[Federal Register Volume 88, Number 31 (Wednesday, February 15, 2023)]
[Proposed Rules]
[Pages 9816-9819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03197]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0059; FRL-10645-01-R9]


Air Plan Limited Approval and Limited Disapproval; California; 
Eastern Kern Air Pollution Control 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 Eastern 
Kern Air Pollution Control District (EKAPCD or ``District'') portion of 
the California State Implementation Plan (SIP). This revision concerns 
emissions of oxides of nitrogen (NOX) from Portland cement

[[Page 9817]]

kilns. We are proposing a limited approval of a local rule to regulate 
these emissions sources under the Clean Air Act (CAA) because the rule 
would strengthen the current SIP-approved version of the EKAPCD's 
Portland cement kiln rule. We are proposing a limited disapproval of 
this revision due to the presence of exemptions for periods of startup, 
shutdown, and malfunction (breakdown), which are inconsistent with CAA 
requirements. We are taking comments on this proposal and plan to 
follow with a final action.

DATES: Comments must be received on or before March 17, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0059 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 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: Elijah Gordon, EPA Region IX, 75 
Hawthorne St. (AIR-3-3), San Francisco, CA 94105. By phone: (415) 972-
3158 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 revision?
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 proposed rule deficiencies?
    D. 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 dates 
that it was adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                          Table 1--Submitted Documents
----------------------------------------------------------------------------------------------------------------
      Local agency                 Rule No.                      Title                Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
EKAPCD.................  Rule 425.3.................  Portland Cement Kilns           03/08/2018      08/22/2018
                                                       (Oxides of Nitrogen).
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    Pursuant to CAA section 110(k)(1)(B) and 40 CFR part 51 Appendix V, 
the EPA determined that the submittal for EKAPCD Rule 425.3 met the 
completeness criteria on February 11, 2019.

B. Are there other versions of this rule?

    We approved an earlier version of Rule 425.3 into the SIP on July 
20, 1999 (64 FR 38832). The EKAPCD adopted revisions to the SIP-
approved version on March 8, 2018, and CARB submitted them to us on 
August 22, 2018.

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

    Emissions of NOX contribute to the production of ground-
level ozone, smog and particulate matter (PM), which harm human health 
and the environment. Section 110(a) of the CAA requires states to 
submit plans that provide for implementation, maintenance, and 
enforcement of the National Ambient Air Quality Standards (NAAQS). In 
addition, sections 182(b)(2) and (f) require that SIPs for ozone 
nonattainment areas classified as Moderate or above implement 
Reasonable Available Control Technology (RACT) for any source covered 
by a Control Techniques Guidelines (CTG) document and for any major 
source of volatile organic compounds (VOCs) or NOX. The 
EKAPCD is subject to these requirements as it regulates the Eastern 
Kern ozone nonattainment area that was designated and classified as 
Moderate at the time of their RACT SIP submittal for the 2008 8-hour 
ozone NAAQS (``2017 RACT SIP'').\1\ Therefore, the EKAPCD must, at a 
minimum, adopt RACT-level controls for all sources covered by a CTG 
document and for all major sources of VOCs or NOX within the 
District. Any stationary source that emits or has the potential to emit 
at least 100 tons per year (tpy) of VOCs or NOX in a 
Moderate ozone nonattainment area is considered a major stationary 
source. We have acted on, and approved, all required elements that must 
be covered by a RACT SIP except for non-CTG major NOX 
sources.\2\
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    \1\ The EPA has since reclassified the Eastern Kern ozone 
nonattainment area to Serious on July 5, 2018 (83 FR 31334) and 
Severe-15 on June 7, 2021 (86 FR 30204).
    \2\ 86 FR 3816, 86 FR 60771.
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    In their 2017 RACT SIP, the EKAPCD concluded that the earlier SIP-
approved Rule 425.3, which establishes NOX emission limits 
for Portland cement kilns within the District, was one of three rules 
that did not currently meet RACT for non-CTG major sources of 
NOX and acknowledged the need to revise the rule, primarily 
the emission limits for NOX (11.6 pounds per ton of clinker 
produced when averaged over any 24 consecutive hour period and 6.4 
pounds per ton of clinker produced when averaged over any 30 
consecutive day period). In response, the District has amended Rule 
425.3 in an effort to correct RACT deficiencies and fulfill their 2017 
RACT SIP demonstration requirements for non-CTG major sources of 
NOX for the 2008 8-hour ozone NAAQS. The submitted rule 
revisions consist of more stringent NOX emission limits, new 
emission monitoring requirements, and several recordkeeping 
requirements. The EPA's technical

[[Page 9818]]

support document (TSD) has more information about these rule revisions.

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)), 
and must not interfere with applicable requirements concerning 
attainment and reasonable further progress or other CAA requirements 
(see CAA section 110(l)).
    Generally, ozone nonattainment areas classified as Moderate or 
above (see CAA sections 182(b)(2) and 182(f)) are required to submit 
SIP revisions that implement RACT-level controls for certain source 
categories, including for each non-CTG major source of NOX. 
At the time of its 2017 RACT SIP submittal, the EKAPCD regulated an 
ozone nonattainment area classified as ``Moderate'' for the 2008 8-hour 
ozone NAAQS, and is therefore required to demonstrate RACT-level 
controls for that ozone standard. EKAPCD revised Rule 425.3 to 
implement RACT-level controls to fulfill the requirements associated 
with the non-CTG major source NOX element for the 2008 8-
hour ozone NAAQS.
    Guidance and policy documents that we used to evaluate 
enforceability, revision/relaxation, and rule stringency requirements 
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 9, August 21, 2001 (the Little Bluebook).
    4. ``State Implementation Plans; Nitrogen Oxides Supplement to the 
General Preamble; Clean Air Act Amendments of 1990 Implementation of 
Title I; Proposed Rule,'' (the NOX Supplement), 57 FR 55620, 
November 25, 1992.
    5. ``NOX Emissions from Cement Manufacturing,'' EPA-453/
R-94-004, March 1994.
    6. ``NOX Control Technologies for the Cement Industry: 
Final Report,'' EPA 457/R-00-002, September 2000.
    7. The Texas Commission on Environmental Quality in Section 
117.3110--Cement Kilns, Emissions Specifications, May 23, 2007.
    8. ``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.
    9. ``Guidance Memorandum: Withdrawal of the October 9, 2020, 
Memorandum Addressing Startup, Shutdown, and Malfunctions in State 
Implementation Plans and Implementation of the Prior Policy,'' 
September 30, 2021.

