[Federal Register Volume 87, Number 161 (Monday, August 22, 2022)]
[Rules and Regulations]
[Pages 51259-51262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17936]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2017-0096; FRL-10020-01-R9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the Eastern Kern Air Pollution Control 
District (EKAPCD) and Imperial County Air Pollution Control District 
(ICAPCD) portion of the California State Implementation Plan (SIP). 
These revisions were submitted by the California Air Resources Board 
(CARB) in response to EPA's June 12, 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 finalizing 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) and correct deficiencies identified in the June 
12, 2015 SIP call.

DATES: These rules will be effective on September 21, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2017-0096. 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: 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. Background
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    On February 22, 2013, the EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the CAA with regard to excess emission events.\1\ For each SIP 
provision that EPA determined to be inconsistent with the CAA, EPA 
proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a 
document supplementing and revising what the Agency had previously 
proposed on February 22, 2013, in light of a D.C. Circuit decision that 
determined the CAA precludes authority of the EPA to create affirmative 
defense provisions applicable to private civil suits. EPA outlined its 
updated policy that affirmative defense SIP provisions are not 
consistent with CAA requirements. EPA proposed in the supplemental 
proposal document to apply its revised interpretation of the CAA to 
specific affirmative defense SIP provisions and proposed SIP calls for 
those provisions where appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``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,'' hereafter referred to as the ``2015 SSM SIP Action.'' 
\2\ The 2015 SSM SIP Action clarified, restated, and updated EPA's 
interpretation that SSM exemptions and affirmative defense SIP 
provisions are inconsistent with CAA requirements. The 2015 SSM SIP 
Action found that certain SIP provisions in 36 states were 
substantially inadequate to meet CAA requirements and issued a SIP call 
to those states to submit SIP revisions to address the inadequacies. 
The EPA established an 18-month deadline by which the affected states 
had to submit such SIP revisions. States were required to submit 
corrective revisions to their SIPs in response to the SIP calls by 
November 22, 2016.
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    \2\ 80 FR 33839.
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    The EPA issued a Memorandum in October 2020 (2020 Memorandum), 
which stated that certain provisions governing SSM periods in SIPs 
could be viewed as consistent with CAA requirements.\3\ Importantly, 
the 2020 Memorandum stated that it ``did not alter in any way the 
determinations made in the 2015 SSM SIP Action that identified specific 
state SIP provisions that were substantially inadequate to meet the 
requirements of the Act.'' Accordingly, the 2020 Memorandum had no 
direct impact on the SIP call issued to EKAPCD and ICAPCD in 2015. It 
also did not alter the EPA's prior proposal from 2017 to approve the 
EKAPCD and ICAPCD SIP revisions at issue in this action. The 2020 
Memorandum did, however, indicate the EPA's intent at the time to 
review SIP calls that were issued in the 2015

[[Page 51260]]

SSM SIP Action to determine whether the EPA should maintain, modify, or 
withdraw particular SIP calls through future agency actions.
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    \3\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced the EPA's return to the policy articulated in 
the 2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 
2021 Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including overburdened communities, 
receive the full health and environmental protections provided by the 
CAA.\5\ The 2021 Memorandum also retracted the prior statement from the 
2020 Memorandum of EPA's plans to review and potentially modify or 
withdraw particular SIP calls. That statement no longer reflects EPA's 
intent. EPA intends to implement the principles laid out in the 2015 
SSM SIP Action as the Agency takes action on SIP submissions, including 
EKAPCD's and ICAPCD's SIP submittal, provided in response to the 2015 
SIP call.
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    \4\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \5\ 80 FR 33985.
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    With regards to EKAPCD and ICAPCD, the SIP call identified Rules 
111 because the rules contained improper affirmative defenses for 
excess emissions during startup, shutdown, and malfunction events. On 
May 1, 2017 (82 FR 20295), the EPA proposed to approve removal of Rules 
111 from the California SIP.

