Proposed Rule2023-03575
State Implementation Plans: Findings of Substantial Inadequacy and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction
Primary source
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Published
February 24, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Consistent with the Environmental Protection Agency's (EPA's) policy interpretation for State Implementation Plan (SIP) provisions applying to excess emissions during periods of Startup, Shutdown and Malfunction (SSM) as outlined in EPA's 2015 SSM SIP Action, the EPA is proposing to reinstate its findings of substantial inadequacy and associated "SIP calls" that were withdrawn in 2020 for the states of Texas, North Carolina, and Iowa for SSM provisions in those states' SIPs that do not comply with statutory requirements and EPA's SSM Policy. The EPA is also proposing to issue new findings of substantial inadequacy and SIP calls to the state of Connecticut (CT); the state of Maine (ME); Shelby County, Tennessee (TN); the state of North Carolina (NC); Buncombe County, NC; Mecklenburg County, NC; the state of Wisconsin (WI); and the state of Louisiana (LA), for additional SSM provisions identified as deficient by the Agency.
Full Text
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<title>Federal Register, Volume 88 Issue 37 (Friday, February 24, 2023)</title>
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[Federal Register Volume 88, Number 37 (Friday, February 24, 2023)]
[Proposed Rules]
[Pages 11842-11865]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03575]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2022-0814; FRL-9836-01-OAR]
RIN 2060-AV79
State Implementation Plans: Findings of Substantial Inadequacy
and SIP Calls To Amend Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown, and Malfunction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed action.
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SUMMARY: Consistent with the Environmental Protection Agency's (EPA's)
policy interpretation for State Implementation Plan (SIP) provisions
applying to excess emissions during periods of Startup, Shutdown and
Malfunction (SSM) as outlined in EPA's 2015 SSM SIP Action, the EPA is
proposing to reinstate its findings of substantial inadequacy and
associated ``SIP calls'' that were withdrawn in 2020 for the states of
Texas, North Carolina, and Iowa for SSM provisions in those states'
SIPs that do not comply with statutory requirements and EPA's SSM
Policy. The EPA is also proposing to issue new findings of substantial
inadequacy and SIP calls to the state of Connecticut (CT); the state of
Maine (ME); Shelby County, Tennessee (TN); the state of North Carolina
(NC); Buncombe County, NC; Mecklenburg County, NC; the state of
Wisconsin (WI); and the state of Louisiana (LA), for additional SSM
provisions identified as deficient by the Agency.
DATES: Comments. Written comments must be received on or before April
25, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID EPA-HQ-OAR-2022-0814. All documents in the docket are listed
on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section for
additional availability information. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: For information about this proposed
action, contact Sydney Lawrence, Office of Air Quality Planning and
Standards, Air Quality Policy Division, C504-05, U.S. Environmental
Protection Agency, Research Triangle Park, NC; telephone number: (919)
541-4768; email address: <a href="/cdn-cgi/l/email-protection#630f021411060d00064d101a070d061a230613024d040c15"><span class="__cf_email__" data-cfemail="264a4751544348454308555f4248435f6643564708414950">[email protected]</span></a>.
[[Page 11843]]
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA. For information related to a specific SIP,
please contact the appropriate EPA Regional office:
----------------------------------------------------------------------------------------------------------------
Contact for Regional office (person, mailing
EPA Regional office address, and telephone number) State
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Region 1....................... Alison Simcox, EPA Region 1, 5 Post Office Square, CT, ME.
Suite 100, Boston, Massachusetts 02109,
<a href="/cdn-cgi/l/email-protection#dba8b2b6b8b4a3f5bab7b2a8b4b59bbeabbaf5bcb4ad"><span class="__cf_email__" data-cfemail="cfbca6a2aca0b7e1aea3a6bca0a18faabfaee1a8a0b9">[email protected]</span></a>, (617) 918-1684.
Region 4....................... Brad Akers, EPA Region 4, Atlanta Federal Center, NC, TN.
61 Forsyth Street SW, Atlanta, Georgia 30303,
<a href="/cdn-cgi/l/email-protection#e5848e809796cb87978481a5809584cb828a93"><span class="__cf_email__" data-cfemail="f7969c928584d995859693b7928796d9909881">[email protected]</span></a>, (404) 562-9089.
Joel Huey, EPA Region 4, Atlanta Federal Center, 61
Forsyth Street SW, Atlanta, Georgia 30303,
<a href="/cdn-cgi/l/email-protection#5d3528382473373238311d382d3c733a322b"><span class="__cf_email__" data-cfemail="81e9f4e4f8afebeee4edc1e4f1e0afe6eef7">[email protected]</span></a>, (404) 562-9104.
Region 5....................... Michael Leslie, EPA Region 5, 77 West Jackson WI.
Boulevard, Chicago, Illinois 60604,
<a href="/cdn-cgi/l/email-protection#58343d2b34313d7635313b30393d34183d2839763f372e"><span class="__cf_email__" data-cfemail="e28e87918e8b87cc8f8b818a83878ea2879283cc858d94">[email protected]</span></a>, (312) 353-6680.
Region 6....................... Alan Shar, EPA Region 6, 1201 Elm Street, Suite LA, TX.
500, Dallas, TX 75270, <a href="/cdn-cgi/l/email-protection#13607b72613d727f727d537663723d747c65"><span class="__cf_email__" data-cfemail="4f3c272e3d612e232e210f2a3f2e61282039">[email protected]</span></a>, (214)
665-6691.
Region 7....................... Ashley Keas, EPA Region 7, 11201 Renner Boulevard, IA.
Lenexa, Kansas 66219, <a href="/cdn-cgi/l/email-protection#345f5155471a55475c58514d745144551a535b42"><span class="__cf_email__" data-cfemail="2e454b4f5d004f5d46424b576e4b5e4f00494158">[email protected]</span></a>, (913)
551-7629.
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I. General Information
A. How is the preamble organized?
The information presented in this document is organized as follows:
I. General Information
A. How is this preamble organized?
B. Does this action apply to me?
C. Where can I get a copy of this document and other related
information?
D. What should I consider as I prepare my comments?
E. What is the meaning of key terms used in this document?
II. Brief Timeline of Actions Relevant to This Proposed Action
III. Overview of Proposed Action
A. To which air agencies does this action apply to and why?
B. What is the EPA proposing for any state that receives a
finding of substantial inadequacy and a SIP call?
C. What are potential impacts on affected states and sources?
D. What happens in an affected state in the interim period
starting when the EPA promulgates the final SIP call and ending when
the EPA approves the required SIP revision?
E. What happens if a state fails to meet the SIP submission
deadline or if the EPA disapproves the SIP submission?
IV. Is this action in response to any petitions for rulemaking?
V. Statutory, Regulatory, and Policy Background
A. EPA's 2015 SSM SIP Action
B. SSM SIP Call Withdrawals for Texas, North Carolina, and Iowa
C. 2020 Wheeler Memo and Subsequent Withdrawal via 2021 McCabe
Memo
VI. Proposed Action To Reinstate Findings of Substantial Inadequacy
and Issue SIP Calls for North Carolina, Texas, and Iowa
A. North Carolina
B. Texas
C. Iowa
VII. Proposed Action To Issue Additional Findings of Substantial
Inadequacy and SIP Calls for Connecticut, Maine, North Carolina,
Including Buncombe and Mecklenburg Counties, Shelby County,
Tennessee, Wisconsin, and Louisiana
A. Connecticut
B. Maine
C. North Carolina
D. Tennessee
E. Wisconsin
F. Louisiana
VIII. Legal Authority, Process, and Timing for SIP Calls
A. SIP Call Process Under CAA Section 110(k)(5)
B. SIP Call Timing Under CAA Section 110(k)(5)
C. Severability
IX. Environmental Justice Considerations
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Judicial Review
XI. Statutory Authority
B. Does this action apply to me?
Entities potentially affected by this action include states, U.S.
territories, local authorities and eligible Tribes that are currently
administering, or may in the future administer, the EPA approved
implementation plans (``air agencies''). While recognizing similarity
to (and in some instances overlap with) issues concerning other air
programs, e.g., concerning SSM provisions in EPA's regulatory programs
for New Source Performance Standards (NSPS) pursuant to section 111 and
National Emission Standards for Hazardous Air Pollutants (NESHAP)
pursuant to section 112, the EPA notes that the issues addressed in
this document are specific to SSM provisions in the SIP program.
Through this action, the EPA is applying an interpretation
consistent with the CAA outlined in its 2015 SSM SIP Action \1\ with
respect to SIP provisions applicable to excess emissions during SSM
events in general (``SSM Policy''). Applying that interpretation, EPA
is issuing findings that the SIPs of eight states (10 statewide and
local jurisdictions) are substantially inadequate to meet CAA
requirements, pursuant to CAA section 110(k)(5), and thus those states
(named in sections VI. and VII. of this document) are directly affected
by this action. This action may also be of interest to the public and
to owners and operators of industrial facilities that are subject to
emission limitations in SIPs, because it will require changes to
certain state rules applicable to excess emissions during SSM events.
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\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).
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C. Where can I get a copy of this document and other related
information?
The EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2022-0814. Publicly available docket materials are available
either electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a> or in hard
copy at the EPA Docket Center, EPA/DC, William Jefferson Clinton
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC. The
telephone number for the Public Reading Room is
[[Page 11844]]
(202) 566-1744 and the telephone number for the Office of Air and
Radiation Docket and Information Center is (202) 566-1742. For further
information on EPA Docket Center services and the current status,
please visit us online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
D. What should I consider as I prepare my comments?
1. Submitting CBI. Do not submit information containing CBI to the
EPA through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Clearly mark the part or all
of the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, mark the outside of the
digital storage media as CBI and then identify electronically within
the digital storage media the specific information that is claimed as
CBI. In addition to one complete version of the comments that includes
information claimed as CBI, you must submit a copy of the comments that
does not contain the information claimed as CBI directly to the public
docket through the procedures outlined in Instructions. If you submit
any digital storage media that does not contain CBI, mark the outside
of the digital storage media clearly that it does not contain CBI.
