[Federal Register Volume 88, Number 116 (Friday, June 16, 2023)]
[Rules and Regulations]
[Pages 39366-39368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12632]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0087; FRL-10672-02-R9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a 
limited approval and limited disapproval a revision 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 finalizing a limited approval of a local rule that 
regulates these emission sources under the authority of the Clean Air 
Act (CAA or the Act), because the rule would strengthen the current 
SIP-approved version of MDAQMD's rule for boilers and process heaters. 
We are finalizing a limited disapproval of this revision because it is 
inconsistent with the EPA's startup, shutdown, and malfunction (SSM) 
policy and Credible Evidence Rules.

DATES: This rule is effective July 17, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R09-OAR-2023-0087. 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 a 
disability 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. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On March 27, 2023 (88 FR 18106), the EPA proposed a limited 
approval and limited disapproval of the following rule that was 
submitted for incorporation into the California SIP.

[[Page 39367]]



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            Local agency                  Rule No.            Rule title            Amended         Submitted
----------------------------------------------------------------------------------------------------------------
MDAQMD..............................            1157   Boilers and Process            01/22/18         05/23/18
                                                        Heaters.
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    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
it contains a rule provision that is not consistent with the 
requirements of section 110 and part D of the Act. Specifically, 
section (E)(1)(b)(iii) is not consistent with EPA's SSM policy and 
Credible Evidence Rule in. Our proposed action contains more 
information on the basis for this rulemaking and on our evaluation of 
the submittal.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received one anonymous comment. The full text of 
this comment is available in the docket for this rulemaking. The 
comment was broadly supportive of the rule as a tool to address air 
pollution, particularly NOX emissions, and human health. The 
commenter indicated that they believed the rule would be successful at 
regulating clean air, once the rule deficiencies are corrected. After 
reviewing this comment, the EPA has determined that the comment is 
supportive of our proposed action and does not raise issues that change 
our assessment of MDAQMD Rule 1157.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a 
limited approval of the submitted rule. This action incorporates the 
submitted rule into the California SIP, including those provisions 
identified as deficient. As authorized under sections 110(k)(3) and 
301(a), the EPA is simultaneously finalizing a limited disapproval of 
the rule.
    As a result, the EPA must promulgate a federal implementation plan 
(FIP) under section 110(c) unless we approve subsequent SIP revisions 
that correct the rule deficiencies within 24 months.
    In addition, the offset sanction in CAA section 179(b)(2) will be 
imposed 18 months after the effective date this action, 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 identified 
deficiencies before the applicable deadline.
    Note that the submitted rule has been adopted by the MDAQMD, and 
the EPA's final limited disapproval does not prevent the local agency 
from enforcing it. The limited disapproval also does 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.
    The EPA is also removing the previous conditional approval of the 
major NOX RACT element associated with Rule 1157 based on 
the finding that the District has met its commitment and submitted a 
rule that addressed all deficiencies identified in our February 12, 
2018 conditional approval (83 FR 5921).

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of 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 documents available through 
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).

V. 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

[[Page 39368]]

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 Populations

    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 final action is finalizing a limited approval and 
limited disapproval of MDAQMD Rule 1157 as meeting federal requirements 
and does not impose additional requirements beyond those imposed by 
state law.
    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. 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.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the 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).

L. Petitions for Judicial Review

    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 August 15, 2023. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, Reporting and recordkeeping requirements.

    Dated: June 7, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends part 52, chapter I, title 40 of the Code of 
Federal Regulations 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.

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(248)(i)(D)(2) 
and(c)(518)(i)(A)(10) to read as follows:


Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (248) * * *
    (i) * * *
    (D) * * *
    (2) Previously approved on April 20, 1999, in paragraph 
(c)(248)(i)(D)(1) of this section and now deleted with replacement in 
paragraph (c)(518)(i)(A)(10): Rule 1157, amended May 19, 1997.
* * * * *
    (518) * * *
    (i) * * *
    (A) * * *
    (10) Rule 1157, ``Boilers and Process Heaters,'' amended on January 
22, 2018.
* * * * *


Sec.  52.248  Identification of plan--conditional approval.

0
3. Section 52.248 is amended by removing and reserving paragraph 
(d)(1)(vii).

[FR Doc. 2023-12632 Filed 6-15-23; 8:45 am]
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