[Federal Register Volume 86, Number 173 (Friday, September 10, 2021)]
[Rules and Regulations]
[Pages 50643-50645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19435]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0333; FRL-8609-02-R9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a 
limited approval and limited disapproval of a revision 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. Under the authority of the Clean Air Act 
(CAA or the ``Act''), this action approves a local rule that regulates 
these emission sources into the federally-enforceable SIP, thereby 
strengthening the SIP, while identifying deficiencies with the rule 
that must be corrected by the MDAQMD in order for the EPA to grant full 
approval of the rule.

DATES: This rule will be effective on October 12, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R09-OAR-2021-0333. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information. 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. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On June 1, 2021 (86 FR 29227), the EPA proposed a limited approval 
and limited disapproval of the following rule that was submitted for 
incorporation into the California SIP.

                                             Table 1--Submitted Rule
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                   Rule #                                 Rule title                  Amended        Submitted
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1160.......................................  Internal Combustion Engines........      01/22/2018      05/23/2018
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    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
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.
    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 section 110(a)(2) of the 
Act. Furthermore, the rule leaves the approval of the NOX 
emission reduction alternative to the District without EPA review or 
approval of the alternative into the SIP. Because the rule is not clear 
with respect to how to calculate the baseline emission rate, and the 
approval of an alternative limit lies solely with the District, this 
provision allows for overbroad discretion on the part of the Director 
to modify requirements of the SIP without the procedures required under 
section 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. 
Additionally, the alternative limits have not been justified as meeting 
the reasonably available control technology (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 (emissions aggregation) constitutes 
an economic incentive program (EIP) under the EPA's 2001 EIP 
guidance.\1\ As discussed in the proposed rule, 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 therefore allow greater 
emissions at other units.
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    \1\ ``Improving Air Quality with Economic Incentive Programs'' 
(EPA-452/R-01-001, January 2001).
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    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

[[Page 50644]]

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.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received one comment from the MDAQMD expressing 
concern regarding the EPA's communication with the District in advance 
of the proposed action, indicating that these issues could have been 
raised sooner to give the District an opportunity to address them in 
the local rulemaking process. Although the comment expressed concern 
about the EPA's communications with the District during the rule 
development process, the comment did not criticize the substance of the 
deficiencies identified by the EPA in the proposed rulemaking and 
described the EPA's concerns as ``legitimate.'' The District also 
stated they would be initiating a local rulemaking process in the near 
future to resolve these issues. Accordingly, we acknowledge the 
concerns raised by the District, but do not consider the comment to be 
suggesting that the EPA take a different course of action in the 
current rulemaking.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized by the 
grant of authority to approve and disapprove SIP submissions contained 
in sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a 
limited approval and limited disapproval of the submitted rule. Our 
limited approval incorporates the submitted rule into the California 
SIP, including those provisions identified as deficient.
    As a result of the limited disapproval, the EPA must promulgate a 
Federal implementation plan (FIP) under section 110(c) unless we 
approve subsequent SIP revisions that correct the rule deficiencies 
within 24 months.
    In addition, the offset sanction in CAA section 179(b)(2) will be 
imposed 18 months after the effective date of this action, 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 identified 
deficiencies before the applicable deadline.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the 
MDAQMD rule described in the amendments to 40 CFR part 52 set forth 
below. The EPA has made, and will continue to make, these documents 
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).

V. 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 Populations

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

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the

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Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 9, 2021. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 1, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
    For the reasons stated in the preamble, the Environmental 
Protection Agency amends part 52, chapter I, title 40 of the Code of 
Federal Regulations as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(207)(i)(D)(5) and 
(c)(518)(i)(A)(7) to read as follows:


Sec.  52.220   Identification of plan-in part.

* * * * *
    (c) * * *
    (207) * * *
    (i) * * *
    (D) * * *
    (5) Previously approved on November 1, 1996 in paragraph 
(c)(207)(i)(D)(3) of this section and now deleted with replacement in 
paragraph (c)(518)(i)(A)(6) of this section, Rule 1160, adopted on 
October 26, 1994.
* * * * *
    (518) * * *
    (i) * * *
    (A) * * *
    (7) Rule 1160, ``Internal Combustion Engines,'' amended on January 
22, 2018.
* * * * *
[FR Doc. 2021-19435 Filed 9-9-21; 8:45 am]
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