Information not marked as CBI will be included in the public docket and
EPA's electronic public docket without prior notice. Information marked
as CBI will not be disclosed except in accordance with procedures set
forth in 40 Code of Federal Regulations (CFR) part 2. Our preferred
method to receive CBI 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, <a href="/cdn-cgi/l/email-protection#84ebe5f5f4f7e7e6edc4e1f4e5aae3ebf2"><span class="__cf_email__" data-cfemail="4d222c3c3d3e2e2f240d283d2c632a223b">[email protected]</span></a>, and should include clear CBI
markings as described later. 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 <a href="/cdn-cgi/l/email-protection#325d5343424151505b725742531c555d44"><span class="__cf_email__" data-cfemail="f59a9484858696979cb5908594db929a83">[email protected]</span></a> to request a file transfer link. If
sending CBI 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 No. EPA-HQ-OAR-2022-0814. The
mailed CBI material should be double wrapped and clearly marked. Any
CBI markings should not show through the outer envelope.
2. Tips for preparing your comments. When submitting comments,
remember to:
<bullet> Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date, and
page number).
<bullet> Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
<bullet> Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
<bullet> Describe any assumptions and provide any technical
information and/or data that you used.
<bullet> If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
<bullet> Provide specific examples to illustrate your concerns and
suggest alternatives.
<bullet> Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
<bullet> Make sure to submit your comments by the comment period
deadline identified.
E. What is the meaning of key terms used in this document? <SUP>2</SUP>
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\2\ The EPA previously defined many of these key terms, which
can be found in the 2015 SSM SIP Action. See 80 FR 33840 at 33842.
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For the purpose of this document, the following definitions apply
unless the context indicates otherwise:
The terms Act or CAA or the statute mean or refer to the Clean Air
Act.
The term affirmative defense means, in the context of an
enforcement proceeding, a response or defense put forward by a
defendant, regarding which the defendant has the burden of proof, and
the merits of which are independently and objectively evaluated in a
judicial or administrative proceeding. The term affirmative defense
provision means more specifically a state law provision in a SIP that
specifies particular criteria or preconditions that, if met, would
purport to preclude a court from imposing monetary penalties or other
forms of relief for violations of SIP requirements in accordance with
CAA section 113 or CAA section 304.
The term Agency means or refers to the EPA. When not capitalized,
this term refers to an agency in general and not specifically to the
EPA.
The terms air agency and air agencies mean or refer to states, the
District of Columbia, U.S. territories, local air permitting
authorities with delegated authority from the state and Tribal
authorities with appropriate CAA jurisdiction.
The term alternative emission limitation means, in this document,
an emission limitation in a SIP that applies to a source during some
but not all periods of normal operation (e.g., applies only during a
specifically defined mode of operation such as startup or shutdown). An
alternative emission limitation is a component of a continuously
applicable SIP emission limitation, and it may take the form of a
control measure such as a design, equipment, work practice or
operational standard (whether or not numerical). This definition of the
term is independent of the statutory use of the term ``alternative
means of emission limitation'' in CAA sections 111(h)(3) and 112(h)(3),
which pertain to the conditions under which the EPA may, pursuant to
sections 111 and 112, promulgate emission limitations, or components of
emission limitations, that are not necessarily in numeric format.
The term automatic exemption means a generally applicable provision
in a SIP that would provide that if certain conditions existed during a
period of excess emissions, then those exceedances would not be
considered violations of the applicable emission limitations.
The term director's discretion provision means, in general, a
regulatory provision that authorizes a state regulatory official
unilaterally to grant exemptions or variances from otherwise applicable
emission limitations or control measures, or to excuse noncompliance
with otherwise applicable emission limitations or control measures,
which would be binding on the EPA and the public.
The term EPA refers to the United States Environmental Protection
Agency.
The term EPA's SSM Policy refers to EPA's national policy
interpretation of the CAA in which SIP provisions cannot include
exemptions from emission limitations for emissions during SSM events.
In order to be permissible in a SIP, an emission limitation must be
applicable to the source continuously, i.e., cannot include periods
during which emissions from the source are legally or functionally
exempt from regulation. Regardless of its form, a fully approvable SIP
emission limitation must also meet all substantive requirements of the
CAA applicable to such a SIP provision, e.g., the statutory requirement
of CAA section 172(c)(1)
[[Page 11845]]
for imposition of Reasonably Available Control Measures (RACM) and
Reasonably Available Control Technology (RACT) on sources located in
designated nonattainment areas. The EPA clarified its SSM Policy in its
2015 SSM SIP Action and reiterated that policy interpretation in the
McCabe memo.
The term emission limitation means, in the context of a SIP, a
legally binding restriction on emissions from a source or source
category, such as a numerical emission limitation, a numerical emission
limitation with higher or lower levels applicable during specific modes
of source operation, a specific technological control measure
requirement, a work practice standard, or a combination of these things
as components of a comprehensive and continuous emission limitation in
a SIP provision. In this respect, the term emission limitation is
defined as in section 302(k) of the CAA. By definition, an emission
limitation can take various forms or a combination of forms, but in
order to be permissible in a SIP it must be applicable to the source
continuously, i.e., cannot include periods during which emissions from
the source are legally or functionally exempt from regulation.
Regardless of its form, a fully approvable SIP emission limitation must
also meet all substantive requirements of the CAA applicable to such a
SIP provision, e.g., the statutory requirement of CAA section 172(c)(1)
for imposition of reasonably available control measures and reasonably
available control technology (RACM and RACT) on sources located in
certain designated nonattainment areas.
The term excess emissions means the emissions of air pollutants
from a source that exceed any applicable SIP emission limitation. In
particular, this term includes those emissions above the otherwise
applicable SIP emission limitation that occur during startup, shutdown,
malfunction or other modes of source operation, i.e., emissions that
would be considered violations of the applicable emission limitation
but for an impermissible automatic or discretionary exemption from such
emission limitation.
The term malfunction means a sudden and unavoidable breakdown of
process or control equipment.
The term McCabe memo refers to the guidance memorandum titled,
``Withdrawal of the October 9, 2020, Memorandum Addressing Startup,
Shutdown, and Malfunctions in State Implementation Plans and
Implementation of the Prior Policy'' issued by EPA Deputy Administrator
Janet McCabe on September 30, 2021.
The term NAAQS means national ambient air quality standard or
standards. These are the national primary and secondary ambient air
quality standards that the EPA establishes under CAA section 109 for
criteria pollutants for purposes of protecting public health and
welfare.
The term practically enforceable means, in the context of a SIP
emission limitation, that the limitation is enforceable as a practical
matter (e.g., contains appropriate averaging times, compliance
verification procedures and recordkeeping requirements). The term uses
``practically'' as it means ``in a practical manner'' and not as it
means ``almost'' or ``nearly.'' In this document, the EPA uses the term
``practically enforceable'' as interchangeable with the term
``practicably enforceable.''
The term shutdown means, generally, the cessation of operation of a
source for any reason. In this document, the EPA uses this term in the
generic sense. In individual SIP provisions it may be appropriate to
include a specifically tailored definition of this term to address a
particular source category for a particular purpose.
The term SIP means or refers to a State Implementation Plan.
Generally, the SIP is the collection of state statutes and regulations
approved by the EPA pursuant to CAA section 110 that together provide
for implementation, maintenance and enforcement of a national ambient
air quality standard (or any revision thereof) promulgated under
section 109 for any air pollutant in each air quality control region
(or portion thereof) within a state. In some parts of this document,
statements about SIPs in general would also apply to tribal
implementation plans in general even though not explicitly noted.
The term SIP Call refers to the requirement for a revised SIP in
response to a finding by the EPA that a SIP is ``substantially
inadequate'' to meet CAA requirements pursuant to CAA section
110(k)(5), entitled ``Calls for plan revisions.'' Following such a
finding, the EPA shall require the State to revise the plan as
necessary to correct such inadequacies.
The term 2015 SSM SIP Action refers to the final action taken by
the EPA in a Federal Register document (80 FR 33840; June 12, 2015) on
June 12, 2015, which responded to a June 30, 2011, petition filed by
Sierra Club titled, ``Petition to Find Inadequate and Correct Several
State Implementation Plans under section 110 of the Clean Air Act Due
to Startup, Shutdown, Malfunction, and/or Maintenance Provisions,''
restated and updated its national policy regarding SSM provisions in
SIPs, and found pursuant to CAA section 110(k)(5) that a number of the
identified provisions were ``substantially inadequate'' to meet CAA
requirements, requiring certain states to amend those provisions.
The term SSM refers to startup, shutdown, or malfunction at a
source. It does not include periods of maintenance at such a source. An
SSM event is a period of startup, shutdown, or malfunction during which
there may be exceedances of the applicable emission limitations and
thus excess emissions.
The term startup means, generally, the setting in operation of a
source for any reason. In this document, the EPA uses this term in the
generic sense. In an individual SIP provision, it may be appropriate to
include a specifically tailored definition of this term to address a
particular source category for a particular purpose.
The term Wheeler memo refers to the guidance memorandum titled
``Inclusion of Provisions Governing Periods of Startup, Shutdown, and
Malfunctions in State Implementation Plans'' issued by EPA
Administrator Andrew Wheeler on October 9, 2020.
II. Brief Timeline of Actions Relevant to This Proposed Action
This section provides a brief timeline of several relevant past
actions that provide context for the proposed action included in this
document. Additional detail about these past actions is provided in
section V., Statutory, Regulatory, and Policy Background of this
document.
