[Federal Register Volume 86, Number 103 (Tuesday, June 1, 2021)]
[Proposed Rules]
[Pages 29227-29229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11525]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0333; FRL-10023-88-Region 9]


Air Plan Limited Approval and Limited Disapproval, California; 
Mojave Desert Air Quality Management District

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's (MDAQMD or District) portion 
of the California State Implementation Plan (SIP). This revision 
concerns oxides of nitrogen (NOX) emissions from stationary 
internal combustion engines. We are proposing action on a local rule 
that regulates these emission sources under the Clean Air Act (CAA or 
the Act). We are taking comments on this proposal and plan to follow 
with a final action.

DATES: Comments must be received on or before July 1, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0333 at http://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. 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 http://www.epa.gov/dockets/commenting-epa-dockets. 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: Kevin Gong, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3073 or by 
email at [email protected].

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. Proposed Action and Public Comment
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 MDAQMD and submitted by the California Air 
Resources Board.

                         Table 1--Submitted Rule
------------------------------------------------------------------------
     Rule No.            Rule title           Amended        Submitted
------------------------------------------------------------------------
1160..............  Internal Combustion       01/22/2018      05/23/2018
                     Engines.
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    On November 23, 2018 the submittal for MDAQMD Rule 1160 was deemed 
by operation of law to meet the completeness criteria in 40 CFR part 51 
Appendix V, which must be met before formal EPA review.

B. Are there other versions of this rule?

    We approved an earlier version of Rule 1160 into the SIP on 
November 1, 1996 (61 FR 56470).

[[Page 29228]]

C. What is the purpose of the submitted rule revision?

    Emissions of NOX contribute to the production of ground-
level ozone, smog and particulate matter, which harm human health and 
the environment. Section 110(a) of the CAA requires states to submit 
regulations that control NOX emissions. Rule 1160 regulates 
NOX emissions from stationary internal combustion engines. 
In the District's reasonably available control technology (RACT) SIP 
for the 2008 National Ambient Air Quality Standards (NAAQS), the 
District concluded that Rule 1160 did not meet current RACT and 
acknowledged the need to revise the rule, primarily the limits for 
NOX, in order to implement RACT.\1\ The submitted rule 
revisions are intended to strengthen the rule by, among other things, 
strengthening the NOX limits in the rule, in order to 
implement current RACT. The EPA's technical support document (TSD) has 
more information about this rule.
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    \1\ The EPA conditionally approved the District's RACT SIPs for 
major NOX sources, based on the District's commitment to 
remedy deficiencies in a set of different NOX rules, 
including Rule 1160. 83 FR 5921 (February 12, 2018). The District 
has also submitted revisions to the other NOX rules 
subject to the conditional approval. Because the EPA has not yet 
acted on these other rules, we intend to address our conditional 
approval of the major NOX RACT source category in a 
separate rulemaking once we have taken action on all of the 
applicable NOX rules.
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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)), 
must not interfere with applicable requirements concerning attainment 
and reasonable further progress or other CAA requirements (see CAA 
section 110(l)), and must not modify certain SIP control requirements 
in nonattainment areas without ensuring equivalent or greater emissions 
reductions (see CAA section 193).
    Generally, SIP rules must require RACT for each major source of 
NOX 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 2008 8-hour 
ozone NAAQS and the 2015 8-hour ozone NAAQS (40 CFR 81.305), and Rule 
1160 regulates multiple major sources of NOX in the 
nonattainment area. Therefore, this rule must implement RACT.
    Guidance and policy documents that we use to evaluate 
enforceability, revision/relaxation and rule stringency requirements 
for the applicable criteria pollutants include the following:

    1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 
11, 1990).
    2. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    3. ``Improving Air Quality with Economic Incentive Programs'' 
(EPA-452/R-01-001, January 2001).
    4. Alternative Control Techniques Document--NOX 
Emissions from Stationary Reciprocating Internal Combustion 
Engines'' (EPA-453/R-93-032, July 1993).

B. Does the rule meet the evaluation criteria?

    Rule 1160 improves the SIP by establishing more stringent 
NOX emission limits and by clarifying monitoring, recording 
and recordkeeping provisions. The revised rule also requires an 
additional ten percent reduction in allowed emissions for facilities 
opting to use emissions aggregation as part of an economic incentive 
program (EIP), consistent with the EPA's guidance on such provisions. 
The rule is largely consistent with CAA requirements and relevant 
guidance regarding enforceability, and RACT, except for the provisions 
described below. The rule is also consistent with the EPA's 
requirements on SIP revisions, except for the provisions described 
below. Rule provisions that do not meet the evaluation criteria are 
summarized below and discussed further in the TSD.

C. What are the rule deficiencies?

    These 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.
    1. MDAQMD Rule 1160 section (C)(2)(b) allows for engines to comply 
with an alternative emission reduction provision instead of the 
concentration-based emission limits for NOX. Specifically, 
this alternative provision allows for owners or operators of applicable 
equipment to submit a plan for alternative emissions reduction that 
would achieve an 80% or 90% reduction of emissions from a baseline 
emission rate. Because the rule does not clearly specify how to 
calculate the baseline emission rate, the rule is not sufficiently 
clear to constitute an enforceable emission limitation, control 
measure, means or technique, as required under Sec.  110(a)(2) of the 
Act. The rule leaves the approval of the NOX emission 
reduction alternative to the District. Because the rule is not clear 
with respect to how to calculate the baseline emission rate, and the 
approval of an alternative limit is left to the District, this 
provision allows for overbroad discretion on the part of the Director 
to modify requirements of the SIP without the procedure required under 
Sec.  110 of the Act. In addition, the ambiguous alternative emission 
reduction provision could allow many units to emit more than the 
concentration limit in the rule by, in some cases, more than two times. 
These alternative limits have not been justified as meeting the RACT 
requirement.
    2. Under section (C)(2)(b)(v), the alternative emission reduction 
option also allows for units operating at the same facility to 
aggregate their emissions in order to comply with the percentage 
reduction. This type of provision constitutes an EIP under the EPA's 
2001 policy referenced above. The rule provisions do not meet the 
criteria for EIP integrity because they fail to require that any excess 
emission reductions credited through the provision be surplus (i.e., 
not required by any other federally enforceable provision). This 
omission could allow reductions that are otherwise federally required 
to be aggregated and used to allow greater emissions at other units.
    3. The compliance determination requirements described in section 
(E)(1)(c) do not require adequate source testing for emission units 
without emission control equipment. The requirements do not specify any 
frequency for testing beyond the initial compliance test, and do not 
specify what criteria must be met for certified manufacturer emission 
rates to be evidence of compliance.

D. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA 
is proposing a limited approval and limited disapproval of the 
submitted MDAQMD Rule 1160. We will accept comments from the public on 
this proposal until July 1, 2021. If finalized, this action would 
incorporate the submitted rule into the SIP, including those provisions 
identified as deficient. The submitted rule would replace the existing 
SIP-approved version of MDAQMD Rule 1160, which would be removed from 
the SIP. 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 plan within 24 months of 
the effective date of our final action unless we

[[Page 29229]]

approve subsequent SIP revisions that correct the deficiencies 
identified in section II.C of this notice.
    In addition, final 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: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.

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 MDAQMD rule described in Table 1 of this preamble. The 
EPA has made, and will continue to make, these materials available 
through www.regulations.gov 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 http://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 Population

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

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

    Dated: May 19, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-11525 Filed 5-28-21; 8:45 am]
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