions rather than actual emissions. See EPA
responses to Comments 5 and 6 above.
---------------------------------------------------------------------------

    The District requests that the EPA ``provide clear and convincing
evidence that the implementation of USEPA's suggested corrections would
indeed produce a benefit to air quality in the region''; however, the
objective of the EPA review of the District's submitted rules is to
ensure conformity with Federal requirements. Our proposed action
describes the statutory and regulatory requirements that the District's
NSR rules must satisfy for EPA approval.\43\ Where the District
disagrees with the EPA's finding of deficiency, it has not provided a
quantitative or legal demonstration that its rule provisions are more
stringent, or at least as stringent as the Federal requirements.
---------------------------------------------------------------------------

    \43\ See 87 FR 72437-38; TSD p. 8-9.
---------------------------------------------------------------------------

    Comment #11: The District states that the EPA's proposed limited
disapproval of all rules that cite Rule 1304(C)(2) is overbroad. The
District states that the EPA has indicated that it is proposing to
disapprove MDAQMD Rules 1301, 1302, 1303, 1304, and 1305 primarily due
to the cross-references in these rules to provisions in Rule
1304(C)(2). The District states that such an action would disapprove
the use of any internal offsetting for any facility--not just Major
Facilities--regardless of the calculation used to determine SERs. The
District states that such a disapproval might result in an increase of
emission reduction credits being banked and then immediately used,
under District Regulation XIV, ``Emission Reduction Credit Banking,''
but asserts that it is more probable that it would result in an
immediate cessation of all modifications to existing facilities within
the District. Therefore, the District states this action is overbroad,
as simply disapproving the use of the provisions in Rule 1304(C)(2)(d)
would be enough to alleviate the EPA's stated concerns and allow the
remainder of the NSR program to be approved in a manner and to the
extent that it could be included to satisfy the 70 parts per billion
(ppb) ozone NAAQS requirements. The District requests that the EPA
provide further justification on why a more limited disapproval of the
provisions contained in Rule 1304(C)(2)(d) would be insufficient to
address the EPA's major alleged deficiencies, as set forth in the EPA's
proposed action.
    Response to Comment #11: As we stated in our proposed action, the
deficiencies pertaining to offsets in the District's NSR program make
portions of Rules 1301, 1302, 1303, 1304, and 1305 not fully approvable
because the District's NSR program is not consistent with CAA section
182(c)(6). Our basis for that finding is also explained in our
responses to Comments 9 and 10 above. In addition, the EPA's TSD
provides additional information regarding the deficiencies in these
rules, largely as a result of cross references to Rule 1304(C)(2)(d),
which allows SERs to be calculated using a baseline of allowable
emissions, not actual emissions. This deficiency affects the
calculation of net emissions increases in Rule 1304(B)(2). Therefore,
the use of the term ``net emissions increase'' or cross-references to
Rule 1304 also affect the approvability of Rules 1301, 1302, 1303, and
1305. Please see Table 4 of our TSD for additional information.
    The EPA's action to finalize a limited approval and limited
disapproval of District Rules 1301, 1302, 1303, 1304, and 1305 into the
SIP means that the rules, as currently submitted, will be incorporated
into the SIP, but they must be revised and resubmitted to the EPA to
avoid sanctions and FIP consequences. As we stated in our proposed
action, we proposed limited approval and limited disapproval of these
rules because although they fulfill most of the relevant CAA
requirements and strengthen the SIP, they also contain certain
deficiencies. Our final action incorporates into the SIP the submitted
rules listed in Table 2 of this document for which we are fully
approving or finalizing a limited approval/limited disapproval,
including those provisions we identified as deficient.

III. EPA Action

    None of the submitted comments change our assessment of the
submitted rules as described in our proposed action. Therefore, as
authorized in section 110(k)(3) of the Act, the EPA is approving the
submitted versions of Rules 206, 219, 1300, 1306, and 1402. Likewise,
as authorized under sections 110(k)(3) and 301(a) of the Act, the EPA
is finalizing a limited approval of the submitted versions of Rules
1301, 1302, 1303, 1304, and 1305. This action incorporates submitted
Rules 206, 219, 1300, 1301, 1302, 1303, 1304, 1305, 1306, and 1402 into
the California SIP, including those provisions identified as deficient.
As authorized under section 110(k)(3) and 301(a), the EPA is
simultaneously finalizing a limited disapproval of Rules 1301, 1302,
1303, 1304, and 1305.
    As a result of our limited approval and limited disapproval of
Rules 1301, 1302, 1303, 1304, and 1305, the EPA must promulgate a
Federal implementation plan (FIP) under section 110(c) for the West
Mojave Desert nonattainment area portion of the District within 24
months unless we approve subsequent SIP revisions that correct the
deficiencies identified in this action. In this instance, we note that
the EPA already has an existing obligation to promulgate a FIP for any
NSR SIP elements that we have not taken final action to approve.\44\ In
addition, the offset sanction in CAA section 179(b)(2) will be imposed
18 months after the effective date of this action, and the highway
funding sanction in CAA section 179(b)(1) six months after the offset
sanction is imposed. Sanctions will not be imposed if the EPA approves
a subsequent SIP submission that corrects the identified deficiencies
before the applicable deadlines.
---------------------------------------------------------------------------