June 2011: On June 30, 2011, Sierra Club filed a petition for
rulemaking asking EPA to consider how certain identified air agency
rules in EPA-approved SIPs treated excess emissions during periods of
startup, shutdown, or malfunction of industrial process or emission
control equipment.
June 2015: On June 12, 2015, following notice and public comment,
the EPA published a final action that responded to the Sierra Club
Petition, restated and updated its national policy regarding SSM
provisions in SIPs, and found pursuant to CAA section 110(k)(5) that a
number of the identified provisions were ``substantially inadequate''
to meet CAA requirements, requiring 36 states (45 state and local
jurisdictions) to amend those provisions.\3\ This action is referred to
as the 2015 SSM SIP Action.
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\3\ See Id.
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February 2020: On February 7, 2020, EPA Region 6 published a final
action that withdrew the SIP call issued to
[[Page 11846]]
Texas as part of the 2015 SSM SIP Action.\4\
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\4\ See 85 FR 7232 (February 7, 2020).
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April 2020: On April 28, 2020, Region 4 published a final action
that withdrew the SIP call issued to North Carolina as part of the 2015
SSM SIP Action.\5\
---------------------------------------------------------------------------
\5\ See 85 FR 23700 (April 28, 2020).
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October 2020: On October 9, 2020, then-EPA Administrator Andrew
Wheeler issued a new guidance memorandum that superseded the guidance
provided in the 2015 SSM SIP Action on two subjects: exemptions and
affirmative defense provisions. This memorandum is referred to in this
document as the ``Wheeler memo.''
November 2020: On November 17, 2020, EPA Region 7 published a final
action that withdrew the SIP call issued to Iowa as part of EPA's 2015
SSM SIP Action.\6\
---------------------------------------------------------------------------
\6\ See 85 FR 73218 (November 17, 2020).
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September 2021: On September 30, 2021, EPA Deputy Administrator
Janet McCabe issued a memorandum titled ``Withdrawal of the October 9,
2020, Memorandum Addressing Startup, Shutdown, and Malfunctions in
State Implementation Plans and Implementation of the Prior Policy,''
which withdrew the Wheeler memo and reinstated EPA's SSM Policy as
outlined in the 2015 SSM SIP Action. This memorandum is referred to in
this document as the ``McCabe memo.''
III. Overview of Proposed Action
In this document, in accordance with EPA's policy for SIP
provisions applying to excess emissions during periods of SSM outlined
in EPA's 2015 SSM SIP Action, EPA is proposing to reinstate its
findings of substantial inadequacy and associated SIP calls that were
withdrawn in 2020 for the states of Texas, North Carolina, and Iowa for
SSM provisions in those SIPs that do not comply with statutory
requirements and EPA's SSM Policy. EPA is also proposing to issue new
findings of substantial inadequacy and SIP calls to the state of
Connecticut; the state of Maine; the state of North Carolina; Shelby
County, Tennessee; Buncombe County, North Carolina; Mecklenburg County,
North Carolina; the state of Wisconsin; and the state of Louisiana for
additional SSM provisions identified as deficient by the Agency.
These actions apply interpretations consistent with EPA's SSM SIP
policy as outlined in the 2015 SSM SIP Action, which explained in
detail the reasons why the EPA finds certain types of SSM provisions to
be substantially inadequate as a matter of both law and policy under
the CAA. Generally, in the 2015 SSM SIP Action, the EPA found that
these types of provisions, described in section V.A of this document,
are inconsistent with certain requirements of the CAA, also described
in more detail in that section. The EPA also described policy
rationales to support this action. The EPA noted in the 2015 SSM SIP
Action that the identified types of provisions allow opportunities for
sources to emit pollutants during SSM periods repeatedly and in
quantities that could cause unacceptable air pollution in nearby
communities with no legal pathway within the existing EPA-approved SIP
for air agencies, the EPA, the public or the courts to require the
sources to make reasonable efforts to reduce these emissions.\7\ In the
time since the 2015 SSM SIP Action, the EPA has taken substantial steps
to address these deficient provisions. Nevertheless, the continued
existence of impermissible SSM provisions in certain SIPs has the
potential to lessen the incentive for development of control strategies
that are effective at reducing emissions during startup and shutdown,
even though such strategies could become increasingly helpful in
achieving the primary air quality objectives of the CAA (e.g.,
attainment and maintenance of the NAAQS and the protection of public
health and the environment). Accordingly, to ensure that all
populations across the affected states, including minority, low-income
and indigenous populations overburdened by pollution, receive the full
health and environmental protections provided by the CAA, EPA is
issuing the additional SIP Calls described in this document to address
additional deficient provisions not identified in the 2015 action, and
re-issuing certain SIP calls that the Agency erroneously withdrew in
2020.
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\7\ See 80 FR 33840 at 33843.
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A. To which air agencies does this action apply to and why?
This proposed action applies to the states with statewide and/or
local provisions relevant to excess emissions that the EPA has
determined are impermissible because they are inconsistent with CAA
requirements as interpreted by EPA's SSM Policy. Specifically, the EPA
is proposing to issue findings of substantial inadequacy with respect
to reinstating the 2015 findings for three states (North Carolina,
Texas, and Iowa) and issuing new findings with respect to the specific
existing SIP provisions in six states (Maine, Connecticut, North
Carolina, Tennessee, Louisiana, and Wisconsin) that the EPA is
proposing to find are inconsistent with the CAA and EPA's SSM Policy.
The eight states in total (for provisions applicable in 10 statewide
and local jurisdictions) are listed in Table 1, ``List of States and/or
Local Jurisdictions with SSM Provisions for Which EPA Proposes to SIP
Call.''
Table 1--List of State and/or Local Jurisdictions With SSM Provisions for Which EPA Proposes to SIP Call
----------------------------------------------------------------------------------------------------------------
State/local jurisdiction EPA region Provision
----------------------------------------------------------------------------------------------------------------
Connecticut................................. 1 Connecticut Administrative Code Title 22a Chapter
174 section 38(c)(11).
Maine....................................... 1 Maine Administrative Code 06-096 Chapter 138
section 3-O.
Maine Administrative Code 06-096 Chapter 150
section 4-C.
North Carolina.............................. 4 North Carolina Administrative Code Title 15A
Chapter 02 Subchapter D section .0535(c) and (g).
North Carolina Administrative Code Title 15A
Chapter 02 Subchapter D section 1423(g).
North Carolina (Mecklenburg County)......... 4 Mecklenburg County Air Pollution Control Ordinance
Rule section 2.0535(c).
North Carolina (Buncombe County) \a\........ 4 Western North Carolina Regional Air Quality Agency
Air Code section 1-137(c).
Tennessee (Shelby County)................... 4 Shelby County Air Code 3-17 (City of Memphis Code
16-83).
Wisconsin................................... 5 Wisconsin Administrative Code Chapter NR 431.05(1)-
(2) and Chapter NR 436.03(2).
Louisiana................................... 6 Louisiana Administrative Code Title 33 Chapter 9
section 917.
Texas....................................... 6 Texas Administrative Code Title 30 Part 1 Chapter
101 Subchapter F Division 3 section 101.222(b)-
(e).
[[Page 11847]]
Iowa........................................ 7 Iowa Administrative Code Agency 567 Chapter 24
Rule 24.1(1).
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\a\ The EPA notes that the local agency formerly referred to as the Western North Carolina Regional Air Quality
Agency has recently been renamed as the Asheville-Buncombe Air Quality Agency. This program and the
corresponding portion of the North Carolina SIP, codified at 40 CFR 52.1770(c)(4), covers Buncombe County in
North Carolina. The version of the code approved into the SIP is codified as the Western North Carolina
Regional Air Quality Agency (WNCRAQA) Air Code.
B. What is EPA proposing for any state that receives a finding of
substantial inadequacy and a SIP call?
If the EPA finalizes a finding of substantial inadequacy and issues
a SIP call for any state, EPA's final action will establish a deadline
by which the state must make a SIP submission to rectify the
deficiency. Pursuant to CAA section 110(k)(5), the EPA has authority to
set a SIP submission deadline up to 18 months from the date of the
final finding of substantial inadequacy. Accordingly, the EPA is
proposing that if it issues a final finding of substantial inadequacy
and SIP call for a state, the EPA will establish a date 18 months from
the date of promulgation of the final finding for the state to respond
to the SIP call. Thereafter, the EPA will review the adequacy of that
new SIP submission in accordance with the CAA requirements of sections
110(a), 110(k), 110(l), 113(b), 113(e), 193, and 304, including EPA's
interpretation of the CAA reflected in the SSM Policy as explained in
the 2015 SSM SIP Action. Considering the affected air agencies' need to
develop appropriate regulatory provisions to address the SIP call and
conduct any required processes for developing a SIP, we are proposing
the 18-month due date because we believe that states should be provided
the maximum time allowable under CAA section 110(k)(5) in order to
ensure they have sufficient time. EPA expects that such a schedule will
allow for the necessary SIP development process to correct the
deficiencies yet still achieve the necessary SIP improvements as
expeditiously as practicable. In light of the potential for public
health impacts during this time period, we solicit comment on whether
establishing a shorter time period than 18 months could instead be
sufficient for the affected air agencies to develop their submittals.
