Excess Emissions During Periods of Startup, Shutdown, and Malfunction; Partial Withdrawals of Findings of Failure To Submit State Implementation Plan (SIP), 93187-93192 [2024-27263]
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Federal Register / Vol. 89, No. 228 / Tuesday, November 26, 2024 / Rules and Regulations
(2)(i) Any person who violates a
material provision of a mitigation
agreement entered into on or after
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to the United States for a civil penalty
per violation not to exceed the greatest
of:
(A) $5,000,000;
(B) The value of the person’s interest
in the covered real estate (or, as
applicable, the owner of the covered
real estate) at the time of the transaction;
(C) The value of the person’s interest
in the covered real estate (or, as
applicable, the owner of the covered
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in question or the most proximate time
to the violation for which assessing such
value is practicable; or
(D) The value of the transaction filed
with the Committee.
(ii) For clarification, under paragraphs
(b)(2)(i)(A) through (D) of this section,
whichever penalty amount is greatest
may be imposed per violation, and the
amount of the penalty imposed for a
violation shall be based on the nature of
the violation.
*
*
*
*
*
(e) Upon receiving notice of a penalty
to be imposed under any of paragraphs
(a) through (c) of this section, the
subject person may, within 20 business
days of receipt of such notice, submit a
petition for reconsideration to the Staff
Chairperson, including a defense,
justification, or explanation for the
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The Staff Chairperson and the subject
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and the subject person may reach an
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*
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Paul M. Rosen,
Assistant Secretary for Investment Security.
[FR Doc. 2024–27310 Filed 11–25–24; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR PART 52
[EPA–HQ–OAR–2021–0863; EPA–R03–
OAR–2023–0179; FRL–12161–02–OAR]
Excess Emissions During Periods of
Startup, Shutdown, and Malfunction;
Partial Withdrawals of Findings of
Failure To Submit State
Implementation Plan (SIP)
Environmental Protection
Agency (EPA).
ACTION: Direct final action.
AGENCY:
The Environmental Protection
Agency (EPA) is taking direct final
action to partially withdraw two final
actions finding that 13 States and/or
local air pollution control agencies
failed to submit State Implementation
Plan (SIP) revisions required by the
Clean Air Act (CAA) in a timely manner
to address the EPA’s 2015 findings of
substantial inadequacy and ‘‘SIP calls’’
for provisions applying to excess
emissions during periods of startup,
shutdown, and malfunction (SSM). This
final action would render no longer
applicable certain CAA deadlines for
the EPA to impose sanctions if a State
does not submit a complete SIP revision
addressing the outstanding
requirements and to promulgate a
Federal Implementation Plan (FIP).
Concurrently, the EPA is also issuing a
parallel proposal of this withdrawal
action. See the proposed action
published in the Proposed Rules section
of this issue of the Federal Register.
DATES: This action is effective on
January 10, 2025, without further notice,
unless the EPA receives significant
adverse comment by December 26,
2024. If significant adverse comments
are received on the accompanying
proposed action, the EPA will publish a
timely withdrawal of this direct final
action in the Federal Register. If the
direct final action is withdrawn, all
comments will be addressed in a
subsequent final action based on the
accompanying proposed action. The
EPA will not institute a second
comment period pertaining to the
revisions on the subsequent final action.
Any parties interested in commenting
should do so at this time.
ADDRESSES: You may send comments,
identified by Docket ID Nos. EPA–HQ–
OAR–2021–0863 and EPA–R03–OAR–
2023–0179, by any of the following
methods:
• Federal eRulemaking Portal:
https://www.regulations.gov/ (our
preferred method). Follow the online
instructions for submitting comments.
SUMMARY:
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• Email: a-and-r-Docket@epa.gov.
Include Docket ID Nos. EPA–HQ–OAR–
2021–0863 and EPA–R03–OAR–2023–
0179.
• Fax: (202) 566–9744
• Mail: U.S. Environmental
Protection Agency, EPA Docket Center,
Mail Code 28221T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460.
• Hand Delivery or Courier: EPA
Docket Center, WJC West Building,
Room 3334, 1301 Constitution Avenue
NW, Washington, DC 20004. The Docket
Center’s hours of operations are 8:30
a.m. to 4:30 p.m., Monday–Friday
(except Federal Holidays).
Instructions: All submissions received
must include the Docket ID No. for this
rulemaking. Comments received may be
posted without change to https://
www.regulations.gov, including
personal information provided. For
detailed instructions on sending
comments and additional information
on the rulemaking process, see the
‘‘Public Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT:
General questions concerning this
notice should be addressed to, Sydney
Lawrence, Office of Air Quality
Planning and Standards, Air Quality
Policy Division, 109 T.W. Alexander
Drive, Research Triangle Park, NC
27711; by telephone (919) 541–4768; or
by email at lawrence.sydney@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How is the preamble organized?
The information presented in this
preamble is organized as follows:
Table of Contents
I. General Information
A. How is the preamble organized?
B. Why is the EPA issuing a direct final
action and parallel proposed action?
C. Written Comments
D. How can I get copies of this document
and other related information?
E. Where do I go if I have specific air
agency questions?
II. Background
III. Partial Withdrawals of Findings of Failure
To Submit for Air Agencies That Failed
To Make a SIP Submittal To Address
EPA’s 2015 SSM SIP Action
IV. Consequences of Partial Withdrawals of
Findings of Failure To Submit and
Remaining Air Agency Obligations
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Executive Order 13563:
Improving Regulation and Regulatory
Review
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
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C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act of 1995
(UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution or Use
J. National Technology Transfer and
Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority and Low-Income Populations
L. Congressional Review Act (CRA)
M. Judicial Review
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B. Why is the EPA issuing a direct final
action and parallel proposed action?
As is discussed in further detail later,
the EPA is taking this action as a result
of the United States Court of Appeals for
the District of Columbia mandate in
Environ. Comm. Fl. Elec. Power v. EPA,
94 F.4th 77 (D.C. Cir. 2024). In that
decision, the D.C. Circuit vacated
portions of the EPA’s 2015 findings of
substantial inadequacy and SIP calls for
provisions applying to excess emissions
during periods of SSM (‘‘2015 SSM SIP
Call’’) 1 as it applied to State provisions
including automatic exemptions,
director’s discretion provisions, and
affirmative defenses that are
functionally exemptions. Subsequent to
the issuance of the 2015 SIP Call, EPA
issued two findings of failure to submit
(FFS) impacting multiple States.2 3 This
action seeks to withdraw relevant parts
of the FFS that were invalidated by the
D.C. Circuit’s vacatur. Because of the
D.C. Circuit’s vacatur, there is no longer
a legally valid predicate submission
1 See ‘‘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 33840 (June 12, 2015).
2 See ‘‘Findings of Failure To Submit State
Implementation Plan Revisions in Response to the
2015 Findings of Substantial Inadequacy and SIP
Calls To Amend Provisions Applying To Excess
Emissions During Periods of Startup, Shutdown,
and Malfunction,’’ 87 FR 1680 (January 12, 2022).
