Proposed Rule2023-06143
Air Plan Revisions; California; Mojave Desert Air Quality Management District; Oxides of Nitrogen
Primary source
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Published
March 27, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing a limited approval and limited disapproval of revisions to the Mojave Desert Air Quality Management District (MDAQMD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of oxides of nitrogen (NO<INF>X</INF>) from industrial, institutional, and commercial boilers, steam generators, and process heaters. We are proposing a limited approval of a local rule that regulates these emission sources under the Clean Air Act (CAA or the Act) because the rule would strengthen the current SIP-approved version of MDAQMD's rule. We are proposing a limited disapproval of this revision because it is inconsistent with the EPA's startup, shutdown, and malfunction (SSM) policy and Credible Evidence Rules. We are taking comments on this proposal and plan to follow with a final action.
Full Text
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<title>Federal Register, Volume 88 Issue 58 (Monday, March 27, 2023)</title>
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[Federal Register Volume 88, Number 58 (Monday, March 27, 2023)]
[Proposed Rules]
[Pages 18106-18109]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-06143]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0087; FRL-10672-01-R9]
Air Plan Revisions; California; Mojave Desert Air Quality
Management District; Oxides of Nitrogen
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing a
limited approval and limited disapproval of revisions to the Mojave
Desert Air Quality Management District (MDAQMD) portion of the
California State Implementation Plan (SIP). This revision concerns
emissions of oxides of nitrogen (NO<INF>X</INF>) from industrial,
institutional, and commercial boilers, steam generators, and process
heaters. We are proposing a limited approval of a local rule that
regulates these emission sources under the Clean Air Act (CAA or the
Act) because the rule would strengthen the current SIP-approved version
of MDAQMD's rule. We are proposing a limited disapproval of this
revision because it is inconsistent with the EPA's startup, shutdown,
and malfunction (SSM) policy and Credible Evidence Rules. We are taking
comments on this proposal and plan to follow with a final action.
DATES: Comments must be received on or before April 26, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0087 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. If you need assistance in a
language other than English or if you are a person with disabilities
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 Kenya Evans-Hopper, EPA Region IX,
75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3245 or
by email at <a href="/cdn-cgi/l/email-protection#e88d9e89869b808798988d9ac68489838d869189a88d9889c68f879e"><span class="__cf_email__" data-cfemail="e98c9f88879a818699998c9bc78588828c879088a98c9988c78e869f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What rule did the State submit?
B. Are there other versions of this rule?
C. What is the purpose of the submitted rule revision?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rule?
B. Does the rule meet the evaluation criteria?
C. What are the rule deficiencies?
D. The EPA's Recommendations To Further Improve the Rule
E. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What rule did the State submit?
Table 1 lists the rule addressed by this proposal with the dates
that it was adopted by the local air agency and submitted by the
California Air Resources Control Board (CARB).
Table 1--Submitted Rule
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Local agency Rule No. Rule title Amended Submitted
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MDAQMD.............................. 1157 Boilers and Process 01/22/18 05/23/18
Heaters.
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On November 23, 2018, the submittal for MDAQMD Rule 1157 was deemed
complete by operation of law pursuant to CAA section 110(k)(1)(B) and
40 CFR part 51 Appendix V.
B. Are there other versions of this rule?
We approved an earlier version of Rule 1157 into the SIP on April
20, 1999 (64 FR 19277). The MDAQMD adopted revisions to the SIP-
approved version on January 22, 2018, and CARB submitted them to us on
May 23, 2018. In its submittal letter, CARB requested that, upon
approval of the revised version of Rule 1157, the EPA remove the old
version of this rule from the MDAQMD SIP. If we take final action to
approve the January 22, 2018 version of Rule 1157, this version will
replace the previously approved version of this rule in the SIP.