C. What are potential impacts on affected states and sources?
The issuance of a SIP call would require an affected state \8\ to
take action to revise its SIP to correct identified deficiencies. That
action by the state may, in turn, affect sources as described later in
this document. Any state that receives a SIP call because of SSM
provisions has options as to exactly how to revise its SIP to correct
the deficiency. In response to a SIP call, a state retains broad
discretion concerning how to revise its SIP, so long as that revision
is consistent with the requirements of the CAA. Some provisions that
may be identified in a final SIP call--for example, an automatic
exemption provision--would have to be removed entirely and an affected
source could no longer depend on the exemption to avoid all liability
for excess emissions. Some other provisions--for example, a problematic
enforcement discretion provision or affirmative defense provision--
could either be removed entirely from the SIP or retained if revised
appropriately, in accordance with EPA's interpretation of the CAA as
described in EPA's 2015 SSM SIP Action. The EPA notes that if a state
removes a SIP provision that pertains to the state's exercise of
enforcement discretion, this removal will not affect the ability of the
state to use discretion in its state enforcement program.
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\8\ For the purposes of this action, the term ``state''
generally refers to both state and local air agencies identified in
this document.
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The legal effect of a final SIP call is to direct the state to
revise its SIP. Thus, the EPA anticipates that affected states will
undertake their processes to determine how to resolve the identified
deficiencies. The EPA further anticipates that the remedy may differ
depending on what type of provision is implicated in the SIP call. For
example, where specific emission limits applicable to specific sources
are implicated, states may choose to consider reassessing particular
emission limitations to determine whether those limits can be revised
such that well-managed emissions during planned operations such as
startup and shutdown would not exceed the revised emission limitation,
while still protecting air quality. A revision of an emission
limitation made in response to a SIP call must be submitted to the EPA
for approval. The EPA would then review the SIP revision for
consistency with the CAA requirements of sections 110(a), 110(k),
110(l), 113(b), 113(e), 193, and 304, including EPA's interpretation of
the CAA reflected in its SSM Policy, as explained in the 2015 SSM SIP
Action. A state that chooses to revise particular emission limitations,
in addition to removing the aspect of the existing provision that is
inconsistent with CAA requirements, could include those revisions in
the same SIP submission that addresses the SSM provisions identified in
the SIP call, or it could submit them separately.
D. What happens in an affected state in the interim period starting
when the EPA promulgates the final SIP call and ending when the EPA
approves the required SIP revision?
When the EPA issues a final SIP call to a state, that action alone
does not cause any automatic change in the legal status of the existing
affected provision(s) in the SIP or as a matter of state law. The SIP
revision process typically begins with a state regulatory action to
revise the underlying state provision. Once that action is completed,
and consistent with state regulatory processes, a rule may be in effect
at the state level even before it is submitted to the EPA as part of a
SIP. Furthermore, the rule may be in effect at the state level during
the time in which the SIP revision is pending before the EPA for
review. During the time that the state takes to develop a SIP revision
in response to the SIP call and the time that the EPA takes to evaluate
and act upon the resulting SIP submission from the state pursuant to
CAA section 110(k), the existing affected SIP provision(s) will remain
in place. The EPA recognizes that in the interim period, there may
continue to be instances of excess emissions that adversely affect
attainment and maintenance of the NAAQS, interfere
[[Page 11848]]
with Prevention of Significant Deterioration (PSD) increments,
interfere with visibility and cause other adverse consequences as a
result of the impermissible provisions. The EPA is particularly
concerned about the potential for public health impacts in this interim
period during which states, the EPA, and sources make necessary
adjustments to rectify deficient SIP provisions and take steps to
improve source compliance. However, given the need to resolve these
longstanding SIP deficiencies in a careful and comprehensive fashion,
the EPA believes that providing sufficient time consistent with
statutory constraints for these corrections to occur will ultimately be
the best course to meet the ultimate goal of eliminating the
inappropriate SIP provisions and replacing them with provisions
consistent with CAA requirements.
E. What happens if a state fails to meet the SIP submission deadline or
if the EPA disapproves the SIP submission?
If, in the future, the EPA finds that a state that is subject to
this SIP call, should it be finalized, has failed to submit a complete
SIP revision as required by the final rule, or the EPA disapproves such
a SIP revision, then the finding or disapproval would trigger an
obligation for the EPA to impose a federal implementation plan (FIP)
within 24 months after that date. In addition, if a state fails to make
the required SIP revision, or if the EPA disapproves the required SIP
revision, then either event can also trigger mandatory 18-month and 24-
month sanctions clocks under CAA section 179. The two sanctions that
apply under CAA section 179(b) are the 2-to-1 emission offset
requirement for all new and modified major sources subject to the
nonattainment new source review program, and restrictions on highway
funding in nonattainment areas. More details concerning the timing and
process of the SIP call, and potential consequences of the SIP call,
are provided in section VIII. of this document.
IV. Is this action in response to any petitions for rulemaking?
While the 2015 SSM SIP Action was published in response to a Sierra
Club petition for rulemaking, this 2023 SSM SIP Call proposed action is
not intended to serve as a response to any petitions for rulemaking.
The EPA is aware that the subject matter of this proposed action
overlaps with two petitions.\9\ If this action is finalized, EPA
intends to address separately whether any additional action is
necessary to respond to those petitions.
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\9\ See ``Petition to Find Inadequate and Correct Wisconsin's
State Implementation Plan under Section 110 of the Clean Air Act Due
to Unlawful Startup, Shutdown, and Maintenance Provisions'' filed by
the Midwest Environmental Defense Center (MEDC) on June 7, 2012, and
``Petition for Reconsideration and Rulemaking Addressing Startup,
Shutdown, and Malfunction Loopholes in State Implementation Plans''
filed by Sierra Club on April 12, 2021.
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V. Statutory, Regulatory, and Policy Background
This section provides relevant background on EPA's SSM policy under
the CAA, as outlined in the 2015 SSM SIP Action. It briefly describes
the 2015 SSM SIP Action and the types of provisions EPA found to be
deficient in issuing the SIP Calls in 2015. The EPA is applying an
interpretation consistent with its SSM policy in issuing the notices of
deficiency in the current action. This section also describes the three
SIP Call withdrawals made by EPA in 2020 for North Carolina, Texas, and
Iowa, as further background for the proposal to reinstate them. It also
provides background on an October 2020 EPA memorandum announcing
changes to EPA's SSM Policy, the subsequent withdrawal of that
memorandum in September 2021, and the reinstatement of EPA's SSM Policy
as outlined in the 2015 SSM SIP Action.
This section is provided as background and is not intended to
interpret or alter these previous withdrawal actions. For details,
consult the original actions using the references provided. We
emphasize that the SIP calls in the current action are an application
of existing policy from the 2015 Action that was adopted through notice
and comment rulemaking, and that the EPA's SSM policy as outlined in
the 2015 SSM SIP Action remains valid, binding, and in effect. By
providing these descriptions, the EPA is not reopening its
interpretation of the CAA regarding SSM provisions in SIPs for comment.
The Agency had an extensive comment period for the policy
interpretations underlying the 2015 SSM SIP Action. Any comments on
EPA's interpretation of the CAA should have been filed in that Action.
Because the current Proposed Action is simply an application of EPA's
SSM policy, the EPA is seeking comments only on the applicability of
the 2015 SSM SIP Action's interpretation of the Act to the states that
the EPA proposes to SIP call in later sections of this document.
A. EPA's 2015 SSM SIP Action
On June 30, 2011, Sierra Club filed a petition for rulemaking (June
2011 Sierra Club petition) asking the EPA to consider how identified
air agency rules in EPA-approved SIPs treated excess emissions during
periods of startup, shutdown, or malfunction of industrial process or
emission control equipment. On June 12, 2015, the EPA responded to the
Sierra Club petition, restated and updated its national policy
regarding SSM provisions in SIPs, and found pursuant to CAA section
110(k)(5) that a number of the identified provisions were
``substantially inadequate'' to meet CAA requirements, requiring
certain states to amend those provisions. As mentioned previously in
this document, this action is referred to as the 2015 SSM SIP Action.
In the 2015 SSM SIP Action, among other things, the EPA clarified
its position on the following issues.
Emission Limitation
The term emission limitation is explicitly defined in section
302(k) of the CAA: ``a requirement established by the State or the
Administrator which limits the quantity, rate, or concentration of
emissions of air pollutants on a continuous basis, including any
requirement relating to the operation or maintenance of a source to
assure continuous emission reduction, and any design, equipment, work
practice or operational standard promulgated under this chapter.'' In
the context of a SIP, EPA views an emission limitation as a legally
binding restriction on emissions from a source or source category, such
as a numerical emission limitation, a numerical emission limitation
with higher or lower levels applicable during specific modes of source
operation, a specific technological control measure requirement, a work
practice standard, or a combination of these things as components of a
comprehensive and continuous emission limitation in a SIP provision. By
definition, an emission limitation can take various forms or a
combination of forms, but in order to be permissible in a SIP it must
be applicable to the source continuously, i.e., cannot include periods
during which emissions from the source are legally or functionally
exempt from regulation. Regardless of its form, a fully approvable SIP
emission limitation must also meet all substantive requirements of the
CAA applicable to such a SIP provision, e.g., the statutory requirement
of CAA section 172(c)(1) for imposition of reasonably available control
measures and reasonably
[[Page 11849]]
available control technology (RACM and RACT) on sources located in
certain designated NAAs.\10\
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\10\ See 80 FR 33840 at 33842.
