[Federal Register Volume 88, Number 107 (Monday, June 5, 2023)]
[Rules and Regulations]
[Pages 36479-36481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11850]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0059; FRL-10645-02-R9]


Air Plan Limited Approval and Limited Disapproval; California; 
Eastern Kern Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a 
limited approval and limited disapproval of a revision 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 
Kilns. Under the authority of the Clean Air Act (CAA or the Act), this 
action simultaneously approves a local rule that regulates these 
emission sources and directs California to correct rule deficiencies. 
We are finalizing a limited approval of a local rule that regulates 
these emission sources because the rule would strengthen the current 
SIP-approved version of EKAPCD's Portland cement kiln rule. We are 
finalizing 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.

DATES: This rule is effective July 5, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R09-OAR-2023-0059. 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: Elijah Gordon, EPA Region IX, 75 
Hawthorne St., 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. 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 15, 2023 (88 FR 9816), the EPA proposed a limited 
approval and limited disapproval of the following rule that was 
submitted for incorporation into the California SIP.

[[Page 36480]]



                                             Table 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
           Local agency                  Rule No.              Rule title             Amended        Submitted
----------------------------------------------------------------------------------------------------------------
EKAPCD...........................  Rule 425.3.........  Portland Cement Kilns         03/08/2018      08/22/2018
                                                         (Oxides of Nitrogen).
----------------------------------------------------------------------------------------------------------------

    As mentioned in our proposed action, submitted Rule 425.3 
establishes more stringent emission limits for NOX than the 
previously SIP-approved version and strengthens monitoring, 
recordkeeping, and reporting requirements. As a result, we proposed a 
limited approval because we determined that this rule strengthens the 
SIP and is largely consistent with relevant CAA requirements. However, 
we simultaneously proposed a limited disapproval because some rule 
provisions conflict with section 110 and part D of title I of the Act. 
These provisions include the following:
    1. 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). An emission limitation or requirement 
that exempts a period of source operation, such as startup or shutdown, 
cannot be considered continuous and is not consistent with CAA 
requirements. 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 during 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.
    Our proposed action and Technical Support Document contain more 
information on the basis for this final rulemaking and on our 
evaluation of the submittal.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received no comments.

III. EPA Action

    No comments were submitted. Therefore, as authorized in sections 
110(k)(3) and 301(a) of the Act, the EPA is finalizing a limited 
approval of the submitted rule. This final action incorporates the 
submitted rule into the California SIP, including those provisions 
identified as deficient. As authorized under section 110(k)(3) and 
301(a), the EPA is simultaneously finalizing a limited disapproval of 
the rule.
    As a result of our limited disapproval, the EPA must promulgate a 
federal implementation plan (FIP) under section 110(c) unless we 
approve subsequent SIP revisions that correct the rule deficiencies 
identified above within 24 months. In addition, the offset sanction in 
CAA section 179(b)(2) will be imposed 18 months from the effective date 
of this action, 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 identified deficiencies before the applicable 
deadlines.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of 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, as described in Sections I and III. 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

    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

[[Page 36481]]

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 Populations

    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.''
    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 final action is finalizing 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.
    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.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 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).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 4, 2023. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, 
Reporting and recordkeeping requirements.

    Dated: May 26, 2023.
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 adding paragraphs (c)(202)(i)(B)(3) and 
(c)(520)(i)(B)(2) to read as follows:


Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (202) * * *
    (i) * * *
    (B) * * *
    (3) Previously approved on July 20, 1999, in paragraph 
(c)(202)(i)(B)(1) of this section and now deleted with replacement in 
(c)(520)(i)(B)(2): Rule 425.3, adopted on October 13, 1994.
* * * * *
    (520) * * *
    (i) * * *
    (B) * * *
    (2) Rule 425.3, ``Portland Cement Kilns (Oxides of Nitrogen),'' 
amended on March 8, 2018.
* * * * *

[FR Doc. 2023-11850 Filed 6-2-23; 8:45 am]
BILLING CODE 6560-50-P


