[Federal Register Volume 89, Number 39 (Tuesday, February 27, 2024)]
[Rules and Regulations]
[Pages 14412-14415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03894]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0604; FRL-10574-02-R9]


Air Plan Approval; CA; San Joaquin Valley Air Pollution Control 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve 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 the 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. The EPA is finalizing 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) and correct

[[Page 14413]]

deficiencies identified in the May 22, 2015, SIP call.

DATES: This rule is effective March 28, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2022-0604. 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: 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. 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 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. The 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 the EPA determined to be inconsistent with the CAA, the 
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, the 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. The EPA outlined 
its updated policy that affirmative defense SIP provisions are not 
consistent with CAA requirements. The 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 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), the 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,'' hereafter referred to as the ``2015 SSM SIP 
Action.'' \2\ The 2015 SSM SIP Action clarified, restated, and updated 
the EPA's interpretation that SSM exemptions 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. 
The 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.
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    \2\ 80 FR 33839.
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    The 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.\3\ 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 the EPA's intent at the time to 
review SIP calls that were issued in the 2015 SSM SIP Action to 
determine whether the EPA should maintain, modify, or withdraw 
particular SIP calls through future agency actions.
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    \3\ 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, the EPA's Deputy Administrator withdrew the 
2020 Memorandum and announced the EPA's return to the policy 
articulated in the 2015 SSM SIP Action (2021 Memorandum).\4\ 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 overburdened 
communities, receive the full health and environmental protections 
provided by the CAA.\5\ 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 the EPA's intent. The EPA intends to implement the 
principles laid out in the 2015 SSM SIP Action as the Agency takes 
action on SIP submissions, including SJVAPCD's SIP submittal, provided 
in response to the 2015 SIP call.
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    \4\ 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.
    \5\ 80 FR 33985.
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    With regards to SJVAPCD, the SIP call identified Rules 110, 111, 
and 113 because the rules contained improper affirmative defenses for 
excess emissions during startup, shutdown, and malfunction events. On 
August 10, 2023 (88 FR 54257), the EPA proposed to approve removal of 
the rules in the following table from the California SIP.

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             District                Rule No.                 Rule title                  Adopted     Submitted
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San Joaquin Valley APCD (Fresno            110  Equipment Breakdown...................    2/17/2022    4/14/2022
 County APCD).
San Joaquin Valley APCD                    110  Equipment Breakdown...................    2/17/2022    4/14/2022
 (Stanislaus County APCD).

[[Page 14414]]

 
San Joaquin Valley APCD (Kern              111  Equipment Breakdown...................    2/17/2022    4/14/2022
 County APCD).
San Joaquin Valley APCD (Kings             111  Equipment Breakdown...................    2/17/2022    4/14/2022
 County APCD).
San Joaquin Valley (Tulare County          111  Equipment Breakdown...................    2/17/2022    4/14/2022
 APCD).
San Joaquin Valley APCD (Madera            113  Equipment Breakdown...................    2/17/2022    4/14/2022
 County APCD).
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    As discussed in the proposal, the EPA proposed to approve the 
removal of these rules from the SJVAPCD portions of the California SIP 
because such removal is consistent with CAA requirements and would 
correct the deficiencies identified by the Agency in the 2015 SSM SIP 
Action. SJVAPCD is retaining the affirmative defenses solely for state 
law purposes, outside of the EPA approved SIP. Removal of the 
affirmative defenses from the SIP is also consistent with the EPA 
policy for exclusion of ``state law only'' provisions from SIPs and 
will serve to minimize any potential confusion about the 
inapplicability of the affirmative defense provisions in Federal court 
enforcement actions.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received one comment from the Sierra Club and 
Environmental Integrity Project in support of the proposed rulemaking.

III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) of the Act, and for the reasons identified in the 
August 22, 2023 proposal, the EPA is fully approving the removal of 
these rules from the SJVAPCD portion of the California SIP. The 
Agency's final approval of this submission fully corrects the 
inadequacies in the SJVAPCD portion of the California SIP that were 
identified in the EPA's 2015 SSM SIP Action.