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Automatic Exemption Provisions
Automatic exemption provisions are generally applicable provisions
in a SIP that would provide that if certain conditions exist during a
period of excess emissions, then those exceedances would not be
considered violations of the applicable emission limitations.\11\ In
the 2015 SSM SIP Action, the EPA stated that automatic exemption
provisions in SIPs were impermissible in SIPs and, where SIP provisions
provide an automatic exemption from otherwise applicable emission
limitations, they are substantially inadequate to meet CAA
requirements. EPA's longstanding view, as articulated in the 1982 SSM
Guidance, 1983 SSM Guidance, 1999 SSM Guidance, 2001 SSM Guidance, and
in the 2015 SSM SIP Action, is that SIP provisions that include
automatic exemptions for excess emissions during SSM events, such that
the excess emissions during those events are not considered violations
of the applicable emission limitations, do not meet CAA
requirements.\12\ Such exemptions undermine the attainment and
maintenance of the NAAQS, protection of PSD increments and improvement
of visibility, and SIP provisions that include such exemptions fail to
meet these and other fundamental requirements of the CAA. Even where
exempted SSM emissions are not currently causing or contributing to an
exceedance of a NAAQS or PSD increment, automatic exemption provisions
undermine the assurance that affected communities have that this will
continue to be the case (for example, if emissions increase in the
future, from SSM events or otherwise). Automatic exemptions also lessen
incentives for sources to take necessary steps to prevent exempted
emissions from causing exceedances, and they remove a pathway for EPA
and the public to remedy such exceedances if they result from exempted
emissions. In addition, the EPA interprets CAA sections 110(a)(2)(A)
and 110(a)(2)(C) to require that SIPs that contain ``emission
limitations'' must meet CAA requirements. Pursuant to CAA section
302(k), those emission limitations must be ``continuous.'' Automatic
exemptions from otherwise applicable emission limitations thus render
those limits less than continuous and thereby inconsistent with a
fundamental requirement of the CAA, specifically sections 302(k),
110(a)(2)(A) and 110(a)(2)(C). As such, automatic exemption provisions
are substantially inadequate to meet CAA requirements and, thus,
require SIP call under section 110(k)(5).
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\11\ See Id.
\12\ See 80 FR 33840 at 33849, 33889.
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Director's Discretion Provisions
Director's discretion provisions, in general, are regulatory
provisions that authorize a state regulatory official unilaterally to
grant exemptions or variances from otherwise applicable emission
limitations or control measures, or to excuse noncompliance with
otherwise applicable emission limitations or control measures, which
would be binding on the EPA and the public.\13\ In the 2015 SSM SIP
Action, the EPA stated that, for the same reasons as automatic
exemptions, but for additional reasons as well, unbounded director's
discretion provisions were impermissible in SIPs, and SIP provisions
that allow discretionary exemptions from otherwise applicable emission
limitations are substantially inadequate to meet CAA requirements.
Primarily, director's discretion provisions violate a fundamental
requirement of the CAA because they serve to create exemptions from
otherwise applicable emission limitations, which, as is discussed
above, is inconsistent with the CAA's requirement that such emission
limitations operate continuously. Director's discretion provisions are
additionally problematic because, unless it is possible at the time of
the approval of the SIP provision to anticipate and analyze the impacts
of the potential exercise of the director's discretion, such provisions
functionally could allow de facto revisions of the approved emission
limitations required by the SIP, without complying with the process for
SIP revisions required by the CAA. Sections 110(a)(1) and (2) of the
CAA impose procedural requirements on states that seek to amend SIP
provisions. The elements of CAA section 110(a)(2) and other sections of
the CAA, depending upon the subject of the SIP provision at issue,
impose substantive requirements that states must meet in a SIP
revision. Section 110(i) of the CAA prohibits modification of SIP
requirements for stationary sources by either the state or the EPA,
except through specified processes.
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\13\ See 80 FR 33840 at 33842.
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The 2015 document went on to explain that section 110(k) of the CAA
imposes procedural and substantive requirements on the EPA for action
upon any SIP revision. Sections 110(l) and 193 of the CAA both impose
additional procedural and substantive requirements on the state and the
EPA in the event of a SIP revision. Key among these many requirements
for a SIP revision would be the necessary demonstration that the SIP
revision in question would not interfere with any requirement
concerning attainment and reasonable further progress or ``any other
applicable requirement of'' the CAA to meet the requirements of CAA
section 110(l). The EPA interprets the statute to prohibit director's
discretion provisions unless they would be consistent with the
statutory and regulatory requirements that apply to SIP revisions.\14\
A SIP provision that purports to give broad and unbounded director's
discretion to alter the existing legal requirements of the SIP with
respect to meeting emission limitations would be tantamount to allowing
a revision of the SIP without meeting the applicable procedural and
substantive requirements for such a SIP revision. EPA's approval of a
SIP provision that purported to allow unilateral revisions of the
emission limitations in the SIP by the state, without complying with
the statutory requirements for a SIP revision, would itself be contrary
to fundamental procedural and substantive requirements of the CAA. The
2015 document also described EPA's efforts to discourage these
provisions and to remove existing provisions that it had previously
approved in error.
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\14\ See, e.g., EPA's implementing regulations at 40 CFR
51.104(d) (``In order for a variance to be considered for approval
as a revision to the [SIP], the State must submit it in accordance
with the requirements of this section'') and 51.105 (``Revisions of
a plan, or any portion thereof, will not be considered part of an
applicable plan until such revisions have been approved by the
Administrator in accordance with this part.'').
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In addition, discretionary exemptions undermine effective
enforcement of the SIP by the EPA or through a citizen suit, because
often there may have been little or no public process concerning the
exercise of director's discretion to grant the exemptions, or easily
accessible documentation of those exemptions. Thus, even ascertaining
the possible existence of such ad hoc exemptions will further burden
parties who seek to evaluate whether a given source is in compliance or
to pursue enforcement if it appears that the source is not. Where there
is little or no public process concerning such ad hoc exemptions, or
there is inadequate access to relevant documentation of those
exemptions, enforcement by the EPA or through a citizen suit may be
severely compromised. As explained in the 1999
[[Page 11850]]
SSM Guidance,\15\ the EPA does not interpret the CAA to allow SIP
provisions that would allow the exercise of director's discretion
concerning violations to bar enforcement by the EPA or through a
citizen suit. The exercise of director's discretion to exempt conduct
that would otherwise constitute a violation of the SIP would interfere
with effective enforcement of the SIP. Such provisions are inconsistent
with and undermine the enforcement structure of the CAA provided in CAA
sections 113 and 304, which provide independent authority to the EPA
and citizens to enforce SIP provisions, including emission limitations.
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\15\ See EPA's 1999 SSM Guidance (Memorandum to EPA Regional
Administrators, Regions I-X from Steven A. Herman and Robert
Perciasepe, USEPA, Subject: State Implementation Plans: Policy
Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown, dated September 20, 1999).
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Affirmative Defense Provisions
Affirmative defense provisions, in the context of enforcement
proceedings, mean that a state law provision in a SIP that specifies
particular criteria or preconditions that, if met, would purport to
preclude a court from imposing monetary penalties or other forms of
relief for violations of SIP requirements in accordance with CAA
section 113 or CAA section 304.\16\ In the 2015 SSM SIP Action, the EPA
stated that affirmative defense provisions were impermissible in SIPs,
and SIP provisions that provide an affirmative defense for excess
emissions during SSM events are substantially inadequate to meet CAA
requirements. A typical SIP provision that includes an impermissible
affirmative defense operates to limit or eliminate the jurisdiction of
federal courts to assess liability or to impose remedies in an
enforcement proceeding for exceedances of SIP emission limitations.
Some affirmative defense provisions apply broadly, whereas others are
components of specific emission limitations. Some provisions use the
explicit term ``affirmative defense,'' whereas others are structured as
such provisions but do not use this specific terminology. All of these
provisions, however, share the same legal deficiency in that they
purport to alter the statutory jurisdiction of federal courts under
section 113 and section 304 to determine liability and to impose
remedies for violations of CAA requirements, including SIP emission
limitations. Accordingly, an affirmative defense provision that
operates to limit or to eliminate the jurisdiction of the federal
courts would undermine the enforcement structure of the CAA and would
thus be substantially inadequate to meet fundamental requirements in
CAA sections 113 and 304. By undermining enforcement, such provisions
may also be inconsistent with fundamental CAA requirements such as
attainment and maintenance of the NAAQS, protection of PSD increments
and improvement of visibility.
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\16\ See 80 FR 33840 at 33842.
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SIP Call Authority Under Section 110(k)(5)
Finally, the EPA also provided in the 2015 SSM SIP Action a
description of the SIP Call mechanism that it used to address the
substantial inadequacies it identified. This is the same mechanism we
are proposing to use to address the inadequacies identified in this
document. In 2015, the EPA noted that the CAA provides a mechanism for
the correction of flawed SIPs, under CAA section 110(k)(5), which
provides that, ``Whenever the Administrator finds that the applicable
implementation plan for any area is substantially inadequate . . . or
to otherwise comply with any requirement of [the Act], the
Administrator shall require the State to revise the plan as necessary
to correct such inadequacies.'' \17\
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\17\ See CAA section 110(k)(5).
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By its explicit terms, this provision authorizes the EPA to find
that a state's existing SIP is ``substantially inadequate'' to meet CAA
requirements and, based on that finding, to ``require the State to
revise the [SIP] as necessary to correct such inadequacies.'' This type
of action is commonly referred to as a ``SIP call.'' \18\
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\18\ The EPA also has other discretionary authority to address
incorrect SIP provisions, such as the authority in CAA section
110(k)(6) for the EPA to correct errors in prior SIP approvals. The
authority in CAA section 110(k)(5) and CAA section 110(k)(6) can
sometimes overlap and offer alternative mechanisms to address
problematic SIP provisions. In this instance, the EPA believes that
the mechanism provided by CAA section 110(k)(5) is the better
approach, because it may be difficult to avoid eliminating the
affected emission limitations from the SIP by using the mechanism of
the CAA section 110(k)(6) error correction, potentially leaving no
emission limitation in place, whereas the mechanism of the CAA
section 110(k)(5) SIP call is guaranteed to keep the provisions in
place during the pendency of the state's revision of the SIP and
EPA's action on that revision. In the case of provisions that
include impermissible automatic exemptions or discretionary
exemptions, the EPA believes that retention of the existing SIP
provision is preferable to the absence of the provision in the
interim. In addition, in this particular situation, EPA believes
that allowing states the flexibility to correct substantial
inadequacies relating to SSM in their own SIPs, subject to EPA's
review, is appropriate under the CAA's cooperative federalism
framework.