3 See ‘‘West Virginia; Finding of Failure To
Submit State Implementation Plan Revision in
Response to the 2015 Findings of Substantial
Inadequacy and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction,’’ 88 FR 23353
(April 17, 2023).
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obligation for those particular SIP-called
provisions. As a result, the EPA’s
findings that such obligation was not
met are also no longer valid and must
be withdrawn. Concurrently, the EPA is
also issuing a parallel proposal of this
withdrawal action. See the proposed
action published in the Proposed Rules
section of this issue of the Federal
Register. If we receive no significant
adverse comment, we will not take
further action on the proposed action
and this direct final action will become
effective as prescribed.
C. Written Comments
Submit your comments, identified by
Docket ID Nos. EPA–HQ–OAR–2021–
0863 and EPA–R03–OAR–2023–0179, at
https://www.regulations.gov (our
preferred method), or the other methods
identified in the ADDRESSES section.
Once submitted, comments cannot be
edited or removed from the docket. The
EPA may publish any comment received
to its public docket. Do not submit to
EPA’s docket at https://
www.regulations.gov any information
you consider to be Confidential
Business Information (CBI), Proprietary
Business Information (PBI), or other
information whose disclosure is
restricted by statute. Our preferred
method to receive CBI, PBI, or other
information who disclosure is restricted
by statue is for it to be transmitted
electronically using email attachments,
File Transfer Protocol (FTP), or other
online file sharing services (e.g.,
Dropbox, OneDrive, Google Drive).
Electronic submissions must be
transmitted directly to the OAQPS CBI
Office using the email address,
oaqpscbi@epa.gov, and should include
clear CBI or PBI markings. If assistance
is needed with submitting large
electronic files that exceed the file size
limit for email attachments, and if you
do not have your own file sharing
service, please email oaqpscbi@epa.gov
to request a file transfer link. If sending
CBI or PBI information through the
postal service, please send it to the
following address: OAQPS Document
Control Officer (C404–02), OAQPS, U.S.
Environmental Protection Agency,
Research Triangle Park, North Carolina
27711, Attention Docket ID Nos. EPA–
HQ–OAR–2021–0863 and EPA–R03–
OAR–2023–0179. The mailed CBI or PBI
material should be double wrapped and
clearly marked. Any CBI or PBI
markings should not show through the
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outer envelope. 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). Please visit
https://www.epa.gov/dockets/
commenting-epa-dockets for additional
submission methods; the full EPA
public comment policy; information
about CBI, PBI, or multimedia
submissions; and general guidance on
making effective comments.
D. How can I get copies of this
document and other related
information?
The EPA has established a docket for
this action under Docket ID No. EPA–
HQ–OAR–2021–0863 (as it pertains to
the January 2022 national FFS) and
Docket ID No. EPA–R03–OAR–2023–
0179 (as it pertains to the April 2023
West Virginia FFS). All documents in
the docket are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., Confidential
Business Information or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically at https://
www.regulations.gov or in hard copy at
the U.S. Environmental Protection
Agency, EPA Docket Center, William
Jefferson Clinton West Building, Room
3334, 1301 Constitution Ave. NW,
Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The telephone number
for the Public Reading Room is (202)
566–1744, and the telephone number for
the Office of Air and Radiation Docket
is (202) 566–1742.
E. Where do I go if I have specific air
agency questions?
For questions related to specific air
agencies mentioned in this notice,
please contact the appropriate EPA
Regional Office:
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EPA regional office
Air agencies
EPA Region 1: Alison Simcox, Air Quality Branch, EPA Region 1, 5
Post Office Square, Boston, Massachusetts 02109. simcox.alison@
epa.gov.
EPA Region 3: Sean Silverman, Planning and Implementation Branch,
EPA Region 3, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
silverman.sean@epa.gov.
EPA Region 3: Serena Nichols, Planning and Implementation Brach,
EPA Region 3, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
nichols.serena@epa.gov.
EPA Region 4: Faith Goddard, Air Planning and Implementation
Branch, EPA Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303. goddard.faith@epa.gov.
EPA Region 5: Michael Leslie, Air Planning and Maintenance Section,
EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
leslie.michael@epa.gov.
EPA Region 6: Michael Feldman, Air Program Branch, EPA Region 6,
1201 Elm Street, Dallas, Texas 75270. feldman.michael@epa.gov.
EPA Region 8: Adam Clark, Air Quality Planning Branch, EPA Region
8, 1595 Wynkoop Street, Denver, Colorado 80202. clark.adam@
epa.gov.
EPA Region 9: Eugene Chen, Control Measures Section, Air and Radiation Division, EPA Region 9, 75 Hawthorne Street, San Francisco,
California 94105. chen.eugene@epa.gov.
EPA Region 10: Randall Ruddick, Air Planning Section, EPA Region
10, 1200 Sixth Avenue, Seattle, Washington 98101. ruddick.randall@
epa.gov.
II. Background
On January 12, 2022, the EPA took
final action (‘‘January 2022 FFS’’) 4 to
find that 12 States and local air agencies
failed to submit SIP revisions required
by the CAA in a timely manner to
address the EPA’s 2015 findings of
substantial inadequacy and ‘‘SIP calls’’
for provisions applying to excess
emissions during periods of SSM (‘‘2015
SSM SIP Call’’ 5) that were statutorily
due no later than November 22, 2016.
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Rhode Island.
District of Columbia.
West Virginia.
Alabama; North Carolina-Forsyth; Tennessee-Shelby (Memphis).
Illinois; Ohio.
Arkansas.
South Dakota.
California-San Joaquin Valley Air Pollution Control District (APCD).
Washington-Energy Facility Site Evaluation Council (EFSEC); Washington-Southwest Clean Air Agency (SWCAA).
On April 17, 2023, the EPA Region 3
took final action (‘‘April 2023 FFS’’) to
find that the State of West Virginia
failed to timely submit a SIP revision
required by the CAA to address the
deficiencies identified in the EPA’s
2015 SSM SIP Call that was statutorily
due no later than November 22, 2016.6
In total, the 13 States and/or local air
agencies that were issued an FFS can be
found in Table 1. For those States and/
or local air agencies subject to the FFS
for which EPA has fully approved their
submitted SIP revision—Arkansas,
California-San Joaquin Valley Air
Pollution Control District, and North
Carolina-Forsyth—the FFS obligation
has been fulfilled, and there is no need
to for the EPA or those States to take
further action. The States and/or local
air agencies which have not submitted
a SIP revision in response to the FFS or
for which the EPA has not taken final
action on their submittal—i.e., the
States for which some obligation still
exists—can be found in Table 2.