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            Local agency                Rule No.              Rule title             Rescinded       Submitted
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EKAPCD.............................             111  Equipment Breakdown........        11/10/16        12/06/16
ICAPCD.............................             111  Equipment Breakdown........        09/22/16        03/28/16
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    As discussed in the proposal, EPA proposed to approve the removal 
of Rules 111 from the EKAPCD and ICAPCD portions of the California SIP 
because such removal is consistent with CAA requirements and would 
correct the deficiency identified by the Agency in the 2015 SSM SIP 
Action. 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.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
EPA acknowledges that over four years have elapsed since the comment 
period closed. No additional comment period is needed because nothing 
in the intervening time period--including the issuance and subsequent 
withdrawal of the 2020 Memorandum--changed the basis for EPA's proposed 
action or the public's opportunity to view and comment on that basis. 
Accordingly, the May 1, 2017 proposal provided the public with a full 
opportunity to comment on the issues raised by the proposed action. 
During this period, we received one comment. A summary of the comment 
from the SSM Coalition (``commenter'') and EPA's response is provided 
below.
    Comment: The commenter states that the approach EPA took in the SSM 
SIP action is based on an improper view of EPA's SIP call authority, an 
inappropriate view of the flexibility Congress gave states to develop 
SIPs, an incorrect reading of the United States Court of Appeals for 
the District of Columbia (D.C. Circuit) decision in Sierra Club v. EPA, 
an incorrect reading of the definition of ``emission limitation and 
emission standard'' in CAA section 302(k), and ``unreasonable or 
insufficiently supported assumptions'' about SSM events and emissions 
during SSM periods. The commenter notes that these objections to EPA's 
approach were stated in detail in comments on the proposed SSM SIP 
action and in briefs filed in the D.C. Circuit in consolidated 
challenges to the SSM SIP action, which the commenter incorporates by 
reference into its comment letter.
    Pointing to the various objections that the SSM Coalition and 
others raised about the SSM SIP action, the commenter concludes that it 
is inappropriate for the EPA to finalize its proposed approval of 
EKAPCD's and ICAPCD's response to the SSM SIP call until litigation 
before the D.C. Circuit is resolved. In support of this claim, the 
commenter points to statements made in 2017 by the Trump Administration 
about reviewing the underlying basis of the SSM SIP action and suggests 
that EPA withdraw the proposed action on EKAPCD's and ICAPCD's Rules 
111 because there may be a different rationale for EPA's position on 
the California SIP revisions after review of the underlying legal and 
policy issues by the D.C. Circuit and/or EPA.
    Response: The EPA respectfully disagrees with this comment. To the 
extent that the commenter is incorporating by reference comments made 
during the public comment period on the proposed SSM SIP action, we 
point to our responses in the 2015 final rulemaking and note that the 
comments were carefully considered before finalizing that action. The 
comments on the proposed SSM SIP action do not alter the basis for our 
proposed or final actions on the EKAPCD and ICAPCD submittals, which 
are based on the 2015 SSM SIP final rulemaking.
    The Agency also acknowledges the commenter's concern that there 
exist pending challenges to the 2015 SSM SIP action in the D.C. 
Circuit. However, there is no requirement or expectation that EPA must 
postpone action while awaiting a court decision. EKAPCD and ICAPCD have 
submitted SIP revisions to the Agency that are fully approvable for the 
reasons outlined in the 2017 proposal notice. As a result, EPA has 
determined that it is appropriate to take action to approve the EKAPCD 
and ICAPCD SIP revisions in accordance with applicable CAA 
requirements. Under the CAA, the Administrator is required to approve a 
SIP submission that complies with the provisions of the CAA and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). The 
commenter has pointed to no new alleged deficiency or other aspect that 
would lead the Agency to determine that the SIP revisions should be 
disapproved or that full approval of the SIP revisions is not otherwise 
appropriate.
    As we recently reaffirmed in the 2021 Memorandum, EPA is 
implementing policy consistent with that outlined in the 2015 SSM SIP 
Action. That policy aligns with previous court decisions,

[[Page 51261]]

including the D.C. Circuit's ruling in 2008, which found that inclusion 
of SSM exemptions in section 112 standards is not allowed under the CAA 
due to the generally applicable definition of emission limitations.\6\ 
Additionally, in 2014 the D.C. Circuit vacated a provision in EPA 
regulations that allowed an affirmative defense if it met specific 
criteria. The court stated that EPA lacked authority to create such a 
defense because it would impermissibly encroach upon the authority of 
Federal courts to find liability or impose remedies.\7\ It was in light 
of the 2008 and 2014 court cases, as well as concerns about the public 
health impacts of SSM, that led EPA in its 2015 action to clarify and 
update its SSM policy to explain that automatic exemptions, 
discretionary exemptions, overly broad enforcement discretion 
provisions, and affirmative defense provisions like the ones at issue 
in this action, will generally be viewed as inconsistent with CAA 
requirements.
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    \6\ Sierra Club v. Johnson 551 F.3d 1019 (D.C. Cir. 2008).
    \7\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
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III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) of the Act and for the reasons identified in the 2017 
proposal, the EPA is fully approving the removal of these rules from 
the EKAPCD and ICAPCD portions of the California SIP. The Agency's 
final approval of this submission fully corrects the inadequacies in 
the EKAPCD and ICAPCD portions of the California SIP that were 
identified in the EPA's 2015 SSM SIP Action.

IV. Incorporation by Reference

    In this document, the EPA is amending regulatory text that includes 
incorporation by reference. As described in section I of the preamble 
and as set forth below in the amendments to 40 CFR part 52, EPA is 
removing provisions from the Kern County and Imperial County portions 
of the California State Implementation Plan, which is incorporated by 
reference in accordance with the requirements of 1 CFR part 51. The EPA 
has made and will continue to make the State Implementation Plan 
generally available through www.regulations.gov and at the EPA Region 9 
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

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies 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 action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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, as appropriate, disproportionate human health or 
environmental effects, using practicable 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 October 21, 2022. Filing a 
petition for reconsideration by the 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: August 15, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended 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.

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Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(47)(iii)(C) and 
(c)(74)(i)(C) to read as follows:


Sec.  52.220  Identification of plan-in part.

* * * * *
    (c) * * *
    (47) * * *
    (iii) * * *
    (C) Previously approved on October 24, 1980, in paragraph 
(c)(47)(i)(A) of this section and now deleted without replacement Rule 
111, ``Equipment Breakdown.''
* * * * *
    (74) * * *
    (i) * * *
    (C) Previously approved on January 27, 1981, in paragraph 
(c)(74)(i)(A) of this section and now deleted without replacement Rule 
111, ``Equipment Breakdown.''
* * * * *
[FR Doc. 2022-17936 Filed 8-19-22; 8:45 am]
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