[Federal Register Volume 88, Number 58 (Monday, March 27, 2023)]
[Proposed Rules]
[Pages 18106-18109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06143]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0087; FRL-10672-01-R9]


Air Plan Revisions; California; Mojave Desert Air Quality 
Management District; Oxides of Nitrogen

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 (MDAQMD) portion of the 
California State Implementation Plan (SIP). This revision concerns 
emissions of oxides of nitrogen (NOX) from industrial, 
institutional, and commercial boilers, steam generators, and process 
heaters. We are proposing a limited approval of a local rule that 
regulates these emission sources under the Clean Air Act (CAA or the 
Act) because the rule would strengthen the current SIP-approved version 
of MDAQMD's rule. We are proposing a limited disapproval of this 
revision because it is inconsistent with the EPA's startup, shutdown, 
and malfunction (SSM) policy and Credible Evidence Rules. We are taking 
comments on this proposal and plan to follow with a final action.

DATES: Comments must be received on or before April 26, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0087 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: La Kenya Evans-Hopper, EPA Region IX, 
75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3245 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. 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 dates 
that it was adopted by the local air agency and submitted by the 
California Air Resources Control Board (CARB).

                                             Table 1--Submitted Rule
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            Local agency                  Rule No.            Rule title            Amended         Submitted
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MDAQMD..............................            1157   Boilers and Process            01/22/18         05/23/18
                                                        Heaters.
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    On November 23, 2018, the submittal for MDAQMD Rule 1157 was deemed 
complete by operation of law pursuant to CAA section 110(k)(1)(B) and 
40 CFR part 51 Appendix V.

B. Are there other versions of this rule?

    We approved an earlier version of Rule 1157 into the SIP on April 
20, 1999 (64 FR 19277). The MDAQMD adopted revisions to the SIP-
approved version on January 22, 2018, and CARB submitted them to us on 
May 23, 2018. In its submittal letter, CARB requested that, upon 
approval of the revised version of Rule 1157, the EPA remove the old 
version of this rule from the MDAQMD SIP. If we take final action to 
approve the January 22, 2018 version of Rule 1157, this version will 
replace the previously approved version of this rule in the SIP.

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

    Emissions of nitrogen oxides (NOX) 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 
emissions. Submitted Rule 1157 establishes emission limits of 
NOX and carbon monoxide (CO) for boilers, steam

[[Page 18107]]

generators, and process heaters (units) with rated heat inputs of 
greater than or equal to 5 million Btu per hour (MMBtu/hr). In the 
District's Reasonably Available Control Technology (RACT) SIP for the 
2008 ozone National Ambient Air Quality Standards (NAAQS), the District 
concluded that Rule 1157 did not meet current RACT and acknowledged the 
need to revise the rule, including the limits for NOX, in 
order to implement RACT.\1\ Rule 1157 is applicable to new and existing 
boilers, steam generators, and process heaters within the Mojave Desert 
portion of the West Mojave Desert ozone nonattainment area.\2\ The 
updated rule lowers the NOX emission limit for gaseous fuels 
to 30 ppmv, 0.036 lbs/MMBtu of heat input, and lowers the 
NOX emission limit for liquid fuel to 40 ppmv, 0.052 lbs/
MMBtu of heat input. The EPA's technical support document (TSD), which 
is available in the docket, has more information about this rule.
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    \1\ The EPA conditionally approved the District's RACT SIP for 
major NOX sources for the 2008 ozone NAAQS, based on the 
District's commitment to remedy deficiencies in a set of different 
NOX rules, including Rule 1157. 83 FR 5921 (February 12, 
2018). Because the EPA has not yet taken final action addressing 
each of the additional NOX rules subject to the 
conditional approval, 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.
    \2\ See 40 CFR 81.305.
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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)), 
and must not interfere with applicable requirements concerning 
attainment and reasonable further progress or other CAA requirements 
(see CAA section 110(l)).
    Generally, SIP rules 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 1997, 2008, 
and 2015 8-hour ozone national ambient air quality standards (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 
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).
    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).
    4. ``NOX Emissions from Industrial/Commercial/
Institutional (ICI) Boilers,'' EPA453/R-94-022, March 1994.
    5. ``Determination of Reasonably Available Control Technology and 
Best Available Retrofit Control Technology for Industrial, 
Institutional, and Commercial Boilers, Steam Generators, and Process 
Heaters,'' CARB, July 18, 1991.
    6. ``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).
    7. ``Inclusion of Provisions Governing Periods of Startup, 
Shutdown, and Malfunctions in State Implementation Plans,'' EPA, 
October 9, 2020.
    8. ``Withdrawal of the October 9, 2020, Memorandum Addressing 
Startup, Shutdown, and Malfunctions in State Implementation Plans and 
Implementation of the Prior Policy,'' EPA, September 30, 2021.
    9. MDAQMD Rule 1157, Boilers and Process Heaters, as amended on May 
19, 1997, and approved into the SIP on April 20, 1999 (64 FR 19277).

