[Federal Register Volume 88, Number 67 (Friday, April 7, 2023)]
[Rules and Regulations]
[Pages 20776-20779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07082]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0202; FRL-10873-03-R9]


Determination To Defer Sanctions; California; Mojave Desert Air 
Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: The Environmental Protection Agency (EPA) is making an interim 
final determination that the California Air Resources Board (CARB) has 
submitted a rule and other materials on behalf of the Mojave Desert Air 
Quality Management District (MDAQMD or ``District'') that correct 
deficiencies in its Clean Air Act (CAA or ``Act'') state implementation 
plan (SIP) provisions concerning reasonably available control 
technology (RACT) ozone nonattainment requirements for controlling 
emissions of oxides of nitrogen (NOX) and volatile organic 
compounds (VOCs) from internal combustion engines. This determination 
is based on a proposed approval, published elsewhere in this issue of 
the Federal Register, of MDAQMD's Rule 1160 which regulates this source 
category. The effect of this interim final determination is that the 
imposition of sanctions that were triggered by a previous limited 
disapproval by the EPA in 2021 is now deferred. If the EPA finalizes 
its approval of MDAQMD's submission, relief from these sanctions will 
become permanent.

[[Page 20777]]


DATES: This interim final determination is effective April 7, 2023. 
However, comments will be accepted on or before May 8, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0202 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) 942-3245 or 
by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to the EPA.

Table of Contents

I. Background
II. The EPA's Evaluation and Action
III. Statutory and Executive Order Reviews

I. Background

    On September 10, 2021 (86 FR 50643) (``2021 final rule''), the EPA 
issued a final rule promulgating a limited approval and limited 
disapproval for the MDAQMD rule listed in Table 1 that was submitted by 
CARB to the EPA for inclusion into the California SIP.

                                 Table 1--District Rule With Previous EPA Action
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         Rule No.                   Rule title             Amended        Submitted        EPA action in 2021
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1160......................  Internal Combustion            01/22/2018      05/23/2018  Limited Approval and
                             Engines.                                                   Limited Disapproval.
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    Areas classified as Moderate or above nonattainment for an ozone 
standard must implement RACT for each category of sources covered by a 
Control Techniques Guidelines (CTG) document as well as each major 
source of VOCs and NOX (see CAA section 182(b)(2), (f)). The 
MDAQMD contains parts of the Western Mojave Desert ozone nonattainment 
areas, which is classified as Severe-15 nonattainment for the 1997 8-
hour ozone National Ambient Air Quality Standard (NAAQS) and the 2008 
8-hour ozone NAAQS (see 40 CFR 81.305).
    In the 2021 final rule, we determined that although the MDAQMD rule 
strengthened the SIP and was largely consistent with the requirements 
of the CAA, the submitted rule included three deficiencies that 
precluded our full approval of the rule into the SIP. MDAQMD's 
previously submitted Rule 1160 allowed for engines to comply with an 
alternative emission reduction provision instead of the concentration-
based emission limits for NOX. The EPA found that this 
provision was not sufficiently clear to constitute an enforceable 
emission limitation, control measure, means or technique, as required 
under section 110(a)(2) of the Act, contained unapprovable director's 
discretion, and had not been sufficiently justified as meeting RACT 
stringency levels. Second, under the alternative emission reduction 
option, the rule allowed units operating at the same facility to 
aggregate their emissions in order to comply with a percentage 
reduction. The rule provisions did not meet the criteria for economic 
incentive program (EIP) integrity because they failed to require that 
any excess emission reductions credited through the provision be 
surplus (i.e., not required by any other federally enforceable 
provision).\1\ 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\ See ``Improving Air Quality with Economic Incentive 
Programs'' (EPA-452/R-01-001, January 2001).
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    Finally, the compliance determination requirements under the rule 
did not require adequate source testing for emission units without 
emission control equipment.
    Pursuant to section 179 of the CAA and our regulations at 40 CFR 
part 52, the disapproval action on Rule 1160 under title I, part D 
started a sanctions clock for imposition of offset sanctions 18 months 
after the action's effective date of October 12, 2021, and highway 
sanctions 6 months later.
    On January 23, 2023, the MDAQMD revised Rule 1160, and on March 3, 
2023, CARB submitted it to the EPA for approval into the California SIP 
as shown in Table 2 below.

