[Federal Register Volume 88, Number 153 (Thursday, August 10, 2023)]
[Proposed Rules]
[Pages 54257-54259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16975]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0604; FRL-10574-01-R9]


Air Plan Approval; CA; San Joaquin Valley Air Pollution Control 
District; Removal of Excess Emissions Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions to the San Joaquin 
Valley Air Pollution Control District (SJVAPCD) portion of the 
California State Implementation Plan (SIP). The revisions were 
submitted by the California Air Resources Board (CARB), on behalf of 
SJVAPCD, in response to EPA's May 22, 2015, finding of substantial 
inadequacy and SIP call for certain provisions in the SIP related to 
exemptions and affirmative defenses applicable to excess emissions 
during startup, shutdown, and malfunction (SSM) events. EPA is 
proposing approval of the SIP revisions because the Agency has 
determined that they are in accordance with the requirements for SIP 
provisions under the Clean Air Act (CAA or the Act).

DATES: Comments must be received on or before September 11, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0604 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: 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 wherever ``we'' or 
``our'' is used, it refers to EPA.

Table of Contents

I. Background
II. Analysis of SIP Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review

I. Background

    On February 22, 2013, the EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the CAA with regard to excess emission events.\1\ For each SIP 
provision that EPA determined to be inconsistent with the CAA, EPA 
proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a 
document supplementing and revising what the Agency had previously 
proposed on February 22, 2013, in light of a D.C. Circuit decision that 
determined the CAA precludes authority of the EPA to create affirmative 
defense provisions applicable to private civil suits. EPA outlined its 
updated policy that affirmative defense SIP provisions are not 
consistent with CAA requirements. EPA proposed in the supplemental 
proposal document to apply its revised interpretation of the CAA to 
specific affirmative defense SIP provisions and proposed SIP calls for 
those provisions where appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (Feb. 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``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), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. EPA established an 18-month deadline by which the 
affected states had to submit such SIP revisions. States were required 
to submit corrective revisions to their SIPs in response to the SIP 
calls by November 22, 2016.
    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\2\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to SJVAPCD in 2015. The 2020 Memorandum did, 
however, indicate EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether EPA should 
maintain, modify, or withdraw

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particular SIP calls through future agency actions.
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    \2\ October 9, 2020 memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income, and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\4\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's intent. EPA intends 
to implement the principles laid out in the 2015 SSM SIP Action as the 
agency takes action on SIP submissions, including this SIP submittal 
provided in response to the 2015 SIP call.
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    \3\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \4\ 80 FR 33985.
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    With regard to the SJVAPCD SIP, in the 2015 SSM SIP Action, the EPA 
determined that the rules in the following table were substantially 
inadequate to meet CAA requirements (80 FR 33840, 33973):

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               District                   Rule number       Adopted        Submitted           Rule title
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San Joaquin Valley APCD (Fresno County             110       2/17/2022       4/14/2022  Equipment Breakdown.
 APCD).
San Joaquin Valley APCD (Stanislaus                110       2/17/2022       4/14/2022  Equipment Breakdown.
 County APCD).
San Joquin Valley APCD (Kern County                111       2/17/2022       4/14/2022  Equipment Breakdown.
 APCD).
San Joaquin Valley APCD (Kings County              111       2/17/2022       4/14/2022  Equipment Breakdown.
 APCD).
San Joaquin Valley APCD (Tulare County             111       2/17/2022       4/14/2022  Equipment Breakdown.
 APCD).
San Joaquin Valley APCD (Madera County             113       2/17/2022       4/14/2022  Equipment Breakdown.
 APCD).
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    Each of these SIP provisions provide an affirmative defense 
available to sources for excess emissions that occur during a breakdown 
condition (i.e., malfunction). The rationale underlying EPA's 
determination that the provisions were substantially inadequate to meet 
CAA requirements, and therefore to issue a SIP call to SJVAPCD to 
remedy the provisions, is detailed in the 2015 SSM SIP Action and the 
accompanying proposals.
    CARB, on behalf of SJVAPCD, submitted the SIP revisions on April 
14, 2022, in response to the SIP call issued in the 2015 SSM SIP 
Action. In its submission, California is requesting that EPA revise the 
SJVAPCD SIP by removing the rules in the table above from the 
California SIP.

II. Analysis of SIP Submission

    EPA is proposing to approve SJVAPCD's April 14, 2022 SIP 
submission. Affirmative defense provisions like these are inconsistent 
with CAA requirements and removal of these provisions would strengthen 
the SIP. This action, if finalized, would remove the affirmative 
defense provisions from the SJVAPCD portion of the EPA-approved SIP for 
California. EPA is proposing to find that these revisions are 
consistent with CAA requirements and that they adequately address the 
specific deficiencies that EPA identified in the 2015 SSM SIP Action 
with respect to the SJVAPCD portion of the California SIP.

III. Proposed Action

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is 
proposing to approve California's April 14, 2022 SIP submission 
requesting removal of (i) Fresno County ``Rule 110 Equipment 
Breakdown''; (ii) Kern County ``Rule 111 Equipment Breakdown''; (iii) 
Kings County ``Rule 111 Equipment Breakdown''; (iv) Madera County 
``Rule 113 Equipment Breakdown''; (v) Stanislaus County ``Rule 110 
Equipment Breakdown''; and (vi) Tulare County ``Rule 111 Equipment 
Breakdown'' from the California SIP. We are proposing approval of the 
SIP revisions because we have determined that they are consistent with 
the requirements for SIP provisions under the CAA. EPA is further 
proposing to determine that such SIP revisions correct the deficiencies 
identified in the May 22, 2015 SIP call. EPA is not reopening the 2015 
SSM SIP Action and is only taking comment on whether these SIP 
revisions are consistent with CAA requirements and whether they address 
the ``substantial inadequacy'' of the specific SJVAPCD SIP provisions 
identified in the 2015 SSM SIP Action.

IV. Incorporation by Reference

    In this document, EPA is proposing to amend regulatory text that 
includes incorporation by reference. In accordance with the 
requirements of 1 CFR 51.5, and as described in section I of the 
preamble, EPA is proposing to remove provisions from Fresno County, 
Kern County, Kings County, Madera County, Stanislaus County, and Tulare 
County portions of the California SIP. EPA has made, and will continue 
to make, these documents generally available through https://www.regulations.gov and at the EPA Region 9 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

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves removal of State law not meeting 
Federal requirements and does not impose additional requirements beyond 
those already imposed by State law. For that reason, this proposed 
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

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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 CAA.
    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 rule 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.

List of Subjects in 40 CFR Part 52

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

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

    Dated: July 25, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-16975 Filed 8-9-23; 8:45 am]
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