C. What is the purpose of the submitted rule revision?
Emissions of nitrogen oxides (NO<INF>X</INF>) contribute to the
production of ground-level ozone, smog and particulate matter (PM),
which harm human health and the environment. Section 110(a) of the CAA
requires states to submit regulations that control NO<INF>X</INF>
emissions. Submitted Rule 1157 establishes emission limits of
NO<INF>X</INF> and carbon monoxide (CO) for boilers, steam
[[Page 18107]]
generators, and process heaters (units) with rated heat inputs of
greater than or equal to 5 million Btu per hour (MMBtu/hr). In the
District's Reasonably Available Control Technology (RACT) SIP for the
2008 ozone National Ambient Air Quality Standards (NAAQS), the District
concluded that Rule 1157 did not meet current RACT and acknowledged the
need to revise the rule, including the limits for NO<INF>X</INF>, in
order to implement RACT.\1\ Rule 1157 is applicable to new and existing
boilers, steam generators, and process heaters within the Mojave Desert
portion of the West Mojave Desert ozone nonattainment area.\2\ The
updated rule lowers the NO<INF>X</INF> emission limit for gaseous fuels
to 30 ppmv, 0.036 lbs/MMBtu of heat input, and lowers the
NO<INF>X</INF> emission limit for liquid fuel to 40 ppmv, 0.052 lbs/
MMBtu of heat input. The EPA's technical support document (TSD), which
is available in the docket, has more information about this rule.
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\1\ The EPA conditionally approved the District's RACT SIP for
major NO<INF>X</INF> sources for the 2008 ozone NAAQS, based on the
District's commitment to remedy deficiencies in a set of different
NO<INF>X</INF> rules, including Rule 1157. 83 FR 5921 (February 12,
2018). Because the EPA has not yet taken final action addressing
each of the additional NO<INF>X</INF> rules subject to the
conditional approval, we intend to address our conditional approval
of the major NO<INF>X</INF> RACT source category in a separate
rulemaking once we have taken action on all of the applicable
NO<INF>X</INF> rules.
\2\ See 40 CFR 81.305.
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II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rule?
Rules in the SIP must be enforceable (see CAA section 110(a)(2)),
and must not interfere with applicable requirements concerning
attainment and reasonable further progress or other CAA requirements
(see CAA section 110(l)).
Generally, SIP rules require RACT for each major source of
NO<INF>X</INF> in ozone nonattainment areas classified as moderate or
above (see CAA sections 182(b)(2) and 182(f)). The MDAQMD regulates an
ozone nonattainment area classified as Severe-15 for the 1997, 2008,
and 2015 8-hour ozone national ambient air quality standards (40 CFR
81.305). Therefore, this rule must implement RACT.
Guidance and policy documents that we used to evaluate
enforceability, revision/relaxation and rule stringency requirements
include the following:
1. ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11,
1990).
3. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
4. ``NO<INF>X</INF> Emissions from Industrial/Commercial/
Institutional (ICI) Boilers,'' EPA453/R-94-022, March 1994.
5. ``Determination of Reasonably Available Control Technology and
Best Available Retrofit Control Technology for Industrial,
Institutional, and Commercial Boilers, Steam Generators, and Process
Heaters,'' CARB, July 18, 1991.
6. ``State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015).
7. ``Inclusion of Provisions Governing Periods of Startup,
Shutdown, and Malfunctions in State Implementation Plans,'' EPA,
October 9, 2020.
8. ``Withdrawal of the October 9, 2020, Memorandum Addressing
Startup, Shutdown, and Malfunctions in State Implementation Plans and
Implementation of the Prior Policy,'' EPA, September 30, 2021.
9. MDAQMD Rule 1157, Boilers and Process Heaters, as amended on May
19, 1997, and approved into the SIP on April 20, 1999 (64 FR 19277).
B. Does the rule meet the evaluation criteria?
Rule 1157 strengthens the SIP by establishing more stringent
emission limits and by clarifying monitoring, recording, and
recordkeeping provisions. The District has addressed all of the
deficiencies identified with Rule 1157 in our 2018 conditional approval
action.\3\ The rule is largely consistent with CAA requirements and
relevant guidance regarding enforceability, RACT, and SIP revisions.
