[Federal Register Volume 88, Number 115 (Thursday, June 15, 2023)]
[Rules and Regulations]
[Pages 39182-39185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12635]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0092; FRL-10674-02-R9]


Air Plan Revisions; California; Eastern Kern Air Pollution 
Control District; Oxides of Nitrogen

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) portion of the California 
State Implementation Plan (SIP). This revision concerns emissions of 
oxides of nitrogen (NOX) from stationary gas turbines. 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 identifies deficiencies with the rule that must be 
corrected for the EPA to grant full approval of the rule.

DATES: This rule is effective July 17, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R09-OAR-2023-0092. All documents in the docket are 
listed on the https://www.regulations.gov

[[Page 39183]]

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: La Kenya Evans-Hopper, EPA Region IX, 
75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3245 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 March 29, 2023 (88 FR 18496), the EPA proposed a limited 
approval and limited disapproval of the following rule that was 
submitted for incorporation into the California SIP.

----------------------------------------------------------------------------------------------------------------
           Local agency                 Rule No.             Rule title             Amended         Submitted
----------------------------------------------------------------------------------------------------------------
EKAPCD............................             425   Stationary Gas Turbines          01/11/18         05/23/18
                                                      (Oxides of Nitrogen).
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
These provisions include the following:
    1. Relaxation of NOX limits for the Westinghouse W251B10 
turbine in section (V)(B) has not been sufficiently justified as 
meeting the Reasonably Available Control Technology (RACT) requirement 
and was not accompanied by sufficient explanation as to why the change 
does not interfere with attainment of the National Ambient Air Quality 
Standards (NAAQS) or reasonable further progress.
    Our proposed action contains more information on the basis for this 
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 one comment from a member of the 
public. The full text of this comment is available in the docket for 
this rulemaking. The comment does not indicate disagreement with the 
EPA's proposal, and instead raises two questions: how do changes to 
emissions of stationary gas turbines affect the output of the turbines, 
and what are the costs and benefits of the proposed rule change? The 
EPA notes that information surrounding the impact of the proposed 
changes to the rule, including information about economic costs and 
benefits and air quality impacts, are included in the District's staff 
report accompanying the Rule's submission, and included in the docket 
for this rulemaking. The EPA notes in particular, the District's 
analysis of energy impacts in part IX.D. of the Staff Report.\1\ The 
District reports that ``[t]he use of NOX reduction 
technologies would generally have some level of fuel energy penalty or 
may require small amounts of energy for their operation.'' \2\ The 
Staff Report provides a number of examples, and notes in particular 
that for selective catalytic reduction (SCR), ``[t]he use of SCR 
results in a 0.7 percent fuel penalty.'' With respect to costs and 
benefits, it is expected that there are a range of costs and benefits 
associated with units of different sizes and layouts. The District did 
not provide detailed calculations of cost-effectiveness for different 
units, but did provide some discussion of the costs and benefits of the 
rule in sections VI--Cost Effectiveness and IX--Impacts. The District 
also noted that pursuant to state law, districts with a population 
under 500,000, such as Eastern Kern County, are exempt from the 
requirement to assess socioeconomic impacts of proposed rules.\3\
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    \1\ Rule 425--Stationary Gas Turbines (Oxides of Nitrogen): 
Final Staff Report, January 11, 2018. (Staff Report).
    \2\ Id. at 14.
    \3\ Id. at 3.
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    The comment does not raise concerns about the EPA's proposed 
rulemaking and does not suggest that the EPA should not finalize its 
action as proposed. The comment also does not indicate that the 
submission fails to comply with any relevant requirement of the Clean 
Air Act. After reviewing this comment, the EPA has determined that the 
comment is not adverse to our proposed finding that EKAPCD Rule 425 
satisfies the requirements of CAA sections 110 and part D, which 
focuses the rule evaluation on enforceability, stringency, and 
interference with CAA requirements, and does not change our evaluation 
of the submitted rule.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. 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 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, the EPA must promulgate a federal implementation plan 
(FIP) under section 110(c) unless we approve subsequent SIP revisions 
that correct the rule deficiencies within 24 months.
    In addition, the offset sanction in CAA section 179(b)(2) will be 
imposed 18 months after the effective date 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 deadline.
    Note that the submitted rule has been adopted by the EKAPCD, and 
the EPA's final limited disapproval does not prevent the local agency 
from enforcing it. The limited disapproval also does 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.

[[Page 39184]]

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, Stationary Gas Turbines (Oxides of Nitrogen), amended January 
11, 2018, which regulates NOX and CO for stationary gas 
turbine engines with ratings equal to or greater than 0.88 MW. 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 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. The EPA 
did not perform an EJ analysis and did not consider EJ in this action. 
Due to the nature of the action being taken here, this action is 
expected to have a neutral to positive impact on the air quality of the 
affected area. 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United

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States Court of Appeals for the appropriate circuit by August 14, 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Reporting and recordkeeping requirements.

    Dated: June 7, 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)(194)(i)(B)(5) and 
(c)(518)(i)(F) to read as follows:


Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (194) * * *
    (i) * * *
    (B) * * *
    (5) Previously approved on March 1, 1996, in paragraph 
(c)(194)(1)(B)(2) of this section and now deleted with replacement in 
(c)(518)(i)(F)(1): Rule 425, adopted on August 16, 1993.
* * * * *
    (518) * * *
    (i) * * *
    (F) Eastern Kern Air Pollution Control District.
    (1) Rule 425, ``Stationary Gas Turbines (Oxides of Nitrogen),'' 
amended on January 11, 2018.
    (2) [Reserved]
* * * * *
[FR Doc. 2023-12635 Filed 6-14-23; 8:45 am]
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