[Federal Register Volume 82, Number 82 (Monday, May 1, 2017)]
[Proposed Rules]
[Pages 20295-20296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08666]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2017-0096; FRL-9961-55-Region 9]


Approval of California Air Plan Revisions, Eastern Kern Air 
Pollution Control District and Imperial County Air Pollution Control 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Eastern Kern Air Pollution Control District 
(EKAPCD) and Imperial County Air Pollution Control District (ICAPCD) 
portions of the California State Implementation Plan (SIP). These 
revisions were submitted by the California Air Resources Board (CARB) 
in response to EPA's May 22, 2015 finding of substantial inadequacy and 
SIP call for certain provisions in the SIP related to 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: Any comments must arrive by May 31, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2017-0096 at https://www.regulations.gov, or via email to Andrew 
Steckel, Rulemaking Office Chief at [email protected]. For 
comments submitted at Regulations.gov, follow the online instructions 
for submitting comments. Once submitted, comments cannot be removed or 
edited from Regulations.gov. For either manner of submission, 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 https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Christine Vineyard, EPA Region IX, 
(415) 947-4125, [email protected].

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

Table of Contents

I. What action is the EPA proposing today?
II. What is the background for the EPA's proposed action?
III. Why is the EPA proposing this action?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is the EPA proposing today?

    The EPA is proposing to approve revisions to the California SIP. 
The revisions will remove from the EKAPCD and ICAPCD portions of the 
California SIP provisions related to affirmative defenses that sources 
could assert in the event of enforcement actions for violations of SIP 
requirements during SSM events. Removal of the affirmative defense 
provisions from the SIP will make the EKAPCD and ICAPCD portions of the 
SIP consistent with CAA requirements with respect to this issue. EKAPCD 
and ICAPCD are retaining the affirmative defenses solely for state law 
purposes, outside of the EPA approved SIP. Removal of the affirmative 
defenses from the SIP is also consistent with the EPA policy for 
exclusion of ``state law only'' provisions from SIPs, and will serve to 
minimize any potential confusion about the inapplicability of the 
affirmative defense provisions in federal court enforcement actions. 
Table 1 lists the rules addressed by this proposal with the dates on 
which each rule was rescinded by the EKAPCD or ICAPCD and submitted by 
CARB in response to EPA's final action entitled ``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 ``SSM SIP Action.''

                                            Table 1--Submitted Rules
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            Local agency                 Rule #               Rule title             Rescinded       Submitted
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EKAPCD.............................             111  Equipment Breakdown........        11/10/16        12/06/16
ICAPCD.............................             111  Equipment Breakdown........        09/22/15        03/28/16
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[[Page 20296]]

    On January 12, 2017, the EPA determined that the submittal for 
EKAPCD Rule 111 met the completeness criteria in 40 CFR part 51 
Appendix V, and on September 28, 2016, the submittal for ICAPCD Rule 
111 was deemed complete by operation of law under 40 CFR part 51 
Appendix V. The completeness criteria must be met before formal EPA 
review of the submittals for approvability in accordance with 
applicable CAA requirements.

II. What is the background for the EPA's proposed action?

    On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA 
published the final SSM SIP Action finding that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
called on those states to submit SIP revisions to address those 
inadequacies. 80 FR 33839. As required by the CAA, the EPA established 
a reasonable deadline (not to exceed 18 months) by which the affected 
states must submit such SIP revisions. In accordance with the SSM SIP 
Action, states were required to submit corrective revisions to their 
SIPs by November 22, 2016. The EPA's reasoning, legal authority, and 
responsibility under the CAA for issuing the SIP call to California can 
be found in the SSM SIP Action.
    In the SSM SIP Action, the EPA determined that EKAPCD Rule 111 and 
ICAPCD Rule 111 include elements of an affirmative defense for excess 
emissions during malfunctions. Specifically, EKAPCD Rule 111 and ICAPCD 
Rule 111 contain affirmative defense provisions that preclude 
enforcement for excess emissions that would otherwise constitute a 
violation of the applicable SIP emission limitations. The EPA concluded 
that EKAPCD Rule 111 and ICAPCD Rule 111 operate to alter or affect the 
jurisdiction of federal courts in the event of an enforcement action, 
contrary to the enforcement structure of the CAA in section 113 and 
section 304. See 80 FR 33972 (June 12, 2015).
    On March 28, 2016 and December 6, 2016, ICAPCD and EKAPCD, 
respectively, made submittals in response to the SSM SIP Action. As 
noted above, the EPA found these submittals complete on September 28, 
2016 and January 12, 2017, respectively. In the submittals, EKAPCD and 
ICAPCD requested that EPA revise the California SIP by removing EKAPCD 
Rule 111 and ICAPCD Rule 111 in their entirety from the California SIP. 
This approach is consistent with the EPA's interpretation of CAA 
requirements for SIP provisions.

III. Why is the EPA proposing this action?

    In the SSM SIP Action, the EPA made a finding of substantial 
inadequacy and issued a SIP call with respect to EKAPCD Rule 111 and 
ICAPCD Rule 111 pursuant to CAA section 110(k)(5). In response, CARB 
submitted SIP revisions requesting the EPA to remove EKAPCD Rule 111 
and ICAPCD Rule 111 from the California SIP in their entirety. 
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 EKAPCD and ICAPCD portions of the EPA-approved SIP 
for California. The EPA is proposing to find that these revisions are 
consistent with CAA requirements and that they adequately address the 
specific SIP deficiencies that the EPA identified in the SSM SIP Action 
with respect to the EKAPCD and ICAPCD portions of the California SIP.

IV. Proposed Action

    The EPA is proposing to approve the California SIP revisions 
removing EKAPCD Rule 111 and ICAPCD Rule 111 from the EKAPCD and ICAPCD 
portions of the California SIP. The 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 CAA. The 
EPA is not reopening the SSM SIP Action in this action and is taking 
comment only on whether this SIP revision is consistent with CAA 
requirements and whether it addresses the ``substantial inadequacy'' of 
the specific California SIP provisions identified in the SSM SIP 
Action.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve 
SIP submissions that comply 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 approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely proposes to approve state 
requests as meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     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);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     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);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     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 Clean Air Act; and
     does not provide the EPA with the discretionary authority 
to address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).

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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: March 29, 2017.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2017-08666 Filed 4-28-17; 8:45 am]
 BILLING CODE 6560-50-P