TABLE 1—13 STATES AND/OR LOCAL AIR POLLUTION CONTROL AGENCIES INCLUDED IN THE JANUARY 2022 FFS AND
APRIL 2023 FFS
EPA region
State and/or local air agency
1 ................................................................................................................
3 ................................................................................................................
3 ................................................................................................................
4 ................................................................................................................
4 ................................................................................................................
4 ................................................................................................................
5 ................................................................................................................
5 ................................................................................................................
6 ................................................................................................................
8 ................................................................................................................
9 ................................................................................................................
10 ..............................................................................................................
10 ..............................................................................................................
Rhode Island.
District of Columbia.
West Virginia.
Alabama.
North Carolina-Forsyth.
Tennessee-Shelby (Memphis).
Illinois.
Ohio.
Arkansas.
South Dakota.
California-San Joaquin Valley Air Pollution Control District.
Washington-Energy Facility Site Evaluation Council.
Washington-Southwest Clean Air Agency.
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TABLE 2—STATES AND/OR LOCAL AIR AGENCIES WITHOUT FULLY APPROVED SIP REVISIONS IN RESPONSE TO THE
JANUARY 2022 FFS AND APRIL 2023 FFS 7
EPA region
State and/or local air agency
1 ................................................................................................................
3 ................................................................................................................
4 See
87 FR 1680.
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Rhode Island.
District of Columbia.
80 FR 33840.
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6 See
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TABLE 2—STATES AND/OR LOCAL AIR AGENCIES WITHOUT FULLY APPROVED SIP REVISIONS IN RESPONSE TO THE
JANUARY 2022 FFS AND APRIL 2023 FFS 7—Continued
EPA region
State and/or local air agency
3 ................................................................................................................
4 ................................................................................................................
4 ................................................................................................................
5 ................................................................................................................
5 ................................................................................................................
8 ................................................................................................................
10 ..............................................................................................................
10 ..............................................................................................................
On March 1, 2024, the United States
Court of Appeals for the District of
Columbia Circuit issued a decision in
Environ. Comm. Fl. Elec. Power v. EPA,
94 F.4th 77 (D.C. Cir. 2024). The Court
granted the petitions in part, vacating
the SIP calls that were based on SIP
provisions that included automatic
exemptions, director’s discretion
provisions, and ‘‘complete affirmative
defenses’’ (i.e. affirmative defenses that
are functionally exemptions); and
denied the petitions in part, affirming
the SIP calls based on SIP provisions
that included overbroad enforcement
discretion provisions and affirmative
West Virginia.
Alabama.
Tennessee-Shelby (Memphis).
Illinois.
Ohio.
South Dakota.
Washington-Energy Facility Site Evaluation Council.
Washington-Southwest Clean Air Agency.
defenses against specific relief. As a
result of the D.C. Circuit’s decision in
Environ. Comm. Fl. Elec. Power v. EPA,
the EPA is partially withdrawing the
January 2022 FFS and the April 2023
FFS. Because certain portions of the SIP
call were vacated by the D.C. Circuit
and therefore have no legal effect, the
States and/or local air agencies with
provisions to which those vacated
portions of the SIP call previously
applied no longer have a legal obligation
to submit the revisions that the EPA had
originally determined were required
pursuant to the 2015 SSM SIP Call.8
Further, as there is no longer a predicate
submission obligation for those
particular SIP-called provisions, the
EPA’s findings that such obligation was
not met are no longer valid and must be
withdrawn.
III. Partial Withdrawals of Findings of
Failure To Submit
As a result of this final action, the
January 22, 2022, national FFS and
April 17, 2023, FFS are partially
withdrawn with respect to the State
and/or local air agency SIP provisions
listed in Table 3.
TABLE 3—SIP PROVISIONS FOR WHICH THE EPA IS WITHDRAWING THE AGENCY’S FINDINGS OF FAILURE TO SUBMIT 9
Region
State/local air agency
1 ..............................
3 ..............................
Rhode Island .........................................
District of Columbia ...............................
West Virginia .........................................
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4 ..............................
Alabama .................................................
7 The EPA and its state partners work regularly on
SIP requirements including plan development,
review and approval. Often, national actions like
this partial FFS withdrawal overlap with ongoing
actions for specific areas. At or about the same time
this direct final action is promulgated, the EPA is
also taking separate final action on two SIP
revisions related to today’s action: (1) TennesseeShelby (Memphis) SIP call revision submitted to the
EPA on March 2, 2022. See 89 FR 74165, September
12, 2024. Once finalized, Tennessee-Shelby
(Memphis) will have a fully approved SIP revision
that partially responds to the January 2022 FFS. The
FFS obligations will remain in effect for a portion
of the Tennessee-Shelby (Memphis) SIP. For more
information, see the Tennessee-Shelby (Memphis)
Final Rule, (Docket ID No. EPA–R4–OAR–2023–
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Applicable provisions for which the FFS are withdrawn
25–4–13 R.I. Code R. § 16.2.
D.C. Mun. Regs. tit. 20 § 107.3.
D.C. Mun. Regs. tit. 20 § 606.1.
D.C. Mun. Regs. tit. 20 § 606.2.
W. Va. Code R. § 45–2–9.1.
W. Va. Code R. § 45–7–10.3.
W. Va. Code R. § 45–40–100.8.
W. Va. Code R. § 45–2–10.1.
W. Va. Code R. § 45–3–7.1.
W. Va. Code R. § 45–5–13.1.
W. Va. Code R. § 45–6–8.2.
W. Va. Code R. § 45–7–9.1.
W. Va. Code R. § 45–7–10.4.
W. Va. Code R. § 45–10–9.1.
W. Va. Code R. § 45–21–9.3.
W. Va. Code R. § 45–3–3.2.
W. Va. Code R. § 45–2–10.2.
Ala Admin Code Rule 335–3–14–.03(1)(h)(1).
Ala Admin Code Rule 335–3–14– .03(1)(h)(2).
0361) at https://www.regulations.gov/docket/EPAR04-OAR-2023-0361. (2) Washington-Energy
Facility Site Evaluation Council (EFSEC) SIP call
revision submitted on June 15, 2023. See 89 FR
84322, October 22, 2024. Once finalized,
Washington-EFSEC will have a fully approved SIP
revision in response to the January 2022 FFS and
will have fulfilled their FFS obligations. For more
information, see the Washington-EFSEC Final Rule,
(Docket ID EPA–R10–OAR–2024–0372) at https://
www.regulations.gov/docket/EPA-R10-OAR-20240372.
8 In vacating certain portions of the 2015 SSM SIP
Action, the D.C. Circuit’s decision did not
determine whether the SIP-called provisions were
otherwise lawful under the CAA. See e.g. slip op.
at 55 (‘‘We thus do not reach the question whether
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the called SIPs’ relevant emission restrictions in
fact amount to (or must amount to) ‘‘emission
limitations’’ per the statutory definition.).
