2024-03894. Air Plan Approval; CA; San Joaquin Valley Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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 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: [phone] or by email at [e-mail].

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).

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.

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.

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.

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.

District	Rule No.	Rule title	Adopted	Submitted
San Joaquin Valley APCD (Fresno County APCD)	110	Equipment Breakdown	2/17/2022	4/14/2022
San Joaquin Valley APCD (Stanislaus County APCD)	110	Equipment Breakdown	2/17/2022	4/14/2022
San Joaquin Valley APCD (Kern County APCD)	111	Equipment Breakdown	2/17/2022	4/14/2022
San Joaquin Valley APCD (Kings County APCD)	111	Equipment Breakdown	2/17/2022	4/14/2022
San Joaquin Valley (Tulare County APCD)	111	Equipment Breakdown	2/17/2022	4/14/2022
San Joaquin Valley APCD (Madera County APCD)	113	Equipment Breakdown	2/17/2022	4/14/2022

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 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

1. The authority citation for part 52 continues to read as follows:

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

Subpart F—California

2. Section 52.220 is amended by:

a. Adding paragraph (c)(47)(ii)(C);

b. Revising paragraph (c)(47)(iii)(C); and

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:

§ 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.”

* * * * *

Footnotes

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).

2.  80 FR 33839.

3.  October 9, 2020, memorandum “Inclusion of Provisions Governing Periods of Startup, Shutdown, and Malfunctions in State Implementation Plans,” from Andrew R. Wheeler, Administrator.

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.