B. Does the rule meet the evaluation criteria?

    Rule 425.3 establishes more stringent emission limits for 
NOX and strengthens monitoring, recordkeeping, and reporting 
requirements. As a result, the EPA is proposing that the District's 
submitted rule revision strengthens the SIP. Under Rule 425.3, 
NOX emission limits outside of periods of startup, shutdown, 
and breakdown (malfunction) are reduced from 6.4 to 2.8 (or 3.4 for 
low-NOX burner or low-NOX precalciner) pounds per 
ton of clinker produced when averaged over any 30 consecutive day 
period.
    To evaluate the stringency of this NOX emission limit, 
the EPA examined cement kiln rules in other states and districts. As 
outlined in further detail in the TSD available in the docket, based 
upon our comparison to other approved rules regulating Portland cement 
kilns (e.g., 30 TAC Chapter 117 (74 FR 1927) in Texas, which includes a 
2.8 lb/ton limit on a 30-day rolling average for preheater-precalciner 
kilns), as well as the District's cost analysis, we consider the 
revised 2.8 lb/ton NOX limit to implement RACT-level 
stringency for periods of operation during which it applies. 
Additionally, provisions clearly laid out in Sections (V)(B), (V)(C), 
(VI)(A), (VI)(B), and (VI)(C) establish applicability criteria, 
monitoring, recordkeeping, and reporting that can be evaluated to 
determine compliance. Finally, the retention of all produced and 
maintained on-site records increased from 24 months to 60 months. These 
SIP strengthening revisions to Rule 425.3 are discussed in greater 
detail within the TSD. However, the EPA is also proposing that certain 
provisions of revised Rule 425.3 do not meet our evaluation criteria 
and prevent full approval of the rule into the SIP. These rule 
deficiencies are summarized below and discussed further in the TSD.

C. What are the proposed rule deficiencies?

    The EPA is proposing to determine that the following 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, for reasons 
described here and explained in further detail in the TSD.
    1. CAA Sec.  110(a)(2)(A) requires SIPs to include enforceable 
emission limitations and other control measures, means, or techniques 
as necessary to meet CAA requirements. The term ``emission limitation'' 
is defined in CAA Sec.  302(k) as a requirement that ``limits the 
quantity, rate, or concentration of emissions of air pollution on a 
continuous basis [. . .].'' An emission limitation or requirement that 
exempts a period of source operation, such as startup, cannot be 
considered continuous and is not consistent with CAA requirements.
    Section (IV)(A) of the rule contains an exemption to an otherwise 
applicable emission limitation for periods of startup and shutdown, 
stating that ``the requirements of Section V of this Rule shall not 
apply [. . .] to startup and shutdown as defined'' in Sections (III)(J) 
and (III)(K). Although the rule revision contains individual startup 
(48 hours) and shutdown (36 hours) time limits in Sections (III)(J) and 
(III)(K), along with SSM recordkeeping requirements in Section 
(VI)(B)(4), these provisions are not sufficient to establish an 
emission limit that could be considered adequate for CAA purposes. 
Elimination of the existing startup and shutdown exemption to address 
the concerns raised in the EPA's evaluation is necessary for full 
approval of the rule into the SIP.
    2. Section (IV)(B) contains an exemption for breakdown conditions 
from the emission limit, emission monitoring, and production monitoring 
requirements found in Section (V). Similar to the first deficiency 
noted above, an emission limitation or requirement that exempts a 
period of source operation cannot be considered adequate for CAA 
purposes. Removal of this exemption for breakdown conditions is 
necessary for full approval of the rule into the SIP.

D. 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 due to the deficiencies identified above. We will accept 
comments from the public on this proposal until March 17, 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

[[Page 9819]]

simultaneously proposing a limited disapproval of the rule under 
section 110(k)(3).
    If we finalize this limited disapproval, CAA section 110(c) would 
require the EPA to promulgate a federal implementation plan within 24 
months of the effective date of our final action unless we approve a 
subsequent SIP revision that corrects the deficiencies identified in 
our evaluation (i.e., as stated previously, a SIP revision that 
eliminates the existing startup, shutdown, and breakdown exemptions to 
address the deficiencies identified in the EPA's limited disapproval). 
In addition, finalizing this limited disapproval would trigger the 
offset sanction in CAA section 179(b)(2) 18 months after the effective 
date of a final limited 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 EKAPCD, 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 rule, 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 EKAPCD Rule 425.3, ``Portland Cement Kilns (Oxides of 
Nitrogen),'' amended on March 8, 2018, which regulates NOX 
emissions from the operation of cement kilns. 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

    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 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 Population

    The State did not evaluate environmental justice considerations as 
part of its SIP submittal. There is no information in the record 
inconsistent with the stated goals of Executive Order 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, Intergovernmental 
relations, Incorporation by reference, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements.

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

    Dated: February 9, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-03197 Filed 2-14-23; 8:45 am]
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