Proposed Rule2023-16975
Air Plan Approval; CA; San Joaquin Valley Air Pollution Control District; Removal of Excess Emissions Provisions
Primary source
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Published
August 10, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions to the San Joaquin Valley Air Pollution Control District (SJVAPCD) portion of the California State Implementation Plan (SIP). The revisions were submitted by the California Air Resources Board (CARB), on behalf of SJVAPCD, in response to EPA's May 22, 2015, finding of substantial inadequacy and SIP call for certain provisions in the SIP related to exemptions and affirmative defenses applicable to excess emissions during startup, shutdown, and malfunction (SSM) events. EPA is proposing approval of the SIP revisions because the Agency has determined that they are in accordance with the requirements for SIP provisions under the Clean Air Act (CAA or the Act).
Full Text
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<title>Federal Register, Volume 88 Issue 153 (Thursday, August 10, 2023)</title>
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[Federal Register Volume 88, Number 153 (Thursday, August 10, 2023)]
[Proposed Rules]
[Pages 54257-54259]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16975]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2022-0604; FRL-10574-01-R9]
Air Plan Approval; CA; San Joaquin Valley Air Pollution Control
District; Removal of Excess Emissions Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions to the San Joaquin
Valley Air Pollution Control District (SJVAPCD) portion of the
California State Implementation Plan (SIP). The revisions were
submitted by the California Air Resources Board (CARB), on behalf of
SJVAPCD, in response to EPA's May 22, 2015, finding of substantial
inadequacy and SIP call for certain provisions in the SIP related to
exemptions and affirmative defenses applicable to excess emissions
during startup, shutdown, and malfunction (SSM) events. EPA is
proposing approval of the SIP revisions because the Agency has
determined that they are in accordance with the requirements for SIP
provisions under the Clean Air Act (CAA or the Act).
DATES: Comments must be received on or before September 11, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0604 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: Christine Vineyard, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4125 or by
email at <a href="/cdn-cgi/l/email-protection#1b6d72757e627a697f3578736972686f72757e5b7e6b7a357c746d"><span class="__cf_email__" data-cfemail="5b2d32353e223a293f7538332932282f32353e1b3e2b3a753c342d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or
``our'' is used, it refers to EPA.
Table of Contents
I. Background
II. Analysis of SIP Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review
I. Background
On February 22, 2013, the EPA issued a Federal Register notice of
proposed rulemaking outlining EPA's policy at the time with respect to
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the CAA with regard to excess emission events.\1\ For each SIP
provision that EPA determined to be inconsistent with the CAA, EPA
proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a
document supplementing and revising what the Agency had previously
proposed on February 22, 2013, in light of a D.C. Circuit decision that
determined the CAA precludes authority of the EPA to create affirmative
defense provisions applicable to private civil suits. EPA outlined its
updated policy that affirmative defense SIP provisions are not
consistent with CAA requirements. EPA proposed in the supplemental
proposal document to apply its revised interpretation of the CAA to
specific affirmative defense SIP provisions and proposed SIP calls for
those provisions where appropriate (79 FR 55920, September 17, 2014).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (Feb. 22, 2013).
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``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), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 states were substantially inadequate to meet CAA requirements and
issued a SIP call to those states to submit SIP revisions to address
the inadequacies. EPA established an 18-month deadline by which the
affected states had to submit such SIP revisions. States were required
to submit corrective revisions to their SIPs in response to the SIP
calls by November 22, 2016.
EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\2\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to SJVAPCD in 2015. The 2020 Memorandum did,
however, indicate EPA's intent at the time to review SIP calls that
were issued in the 2015 SSM SIP Action to determine whether EPA should
maintain, modify, or withdraw
[[Page 54258]]
particular SIP calls through future agency actions.
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\2\ October 9, 2020 memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including minority, low-income, and
indigenous populations overburdened by air pollution, receive the full
health and environmental protections provided by the CAA.\4\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
of EPA's plans to review and potentially modify or withdraw particular
SIP calls. That statement no longer reflects EPA's intent. EPA intends
to implement the principles laid out in the 2015 SSM SIP Action as the
agency takes action on SIP submissions, including this SIP submittal
provided in response to the 2015 SIP call.
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\3\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\4\ 80 FR 33985.
