Proposed Rule2021-26406
Air Plan Approval; AK; Removal of Excess Emissions Provision
Primary source
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Published
December 6, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Alaska, through the Alaska Department of Environment Conservation, on January 9, 2017. The revision was submitted by Alaska in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, for a provision in the Alaska SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. EPA is proposing approval of the SIP revision and proposing to determine that such SIP revision corrects the deficiency identified in the June 12, 2015, SIP call.
Full Text
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<title>Federal Register, Volume 86 Issue 231 (Monday, December 6, 2021)</title>
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[Federal Register Volume 86, Number 231 (Monday, December 6, 2021)]
[Proposed Rules]
[Pages 68960-68961]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26406]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2017-0031; FRL-9177-01-R10]
Air Plan Approval; AK; Removal of Excess Emissions Provision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
State of Alaska, through the Alaska Department of Environment
Conservation, on January 9, 2017. The revision was submitted by Alaska
in response to a finding of substantial inadequacy and SIP call
published on June 12, 2015, for a provision in the Alaska SIP related
to excess emissions during startup, shutdown, and malfunction (SSM)
events. EPA is proposing approval of the SIP revision and proposing to
determine that such SIP revision corrects the deficiency identified in
the June 12, 2015, SIP call.
DATES: Comments must be received on or before January 5, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2017-0031 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://regulations.gov">regulations.gov</a>. EPA may publish any comment
received to its public docket. Do not electronically submit any
information you consider to be Confidential Business Information (CBI)
or other information, the disclosure of which 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. 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, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Randall Ruddick, EPA Region 10, 1200
Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999; or email
<a href="/cdn-cgi/l/email-protection#c9bbbcadada0aaa2e7bba8a7ada8a5a589acb9a8e7aea6bf"><span class="__cf_email__" data-cfemail="087a7d6c6c616b63267a69666c696464486d7869266f677e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or
``our'' is used, it refers to EPA.
Table of Contents
I. Background
II. Analysis of SIP Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Review
I. Background
On February 22, 2013, a Federal Register notice of proposed
rulemaking was published outlining EPA's policy at the time with
respect to SIP provisions related to periods of SSM. 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.\1\
For each SIP provision that EPA determined to be inconsistent with the
CAA, 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,
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. EPA outlined its updated policy that affirmative defense SIP
provisions are not consistent with CAA requirements. 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).
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\1\ 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).
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On June 12, 2015, pursuant to CAA section 110(k)(5), 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,'' (80 FR 33839, June 12, 2015), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption 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. 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. The detailed rationale for issuing the SIP
call to Alaska can be found in the 2015 SSM SIP Action and preceding
proposed actions.
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.\2\ 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 Alaska in 2015. The 2020 Memorandum did,
however, indicate EPA's intent at the time to review SIP calls that
were issued in the 2015 SSM SIP Action to determine whether EPA should
maintain, modify, or withdraw particular SIP calls through future
agency actions.
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\2\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\3\ 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
[[Page 68961]]
contained in a SIP submission. 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 EPA's intent. EPA intends to implement the principles
laid out in the 2015 SSM SIP Action as the agency takes action on SIP
submissions, including this SIP submittal provided in response to the
2015 SIP call.
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\3\ 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.
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With regard to the Alaska SIP, in the 2015 SSM SIP Action, EPA
determined that 18 AAC 50.240 was substantially inadequate to meet CAA
requirements (80 FR 33973, June 12, 2015). The provision provided:
``Excess emissions determined to be unavoidable under this section will
be excused and are not subject to penalty. This section does not limit
the department's power to enjoin the emission or require corrective
action.'' The rationale underlying EPA's determination that the
provision was substantially inadequate to meet CAA requirements, and
therefore to issue a SIP call to Alaska to remedy the provision, is
detailed in the 2015 SSM SIP Action and the accompanying proposals.
Alaska submitted a SIP revision on January 9, 2017, in response to
the SIP call issued in the 2015 SSM SIP Action. In its submission,
Alaska is requesting that EPA revise the Alaska SIP by removing 18 AAC
50.240 in its entirety, thereby removing this provision from the Alaska
SIP.
II. Analysis of SIP Submission
EPA is proposing to approve Alaska's January 9, 2017, SIP
submission, which would remove the provision identified as inconsistent
with CAA requirements from the Alaska SIP. Alaska is retaining 18 AAC
50.240 for state law purposes only, with revisions to clarify that (1)
all excess emissions are violations and (2) the provision applies only
to Alaska in exercising its enforcement authority and therefore does
not preclude citizens or EPA from seeking injunctive relief or civil
penalties for excess emissions. Alaska submitted the revised state-only
version of 18 AAC 50.240 solely for informational purposes to show a
complete record of the clarifications. Based on the revisions to 18 AAC
50.240 made by Alaska and Alaska's request to remove it from the Alaska
SIP, EPA proposes to find that Alaska's January 9, 2017, SIP revision
is consistent with CAA requirements and adequately addresses the
specific deficiencies that EPA identified in the 2015 SSM SIP Action
with respect to the Alaska SIP.
III. Proposed Action
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is
proposing to approve Alaska's January 9, 2017, SIP submission
requesting removal of 18 AAC 50.240 ``Excess Emissions'' from the
Alaska SIP. We are proposing approval of the SIP revision because we
have determined that it is consistent with the requirements for SIP
provisions under the CAA. EPA is further proposing to determine that
such SIP revision corrects the deficiency identified in the June 12,
2015, SIP call. EPA is not reopening the 2015 SSM SIP Action and is
only taking comment on whether this SIP revision is consistent with CAA
requirements and whether it addresses the substantial inadequacy in the
specific Alaska SIP provision (18 AAC 50.240) identified in the 2015
SSM SIP Action.
IV. Incorporation by Reference
In this document, EPA is proposing to remove in a final rule,
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to remove the
incorporation by reference of ``18 AAC 50.240'' in 40 CFR 52.70, as
described in Section II of this preamble. EPA has made, and will
continue to make, these documents generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at the EPA Region 10 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves removal of State law not meeting
Federal requirements and does not impose additional requirements beyond
those already imposed by State law. For that reason, this proposed
action:
<bullet> 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 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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 CAA; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The Alaska SIP does not apply on any Indian reservation land or in
any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, this
rulemaking does not have tribal implications as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000), nor will it impose
substantial direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 30, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2021-26406 Filed 12-3-21; 8:45 am]
BILLING CODE 6560-50-P
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