[Federal Register Volume 87, Number 58 (Friday, March 25, 2022)]
[Proposed Rules]
[Pages 17060-17062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06344]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0943; FRL-9372-01-Region 9]


Limited Approval, Limited Disapproval of California Air Plan 
Revisions; South Coast Air Quality Management District; Refinery Flares

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 South 
Coast Air Quality Management District (SCAQMD) portion of the 
California State Implementation Plan (SIP). These revisions concern 
emissions of volatile organic compounds (VOCs) and oxides of nitrogen 
(NOX) from refinery flares. We are proposing action on a 
local rule to regulate 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 April 25, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0943 at https://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 https://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: Donnique Sherman, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4129 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?
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. The EPA's Recommendations To Further Improve the Rule
    E. Public Comment and Proposed Action
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 date 
that it was amended by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                             Table 1--Submitted Rule
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           Local agency               Rule No.               Rule title               Amended        Submitted
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SCAQMD...........................            1118  Control of Emissions from          07/07/2017      02/16/2018
                                                    Refinery Flares.
----------------------------------------------------------------------------------------------------------------

    On August 16, 2018, the submittal for SCAQMD Rule 1118 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 1118 into the SIP on August 
28, 2007 (72 FR 49196). The SCAQMD adopted revisions to the SIP-
approved version on July 7, 2017, and CARB submitted them to us on 
February 16, 2018. If we take final action to approve the July 7, 2017 
version of Rule 1118, this version will replace the previously approved 
version of this rule in the SIP.

C. What is the purpose of the submitted rule?

    Emissions of NOX and VOCs contribute to the production 
of ground-level ozone, smog and particulate matter (PM), which harm 
human health and the environment. Section 110(a) of the CAA requires 
states to submit regulations that control NOX and VOC 
emissions. Rule 1118 Control of Emissions from Refinery Flares is 
designed to monitor and record data on refinery and related flaring 
operations, and to control and minimize flaring and flare related 
emissions. The EPA's technical support document (TSD) has more 
information about this rule.

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 reasonably available control 
technology (RACT) for each category of sources covered by a Control 
Techniques Guidelines (CTG) document as well as each major source of 
NOX and VOCs in ozone nonattainment areas classified as 
Moderate or above (see CAA section 182(b)(2)). The SCAQMD regulates an 
ozone nonattainment area classified as Extreme for the 2015 8-hour 
ozone NAAQS (40 CFR 81.305). Therefore, this rule must implement RACT.
    Guidance and policy documents that we used to evaluate 
enforceability, revision/relaxation, and rule stringency requirements 
for the applicable criteria pollutants include the following:
    1. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

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    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11, 
1990).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).

B. Does the rule meet the evaluation criteria?

    Rule 1118 improves the SIP by establishing more stringent emission 
limits and by clarifying monitoring, recording, and recordkeeping 
provisions. The rule is largely consistent with CAA requirements and 
relevant guidance regarding enforceability, RACT, and SIP revisions. 
Rule provisions which do not meet the evaluation criteria are 
summarized below and discussed further in the TSD.

C. What are the rule deficiencies?

    The director's discretion in Rule 1118 Section (j) does not satisfy 
the requirements of section 110 of the Act and prevents full approval 
of the SIP revision. Documents submitted for inclusion into the SIP 
should not include unbounded director's discretion that allows the 
State to approve alternatives to the applicable SIP without following 
the SIP revision process described in CAA section 110. Rule 1118 
Section (j) provides the Executive Officer the authority to approve 
American Society for Testing and Materials (ASTM) methods other than 
those currently included in the rule. Without further specificity 
regarding how this authority will be exercised, it could functionally 
allow for a revision of the SIP without complying with the process for 
SIP revisions required by the CAA. As a result, this undermines the 
enforceability of the submission, constitutes a SIP deficiency, and 
conflicts with CAA Section 110.

D. The EPA's Recommendations To Further Improve the Rule

    There are no further recommendations.

E. Public Comment and Proposed Action

    As authorized in section 110(k)(3) of the Act, the EPA is proposing 
a limited approval and limited disapproval of the submitted rule. The 
limited disapproval for Rule 1118 is based on the enforceability issue 
identified in section II.C. of this document. We will accept comments 
from the public on this proposal until April 25, 2022. If finalized, 
this action would incorporate the submitted rule into the SIP, 
including those provisions identified as deficient. If we finalize this 
disapproval, CAA section 110(c) would require the EPA to promulgate a 
Federal implementation plan within 24 months unless we approve 
subsequent SIP revisions that correct the deficiencies identified in 
the final approval.
    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. The EPA intends to work with the SCAQMD to correct the 
deficiency in a timely manner.
    Note that the submitted rule has been adopted by the SCAQMD, 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 SCAQMD rule described in Table 1 of this preamble. The 
EPA has made, and will continue to make, these materials available 
through https://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 https://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

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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, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: March 20, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-06344 Filed 3-24-22; 8:45 am]
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