[Federal Register Volume 88, Number 138 (Thursday, July 20, 2023)]
[Proposed Rules]
[Pages 46723-46726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15443]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0889; FRL-10441-01-R9]


Limited Approval, Limited Disapproval of California Air Plan 
Revisions, Mojave Desert Air Quality Management District

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 or ``the District'') 
portion of the California State Implementation Plan (SIP). This 
revision concerns particulate matter (PM) emissions from all sources of 
air pollution emissions in the District. We are proposing action on a 
local rule that regulates these emission sources under the Clean Air 
Act (CAA or ``the Act''). We are taking comments on this proposal and 
plan to follow with a final action.

DATES: Comments must be received on or before August 21, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-EPA-R09-OAR-2022-0889 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

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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, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4125 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 revisions?
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. EPA Recommendations to Further Improve the Rule
    E. Proposed Action and Public Comment
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 date 
that it was adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                             TABLE 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
              Local agency                  Rule #            Rule title              Amended        Submitted
----------------------------------------------------------------------------------------------------------------
MDAQMD..................................         401  Visible Emissions.........        08/26/19        01/08/21
----------------------------------------------------------------------------------------------------------------

    On July 8, 2021, the submittal for MDAQMD Rule 401 was deemed by 
operation of law to meet the completeness criteria in 40 CFR part 51 
Appendix V, which must be met before formal EPA review.

B. Are there other versions of this rule?

    There are previous versions of Rule 401 in the SIP adopted by the 
MDAQMD's predecessor agencies. The San Bernardino County portion of 
MDAQMD adopted a version of Rule 401, Visible Emissions, on May 7, 
1976, and CARB submitted it to us on June 6, 1977. We approved this 
version of the rule on September 8, 1978 (43 FR 40011). The Riverside 
County (Blythe/Palo Verde Valley) portion of the MDAQMD adopted a 
version of Rule 401, Visible Emissions, on March 2, 1984, and CARB 
submitted it to us on July 10, 1984. We approved this version of the 
rule on January 29, 1985 (50 FR 3906). The MDAQMD adopted revisions to 
the SIP-approved versions on August 26, 2019, and CARB submitted them 
to us on January 8, 2021. We consider the January 8, 2021 submittal to 
supersede the earlier submittals. While we can act on only the most 
recently submitted version of the rule, we have reviewed materials 
provided with previous submittals.

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

    Emissions of PM, including PM equal to or less than 2.5 microns in 
diameter (PM2.5) and PM equal to or less than 10 microns in 
diameter (PM10), contribute to effects that are harmful to 
human health and the environment, including premature mortality, 
aggravation of respiratory and cardiovascular disease, decreased lung 
function, visibility impairment, and damage to vegetation and 
ecosystems. Section 110(a) of the CAA requires states to submit 
regulations that control PM emissions. Rule 401 provides limits for 
visible emissions from all sources of air pollution emissions in the 
district. The MDAQMD amended Rule 401 to be consistent with the 
applicable California Health & Safety Code provisions already enforced. 
The EPA's technical support documents (TSD) has more information about 
this rulemaking.

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)), 
must not interfere with applicable requirements concerning attainment 
and reasonable further progress or other CAA requirements (see CAA 
section 110(l)), and must not modify certain SIP control requirements 
in nonattainment areas without ensuring equivalent or greater emissions 
reductions (see CAA section 193).
    Generally, SIP rules must implement reasonably available control 
measures (RACM), including reasonably available control technology 
(RACT), in Moderate PM10 nonattainment areas (see CAA 
sections 172(c)(1) and 189(a)(1)(C)). The MDAQMD regulates a 
PM10 nonattainment area classified as Moderate for the PM 
standard (40 CFR 81.305). An evaluation of RACM and RACT is generally 
performed in context of a broader plan.
    Guidance and policy documents that we use to evaluate 
enforceability, revision relaxation, and rule stringency requirements 
for the applicable criteria pollutants 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 IX, August 21, 2001 (the Little Bluebook).
    4. ``PM-10 Guideline Document,'' EPA 452/R-93-008, April 1993.
    5. ``Fugitive Dust Background Document and Technical Information 
Document for Best Available Control Measures,'' EPA 450/2-92-004, 
September 1992.

B. Does the rule meet the evaluation criteria?

    Rule 401 improves the SIP by establishing equipment-specific 
visible emissions limits and by clarifying applicability and test 
methods for compliance verification. The rule is largely consistent 
with CAA requirements and relevant guidance regarding enforceability 
and SIP revisions. Rule provisions which do not meet the evaluation 
criteria are summarized below and discussed further in the TSD.

C. What are the rule deficiencies?

    These 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:
    1. An exemption for visible emissions resulting from an equipment 
breakdown in accordance with District Rule 430, Breakdown Provisions. 
This exemption is inconsistent with long-standing national policy 
requiring good engineering practices to prevent excess emissions at all 
times, including startup, shutdown, and malfunction.

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    2. An exemption for emissions from vessels during a breakdown 
condition, as long as the discharge is reported in accordance with 
District requirements. Again, this exemption is inconsistent with long-
standing national policy requiring good engineering practices to 
prevent excess emissions at all times, including startup, shutdown, and 
malfunction.
    3. An exemption for agricultural operations necessary for the 
growing of crops or raising of fowl or animals. This is an overly broad 
agricultural exemption.
    4. An exemption for vessels using steam boilers during emergency 
shutdowns for safety reasons and operational tests. This exemption is 
inconsistent with long-standing national policy requiring good 
engineering practices to prevent excess emissions at all times, 
including startup, shutdown, and malfunction.
    5. An exemption for smoke emissions from tepee burners during the 
disposal of forestry and agricultural residue when the emissions result 
from the startup or shutdown of the combustion process or from the 
malfunction of emission control equipment. This exemption is 
inconsistent with long-standing national policy requiring good 
engineering practices to prevent excess emissions at all times, 
including startup, shutdown, and malfunction.
    6. An exemption for smoke emissions from burners used to produce 
energy and fired by forestry and agricultural residues with 
supplementary fossil fuels when the emissions result from the startup 
or shutdown of the combustion process or from the malfunction of 
emission control equipment. This exemption is inconsistent with long-
standing national policy requiring good engineering practices to 
prevent excess emissions at all times, including startup, shutdown, and 
malfunction.

D. EPA Recommendations to Further Improve the Rule

    The TSD includes recommendations for the next time the local agency 
modifies the rule.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA 
is proposing a limited approval and limited disapproval of the 
submitted rule. We will accept comments from the public on this 
proposal until August 21, 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 plan within 24 months 
unless we approve subsequent SIP revisions that correct the 
deficiencies identified in the final approval.
    In addition, final 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 rulemaking, 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 401, Visible Emissions, adopted on August 26, 2019, which 
regulates particulate matter from all sources in the district as 
discussed in section I. of this preamble. The EPA has made, and will 
continue to make, these materials 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).

IV. Statutory and Executive Order Reviews

    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 is proposing a limited approval and 
limited disapproval of state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law.
    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

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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. Therefore, this action is not 
subject to Executive Order 13045 because it is merely proposing a 
limited approval and limited disapproval of state law as meeting 
Federal requirements. Furthermore, the EPA's Policy on Children's 
Health does not apply to this action.

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.''
    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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting, 
and recordkeeping requirements.

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

    Dated: July 13, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-15443 Filed 7-19-23; 8:45 am]
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