9 Because the D.C. Circuit only vacated certain
portions of the EPA’s 2015 SSM SIP Action, the
2015 SIP Call is still applicable for certain
provisions in some states. As such, the EPA is only
withdrawing the FFS as they apply to those
provisions corresponding to the vacatur. As a result,
the FFS remain in place for provisions that
correspond to the portions of the 2015 SSM SIP
Action that were not vacated (i.e. provisions that
were SIP called because they include an affirmative
defense that provides specific relief and provisions
that constitute overbroad enforcement discretion).
Some states were included in the FFS for both types
of provision.
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TABLE 3—SIP PROVISIONS FOR WHICH THE EPA IS WITHDRAWING THE AGENCY’S FINDINGS OF FAILURE TO SUBMIT 9—
Continued
Region
State/local air agency
5 ..............................
Ohio .......................................................
8 ..............................
South Dakota .........................................
IV. Consequences of Withdrawn
Portions of Findings of Failure To
Submit and Remaining Air Agency
Obligations
For those State and/or local air agency
SIP provisions listed in Table 3 of
Section III for which the FFS are
withdrawn, the CAA deadlines for the
Applicable provisions for which the FFS are withdrawn
Ohio Admin. Code 3745–15–06(A)(3).
Ohio Admin. Code 3745–17–07(A)(3)(c).
Ohio Admin. Code 3745–17– 07(B)(11)(f).
Ohio Admin. Code 3745– 14–11(D).
Ohio Admin. Code 3745– 15–06(C).
S.D. Admin. R. 74:36:12:02(3).
EPA to impose sanctions under CAA
sections 179(a) and (b) and promulgate
a FIP under CAA section 110(c) are no
longer applicable. For those State and/
or local jurisdiction SIP provisions in
which the FFS are not withdrawn and
are still applicable, the CAA deadlines
for the EPA to impose sanctions under
CAA sections 179(a) and (b) and
promulgate a FIP under CAA section
110(c) remain in effect as previously
established.10 11 The States and/or local
air agencies for which the FFS are not
withdrawn and mandatory CAA
deadlines remain in effect can be found
in Table 4.
TABLE 4—STATES AND/OR LOCAL AIR AGENCIES WITH REMAINING FFS OBLIGATIONS
EPA region
3
3
4
5
State and/or local air agency
..............................
..............................
..............................
..............................
District of Columbia ...............................
West Virginia .........................................
Tennessee-Shelby (Memphis) ...............
Illinois .....................................................
10 ............................
Washington-Energy Facility Site Evaluation Council.
Washington-Southwest Clean Air Agency.
10 ............................
IV. Final Action
In light of the D.C. Circuit’s decision
in Environ. Comm. Fl. Elec. Power v.
EPA, the EPA is taking final action to
partially withdraw its finding that 12 air
agencies have failed to submit SIP
revisions in response to the 2015 SSM
SIP Action that were statutorily due no
later than November 22, 2016, and to
partially withdraw the EPA Region 3’s
finding that West Virginia failed to
submit a SIP revision in response to the
2015 SSM SIP Action that was
statutorily due no later than November
22, 2016. The six States and/or local air
agencies affected by this final
withdrawal action are: Alabama, District
of Columbia, Ohio, Rhode Island, South
Dakota, and West Virginia.
lotter on DSK11XQN23PROD with RULES1
V. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders (E.O.) can
be found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
10 See
87 FR 1680, 1682.
VerDate Sep<11>2014
16:25 Nov 25, 2024
D.C. Mun. Regs. tit. 20 § 606.4.
W. Va. Code R. § 45–2–9.4.
Shelby County Code § 16–87.
Ill. Admin. Code tit. 35 § 201.261.
Ill. Admin. Code tit. 35 § 201.262.
Ill. Admin. Code tit. 35 § 201.265.
Wash. Admin. Code § 463–39–005.
SWCAA 400–107.
A. Executive Orders 12866: Regulatory
Planning and Executive Order 13563:
Improving Regulation and Regulatory
Review
This action is not a significant
regulatory action as defined in
Executive Order 12866, as amended by
Executive Order 14094, and was
therefore not subject to a requirement
for Executive Order 12866 review.
C. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
provisions of the PRA. This final action
does not establish any new information
collection requirement apart from what
is already required by law. This action
relates to the requirement in the CAA
for States to submit SIPs in response to
findings of substantial inadequacy
under CAA section 110(k)(5).
D. 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
11 See
Jkt 265001
Applicable provisions for which the FFS remain in effect
PO 00000
entities. This action relates to the
requirement in the CAA for States to
submit SIPs in response to findings of
substantial inadequacy under CAA
section 110(k)(5).
E. Unfunded Mandates Reform Act of
1995 (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. The action imposes no
enforceable duty on any State, local or
Tribal governments, or the private
sector.
F. 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.
88 FR 88 FR 23353, 23354–23355.
Frm 00045
Fmt 4700
Sfmt 4700
E:\FR\FM\26NOR1.SGM
26NOR1
93192
Federal Register / Vol. 89, No. 228 / Tuesday, November 26, 2024 / Rules and Regulations
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have Tribal
implications as specified in Executive
Order 13175. This action finds that
several air agencies have failed to
submit SIP revisions in response to
findings of substantial inadequacy
under section 110(k)(5) of the CAA. No
Tribe is subject to the requirement to
submit an implementation plan under
the findings of inadequacy relevant to
this action. Thus, Executive Order
13175 does not apply to this action.
H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
The EPA interprets Executive Order
13045 as applying only to those
regulatory actions that concern 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 relates to the requirement in
the CAA for States to submit SIPs in
response to findings of substantial
inadequacy under CAA section
110(k)(5) and does not directly or
disproportionately affect children.
I. 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.
lotter on DSK11XQN23PROD with RULES1
J. National Technology Transfer and
Advancement Act (NTTAA)
This final action does not involve
technical standards.
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) directs federal
agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on communities
with EJ concerns.
The EPA believes it is not practicable
to assess whether the conditions that
exist prior to this proposed action result
in disproportionate and adverse effects
on people of color, low-income
populations, and/or indigenous peoples.
VerDate Sep<11>2014
16:25 Nov 25, 2024
Jkt 265001
While it is difficult to assess the
environmental justice implications of
this proposed action because the EPA
cannot geographically identify or
quantify the resulting source-specific
emission reductions, the EPA recognizes
the potential for neutral or adverse
environmental justice issues associated
with this action. However, the EPA
views this action as a necessary
procedural step following the D.C.
Circuit decision and vacatur of portions
of the 2015 SSM SIP call.
L. 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).
M. Judicial Review
Section 307(b)(1) of the CAA governs
judicial review of final actions by the
EPA. This section provides, in part, that
petitions for review must be filed in the
United States Court of Appeals for the
District of Columbia Circuit: (i) when
the agency action consists of ‘‘nationally
applicable regulations promulgated, or
final actions taken, by the
Administrator,’’ or (ii) when such action
is locally or regionally applicable, but
‘‘such action is based on a
determination of nationwide scope or
effect and if in taking such action the
Administrator finds and publishes that
such action is based on such a
determination.’’ For locally or regionally
applicable final actions, the CAA
reserves to the EPA complete discretion
whether to invoke the exception in (ii).
