[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
Rule No. Rule title Amended Submitted EPA action in 2021
----------------------------------------------------------------------------------------------------------------
1160...................... Internal Combustion 01/22/2018 05/23/2018 Limited Approval and
Engines. Limited Disapproval.
----------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\1\ See ``Improving Air Quality with Economic Incentive
Programs'' (EPA-452/R-01-001, January 2001).
---------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
Rule No. Rule title Revised Submitted
----------------------------------------------------------------------------------------------------------------
1160................................... Internal Combustion Engines............ 01/23/2023 03/03/2023
----------------------------------------------------------------------------------------------------------------
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
[[Page 20779]]
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]
BILLING CODE 6560-50-P