Rule2025-10037
Determination To Defer Sanctions; California; Eastern Kern Air Pollution Control District; Portland Cement Kilns
Primary source
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Published
June 4, 2025
Effective
June 4, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is making an interim final determination that the California Air Resources Board (CARB) has submitted a revised rule on behalf of the Eastern Kern Air Pollution Control District (EKAPCD) that addresses deficiencies in its Clean Air Act (CAA or "Act") State Implementation Plan (SIP) concerning reasonably available control technology (RACT) ozone nonattainment requirements for controlling emissions of oxides of nitrogen (NO<INF>X</INF>) from Portland cement kilns. This determination is based on a proposed approval of the submitted revised rule, published elsewhere in this issue of the Federal Register. The effect of this interim final determination is that the application of offset sanctions that was triggered by a previous limited disapproval by the EPA in 2023 is now stayed, and the application of highway sanctions is now deferred. If the EPA finalizes its proposed approval of EKAPCD's submittal, relief from these sanctions will become permanent.
Full Text
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<title>Federal Register, Volume 90 Issue 106 (Wednesday, June 4, 2025)</title>
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[Federal Register Volume 90, Number 106 (Wednesday, June 4, 2025)]
[Rules and Regulations]
[Pages 23616-23618]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-10037]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2025-0058; FRL-12609-02-R9]
Determination To Defer Sanctions; California; Eastern Kern Air
Pollution Control District; Portland Cement Kilns
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final determination.
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SUMMARY: The Environmental Protection Agency (EPA) is making an interim
final determination that the California Air Resources Board (CARB) has
submitted a revised rule on behalf of the Eastern Kern Air Pollution
Control District (EKAPCD) that addresses deficiencies in its Clean Air
Act (CAA or ``Act'') State Implementation Plan (SIP) concerning
reasonably available control technology (RACT) ozone nonattainment
requirements for controlling emissions of oxides of nitrogen
(NO<INF>X</INF>) from Portland cement kilns. This determination is
based on a proposed approval of the submitted revised rule, published
elsewhere in this issue of the Federal Register. The effect of this
interim final determination is that the application of offset sanctions
that was triggered by a previous limited disapproval by the EPA in 2023
is now stayed, and the application of highway sanctions is now
deferred. If the EPA finalizes its proposed approval of EKAPCD's
submittal, relief from these sanctions will become permanent.
DATES: This interim final determination is effective June 4, 2025.
However, comments will be accepted on or before July 7, 2025.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2025-0058 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 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: Elijah Gordon, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105; telephone number: (415) 972-
3158; email address: <a href="/cdn-cgi/l/email-protection#33545c41575c5d1d565f5a59525b735643521d545c45"><span class="__cf_email__" data-cfemail="5f38302d3b3031713a3336353e371f3a2f3e71383029">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. Background
II. The EPA's Evaluation and Action
III. Statutory and Executive Order Reviews
I. Background
On June 5, 2023, the EPA issued a final rule (88 FR 36479)
promulgating a limited approval and limited disapproval for the EKAPCD
rule listed in table 1, which was submitted by CARB to the EPA for
inclusion into the California SIP (``2023 final rule'').
[[Page 23617]]
Table 1--District Rule With Previous EPA Action
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Local agency Rule No. Rule title Amended Submitted EPA action in 2023
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EKAPCD..................... 425.3 Portland Cement Kilns 03/08/2018 08/22/2018 Limited Approval and
(Oxides of Nitrogen). Limited Disapproval.
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Sections 182(b)(2) and 182(f) of the CAA require that SIPs for
ozone nonattainment areas classified as ``Moderate'' or above implement
RACT for any source covered by a Control Techniques Guidelines (CTG)
document and for any major source of volatile organic compounds (VOCs)
or NO<INF>X</INF>. The EKAPCD must implement RACT-level controls
because it regulates the Kern County (Eastern Kern) ozone nonattainment
area that is classified as ``Moderate'' for the 1997 8-hour National
Ambient Air Quality Standards (NAAQS), ``Severe-15'' for the 2008 8-
hour NAAQS, and ``Serious'' for the 2015 8-hour ozone NAAQS.\1\
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\1\ See 40 CFR 81.305.
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In the 2023 final rule, we determined that although the EKAPCD rule
strengthened the SIP and was largely consistent with the requirements
of the CAA, the submitted rule contained deficiencies that precluded
our full approval of the rule into the SIP. More specifically, sections
(IV)(A) and (IV)(B) of the EKAPCD's previously submitted Rule 425.3
contained NO<INF>X</INF> emission limitation exemptions for Portland
cement kiln sources during periods of startup, shutdown, and breakdown
conditions. The EPA determined these provisions created deficiencies in
the rule because ``[a]n emission limitation or requirement that exempts
a period of source operation, such as startup or shutdown, cannot be
considered continuous and is not consistent with CAA requirements.''
\2\
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\2\ See 88 FR 36479.
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Pursuant to section 179 of the CAA and our regulations at 40 CFR
part 52, the limited disapproval action on EKAPCD's previously
submitted Rule 425.3 under title I, part D, of the Act started a
sanctions clock for imposition of offset sanctions under the
nonattainment new source review program 18 months after the action's
effective date of July 5, 2023, and highway sanctions six months later.
On November 13, 2024, the EKAPCD revised Rule 425.3, and on
December 12, 2024, CARB submitted it to the EPA for approval into the
California SIP, as shown in table 2 below.