This final action is ‘‘nationally
applicable’’ within the meaning of CAA
section 307(b)(1). In the alternative, to
the extent a court finds this final action
to be locally or regionally applicable,
the Administrator is exercising the
complete discretion afforded to him
under the CAA to make and publish a
finding that this action is based on a
determination of ‘‘nationwide scope or
effect’’ within the meaning of CAA
section 307(b)(1).12 This final action
consists of a partial withdrawal of
findings of failure to submit required
SIPs from six States and/or local air
jurisdictions, including the District of
Columbia, located in 5 of the 10 EPA
regions, and in 6 different federal
12 In deciding whether to invoke the exception by
making and publishing a finding that this final
action is based on a determination of nationwide
scope or effect, the Administrator has also taken
into account a number of policy considerations,
including his judgment balancing the benefit of
obtaining the D.C. Circuit’s authoritative centralized
review versus allowing development of the issue in
other contexts and the best use of Agency resources.
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
judicial circuits.13 This final action is
also based on a common core of factual
findings concerning the receipt and
completeness of the relevant SIP
submittals. For these reasons, this final
action is nationally applicable or,
alternatively, the Administrator is
exercising the complete discretion
afforded to him by the CAA and hereby
finds that this final action is based on
a determination of nationwide scope or
effect for purposes of CAA section
307(b)(1) and is hereby publishing that
finding in the Federal Register.
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 District of
Columbia Circuit within 60 days from
the date this final action is published in
the Federal Register. Filing a petition
for reconsideration by the Administrator
of this final action does not affect the
finality of the action for the purposes of
judicial review, nor does it extend the
time within which a petition for judicial
review must be filed and shall not
postpone the effectiveness of such rule
or action.
List of Subjects in 40 CFR Part 52
Environmental protection,
Administrative practice and procedures,
Air pollution control, Approval and
promulgation of implementation plans,
Incorporation by reference,
Intergovernmental relations, and
Reporting and recordkeeping
requirements.
Joseph Goffman,
Assistant Administrator.
[FR Doc. 2024–27263 Filed 11–25–24; 8:45 am]
BILLING CODE 6560–50–P
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–118
[FMR Case 2023–02; Docket No. GSA–FMR–
2023–0014; Sequence No. 2]
RIN 3090–AK73
Federal Management Regulation;
Transportation Payment and Audit
Regulations
Office of Government-Wide
Policy (OGP), General Services
Administration (GSA).
AGENCY:
13 In the report on the 1977 Amendments that
revised section 307(b)(1) of the CAA, Congress
noted that the Administrator’s determination that
the ‘‘nationwide scope or effect’’ exception applies
would be appropriate for any action that has a
scope or effect beyond a single judicial circuit. See
H.R. Rep. No. 95–294 at 323, 324, reprinted in 1977
U.S.C.C.A.N. 1402–03.
E:\FR\FM\26NOR1.SGM
26NOR1
]]>Agencies
[Federal Register Volume 89, Number 228 (Tuesday, November 26, 2024)]
[Rules and Regulations]
[Pages 93187-93192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27263]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52
[EPA-HQ-OAR-2021-0863; EPA-R03-OAR-2023-0179; FRL-12161-02-OAR]
Excess Emissions During Periods of Startup, Shutdown, and
Malfunction; Partial Withdrawals of Findings of Failure To Submit State
Implementation Plan (SIP)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final action.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to partially withdraw two final actions finding that 13
States and/or local air pollution control agencies failed to submit
State Implementation Plan (SIP) revisions required by the Clean Air Act
(CAA) in a timely manner to address the EPA's 2015 findings of
substantial inadequacy and ``SIP calls'' for provisions applying to
excess emissions during periods of startup, shutdown, and malfunction
(SSM). This final action would render no longer applicable certain CAA
deadlines for the EPA to impose sanctions if a State does not submit a
complete SIP revision addressing the outstanding requirements and to
promulgate a Federal Implementation Plan (FIP). Concurrently, the EPA
is also issuing a parallel proposal of this withdrawal action. See the
proposed action published in the Proposed Rules section of this issue
of the Federal Register.
DATES: This action is effective on January 10, 2025, without further
notice, unless the EPA receives significant adverse comment by December
26, 2024. If significant adverse comments are received on the
accompanying proposed action, the EPA will publish a timely withdrawal
of this direct final action in the Federal Register. If the direct
final action is withdrawn, all comments will be addressed in a
subsequent final action based on the accompanying proposed action. The
EPA will not institute a second comment period pertaining to the
revisions on the subsequent final action. Any parties interested in
commenting should do so at this time.
ADDRESSES: You may send comments, identified by Docket ID Nos. EPA-HQ-
OAR-2021-0863 and EPA-R03-OAR-2023-0179, by any of the following
methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected]. Include Docket ID Nos. EPA-
HQ-OAR-2021-0863 and EPA-R03-OAR-2023-0179.
Fax: (202) 566-9744
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC
20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov, including personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to, Sydney Lawrence, Office of Air Quality
Planning and Standards, Air Quality Policy Division, 109 T.W. Alexander
Drive, Research Triangle Park, NC 27711; by telephone (919) 541-4768;
or by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. How is the preamble organized?
The information presented in this preamble is organized as follows:
Table of Contents
I. General Information
A. How is the preamble organized?
B. Why is the EPA issuing a direct final action and parallel
proposed action?
C. Written Comments
D. How can I get copies of this document and other related
information?
E. Where do I go if I have specific air agency questions?
II. Background
III. Partial Withdrawals of Findings of Failure To Submit for Air
Agencies That Failed To Make a SIP Submittal To Address EPA's 2015
SSM SIP Action
IV. Consequences of Partial Withdrawals of Findings of Failure To
Submit and Remaining Air Agency Obligations
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
[[Page 93188]]
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act of 1995 (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority and Low-Income Populations
L. Congressional Review Act (CRA)
M. Judicial Review
B. Why is the EPA issuing a direct final action and parallel proposed
action?
As is discussed in further detail later, the EPA is taking this
action as a result of the United States Court of Appeals for the
District of Columbia mandate in Environ. Comm. Fl. Elec. Power v. EPA,
94 F.4th 77 (D.C. Cir. 2024). In that decision, the D.C. Circuit
vacated portions of the EPA's 2015 findings of substantial inadequacy
and SIP calls for provisions applying to excess emissions during
periods of SSM (``2015 SSM SIP Call'') \1\ as it applied to State
provisions including automatic exemptions, director's discretion
provisions, and affirmative defenses that are functionally exemptions.