                                             Table 2--Submitted Rule
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                Rule No.                                Rule title                    Revised        Submitted
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1160...................................  Internal Combustion Engines............      01/23/2023      03/03/2023
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    On March 17, 2023, the Submittal for MDAQMD Rule 1160 was 
determined to meet the completeness criteria in 40 CFR part 51, 
appendix V, which must be met before formal EPA review.
    The revised MDAQMD Rule 1160 in Table 2 is intended to address the 
disapproval issues in our 2021 final

[[Page 20778]]

rule. In the Proposed Rules section of this issue of the Federal 
Register, we have proposed approval of the revised MDAQMD Rule 1160. 
Based on this proposed action approving Rule 1160 into the California 
SIP, we are also making this interim final determination, effective on 
publication, to defer imposition of the offset sanctions and highway 
sanctions that were triggered by our 2021 final rule on Rule 1160, 
because we believe that the submittal corrects the deficiencies that 
triggered such sanctions.
    The EPA is providing the public with an opportunity to comment on 
this deferral of sanctions. If comments are submitted that change our 
assessment described in this interim final determination and the 
proposed approval of MDAQMD Rule 1160, we would take final action to 
lift this deferral of sanctions under 40 CFR 52.31. If no comments are 
submitted that change our assessment, then all sanctions and any 
sanction clocks triggered by our 2021 final rule would be permanently 
terminated on the effective date of our final approval of Rule 1160.

II. The EPA's Evaluation and Action

    We are making an interim final determination to defer CAA section 
179 sanctions associated with our limited disapproval action on 
September 10, 2021, of MDAQMD's Rule 1160 with respect to the 
requirements of part D of title I of the CAA. This determination is 
based on our concurrent proposal to fully approve MDAQMD Rule 1160 
which resolves the deficiencies that triggered sanctions under section 
179 of the CAA.
    Because the EPA has preliminarily determined that MDAQMD Rule 1160, 
amended on January 23, 2023, addresses the limited disapproval issues 
under part D of title I of the CAA identified in our 2021 final rule 
and the amended rule is now fully approvable, relief from sanctions 
should be provided as quickly as possible. Therefore, the EPA is 
invoking the good cause exception under the Administrative Procedure 
Act (APA) in not providing an opportunity for comment before this 
action takes effect (5 U.S.C. 553(b)(3)). However, by this action, the 
EPA is providing the public with a chance to comment on the EPA's 
determination after the effective date, and the EPA will consider any 
comments received in determining whether to reverse such action.
    The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. The EPA has reviewed the State's submittal and, 
through its proposed action, is indicating that it is more likely than 
not that the State has submitted a revision to the SIP that corrects 
deficiencies under part D of the Act that were the basis for the action 
that started the sanctions clocks. Therefore, it is not in the public 
interest to impose sanctions. The EPA believes that it is necessary to 
use the interim final rulemaking process to defer sanctions while the 
EPA completes its rulemaking process on the approvability of the 
State's submittal. Moreover, with respect to the effective date of this 
action, the EPA is invoking the good cause exception to the 30-day 
notice requirement of the APA because the purpose of this action is to 
relieve a restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

    This action defers sanctions and imposes no additional 
requirements. 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.
    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 action 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).
    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.''
    The State 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. 
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.
    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 6, 2023. Filing a petition for 
reconsideration by the EPA Administrator of this final action does not 
affect the finality of this action for the purpose of judicial review 
nor does it extend the time within which petition for judicial review 
may be filed, and shall not postpone the effectiveness of such action. 
This action may not be challenged later in proceedings to

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enforce its requirements (see CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

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

    Dated: March 30, 2023.
Kerry Drake,
Acting Regional Administrator, Region IX.
[FR Doc. 2023-07082 Filed 4-6-23; 8:45 am]
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