```

[Federal Register Volume 89, Number 247 (Thursday, December 26, 2024)]
[Rules and Regulations]
[Pages 104886-104888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30409]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2024-0563; FRL-12442-03-R9]

Determination To Defer Sanctions; California; Mojave Desert Air 
Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is making an interim 
final determination that the California Air Resources Board (CARB) has 
submitted a rule and other materials on behalf of the Mojave Desert Air 
Quality Management District (MDAQMD) that corrects deficiencies in its 
Clean Air Act (CAA or ``Act'') State Implementation Plan (SIP) 
concerning reasonably available control technology (RACT) ozone 
nonattainment requirements for controlling emissions of oxides of 
nitrogen (NOX) from industrial, institutional, and 
commercial boilers, steam generators, and process heaters. This 
determination is based on a proposed approval, published elsewhere in 
this issue of the Federal Register, of MDAQMD Rule 1157, which 
regulates this source category. The effect of this interim final 
determination is that the imposition of sanctions that were triggered 
by a previous limited disapproval by the EPA in 2023 is now deferred. 
If the EPA finalizes its approval of MDAQMD's submission, relief from 
these sanctions will become permanent.

DATES: This interim final determination is effective December 26, 2024. 
However, comments will be accepted on or before January 27, 2025.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2024-0563 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: La Kenya Evans-Hopper, EPA Region IX, 
75 Hawthorne St., San Francisco, CA 94105; phone: (415) 972-3245; email 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Table of Contents

I. Background
II. The EPA's Evaluation and Action
III. Statutory and Executive Order Reviews

I. Background

    On June 16, 2023, the EPA issued a final rule (88 FR 39366, the 
``2023 final rule'') promulgating a limited approval and limited 
disapproval for the MDAQMD rule listed in Table 1, which was submitted 
by the California Air Resources Board (CARB) to the EPA for inclusion 
into the California SIP.

                                 Table 1--District Rule With Previous EPA Action
----------------------------------------------------------------------------------------------------------------
          Rule No.                 Rule title            Amended        Submitted         EPA action in 2023
----------------------------------------------------------------------------------------------------------------
1157.......................  Boilers and Process         01/22/2018      05/23/2018  Limited Approval and
                              Heaters.                                                Limited Disapproval.
----------------------------------------------------------------------------------------------------------------

[[Page 104887]]

    Areas classified as ``Moderate'' or above nonattainment for an 
ozone standard must implement RACT for each category of sources covered 
by a Control Techniques Guidelines (CTG) document as well as each major 
source of NOX (see CAA section 182(b)(2), (f)). The MDAQMD 
contains parts of the West Mojave Desert ozone nonattainment area, 
which is classified as ``Severe'' nonattainment for the 1997, 2008, and 
2015 8-hour ozone National Ambient Air Quality Standards (NAAQS), as 
well as part of the Southeast Desert Modified Air Quality Management 
Area, which is classified as ``Severe'' nonattainment for the 1979 1-
hour ozone NAAQS (see 40 CFR 81.305).
    In the 2023 final rule, we determined that although the MDAQMD rule 
strengthened the SIP and was largely consistent with the requirements 
of the CAA, the submitted rule included a deficiency that precluded our 
full approval of the rule into the SIP. The MDAQMD's previously 
submitted Rule 1157 stated, ``[n]o compliance determination shall be 
established based on data obtained from compliance testing, including 
integrated sampling methods, during a start-up period or shut-down 
period.'' This provision prohibits the use of data gathered during 
periods of startup and shutdown from being used for determining 
compliance with the applicable limit.
    The EPA found that the provision was not consistent with the EPA's 
SSM policy and Credible Evidence Rule because it forbids the use of 
credible evidence (compliance testing data generated during startup and 
shutdown periods) in establishing violations of the applicable 
emissions limit. In addition, the previously submitted Rule 1157 
removed the definitions of ``start-up period'' and ``shut-down 
period,'' making the scope of this provision unclear.
    Pursuant to section 179 of the CAA and our regulations at 40 CFR 
part 52, the disapproval action on Rule 1157 under title I, part D 
started a sanctions clock for imposition of offset sanctions 18 months 
after the action's effective date of July 17, 2023, and highway 
sanctions six months later.
    On September 25, 2023, the MDAQMD revised Rule 1157, and on January 
10, 2024, CARB submitted it to the EPA for approval into the California 
SIP, as shown in Table 2 below.