Subsequent to the issuance of the 2015 SIP Call, EPA issued two
findings of failure to submit (FFS) impacting multiple
States.2 3 This action seeks to withdraw relevant parts of
the FFS that were invalidated by the D.C. Circuit's vacatur. Because of
the D.C. Circuit's vacatur, there is no longer a legally valid
predicate submission obligation for those particular SIP-called
provisions. As a result, the EPA's findings that such obligation was
not met are also no longer valid and must be withdrawn. Concurrently,
the EPA is also issuing a parallel proposal of this withdrawal action.
See the proposed action published in the Proposed Rules section of this
issue of the Federal Register. If we receive no significant adverse
comment, we will not take further action on the proposed action and
this direct final action will become effective as prescribed.
---------------------------------------------------------------------------
\1\ See ``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 33840 (June 12, 2015).
\2\ See ``Findings of Failure To Submit State Implementation
Plan Revisions in Response to the 2015 Findings of Substantial
Inadequacy and SIP Calls To Amend Provisions Applying To Excess
Emissions During Periods of Startup, Shutdown, and Malfunction,'' 87
FR 1680 (January 12, 2022).
\3\ See ``West Virginia; Finding of Failure To Submit State
Implementation Plan Revision in Response to the 2015 Findings of
Substantial Inadequacy and SIP Calls To Amend Provisions Applying to
Excess Emissions During Periods of Startup, Shutdown, and
Malfunction,'' 88 FR 23353 (April 17, 2023).
---------------------------------------------------------------------------
C. Written Comments
Submit your comments, identified by Docket ID Nos. EPA-HQ-OAR-2021-
0863 and EPA-R03-OAR-2023-0179, at https://www.regulations.gov (our
preferred method), or the other methods identified in the ADDRESSES
section. Once submitted, comments cannot be edited or removed from the
docket. The EPA may publish any comment received to its public docket.
Do not submit to EPA's docket at https://www.regulations.gov any
information you consider to be Confidential Business Information (CBI),
Proprietary Business Information (PBI), or other information whose
disclosure is restricted by statute. Our preferred method to receive
CBI, PBI, or other information who disclosure is restricted by statue
is for it to be transmitted electronically using email attachments,
File Transfer Protocol (FTP), or other online file sharing services
(e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be
transmitted directly to the OAQPS CBI Office using the email address,
[email protected], and should include clear CBI or PBI markings. If
assistance is needed with submitting large electronic files that exceed
the file size limit for email attachments, and if you do not have your
own file sharing service, please email [email protected] to request a
file transfer link. If sending CBI or PBI information through the
postal service, please send it to the following address: OAQPS Document
Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina 27711, Attention Docket ID Nos.
EPA-HQ-OAR-2021-0863 and EPA-R03-OAR-2023-0179. The mailed CBI or PBI
material should be double wrapped and clearly marked. Any CBI or PBI
markings should not show through the outer envelope. 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). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment
policy; information about CBI, PBI, or multimedia submissions; and
general guidance on making effective comments.
D. How can I get copies of this document and other related information?
The EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2021-0863 (as it pertains to the January 2022 national
FFS) and Docket ID No. EPA-R03-OAR-2023-0179 (as it pertains to the
April 2023 West Virginia FFS). All documents in the docket are listed
in the https://www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically at https://www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, EPA Docket Center, William Jefferson Clinton West
Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Office
of Air and Radiation Docket is (202) 566-1742.
E. Where do I go if I have specific air agency questions?
For questions related to specific air agencies mentioned in this
notice, please contact the appropriate EPA Regional Office:
[[Page 93189]]
------------------------------------------------------------------------
EPA regional office Air agencies
------------------------------------------------------------------------
EPA Region 1: Alison Simcox, Air Rhode Island.
Quality Branch, EPA Region 1, 5 Post
Office Square, Boston, Massachusetts
02109. [email protected].
EPA Region 3: Sean Silverman, Planning District of Columbia.
and Implementation Branch, EPA Region
3, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
[email protected].
EPA Region 3: Serena Nichols, Planning West Virginia.
and Implementation Brach, EPA Region
3, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
[email protected].
EPA Region 4: Faith Goddard, Air Alabama; North Carolina-
Planning and Implementation Branch, Forsyth; Tennessee-Shelby
EPA Region 4, 61 Forsyth Street SW, (Memphis).
Atlanta, Georgia 30303.
[email protected].
EPA Region 5: Michael Leslie, Air Illinois; Ohio.
Planning and Maintenance Section, EPA
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
[email protected].
EPA Region 6: Michael Feldman, Air Arkansas.
Program Branch, EPA Region 6, 1201 Elm
Street, Dallas, Texas 75270.
[email protected].
EPA Region 8: Adam Clark, Air Quality South Dakota.
Planning Branch, EPA Region 8, 1595
Wynkoop Street, Denver, Colorado
80202. [email protected].
EPA Region 9: Eugene Chen, Control California-San Joaquin Valley
Measures Section, Air and Radiation Air Pollution Control District
Division, EPA Region 9, 75 Hawthorne (APCD).
Street, San Francisco, California
94105. [email protected].
EPA Region 10: Randall Ruddick, Air Washington-Energy Facility Site
Planning Section, EPA Region 10, 1200 Evaluation Council (EFSEC);
Sixth Avenue, Seattle, Washington Washington-Southwest Clean Air
98101. [email protected]. Agency (SWCAA).
------------------------------------------------------------------------
II. Background
On January 12, 2022, the EPA took final action (``January 2022
FFS'') \4\ to find that 12 States and local air agencies failed to
submit SIP revisions required by the CAA in a timely manner to address
the EPA's 2015 findings of substantial inadequacy and ``SIP calls'' for
provisions applying to excess emissions during periods of SSM (``2015
SSM SIP Call'' \5\) that were statutorily due no later than November
22, 2016. On April 17, 2023, the EPA Region 3 took final action
(``April 2023 FFS'') to find that the State of West Virginia failed to
timely submit a SIP revision required by the CAA to address the
deficiencies identified in the EPA's 2015 SSM SIP Call that was
statutorily due no later than November 22, 2016.\6\ In total, the 13
States and/or local air agencies that were issued an FFS can be found
in Table 1. For those States and/or local air agencies subject to the
FFS for which EPA has fully approved their submitted SIP revision--
Arkansas, California-San Joaquin Valley Air Pollution Control District,
and North Carolina-Forsyth--the FFS obligation has been fulfilled, and
there is no need to for the EPA or those States to take further action.
The States and/or local air agencies which have not submitted a SIP
revision in response to the FFS or for which the EPA has not taken
final action on their submittal--i.e., the States for which some
obligation still exists--can be found in Table 2.
---------------------------------------------------------------------------
\4\ See 87 FR 1680.
\5\ See 80 FR 33840.
\6\ See 88 FR 23353.