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Consistent with the approach taken in the 2015 SSM SIP Action,
section 110(k)(5) explicitly authorizes the EPA to issue a SIP call
``whenever'' the EPA makes a finding that the existing SIP is
substantially inadequate, thus providing authority for the EPA to take
action to correct existing inadequate SIP provisions even long after
their initial approval, or even if the provisions only become
inadequate due to subsequent events.\19\ The provision gives the EPA
authority to identify any deficiency in a SIP that currently exists,
regardless of the fact that the EPA previously approved that particular
provision in the SIP and regardless of when that approval occurred. CAA
section 110(k)(5) authorizes the EPA to take action with respect to SIP
provisions that are substantially inadequate to meet any CAA
requirements, including requirements relevant to the proper treatment
of excess emissions during SSM events. As is discussed in detail in the
sections above, there are serious legal and practical consequences from
impermissible SSM provisions appearing in SIPs, making it clear to EPA
that such provisions are appropriately categorized as substantially
inadequate. Further detail on EPA's SIP Call authority under section
110(k)(5) can be found in section VIII of this document.
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\19\ See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000)
(upholding the ``NO<INF>X</INF> SIP Call'' to states requiring
revisions to previously approved SIPs with respect to ozone
transport and CAA section 110(a)(2)(D)(i)(I)); ``Action to Ensure
Authority To Issue Permits Under the Prevention of Significant
Deterioration Program to Sources of Greenhouse Gas Emissions:
Finding of Substantial Inadequacy and SIP Call; Final rule,'' 75 FR
77698 (December 13, 2010) (the EPA issued a SIP call to 13 states
because the endangerment finding for GHGs meant that these
previously approved SIPs were substantially inadequate because they
did not provide for the regulation of GHGs in the PSD permitting
programs of these states as required by CAA section 110(a)(2)(C) and
section 110(a)(2)(J)); ``Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State Implementation Plan
Revision,'' 74 FR 21639 (April 18, 2011) (EPA issued a SIP call to
rectify SIP provisions dating back to 1980).
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B. SSM SIP Call Withdrawals for Texas, North Carolina, and Iowa
Texas: Texas Administrative Code (TAC) Title 30 Part 1 Chapter 101
Subchapter F Division 3 Section 101.222(b)-(e)
In the 2015 SSM SIP Action, the EPA granted a June 30, 2011, Sierra
Club petition with respect to 30 TAC 101.222(b)-(e), finding that these
provisions were substantially inadequate to meet the requirements of
the CAA and issuing a SIP call for those provisions.\20\
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\20\ See 80 FR 33840 at 33968.
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In that action, the EPA found 30 TAC 101.222(b)-(e) to be
substantially
[[Page 11851]]
inadequate to meet the requirements of the Act on the basis that these
provisions operate to alter or eliminate federal courts' jurisdiction
to determine penalties for violations of SIP requirements and,
therefore, undermine Congress's grant of jurisdiction, and are
inconsistent with CAA requirements.\21\ These provisions provide
affirmative defenses as to civil penalties for sources of excess
emissions that occur during upsets (section 101.222(b)), unplanned
events (section 101.222(c)), upsets with respect to opacity limits
(section 101.222(d)), and unplanned events with respect to opacity
limits (section 101.222(e)). These provisions provide a narrowly
tailored affirmative defense for emissions that exceed applicable
emissions limitations that occur during upsets and unplanned MSS
activities. The EPA considers both ``upsets'' and ``unplanned MSS
activities'' to be functionally equivalent to malfunctions, as
discussed in the 2015 SSM SIP Action.
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\21\ See 80 FR 33840 at 33851-53.
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On February 7, 2020, EPA Region 6 published a final action finding
that 30 TAC 101.222(b)-(e) were permissible affirmative defense
provisions after seeking the EPA headquarters concurrence to deviate
from EPA's national policy announced in the 2015 SSM SIP Action.\22\
The Region 6 action stated that imposition of a penalty for sudden and
unavoidable malfunctions caused by circumstances beyond the control of
the owner or operator may not be appropriate. In the context of
unplanned events or malfunctions, the Region 6 action indicated that
even process equipment or a control device that is properly designed,
maintained, and operated can sometimes fail. At the same time, as
outlined in the 2015 SSM SIP Action, the EPA has a fundamental
responsibility under the CAA to ensure that SIPs provide for attainment
and maintenance of the NAAQS and protection of air quality increments
in the Prevention of Significant Deterioration (PSD) program. After
balancing these considerations, the Region 6 action concluded that the
Texas SIP provisions containing affirmative defenses were appropriately
narrowly tailored and would not undermine the fundamental requirement
of attainment and maintenance of the NAAQS, or any other requirement of
the CAA. The Region 6 document determined that 30 TAC 101.222(b), 30
TAC 101.222(c), 30 TAC 101.222(d), and 30 TAC 101.222(e) were not
substantially inadequate to meet the requirements of the Act and
withdrew the SIP call issued to Texas as part of the 2015 SSM SIP
Action.
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\22\ 85 FR 7232 (February 7, 2020).
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North Carolina
In the 2015 SSM SIP Action, the EPA granted a June 30, 2011, Sierra
Club petition with respect to provisions 15A NCAC 02D .0535(c) and 15A
NCAC 02D .0535(g), finding that those provisions were substantially
inadequate to meet the requirements of the CAA and issuing a SIP call
for those provisions.\23\
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\23\ See 80 FR 33840 at 33964.
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In that action, the EPA found 15A NCAC 02D .0535(c) and 15A NCAC
02D .0535(g) to be substantially inadequate to meet the requirements of
the Act on the basis that these provisions provide exemptions for
emissions exceeding otherwise applicable SIP emission limitations at
the discretion of the state agency during SSM events.
On April 28, 2020, EPA Region 4 published a final action adopting
an alternative policy allowing certain automatic exemption provisions
and director's discretion provisions in SIPs for the state of North
Carolina.\24\ The Region 4 document interpreted CAA section
110(a)(2)(A) to allow for ``exemptions from numerical emission limits
so long as the SIP contains a set of emission limitations, control
measures or other means or techniques, which, taken as a whole, meet
the requirements of attaining and maintaining the NAAQS under subpart
A.'' \25\ After evaluating the SIP as a whole and determining that the
SIP, collectively, was protective of the NAAQS, the Region 4 document
concluded that automatic exemption provisions were permissible in the
NC SIP. Region 4 also found that director's discretion provisions,
because they are more limited in scope than automatic exemption
provisions, likewise did not render the SIP inadequate.
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\24\ See 85 FR 23700.
\25\ See Id. at 23705.
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In light of the alternative policy regarding automatic exemption
provisions for North Carolina, Region 4 determined that 15A NCAC 02D
.0535(c) and 15A NCAC 02D .0535(g) were not substantially inadequate to
meet the requirements of the Act and withdrew the SIP call issued to
North Carolina as part of the 2015 SSM SIP Action. Additionally, the
Region 4 notice approved a SIP revision submitted by the NC Department
of Air Quality (DAQ), through a letter dated June 5, 2017, which sought
to change North Carolina's SIP-approved rule regarding nitrogen oxides
(NO<INF>X</INF>) emissions from large internal combustion engine
sources at 15A NCAC 02D .1423, Large Internal Combustion Engines. This
rule, 15A NCAC 02D.1423, was not included in the 2015 SSM SIP Call
Action but includes a provision that automatically exempts periods of
SSM and scheduled maintenance activities from regulation.\26\
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\26\ See 80 FR at 33880. 15A NCAC 02D .1423 was not included in
the 2015 SSM SIP Action but is included in this document under
section VII.C.2 of this document.
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Iowa
In the 2015 SSM SIP Action, the EPA granted the Sierra Club's
petition with respect to IAC 567-24.1(1), finding that the provision
was substantially inadequate to meet the requirements of the CAA and
issued a SIP call for that provision.
In that action, the EPA found IAC 567-24.1(1) to be substantially
inadequate to meet the requirements of the Act on the basis that this
provision automatically allows for automatic exemptions from the
otherwise applicable SIP emission limitations.\27\ This provision
explicitly states that excess emissions during periods of startup,
shutdown, and cleaning of control equipment are not violations of the
emission standard.\28\
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\27\ See 80 FR 33840 at 33969.
\28\ The provision does not provide for an exemption during
periods of malfunction. However, for ease of reference, the EPA
refers to the provision as an ``SSM'' provision in order to align
with public comments which regularly reference ``SSM'' events and
provisions.
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In a June 22, 2020, supplemental notice of proposed rulemaking, EPA
Region 7 articulated the interpretation that the general requirements
in CAA section 110 to attain and maintain the NAAQS, along with the
latitude provided to states through the SIP development process, create
a framework in which a state may be able to ensure attainment and
maintenance of the NAAQS notwithstanding the presence of SSM exemptions
in the SIP.\29\ On November 17, 2020, EPA Region 7 published a final
action that adopted this interpretation.\30\ On October 9, 2020, the
EPA issued the Wheeler memo to revise SSM policy. Among other things,
the memo discussed this interpretation in more detail and adopted it as
agency policy. That memo is described in more detail in the next
section, section V.C., of this document. In light of this agency
policy, EPA Region 7 determined IAC 567-24.1(1) was not substantially
inadequate to meet the requirements of the Act and withdrew the SIP
call issued to Iowa as part of EPA's 2015 SSM SIP Action. In
[[Page 11852]]
finalizing the Iowa SIP call withdrawal, the EPA referred to the
October 2020 policy memorandum, outlining a new national policy related
to specific SIP provisions governing excess emissions during SSM
events.\31\
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\29\ See 85 FR 37405 (June 22, 2020).