B. Does the rule meet the evaluation criteria?

    Rule 1157 strengthens the SIP by establishing more stringent 
emission limits and by clarifying monitoring, recording, and 
recordkeeping provisions. The District has addressed all of the 
deficiencies identified with Rule 1157 in our 2018 conditional approval 
action.\3\ The rule is largely consistent with CAA requirements and 
relevant guidance regarding enforceability, RACT, and SIP revisions. 
Rule 1157 strengthens the SIP, most substantially by tightening RACT 
emission limits for gas fired units from 70 ppmv to 30 ppmv and 
eliminating emission limits and definitions for solid fueled operations 
entirely, so that applicable units may only fire on gas or liquid 
fuels. Rule 1157 is at least as stringent as the EPA's 1994 ACT 
document,\4\ CARB's RACT/BARCT guidance \5\ and analogous California 
District rules for this category. Rule provisions which do not meet the 
evaluation criteria are summarized below and discussed further in the 
TSD.
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    \3\ 83 FR 5921.
    \4\ EPA, ``NOX Emissions from Industrial/Commercial/
Institutional (ICI) Boilers,'' EPA453/R-94-022, March 1994.
    \5\ CARB, ``Determination of Reasonably Available Control 
Technology and Best Available Retrofit Control Technology for 
Industrial, Institutional, and Commercial Boilers, Steam Generators, 
and Process Heaters,'' July 18, 1991.
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C. What are the rule deficiencies?

    EPA is proposing to determine that 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, for reasons 
described here and explained in further detail in the TSD.
    1. As described in greater detail in our TSD, section 
(E)(1)(b)(iii) of the Rule provides that ``[n]o compliance 
determination shall be established based on data obtained from 
compliance testing, including integrated sampling methods, during a 
start-up period or shut-down period.'' This is not consistent with the 
EPA's SSM policy and Credible Evidence Rule because it forbids the use 
of credible evidence (compliance testing data generated during startup 
and shutdown periods) in establishing violations of the applicable 
emissions limit. In addition, the rule revision removed the definitions 
of ``start-up period'' and ``shut-down period,'' making the scope of 
this provision unclear.

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

    The TSD includes recommendations for the next time the local agency 
modifies the rule. These recommendations are not the basis of our 
proposed limited disapproval.

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 
because although it fulfills most of the relevant CAA requirements, it 
also contains the deficiency listed in Section II.C of this document. 
We will accept comments from the public on this proposal until April 
26, 2023. If finalized, this action would incorporate the submitted 
rule into the SIP, including those provisions identified as deficient. 
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

[[Page 18108]]

plan within 24 months unless we approve a subsequent SIP revision that 
corrects the deficiencies identified in our evaluation.
    In addition, finalizing this limited 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 Mojave Desert Air Quality Management District Rule 1157, 
Boilers and Process Heaters, amended on January 22, 2018, which 
regulates NOX and CO emissions from industrial, 
institutional, and commercial boilers, steam generators, and process 
heaters. 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 
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

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.'' Under the CAA, 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 review state choices, and approve those choices if 
they meet the minimum criteria of the Act. Accordingly, this proposed 
action limitedly approves and limitedly disapproves state law as 
meeting federal requirements and does not impose

[[Page 18109]]

additional requirements beyond those imposed by state law.
    The air agency did not evaluate environmental justice 
considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. EPA did not perform an EJ analysis and did not consider EJ 
in this action. Due to the nature of the action being taken here, this 
action is expected to have a neutral to positive impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this action, and there is no information in the record 
inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Reporting and recordkeeping requirements.

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

    Dated: March 18, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-06143 Filed 3-24-23; 8:45 am]
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