                                             Table 2--Submitted Rule
----------------------------------------------------------------------------------------------------------------
           Local agency                 Rule No.             Rule title             Amended         Submitted
----------------------------------------------------------------------------------------------------------------
MDAQMD............................            1157   Boilers and Process              09/25/23         01/10/24
                                                      Heaters.
----------------------------------------------------------------------------------------------------------------

    On July 10, 2024, the submittal for MDAQMD Rule 1157 was deemed by 
operation of law to meet the completeness criteria in 40 CFR part 51 
appendix V.
    The revised MDAQMD Rule 1157 in Table 2 of this document is 
intended to address the disapproval issues in our June 16, 2023 final 
rule. In the Proposed Rules section of this Federal Register, we have 
proposed approval of the revised MDAQMD Rule 1157. Based on the 
proposed action approving Rule 1157 into the California SIP, we are 
also making this interim final determination, effective on publication, 
to defer imposition of the offset sanctions and highway sanctions that 
were triggered by our 2023 final rule on Rule 1157, because we believe 
that the submittal corrects the deficiencies that triggered such 
sanctions.
    The EPA is providing the public with an opportunity to comment on 
this deferral of sanctions. If comments are submitted that change our 
assessment described in this interim final determination and the 
proposed approval of MDAQMD Rule 1157, we would take final action to 
lift this deferral of sanctions under 40 CFR 52.31. If no comments are 
submitted that change our assessment, then all sanctions and any 
sanction clocks triggered by our June 16, 2023 final rule would be 
permanently terminated on the effective date of our final approval of 
Rule 1157.

II. The EPA's Evaluation and Action

    We are making an interim final determination to defer CAA section 
179 sanctions associated with our limited disapproval action on June 
16, 2023, of MDAQMD Rule 1157 with respect to the requirements of part 
D of title I of the CAA. This determination is based on our concurrent 
proposal to fully approve MDAQMD Rule 1157 which resolves the 
deficiencies that triggered sanctions under section 179 of the CAA.
    Because the EPA has preliminarily determined that MDAQMD Rule 1157, 
amended on September 25, 2023, addresses the limited disapproval issues 
under part D of title I of the CAA identified in our 2023 final rule 
and the amended rule is now fully approvable, relief from sanctions 
should be provided as quickly as possible. Therefore, the EPA is 
invoking the good cause exception under the Administrative Procedure 
Act (APA) in not providing an opportunity for comment before this 
action takes effect (5 U.S.C. 553(b)(3)). However, by this action, the 
EPA is providing the public with a chance to comment on the EPA's 
determination after the effective date, and the EPA will consider any 
comments received in determining whether to reverse such action.
    The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. The EPA has reviewed the State's submittal and, 
through its proposed action, is indicating that it is more likely than 
not that the State has submitted a revision to the SIP that corrects 
deficiencies under part D of the Act that were the basis for the action 
that started the sanctions clocks. Therefore, it is not in the public 
interest to impose sanctions. The EPA believes that it is necessary to 
use the interim final rulemaking process to defer sanctions while the 
EPA completes its rulemaking process on the approvability of the 
State's submittal. Moreover, with respect to the effective date of this 
action, the EPA is invoking the good cause exception to the 30-day 
notice requirement of the APA because the purpose of this notice is to 
relieve a restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

    This action defers sanctions and imposes no additional 
requirements. 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.);

[[Page 104888]]

     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 proposes to approve 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, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements Executive Order 12898 and defines EJ as, among other 
things, ``the just treatment and meaningful involvement of all people, 
regardless of income, race, color, national origin, Tribal affiliation, 
or disability, in agency decision-making and other Federal activities 
that affect human health and the environment.''
    The State did not evaluate EJ 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 EJ for communities with EJ concerns.
    This action is subject to the Congressional Review Act (CRA), and 
the EPA will submit a rule report to each House of the Congress and to 
the Comptroller General of the United States. The CRA allows the 
issuing agency to make a rule effective sooner than otherwise provided 
by the CRA if the agency makes a good cause finding that notice and 
comment rulemaking procedures are impracticable, unnecessary, or 
contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a 
good cause finding for this action as discussed in section II of this 
preamble, including the basis for that finding.
    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 February 24, 2025. Filing a petition for 
reconsideration by the EPA Administrator of this action does not affect 
the finality of this action for the purpose of judicial review, nor 
does it extend the time within which 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 CAA 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, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: December 13, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024-30409 Filed 12-23-24; 8:45 am]
BILLING CODE 6560-50-P
```