\30\ See 85 FR 73218 (November 17, 2020).
\31\ Memorandum from Administrator Wheeler to Regional
Administrators, dated October 9, 2020, titled, ``Inclusion of
Provisions Governing Periods of Startup, Shutdown, and Malfunctions
in State Implementation Plans.'' <a href="https://www.epa.gov/air-quality-implementation-plans/guidance-inclusion-provisions-governing-periods-startup-shutdown">https://www.epa.gov/air-quality-implementation-plans/guidance-inclusion-provisions-governing-periods-startup-shutdown</a>.
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C. 2020 Wheeler Memo and Subsequent Withdrawal via 2021 McCabe Memo
As mentioned in section V.B. of this document, on October 9, 2020,
the EPA issued a guidance memorandum outlining a new national policy
related to specific SIP provisions governing excess emissions during
SSM events.\32\ The new guidance memorandum superseded the guidance
provided in the 2015 SSM SIP Action on two subjects: exemptions and
affirmative defense provisions. Importantly, it did not alter 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. This memorandum was signed by Administrator
Andrew Wheeler and is referred to in this document as the ``Wheeler
memo.''
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\32\ Memorandum from Administrator Wheeler to Regional
Administrators, dated October 9, 2020, titled, ``Inclusion of
Provisions Governing Periods of Startup, Shutdown, and Malfunctions
in State Implementation Plans.'' <a href="https://www.epa.gov/air-quality-implementation-plans/guidance-inclusion-provisions-governing-periods-startup-shutdown">https://www.epa.gov/air-quality-implementation-plans/guidance-inclusion-provisions-governing-periods-startup-shutdown</a>.
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Specifically, with regard to exemption provisions, the Wheeler memo
stated that such provisions--both those referred to as ``automatic
exemptions'' and those termed ``director discretion provisions'' in the
2015 SSM SIP Action--may be permissible in SIPs under certain
circumstances. The EPA stated that the general requirements in CAA
section 110 to attain and maintain the NAAQS and the latitude provided
to states through the SIP development process create a framework in
which a state may be able to ensure attainment and maintenance of the
NAAQS notwithstanding the presence of SSM exemptions in the SIP.
Additionally, the EPA stated that it is permissible for a SIP to
contain SSM exemptions only if the SIP is composed of numerous planning
requirements that are collectively NAAQS-protective by design. Such
redundancies, the EPA stated, help to ensure that the NAAQS are both
attained and maintained, which was Congress's goal in creating the SIP
development and adoption process. In evaluating whether the
requirements of a SIP are collectively NAAQS protective despite the
inclusion of an SSM exemption provision, the guidance memorandum stated
that the EPA would conduct an in-depth analysis of the SIP, including a
multifactor, weight-of-evidence exercise that balances many
considerations. For director's discretion provisions, the EPA stated
that any such provisions would necessarily be more protective of the
NAAQS than a similarly-applicable automatic exemption provision, and
may be appropriate in similar circumstances.
With respect to affirmative defenses, the Wheeler memo stated that
affirmative defenses may be permissible in SIPs if they are narrowly
tailored so as not to undermine the fundamental requirement of
attainment and maintenance of the NAAQS, or any other requirement of
the CAA. The Wheeler memo reflected a policy interpretation previously
held by the EPA in its 1999 SSM Guidance stating that an affirmative
defense provision could generally be considered narrowly tailored if it
provides that a defendant has the burden of demonstrating that 10
certain factors were met.
Following the issuance of the Wheeler memo, the EPA initiated a
review of the policy and rationale described therein. This review
resulted in the EPA issuing a new memorandum on September 30, 2021,
signed by Deputy Administrator Janet McCabe, withdrawing the Wheeler
memo.\33\ This new memorandum is referred to in this document as the
``McCabe memo.'' The McCabe memo withdrew the Wheeler memo in its
entirety and reinstated EPA's SSM Policy, as described in the 2015 SSM
SIP Action, with respect to provisions that had been superseded by the
Wheeler memo. It also reaffirmed EPA's SSM Policy, as described in the
2015 SSM SIP Action, with respect to all other provisions not
superseded. The McCabe memo explained the reasons for the withdrawal of
the Wheeler memo and reinstatement of EPA's SSM Policy by noting that
``the statutory interpretations extensively discussed in the 2015
policy are more consistent with the CAA and relevant case law for the
reasons explained in the 2015 SSM SIP Action.'' \34\ It noted, for
example, that the Wheeler memo did not adequately address CAA
requirements other than NAAQS attainment and maintenance. It also noted
that the Wheeler memo did not address the 2008 D.C. Circuit holding
that affirmative defense provisions are beyond the scope of EPA's
authority to create. The McCabe memo pointed to EPA's SSM Policy's
analysis of CAA provisions and found that analysis to be more
consistent with the CAA and relevant case law, for the reasons
explained in detail in the 2015 SSM SIP Action.
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\33\ See Memorandum from Janet McCabe to Regional
Administrators, dated September 30, 2021, titled ``Withdrawal of the
October 9, 2020, Memorandum Addressing Startup, Shutdown, and
Malfunctions in State Implementation Plans and Implementation of the
Prior Policy.'' <a href="https://www.epa.gov/system/files/documents/2021-09/oar-21-000-6324.pdf">https://www.epa.gov/system/files/documents/2021-09/oar-21-000-6324.pdf</a>.
\34\ See McCabe memo, p. 3.
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In addition to withdrawing the Wheeler memo and reinstating EPA's
SSM Policy, the McCabe memo provided information about additional
related actions that EPA intended to take with respect to the SSM SIP
issues, specifically: (1) expeditiously revisiting the three state-
specific SSM SIP call withdrawals for NC, TX, and IA and, also through
notice-and-comment rulemaking, to consider whether any of the findings
underlying these actions should be retained in light of the Agency's
reaffirmation of EPA's SSM Policy, and (2) implementing EPA's SSM
Policy on an ongoing basis through future notice-and-comment actions on
SIP submissions, including implementing the 2015 SIP call and taking
additional SIP actions consistent with EPA's SSM Policy. This document
addresses those intended actions by initiating the notice-and-comment
action for the NC, TX, and IA withdrawals and also by initiating
additional SIP calls consistent with EPA's SSM Policy for additional
deficient SSM provisions of which EPA is aware. Moreover, although not
related to the current action, EPA notes that it is continuing to
implement the 2015 SIP calls for the remaining states through separate
SIP actions.
VI. Proposed Action To Reinstate Findings of Substantial Inadequacy and
Issue SIP Calls for North Carolina, Texas, and Iowa
A. North Carolina
As explained in section V.B. of this document, on April 28, 2020,
EPA Region 4 published a final action adopting an alternative policy
allowing automatic exemption provisions and director's discretion
provisions in SIPs for the state of North Carolina.\35\ Consistent with
EPA's SSM Policy as outlined in the 2015 SSM SIP Action and 2021 McCabe
memo, the EPA is proposing in this document to reinstate the SIP call
that was issued to North Carolina for provisions in 15A NCAC 02D
.0535(c) and (g) in 2015 on the basis
[[Page 11853]]
that they contain impermissible director's discretion provisions.
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\35\ See 85 FR 23700.
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In EPA's 2020 SIP call withdrawal for the state of North Carolina,
Region 4 determined that it was reasonable to allow automatic exemption
provisions and director's discretion provisions in the North Carolina
SIP. The rationale for that determination was based on an evaluation of
the SIP as a whole and finding the SIP, collectively, to be protective
of the NAAQS, notwithstanding the existence of SSM provisions in the
SIP. In that action, Region 4 stated that, although the North Carolina
SIP contains SSM exemptions for limited periods applicable to discrete
standards, the SIP is composed of numerous planning requirements that
are collectively NAAQS-protective. Region 4 determined that the North
Carolina SIP's overlapping requirements provide additional protection
of the standards such that the SIP adequately provides for attainment
and maintenance of the NAAQS, even if the SIP allows exemptions to
specific emission limits for discrete periods, such as SSM events.
Region 4 stated that such redundancy helps to ensure attainment and
maintenance of the NAAQS, one of the goals of Congress when it created
the SIP adoption and approval process in the CAA. Region 4 also noted
that North Carolina currently does not have any nonattainment areas for
any NAAQS and that air quality in the state has steadily improved over
the years even though the exemption provisions have been included in
the SIP, concluding that the SSM exemptions have not interfered with
attainment or maintenance of the NAAQS.
Furthermore, in that action, Region 4 found that the alternative
policy for North Carolina was reasonable because the D.C. Circuit's
decision in Sierra Club v. Johnson, 551 F.3d 1019 (D.C. Cir. 2008) did
not, on its face, apply to SIPs and actions taken under CAA section
110.\36\ In that action, the EPA stated that, while the Sierra Club
decision did not allow sources to be exempt from complying with CAA
section 112 emission limitations during periods of SSM, that finding is
not necessarily binding on CAA section 110 and EPA's consideration of
SIPs under that section. In contrast to CAA section 112, that action
stated, the CAA sets out a fundamentally different regime with respect
to CAA section 110 SIPs, reflecting the principle that SIP development
and implementation is customizable for each state's circumstances and
relies on the federal-state partnership.\37\ Region 4 stated that the
D.C. Circuit's concern that CAA section 112 standards must apply
``continuously'' to regulate emissions from a particular source does
not translate directly to the context of CAA section 110, where a
state's plan may contain a broad range of measures, including limits on
multiple sources' and source categories' emissions of multiple
pollutants--all working together to ensure attainment and maintenance
of an ambient standard that is not itself an applicable requirement for
individual sources. In the SIP call withdrawal, Region 4 stated that,
regardless of the measures a state seeks to include in its SIP, those
measures must collectively work toward compliance with the nationally
uniform NAAQS.\38\
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\36\ The reasoning of the court was that exemptions for SSM
events in the CAA section 112 context are impermissible because they
contradict the requirement that emission limitations be
``continuous'' in accordance with the definition of that term in
section 302(k). Although the court evaluated this issue in the
context of EPA regulations under section 112, in the 2015 SSM SIP
Action, the EPA found that this same logic extends to SIP provisions
under section 110, which similarly must contain emission limitations
as defined in the CAA. Section 110(a)(2)(A) of the CAA requires
states to have emission limitations in their SIPs to meet other CAA
requirements, and any such emission limitations would similarly be
subject to the definition of that term in CAA section 302(k).