Table 2--Submitted Rule
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Local agency Rule No. Rule title Amended Submitted
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EKAPCD.............................. 425.3 Portland Cement Kilns (Oxides 11/13/2024 12/12/2024
of Nitrogen).
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The revised EKAPCD Rule 425.3 in table 2 of this document is
intended to address deficiencies identified in our June 5, 2023 final
limited disapproval. In the Proposed Rules section of this Federal
Register, we have proposed approval of the revised EKAPCD Rule 425.3.
Based on the proposed action approving Rule 425.3 into the California
SIP, we believe that it is more likely than not that the State's
submittal now meets the applicable CAA requirements. Therefore, the EPA
is making this interim final determination based on our concurrent
proposal to approve the State's December 12, 2024 SIP submission to
correct the deficiencies identified in the June 5, 2023 limited
approval and limited disapproval of Rule 425.3. This interim final
determination, effective on publication, stays the application of
offset sanctions and defers the application of highway sanctions that
were triggered by our June 5, 2023 final limited approval and limited
disapproval of Rule 425.3.
While the EPA is not providing an opportunity for public comment
before the deferral of CAA section 179 sanctions is effective, the EPA
is providing the public with an opportunity to comment on this stay and
deferral of sanctions after the fact. In the event the EPA reverses its
preliminary determination that the State has corrected the deficiencies
(as explained in the proposed approval), sanctions would become
effective pursuant to 40 CFR 52.31(d)(2)(i). Additionally, the EPA is
providing an opportunity to comment on the concurrent proposed approval
that is the basis for this interim final determination, so the public
has an opportunity to comment on that action before any sanctions clock
could be permanently stopped or any already applied sanctions are
permanently terminated. If the EPA finalizes the approval as proposed,
then all sanctions and any sanction clocks triggered by our June 5,
2023 final limited approval and limited disapproval would be
permanently terminated on the effective date of our final approval of
Rule 425.3.
II. The EPA's Evaluation and Action
We are making an interim final determination to stay and defer CAA
section 179 sanctions associated with our limited disapproval action on
June 5, 2023, of EKAPCD Rule 425.3. This determination is based on our
concurrent proposal to fully approve EKAPCD Rule 425.3, which, if
finalized, would resolve the deficiencies identified in our limited
disapproval that triggered sanctions under section 179 of the CAA.
The basis for allowing such an interim final action stems from
section 553(b)(B) of the Administrative Procedures Act (APA), which
provides that the notice and opportunity for comment requirements do
not apply when the Agency finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.''
Because the EPA has preliminarily determined that EKAPCD Rule 425.3,
amended on November 13, 2024, addresses the deficiencies identified in
the limited disapproval under part D of title I of the CAA, and we are
proposing to determine that the amended rule is now fully approvable,
relief from sanctions should be provided as quickly as possible. In the
case of sanctions, the EPA believes it would be both impracticable and
contrary to the public interest to have to propose and provide an
opportunity to comment before any relief is provided from the effect of
sanctions. The EPA believes it would be unfair to the State and its
citizens, and thus not in the public interest, for
[[Page 23618]]
sanctions to remain in effect following the proposed approval, since
the EPA has completed a thorough evaluation of the State's SIP revision
and publicly stated its belief that the submittal is approvable.
Therefore, the EPA is invoking the good cause exception under the APA
in not providing an opportunity for comment before this action takes
effect (5 U.S.C. 553(b)(B)). However, the EPA is still providing the
public with a chance to comment on the EPA's determination after the
effective date, and the EPA will consider any comments received in
determining whether to reverse such action.
Section 553(d)(1) of the APA provides that final rules shall not
become effective until 30 days after publication in the Federal
Register ``except . . . a substantive rule which grants or recognizes
an exemption or relieves a restriction.'' The purpose of this provision
is to ``give affected parties a reasonable time to adjust their
behavior before the final rule takes effect.'' \3\ However, when the
agency grants or recognizes an exemption or relieves a restriction,
affected parties do not need a reasonable time to adjust because the
effect is not adverse. Because this rule relieves a restriction, EPA
finds good cause under 5 U.S.C. 553(d)(1) for this action to become
effective on the date of publication of this action.
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\3\ Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d
1099, 1104 (8th Cir. 1977) (quoting legislative history).
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III. Statutory and Executive Order Reviews
This action defers sanctions and imposes no additional
requirements. For that reason, this action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Order 12866 (58
FR 51735, October 4, 1993);
<bullet> Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because SIP actions are exempt from review under
Executive Order 12866;
<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 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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> 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).
This action is subject to the Congressional Review Act (CRA), and
the EPA will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. The CRA allows the
issuing agency to make a rule effective sooner than otherwise provided
by the CRA if the agency makes a good cause finding that notice and
comment rulemaking procedures are impracticable, unnecessary, or
contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a
good cause finding for this action as discussed in section II. of this
preamble, including the basis for that finding.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 4, 2025. Filing a petition for
reconsideration by the EPA Administrator of this final rule does not
affect the finality of this action for the purposes of judicial review,
nor does it extend the time within which a petition for judicial review
may be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements.
Dated: May 21, 2025.
Joshua F.W. Cook,
Regional Administrator, Region IX.
[FR Doc. 2025-10037 Filed 6-3-25; 8:45 am]
BILLING CODE 6560-50-P
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