Table 1--13 States and/or Local Air Pollution Control Agencies Included
in the January 2022 FFS and April 2023 FFS
------------------------------------------------------------------------
EPA region State and/or local air agency
------------------------------------------------------------------------
1...................................... Rhode Island.
3...................................... District of Columbia.
3...................................... West Virginia.
4...................................... Alabama.
4...................................... North Carolina-Forsyth.
4...................................... Tennessee-Shelby (Memphis).
5...................................... Illinois.
5...................................... Ohio.
6...................................... Arkansas.
8...................................... South Dakota.
9...................................... California-San Joaquin Valley
Air Pollution Control
District.
10..................................... Washington-Energy Facility Site
Evaluation Council.
10..................................... Washington-Southwest Clean Air
Agency.
------------------------------------------------------------------------
Table 2--States and/or Local Air Agencies Without Fully Approved SIP
Revisions in Response to the January 2022 FFS and April 2023 FFS \7\
------------------------------------------------------------------------
EPA region State and/or local air agency
------------------------------------------------------------------------
1...................................... Rhode Island.
3...................................... District of Columbia.
[[Page 93190]]
3...................................... West Virginia.
4...................................... Alabama.
4...................................... Tennessee-Shelby (Memphis).
5...................................... Illinois.
5...................................... Ohio.
8...................................... South Dakota.
10..................................... Washington-Energy Facility Site
Evaluation Council.
10..................................... Washington-Southwest Clean Air
Agency.
------------------------------------------------------------------------
On March 1, 2024, the United States Court of Appeals for the
District of Columbia Circuit issued a decision in Environ. Comm. Fl.
Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024). The Court granted the
petitions in part, vacating the SIP calls that were based on SIP
provisions that included automatic exemptions, director's discretion
provisions, and ``complete affirmative defenses'' (i.e. affirmative
defenses that are functionally exemptions); and denied the petitions in
part, affirming the SIP calls based on SIP provisions that included
overbroad enforcement discretion provisions and affirmative defenses
against specific relief. As a result of the D.C. Circuit's decision in
Environ. Comm. Fl. Elec. Power v. EPA, the EPA is partially withdrawing
the January 2022 FFS and the April 2023 FFS. Because certain portions
of the SIP call were vacated by the D.C. Circuit and therefore have no
legal effect, the States and/or local air agencies with provisions to
which those vacated portions of the SIP call previously applied no
longer have a legal obligation to submit the revisions that the EPA had
originally determined were required pursuant to the 2015 SSM SIP
Call.\8\ Further, as there is no longer a predicate submission
obligation for those particular SIP-called provisions, the EPA's
findings that such obligation was not met are no longer valid and must
be withdrawn.
---------------------------------------------------------------------------
\7\ The EPA and its state partners work regularly on SIP
requirements including plan development, review and approval. Often,
national actions like this partial FFS withdrawal overlap with
ongoing actions for specific areas. At or about the same time this
direct final action is promulgated, the EPA is also taking separate
final action on two SIP revisions related to today's action: (1)
Tennessee-Shelby (Memphis) SIP call revision submitted to the EPA on
March 2, 2022. See 89 FR 74165, September 12, 2024. Once finalized,
Tennessee-Shelby (Memphis) will have a fully approved SIP revision
that partially responds to the January 2022 FFS. The FFS obligations
will remain in effect for a portion of the Tennessee-Shelby
(Memphis) SIP. For more information, see the Tennessee-Shelby
(Memphis) Final Rule, (Docket ID No. EPA-R4-OAR-2023-0361) at
https://www.regulations.gov/docket/EPA-R04-OAR-2023-0361. (2)
Washington-Energy Facility Site Evaluation Council (EFSEC) SIP call
revision submitted on June 15, 2023. See 89 FR 84322, October 22,
2024. Once finalized, Washington-EFSEC will have a fully approved
SIP revision in response to the January 2022 FFS and will have
fulfilled their FFS obligations. For more information, see the
Washington-EFSEC Final Rule, (Docket ID EPA-R10-OAR-2024-0372) at
https://www.regulations.gov/docket/EPA-R10-OAR-2024-0372.
\8\ In vacating certain portions of the 2015 SSM SIP Action, the
D.C. Circuit's decision did not determine whether the SIP-called
provisions were otherwise lawful under the CAA. See e.g. slip op. at
55 (``We thus do not reach the question whether the called SIPs'
relevant emission restrictions in fact amount to (or must amount to)
``emission limitations'' per the statutory definition.).
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III. Partial Withdrawals of Findings of Failure To Submit
As a result of this final action, the January 22, 2022, national
FFS and April 17, 2023, FFS are partially withdrawn with respect to the
State and/or local air agency SIP provisions listed in Table 3.
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\9\ Because the D.C. Circuit only vacated certain portions of
the EPA's 2015 SSM SIP Action, the 2015 SIP Call is still applicable
for certain provisions in some states. As such, the EPA is only
withdrawing the FFS as they apply to those provisions corresponding
to the vacatur. As a result, the FFS remain in place for provisions
that correspond to the portions of the 2015 SSM SIP Action that were
not vacated (i.e. provisions that were SIP called because they
include an affirmative defense that provides specific relief and
provisions that constitute overbroad enforcement discretion). Some
states were included in the FFS for both types of provision.
Table 3--SIP Provisions for Which the EPA Is Withdrawing the Agency's
Findings of Failure To Submit \9\
------------------------------------------------------------------------
Applicable provisions
Region State/local air for which the FFS are
agency withdrawn
------------------------------------------------------------------------
1............................. Rhode Island..... 25-4-13 R.I. Code R.
Sec. 16.2.
3............................. District of D.C. Mun. Regs. tit.
Columbia. 20 Sec. 107.3.
D.C. Mun. Regs. tit.
20 Sec. 606.1.
D.C. Mun. Regs. tit.
20 Sec. 606.2.
West Virginia.... W. Va. Code R. Sec.
45-2-9.1.
W. Va. Code R. Sec.
45-7-10.3.
W. Va. Code R. Sec.
45-40-100.8.
W. Va. Code R. Sec.
45-2-10.1.
W. Va. Code R. Sec.
45-3-7.1.
W. Va. Code R. Sec.
45-5-13.1.
W. Va. Code R. Sec.
45-6-8.2.
W. Va. Code R. Sec.
45-7-9.1.
W. Va. Code R. Sec.
45-7-10.4.
W. Va. Code R. Sec.
45-10-9.1.
W. Va. Code R. Sec.
45-21-9.3.
W. Va. Code R. Sec.
45-3-3.2.
W. Va. Code R. Sec.
45-2-10.2.
4............................. Alabama.......... Ala Admin Code Rule
335-3-14-.03(1)(h)(1
).
Ala Admin Code Rule
335-3-14-
.03(1)(h)(2).
[[Page 93191]]
5............................. Ohio............. Ohio Admin. Code 3745-
15-06(A)(3).
