Air Plan Approval; CA; San Joaquin Valley Air Pollution Control District

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R09-OAR-2022-0604; FRL-10574-02-R9]</DEPDOC> <SUBJECT>Air Plan Approval; CA; San Joaquin Valley Air Pollution Control District</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective March 28, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">https://www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> 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 <E T="03">https://www.regulations.gov,</E> or please contact the person identified in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> 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 <E T="02">FOR FURTHER INFORMATION CONTACT</E> section. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Christine Vineyard, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4125 or by email at <E T="03">vineyard.christine@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document, “we,” “us” and “our” refer to the EPA. <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Proposed Action</FP> <FP SOURCE="FP-2">II. Public Comments and EPA Responses</FP> <FP SOURCE="FP-2">III. EPA Action</FP> <FP SOURCE="FP-2">IV. Incorporation by Reference</FP> <FP SOURCE="FP-2">V. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. Proposed Action</HD> On February 22, 2013, the EPA issued a <E T="04">Federal Register</E> 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. <SU>1</SU> <FTREF/> 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). <FTNT> <SU>1</SU>  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). </FTNT> 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.”  <SU>2</SU> <FTREF/> 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. <FTNT> <SU>2</SU>  80 FR 33839. </FTNT> 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. <SU>3</SU> <FTREF/> 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. <FTNT> <SU>3</SU>  October 9, 2020, memorandum “Inclusion of Provisions Governing Periods of Startup, Shutdown, and Malfunctions in State Implementation Plans,” from Andrew R. Wheeler, Administrator. </FTNT> 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). <SU>4</SU> <FTREF/> 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. <SU>5</SU> <FTREF/> 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. <FTNT> <SU>4</SU>  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. </FTNT> <FTNT> <SU>5</SU>  80 FR 33985. </FTNT> 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. <GPOTABLE COLS="5" OPTS="L2,tp0,i1" CDEF="s50,9,xs100,10,10"> <TTITLE> </TTITLE> <CHED H="1">District</CHED> <CHED H="1">Rule No.</CHED> <CHED H="1">Rule title</CHED> <CHED H="1">Adopted</CHED> <CHED H="1">Submitted</CHED> <ROW> <ENT I="01">San Joaquin Valley APCD (Fresno County APCD)</ENT> <ENT>110</ENT> <ENT>Equipment Breakdown</ENT> <ENT>2/17/2022</ENT> <ENT>4/14/2022</ENT> </ROW> <ROW> <ENT I="01">San Joaquin Valley APCD (Stanislaus County APCD)</ENT> <ENT>110</ENT> <ENT>Equipment Breakdown</ENT> <ENT>2/17/2022</ENT> <ENT>4/14/2022</ENT> </ROW> <ROW> <ENT I="01">San Joaquin Valley APCD (Kern County APCD)</ENT> <ENT>111</ENT> <ENT>Equipment Breakdown</ENT> <ENT>2/17/2022</ENT> <ENT>4/14/2022</ENT> </ROW> <ROW> <ENT I="01">San Joaquin Valley APCD (Kings County APCD)</ENT> <ENT>111</ENT> <ENT>Equipment Breakdown</ENT> <ENT>2/17/2022</ENT> <ENT>4/14/2022</ENT> </ROW> <ROW> <ENT I="01">San Joaquin Valley (Tulare County APCD)</ENT> <ENT>111</ENT> <ENT>Equipment Breakdown</ENT> <ENT>2/17/2022</ENT> <ENT>4/14/2022</ENT> </ROW> <ROW> <ENT I="01">San Joaquin Valley APCD (Madera County APCD)</ENT> <ENT>113</ENT> <ENT>Equipment Breakdown</ENT> <ENT>2/17/2022</ENT> <ENT>4/14/2022</ENT> </ROW> </GPOTABLE> As discussed in the proposal, the EPA proposed to approve the removal of these rules from the SJVAPCD portions of the California SIP b ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 21k characters. 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