IV. Incorporation by Reference

    In this document, the EPA is amending regulatory text that includes 
incorporation by reference. As described in section I of the preamble 
and as set forth below in the amendments to 40 CFR part 52, the EPA is 
removing provisions from the Fresno County, Kern County, Kings County, 
Madera County, Stanislaus County, and Tulare County portions of the 
California SIP, which is incorporated by reference in accordance with 
the requirements of 1 CFR 51. 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

    Under the Clean Air Act, 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 approve state 
choices, provided they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. 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 14094 (88 FR 21879, April 11, 2023);
     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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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 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. 
The 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.'' The 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. The 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 
Executive Order 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 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).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United

[[Page 14415]]

States Court of Appeals for the appropriate circuit by April 29, 2024. 
Filing a petition for reconsideration by the Administrator of the final 
rule does not affect the finality of this action 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: February 5, 2024.
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:
0
a. Adding paragraph (c)(47)(ii)(C);
0
b. Revising paragraph (c)(47)(iii)(C); and
0
c. Adding paragraphs (c)(47)(iii)(D), (c)(51)(ix)(E) and (F), 
(c)(51)(x)(D) and (E), (c)(52)(iv)(H) and (I), (c)(126)(iii)(D), and 
(c)(138)(v)(F).
    The additions and revision read as follows:


Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (47) * * *
    (ii) * * *
    (C) Previously approved on October 24, 1980, in paragraph 
(c)(47)(ii)(A) of this section and now deleted without replacement: 
Rule 110, ``Equipment Breakdown.''
    (iii) * * *
    (C) Previously approved on October 24, 1980, in paragraph 
(c)(47)(iii)(A) of this section and now deleted without replacement for 
implementation in the Eastern Kern Air Pollution Control District: Rule 
111, ``Equipment Breakdown.''
    (D) Previously approved on October 24, 1980, in paragraph 
(c)(47)(iii)(A) of this section and now deleted without replacement for 
implementation in the San Joaquin Valley Unified Air Pollution Control 
District: Rule 111, ``Equipment Breakdown.''
* * * * *
    (51) * * *
    (ix) * * *
    (E) Previously approved on December 9, 1981, in paragraph 
(c)(51)(ix)(B) of this section and now deleted without replacement: 
Rule 110 (A), (B), and (D)-(I), ``Equipment Breakdown.''
    (F) Previously approved on June 18, 1982, in paragraph 
(c)(51)(ix)(C) of this section and now deleted without replacement: 
Rule 110 (C), ``Equipment Breakdown.''
    (x) * * *
    (D) Previously approved on December 9, 1981, in paragraph 
(c)(51)(x)(B) of this section and now deleted without replacement: Rule 
111 (a), (b), and (d)-(i), ``Equipment Breakdown.''
    (E) Previously approved on June 18, 1982, in paragraph 
(c)(51)(x)(C) of this section and now deleted without replacement: Rule 
111(c), ``Equipment Breakdown.''
* * * * *
    (52) * * *
    (iv) * * *
    (H) Previously approved on December 9, 1981, in paragraph 
(c)(52)(iv)(B) of this section and now deleted without replacement: 
Rule 111 (A), (B), and (D)-(I), ``Equipment Breakdown.''
    (I) Previously approved on June 18, 1982, in paragraph 
(c)(52)(iv)(C) of this section and now deleted without replacement: 
Rule 111(C), ``Equipment Breakdown.''
* * * * *
    (126) * * *
    (iii) * * *
    (D) Previously approved on June 1, 1983, in paragraph 
(c)(126)(iii)(A) of this section and now deleted without replacement: 
Rule 110, ``Equipment Breakdown.''
* * * * *
    (138) * * *
    (v) * * *
    (F) Previously approved on November 18, 1983, in paragraph 
(c)(138)(v)(A) of this section and now deleted without replacement: 
Rule 113, ``Equipment Breakdown.''
* * * * *
[FR Doc. 2024-03894 Filed 2-26-24; 8:45 am]
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