Ohio Admin. Code 3745-
17-07(A)(3)(c).
Ohio Admin. Code 3745-
17- 07(B)(11)(f).
Ohio Admin. Code 3745-
14-11(D).
Ohio Admin. Code 3745-
15-06(C).
8............................. South Dakota..... S.D. Admin. R.
74:36:12:02(3).
------------------------------------------------------------------------
IV. Consequences of Withdrawn Portions of Findings of Failure To Submit
and Remaining Air Agency Obligations
For those State and/or local air agency SIP provisions listed in
Table 3 of Section III for which the FFS are withdrawn, the CAA
deadlines for the EPA to impose sanctions under CAA sections 179(a) and
(b) and promulgate a FIP under CAA section 110(c) are no longer
applicable. For those State and/or local jurisdiction SIP provisions in
which the FFS are not withdrawn and are still applicable, the CAA
deadlines for the EPA to impose sanctions under CAA sections 179(a) and
(b) and promulgate a FIP under CAA section 110(c) remain in effect as
previously established.10 11 The States and/or local air
agencies for which the FFS are not withdrawn and mandatory CAA
deadlines remain in effect can be found in Table 4.
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\10\ See 87 FR 1680, 1682.
\11\ See 88 FR 88 FR 23353, 23354-23355.
Table 4--States and/or Local Air Agencies With Remaining FFS Obligations
------------------------------------------------------------------------
Applicable provisions
EPA region State and/or for which the FFS
local air agency remain in effect
------------------------------------------------------------------------
3............................. District of D.C. Mun. Regs. tit.
Columbia. 20 Sec. 606.4.
3............................. West Virginia.... W. Va. Code R. Sec.
45-2-9.4.
4............................. Tennessee-Shelby Shelby County Code
(Memphis). Sec. 16-87.
5............................. Illinois......... Ill. Admin. Code tit.
35 Sec. 201.261.
Ill. Admin. Code tit.
35 Sec. 201.262.
Ill. Admin. Code tit.
35 Sec. 201.265.
10............................ Washington-Energy Wash. Admin. Code
Facility Site Sec. 463-39-005.
Evaluation
Council.
10............................ Washington- SWCAA 400-107.
Southwest Clean
Air Agency.
------------------------------------------------------------------------
IV. Final Action
In light of the D.C. Circuit's decision in Environ. Comm. Fl. Elec.
Power v. EPA, the EPA is taking final action to partially withdraw its
finding that 12 air agencies have failed to submit SIP revisions in
response to the 2015 SSM SIP Action that were statutorily due no later
than November 22, 2016, and to partially withdraw the EPA Region 3's
finding that West Virginia failed to submit a SIP revision in response
to the 2015 SSM SIP Action that was statutorily due no later than
November 22, 2016. The six States and/or local air agencies affected by
this final withdrawal action are: Alabama, District of Columbia, Ohio,
Rhode Island, South Dakota, and West Virginia.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
(E.O.) can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Orders 12866: Regulatory Planning and Executive Order
13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the provisions of the PRA. This final action does not establish any new
information collection requirement apart from what is already required
by law. This action relates to the requirement in the CAA for States to
submit SIPs in response to findings of substantial inadequacy under CAA
section 110(k)(5).
D. 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. This action
relates to the requirement in the CAA for States to submit SIPs in
response to findings of substantial inadequacy under CAA section
110(k)(5).
E. Unfunded Mandates Reform Act of 1995 (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. The action imposes no enforceable duty on any State,
local or Tribal governments, or the private sector.
F. 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.
[[Page 93192]]
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. This action finds that several air agencies have
failed to submit SIP revisions in response to findings of substantial
inadequacy under section 110(k)(5) of the CAA. No Tribe is subject to
the requirement to submit an implementation plan under the findings of
inadequacy relevant to this action. Thus, Executive Order 13175 does
not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern 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 relates to the requirement in the CAA for States to submit
SIPs in response to findings of substantial inadequacy under CAA
section 110(k)(5) and does not directly or disproportionately affect
children.
I. 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.
J. National Technology Transfer and Advancement Act (NTTAA)
This final action does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on communities with EJ concerns.
The EPA believes it is not practicable to assess whether the
conditions that exist prior to this proposed action result in
disproportionate and adverse effects on people of color, low-income
populations, and/or indigenous peoples. While it is difficult to assess
the environmental justice implications of this proposed action because
the EPA cannot geographically identify or quantify the resulting
source-specific emission reductions, the EPA recognizes the potential
for neutral or adverse environmental justice issues associated with
this action. However, the EPA views this action as a necessary
procedural step following the D.C. Circuit decision and vacatur of
portions of the 2015 SSM SIP call.
L. 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).
M. Judicial Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the United States Court of Appeals for the
District of Columbia Circuit: (i) when the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) when such action is locally or
regionally applicable, but ``such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.'' For locally or regionally applicable final actions,
the CAA reserves to the EPA complete discretion whether to invoke the
exception in (ii).
This final action is ``nationally applicable'' within the meaning
of CAA section 307(b)(1). In the alternative, to the extent a court
finds this final action to be locally or regionally applicable, the
Administrator is exercising the complete discretion afforded to him
under the CAA to make and publish a finding that this action is based
on a determination of ``nationwide scope or effect'' within the meaning
of CAA section 307(b)(1).\12\ This final action consists of a partial
withdrawal of findings of failure to submit required SIPs from six
States and/or local air jurisdictions, including the District of
Columbia, located in 5 of the 10 EPA regions, and in 6 different
federal judicial circuits.\13\ This final action is also based on a
common core of factual findings concerning the receipt and completeness
of the relevant SIP submittals. For these reasons, this final action is
nationally applicable or, alternatively, the Administrator is
exercising the complete discretion afforded to him by the CAA and
hereby finds that this final action is based on a determination of
nationwide scope or effect for purposes of CAA section 307(b)(1) and is
hereby publishing that finding in the Federal Register.
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\12\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator has
also taken into account a number of policy considerations, including
his judgment balancing the benefit of obtaining the D.C. Circuit's
authoritative centralized review versus allowing development of the
issue in other contexts and the best use of Agency resources.
\13\ In the report on the 1977 Amendments that revised section
307(b)(1) of the CAA, Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
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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 District of Columbia Circuit within 60 days from the date this
final action is published in the Federal Register. Filing a petition
for reconsideration by the Administrator of this final action does not
affect the finality of the action for the purposes of judicial review,
nor does it extend the time within which a petition for judicial review
must be filed and shall not postpone the effectiveness of such rule or
action.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedures,
Air pollution control, Approval and promulgation of implementation
plans, Incorporation by reference, Intergovernmental relations, and
Reporting and recordkeeping requirements.
Joseph Goffman,
Assistant Administrator.
[FR Doc. 2024-27263 Filed 11-25-24; 8:45 am]
BILLING CODE 6560-50-P