Rule 1157 strengthens the SIP, most substantially by tightening RACT
emission limits for gas fired units from 70 ppmv to 30 ppmv and
eliminating emission limits and definitions for solid fueled operations
entirely, so that applicable units may only fire on gas or liquid
fuels. Rule 1157 is at least as stringent as the EPA's 1994 ACT
document,\4\ CARB's RACT/BARCT guidance \5\ and analogous California
District rules for this category. Rule provisions which do not meet the
evaluation criteria are summarized below and discussed further in the
TSD.
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\3\ 83 FR 5921.
\4\ EPA, ``NO<INF>X</INF> Emissions from Industrial/Commercial/
Institutional (ICI) Boilers,'' EPA453/R-94-022, March 1994.
\5\ CARB, ``Determination of Reasonably Available Control
Technology and Best Available Retrofit Control Technology for
Industrial, Institutional, and Commercial Boilers, Steam Generators,
and Process Heaters,'' July 18, 1991.
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C. What are the rule deficiencies?
EPA is proposing to determine that the following provisions do not
satisfy the requirements of section 110 and part D of title I of the
Act and prevent full approval of the SIP revision, for reasons
described here and explained in further detail in the TSD.
1. As described in greater detail in our TSD, section
(E)(1)(b)(iii) of the Rule provides that ``[n]o compliance
determination shall be established based on data obtained from
compliance testing, including integrated sampling methods, during a
start-up period or shut-down period.'' This is not consistent with the
EPA's SSM policy and Credible Evidence Rule because it forbids the use
of credible evidence (compliance testing data generated during startup
and shutdown periods) in establishing violations of the applicable
emissions limit. In addition, the rule revision removed the definitions
of ``start-up period'' and ``shut-down period,'' making the scope of
this provision unclear.
D. The EPA's Recommendations To Further Improve the Rule
The TSD includes recommendations for the next time the local agency
modifies the rule. These recommendations are not the basis of our
proposed limited disapproval.
E. Public Comment and Proposed Action
As authorized in section 110(k)(3) of the Act, the EPA is proposing
a limited approval and limited disapproval of the submitted rule
because although it fulfills most of the relevant CAA requirements, it
also contains the deficiency listed in Section II.C of this document.
We will accept comments from the public on this proposal until April
26, 2023. If finalized, this action would incorporate the submitted
rule into the SIP, including those provisions identified as deficient.
This approval is limited because the EPA is simultaneously proposing a
limited disapproval of the rule under section 110(k)(3).
If we finalize this disapproval, CAA section 110(c) would require
the EPA to promulgate a federal implementation
[[Page 18108]]
plan within 24 months unless we approve a subsequent SIP revision that
corrects the deficiencies identified in our evaluation.
In addition, finalizing this limited disapproval would trigger the
offset sanction in CAA section 179(b)(2) 18 months after the effective
date of a final disapproval, and the highway funding sanction in CAA
section 179(b)(1) six months after the offset sanction is imposed. A
sanction will not be imposed if the EPA determines that a subsequent
SIP submission corrects the deficiencies identified in our final action
before the applicable deadline.
Note that the submitted rule has been adopted by the MDAQMD, and
the EPA's final limited disapproval would not prevent the local agency
from enforcing it. The limited disapproval also would not prevent any
portion of the rule from being incorporated by reference into the
federally enforceable SIP as discussed in a July 9, 1992 EPA memo found
at: <a href="https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf">https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf</a>.
III. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the Mojave Desert Air Quality Management District Rule 1157,
Boilers and Process Heaters, amended on January 22, 2018, which
regulates NO<INF>X</INF> and CO emissions from industrial,
institutional, and commercial boilers, steam generators, and process
heaters. The EPA has made, and will continue to make, these materials
available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at the EPA Region IX
Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
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 Population
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 proposed
action limitedly approves and limitedly disapproves state law as
meeting federal requirements and does not impose
[[Page 18109]]
additional requirements beyond those imposed by state law.
The air agency 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 18, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-06143 Filed 3-24-23; 8:45 am]
BILLING CODE 6560-50-P
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