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With regard to the SJVAPCD SIP, in the 2015 SSM SIP Action, the EPA
determined that the rules in the following table were substantially
inadequate to meet CAA requirements (80 FR 33840, 33973):
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District Rule number Adopted Submitted Rule title
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San Joaquin Valley APCD (Fresno County 110 2/17/2022 4/14/2022 Equipment Breakdown.
APCD).
San Joaquin Valley APCD (Stanislaus 110 2/17/2022 4/14/2022 Equipment Breakdown.
County APCD).
San Joquin Valley APCD (Kern County 111 2/17/2022 4/14/2022 Equipment Breakdown.
APCD).
San Joaquin Valley APCD (Kings County 111 2/17/2022 4/14/2022 Equipment Breakdown.
APCD).
San Joaquin Valley APCD (Tulare County 111 2/17/2022 4/14/2022 Equipment Breakdown.
APCD).
San Joaquin Valley APCD (Madera County 113 2/17/2022 4/14/2022 Equipment Breakdown.
APCD).
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Each of these SIP provisions provide an affirmative defense
available to sources for excess emissions that occur during a breakdown
condition (i.e., malfunction). The rationale underlying EPA's
determination that the provisions were substantially inadequate to meet
CAA requirements, and therefore to issue a SIP call to SJVAPCD to
remedy the provisions, is detailed in the 2015 SSM SIP Action and the
accompanying proposals.
CARB, on behalf of SJVAPCD, submitted the SIP revisions on April
14, 2022, in response to the SIP call issued in the 2015 SSM SIP
Action. In its submission, California is requesting that EPA revise the
SJVAPCD SIP by removing the rules in the table above from the
California SIP.
II. Analysis of SIP Submission
EPA is proposing to approve SJVAPCD's April 14, 2022 SIP
submission. Affirmative defense provisions like these are inconsistent
with CAA requirements and removal of these provisions would strengthen
the SIP. This action, if finalized, would remove the affirmative
defense provisions from the SJVAPCD portion of the EPA-approved SIP for
California. EPA is proposing to find that these revisions are
consistent with CAA requirements and that they adequately address the
specific deficiencies that EPA identified in the 2015 SSM SIP Action
with respect to the SJVAPCD portion of the California SIP.
III. Proposed Action
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is
proposing to approve California's April 14, 2022 SIP submission
requesting removal of (i) Fresno County ``Rule 110 Equipment
Breakdown''; (ii) Kern County ``Rule 111 Equipment Breakdown''; (iii)
Kings County ``Rule 111 Equipment Breakdown''; (iv) Madera County
``Rule 113 Equipment Breakdown''; (v) Stanislaus County ``Rule 110
Equipment Breakdown''; and (vi) Tulare County ``Rule 111 Equipment
Breakdown'' from the California SIP. We are proposing approval of the
SIP revisions because we have determined that they are consistent with
the requirements for SIP provisions under the CAA. EPA is further
proposing to determine that such SIP revisions correct the deficiencies
identified in the May 22, 2015 SIP call. EPA is not reopening the 2015
SSM SIP Action and is only taking comment on whether these SIP
revisions are consistent with CAA requirements and whether they address
the ``substantial inadequacy'' of the specific SJVAPCD SIP provisions
identified in the 2015 SSM SIP Action.
IV. Incorporation by Reference
In this document, EPA is proposing to amend regulatory text that
includes incorporation by reference. In accordance with the
requirements of 1 CFR 51.5, and as described in section I of the
preamble, EPA is proposing to remove provisions from Fresno County,
Kern County, Kings County, Madera County, Stanislaus County, and Tulare
County portions of the California SIP. EPA has made, and will continue
to make, these documents generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at the EPA Region 9 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves removal of State law not meeting
Federal requirements and does not impose additional requirements beyond
those already imposed by State law. For that reason, this proposed
action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011).
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
<bullet> Is certified as not having a significant economic impact
on a
[[Page 54259]]
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999).
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997).
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001).
Is not subject to requirements of Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
because application of those requirements would be inconsistent with
the CAA.
In addition, 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. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
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.''
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.
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, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 25, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-16975 Filed 8-9-23; 8:45 am]
BILLING CODE 6560-50-P
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