    \44\ The FIP obligation originates from our February 3, 2017
finding that the District failed to submit a Nonattainment NSR SIP
for the 2008 8-hour ozone NAAQS by the required submittal deadline.
This finding of failure to submit established a FIP obligation
deadline of March 6, 2019. See also, CBD v. Regan, N.D. Cal. 22-cv-
3309.
---------------------------------------------------------------------------

    In this action we are also finalizing an approval of the District's
visibility provisions for major sources subject to review under the
NNSR program under 40 CFR 51.307. Therefore, we are revising 40 CFR
52.281(d) to remove the FIP for visibility protections as it applied to
the District.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with the requirements of 1
CFR 51.5, the EPA is incorporating by reference the District rules
listed in Table 2 of this preamble which implement the District's New
Source Review (NSR) permitting program for new and modified sources of
air pollution under part D of title I of the CAA.\45\ The EPA has made,
and will continue to make, these materials available through https://www.regulations.gov and in hard copy

at the EPA Region IX Office (please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).
---------------------------------------------------------------------------

    \45\ In the IBR section of our proposed action (87 FR 72434) we
inadvertently referred to Table 1 as opposed to Table 2 for the list
of submitted rules that are intended to replace the rules in the
SIP. However, we explained in Section C of our proposed action that
``the rules listed in Table 2 are intended to replace the SIP-
approved rules listed in Table 1.'' We also stated in Section F of
our proposed action that, ``[i]f finalized, this action would
incorporate into the SIP the submitted rules listed in Table 2 for
which we have proposed approval or limited approval/limited
disapproval . . . .''
---------------------------------------------------------------------------

V. 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 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by State law.

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 will not impose any requirements on small entities beyond those
imposed by State law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, will
result from this action.

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: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and 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

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by State law.

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

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this final action is finalizing the approval and the
limited approval and limited disapproval of a state submittal as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law.
    The State did not evaluate environmental justice considerations as
part of its SIP submittal; the CAA and applicable implementing
regulations neither prohibit nor require such an evaluation. EPA did
not perform an EJ analysis and did not consider EJ in this action. Due
to the nature of the action being taken here, this action is expected
to have a neutral to positive impact on the air quality of the affected
area. Consideration of EJ is not required as part of this action, and
there is no information in the record inconsistent with the stated goal
of E.O. 12898 of achieving environmental justice for people of color,
low-income populations, and Indigenous peoples.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

L. Petitions for Judicial Review

    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 August 29, 2023. 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, Administrative practice and procedure,
Air pollution control, Carbon oxides, Incorporation by reference,
Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

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

    Dated: June 16, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    For the reasons stated in the preamble, the Environmental
Protection Agency amends part 52, chapter I, title 40 of the Code of
Federal Regulations as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by:
0
a. Adding paragraphs (c)(31)(vi)(G) and (H), (c)(32)(iv)(G),
(c)(39)(ii)(K) and (L), (c)(39)(iv)(K), (c)(68)(iii) and (iv),
(c)(70)(i)(E), (c)(87)(iv)(B), (c)(103)(xviii)(C), (c)(155)(iv)(C),
(c)(224)(i)(C)(3), (c)(239)(i)(A)(4), and (c)(248)(i)(D)(3);
0
b. Adding reserved paragraphs (c)(598) and (599); and
0
c. Adding paragraphs (c)(600) and (601).
    The additions read as follows:

Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (31) * * *
    (vi) * * *
    (G) Previously approved on November 9, 1978, in paragraph
(c)(31)(vi)(C) of this section and now deleted with replacement in
paragraph (c)(601)(i)(A)(1) of this section for implementation in the
Mojave Desert Air Quality Management District: Rule 206.
    (H) Previously approved on November 9, 1978, in paragraph
(c)(31)(vi)(C) of this section and deleted with replacement in
paragraph (c)(103)(xviii)(A) of this section: Rule 219.
* * * * *
    (32) * * *
    (iv) * * *
    (G) Previously approved on November 9, 1978, in paragraph
(c)(32)(iv)(C) of this section and deleted with replacement in
paragraph (c)(103)(xviii)(A) of this section: Rule 219.
* * * * *
    (39) * * *
    (ii) * * *
    (K) Previously approved on November 9, 1978, in paragraph
(c)(39)(ii)(B) of this section and now deleted with replacement in
paragraph (c)(601)(i)(A)(1) of this section: Rule 206.
    (L) Previously approved on November 9, 1978, in paragraph
(c)(39)(ii)(B) of this section and now deleted with replacement in
paragraph (c)(600)(i)(A)(1) of this section: Rule 219.
* * * * *
    (iv) * * *
    (K) Previously approved on November 9, 1978, in paragraph
(c)(39)(iv)(B) of this section and deleted without replacement for
implementation in the Mojave Desert Air Quality Management District:
Rules 206 and 219.
* * * * *
    (68) * * *
    (iii) Previously approved on January 21, 1981, in paragraph
(c)(68)(i) of this section and deleted with replacement in paragraph
(c)(239)(i)(A)(1) of this section for implementation in the Mojave
Desert Air Quality Management District: Rules 1301, 1303, 1304, 1306,
1307, 1310, 1311, and 1313.
    (iv) Previously approved on January 21, 1981, in paragraph
(c)(68)(i) of this section and deleted with replacement in paragraph
(c)(155)(iv)(B) of this section: Rule 1305.
* * * * *
    (70) * * *
    (i) * * *
    (E) Previously approved on January 21, 1981, in paragraph
(c)(70)(i)(A) of this section and deleted with replacement in paragraph
(c)(239)(i)(A)(1) of this section for implementation in the Mojave
Desert Air Quality Management District: Rules 1302 and 1308.
* * * * *
    (87) * * *
    (iv) * * *
    (B) Previously approved on June 9, 1982, in paragraph
(c)(87)(iv)(A) of this section and deleted with replacement in
paragraph (c)(239)(i)(A)(1) of this section: Rules 1301, 1302, 1303,
1304, 1305, 1306, 1307, 1308, 1310, 1311, and 1313.
* * * * *
    (103) * * *
    (xviii) * * *
    (C) Previously approved on July 6, 1982, in paragraph
(c)(103)(xviii)(A) of this section and now deleted with replacement in
paragraph (c)(600)(i)(A)(1) of this section for implementation in the
Mojave Desert Air Quality Management District: Rule 219.
* * * * *
    (155) * * *
    (iv) * * *
    (C) Previously approved on January 29, 1985 in paragraph
(c)(155)(iv)(B) of this section and deleted with replacement in
paragraph (c)(239)(i)(A)(1) of this section for implementation in the
Mojave Desert Air Quality Management District: Rule 1305.
* * * * *
    (224) * * *
    (i) * * *
    (C) * * *
    (3) Previously approved on January 22, 1997, in paragraph
(c)(224)(i)(C)(1) of this section and now deleted with replacement in
paragraph (c)(248)(i)(D)(3) of this section: Rule 1402, adopted on June
28, 1995.
* * * * *
    (239) * * *
    (i) * * *
    (A) * * *
    (4) Previously approved on November 13, 1996, in paragraph
(c)(239)(i)(A)(1) of this section and now deleted with replacement in
paragraphs (c)(600)(i)(A)(2) through (8) of this section: Rules 1300,
1301, 1302, 1303, 1304, 1305, and 1306, adopted on March 25, 1996.
* * * * *
    (248) * * *
    (i) * * *
    (D) * * *
    (3) Rule 1402, ``Emission Reduction Credit Registry,'' amended on
May 19, 1997.
* * * * *
    (598) [Reserved]
    (599) [Reserved]
    (600) The following regulations were submitted on July 23, 2021, by
the Governor's designee as an attachment to a letter dated July 22,
2021.
    (i) Incorporation by reference. (A) Mojave Desert Air Quality
Management District.
    (1) Rule 219, ``Equipment Not Requiring a Permit,'' amended on
January 25, 2021.
    (2) Rule 1300, ``New Source Review General,'' amended on March 22,
2021.
    (3) Rule 1301, ``New Source Review Definitions,'' amended on March
22, 2021.
    (4) Rule 1302, ``New Source Review Procedure,'' (except subsections
(C)(5) and (C)(7)(c)), amended on March 22, 2021.

    (5) Rule 1303, ``New Source Review Requirements,'' amended on March
22, 2021.
    (6) Rule 1304, ``New Source Review Emissions Calculations,''
amended on March 22, 2021.
    (7) Rule 1305, ``New Source Review Emission Offsets,'' amended on
March 22, 2021.
    (8) Rule 1306, ``New Source Review for Electric Energy Generating
Facilities,'' amended on March 22, 2021.
    (B) [Reserved]
    (ii) [Reserved]
    (601) The following regulations were submitted on October 15, 2021,
by the Governor's designee as an attachment to a letter dated October
14, 2021.
    (i) Incorporation by reference. (A) Mojave Desert Air Quality
Management District.
    (1) Rule 206, ``Posting of Permit to Operate,'' amended on February
22, 2021.
    (2) [Reserved]
    (B) [Reserved]
    (ii) [Reserved]

0
3. Section 52.281 is amended by revising paragraph (d) introductory
text and adding paragraph (d)(9) to read as follows:

Sec.  52.281  Visibility protection.

* * * * *
    (d) Plan provisions. The provisions of Sec.  52.28 are hereby
incorporated and made part of the applicable plan for the State of
California, except for the air pollution control districts listed in
this paragraph (d). The provisions of Sec.  52.28 remain the applicable
plan for any Indian reservation lands, and any other area of Indian
country where the EPA or an Indian tribe has demonstrated that a tribe
has jurisdiction, located within the State of California, including any
such areas located in the air pollution control districts listed in
this paragraph (d).
* * * * *
    (9) Mojave Desert Air Quality Management District.
* * * * *
[FR Doc. 2023-13393 Filed 6-29-23; 8:45 am]
BILLING CODE 6560-50-P