\37\ See Virginia v. EPA, 108 F.3d at 1408.
\38\ See 85 FR 23700 at 23704.
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In its April 28, 2020, action, Region 4 found that its
interpretation is consistent with the concept that the CAA requires
that some CAA section 110 standards apply continuously. Specifically,
CAA 110(a)(2)(A) requires the SIP to include ``enforceable emission
limitations and other control measures, means, or techniques (including
economic incentives such as fees, marketable permits, and auctions of
emissions rights), as well as schedules and timetables for compliance,
as may be necessary or appropriate to meet the applicable requirements
of this Act.'' Region 4 argued that the phrase ``as may be necessary or
appropriate to meet the applicable requirements of [the] Act'' allows
the state some flexibility to develop SIP provisions that are best
suited for their purposes.\39\ In that context, Region 4 found that a
reasonable interpretation of the CAA section 302(k) definition of the
terms ``emission limitation'' and ``emission standard'' did not
preclude North Carolina from adopting provisions that apply
continuously while also allowing that unavoidable excess emissions that
occur during certain discrete, time-limited periods of operation may
not be considered a violation of the rule. Region 4 interpreted CAA
section 110(a)(2)(A) to mean that a state may provide exemptions from
numerical emission limits so long as the SIP contains a set of emission
limitations, control means, or other means or techniques, which, taken
as a whole, meet the requirements of attaining and maintaining the
NAAQS under subpart A.
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\39\ See Id. at 23705.
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Accordingly, Region 4 evaluated specific overlapping planning
requirements in the North Carolina SIP that it found to be protective
of each individual criteria pollutant NAAQS.\40\ After evaluating the
SIP as a whole and determining that the SIP, collectively, was
protective of the NAAQS, Region 4 concluded that automatic SSM
exemptions were allowable in that SIP. Further, relying on the
alternative policy's interpretation of the relevant CAA provisions,
together with the specific automatic SSM provisions in the North
Carolina SIP, Region 4 determined it was reasonable to find that the
SIP met the applicable requirements of the CAA and, therefore, did not
mandate a finding that the SIP is substantially inadequate.
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\40\ See Id. at 23705-23707.
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After reconsidering its prior action, the EPA is now proposing that
the withdrawal of the SIP call for North Carolina was inappropriate. In
this action, EPA is proposing to return to its interpretation of the
Act in the 2015 SSM SIP action, which is consistent with Sierra Club
\41\ and is thus proposing to reinstate the SIP call for North Carolina
that was issued in 2015. The statutory interpretations extensively
discussed in the 2015 SSM SIP Action are the appropriate reading of the
CAA and relevant case law for the reasons explained in the 2015 SSM SIP
Action. Specifically, with respect to automatic exemptions from
emission limitations in SIPs, EPA's longstanding interpretation of the
CAA is that such exemptions are impermissible because they are
inconsistent with the fundamental requirements of the CAA. The EPA
reiterated this interpretation in the 2015 SSM SIP Action, the 2021
McCabe memo, and is applying that interpretation in this document. By
exempting emissions that would otherwise constitute violations of the
applicable emission limitations, such exemptions interfere with the
primary air quality objectives of the CAA (e.g., attainment and
maintenance of the NAAQS and the protection of public health and the
environment),
[[Page 11854]]
undermine the enforcement structure of the CAA (e.g., the requirement
that all SIP provisions be legally and practically enforceable by
states, the EPA and parties with standing under the citizen suit
provision), and eliminate the incentive for emission sources to comply
at all times, not solely during normal operation (e.g., incentives to
be properly designed, maintained and operated so as to minimize
emissions of air pollutants during startup and shutdown or to take
prompt steps to rectify malfunctions). Even if Region 4's previous
conclusion--that all of the provisions of the North Carolina SIP work
together collectively to protect the NAAQS in that state--was correct,
the EPA is now proposing to find that the exemption provisions in the
North Carolina SIP are inconsistent with fundamental CAA requirements
and are thus impermissible. Protection of the NAAQS and public health
is an important goal of CAA section 110, and SSM exemptions both
endanger that goal and are impermissible for additional reasons.
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\41\ 551 F.3d 1019 (D.C. Cir. 2008).
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Crucially, exemption provisions are impermissible under the CAA
section 302(k) requirement that emissions limitations must apply ``on a
continuous basis.'' In Sierra Club, the D.C. Circuit held that, in the
CAA section 112 context, emission limitations containing SSM exemptions
were discontinuous and thus impermissible under CAA section 302(k). The
EPA believes that the best reading of section 110 aligns with the logic
laid out in Sierra Club, and similarly forecloses states' ability to
create exemption provisions in SIPs. EPA's 2020 alternative
interpretation was not consistent with the CAA section 110 requirement
that standards apply continuously. Section 110(a)(2)(A) of the CAA does
not provide flexibility in that regard. The phrase ``as may be
necessary or appropriate to meet the applicable requirements of [the]
Act'' in no way provides for exemptions from emission limitations and
in no way precludes the CAA section 302(k) definition of the terms
``emission limitation'' and ``emission standard.'' Moreover, from a
policy perspective, the EPA notes that the existence of impermissible
exemptions in SIP provisions has the potential to lessen the incentive
for development of control strategies that are effective at reducing
emissions during certain modes of source operation such as startup and
shutdown, even though such strategies could become increasingly helpful
for various purposes, including attaining and maintaining the NAAQS and
protecting public health.
With respect to discretionary exemptions from emission limitations
in SIPs, the EPA also has a longstanding interpretation of the CAA that
prohibits director's discretion provisions in SIPs if they provide
discretion to allow what would amount to a case-specific revision of
the SIP without meeting the statutory requirements of the CAA for SIP
revisions.\42\ In particular, the EPA interprets the CAA to preclude
SIP provisions that provide director's discretion authority to create
discretionary exemptions for violations when the CAA would not allow
such exemptions in the first instance. As with automatic exemptions for
excess emissions during SSM events, discretionary exemptions for such
emissions interfere with the primary air quality objectives of the CAA,
undermine the enforcement structure of the CAA and eliminate the
incentive for emission sources to minimize emissions of air pollutants
at all times, including startup and shutdown events. Through this
action, the EPA is reiterating its position that the best reading of
the CAA is that it precludes unbounded director's discretion provisions
in SIPs.\43\
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\42\ See, e.g., CAA section 110(l).
\43\ See 80 FR 33840 at 33918.
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While this argument was not made explicitly in the EPA's action
withdrawing the North Carolina SIP call, one could claim that the
overlapping planning requirements cited to in that action themselves
constitute an alternative emission limitation that applies during the
SSM exemptions in North Carolina's otherwise applicable emission
limitations, creating a single, continuous emission limitation. The EPA
is proposing that such a claim is not consistent with the Agency's
interpretation of the requirements of the CAA and the 2015 SSM SIP
Policy, which lays out a clear set of criteria that the EPA considers
when assessing whether an alternative emission limitation is
acceptable.\44\ The overlapping requirements operate more as ``general
duty'' provisions than specific, enforceable limitations that would be
appropriate under the best reading of the CAA. EPA explained at length
in the 2015 SSM SIP Action why such ``general duty'' provisions are
inappropriate and inconsistent with CAA requirements.\45\
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\44\ See 80 FR 33840 at 33912-33914.
\45\ See 80 Fed Reg. 33840 at 33889-33890, 33893, 33903, 33943,
33979-33980.
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For these reasons, the EPA correctly determined in its 2015 SSM SIP
Action that automatic exemption and director's discretion provisions in
SIPs are impermissible because they violate fundamental requirements of
the CAA. The EPA reaffirmed that policy position in the McCabe memo
and, as such, is proposing to reinstate the SIP call for 15A NCAC 02D
.0535(c) and 15A NCAC 02D .0535(g) as they are substantially inadequate
to meet the requirements of the Act. The EPA is also proposing to make
additional findings of substantial inadequacy to be included in the SIP
call for North Carolina. These provisions and findings of substantial
inadequacy will be discussed in further detail in section VII.C. of
this document.\46\
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\46\ The EPA notes that it maintains the discretion and
authority to change its CAA interpretation from a prior position.
FCC v. Fox Television, 556 U.S. 502 (2009). The EPA is aware that
its proposed action would represent a change in position from the
interpretations applied in the North Carolina, Texas, and Iowa SIP
call withdrawal actions, and a return to the Agency's previous
interpretations as outlined in the 2015 SSM SIP Action, in which the
Agency issued the original SIP calls to those states. As is
discussed elsewhere in this document, the interpretations applied in
the North Carolina, Texas, and Iowa SIP Call withdrawal actions were
not the best readings of the CAA. As is outlined in detail in this
document, EPA's return to the original interpretation of the CAA and
proposed application of that interpretation to the states discussed
in this document does not represent a change in the factual findings
underlying that application. Given the fact that the EPA is
proposing that states will have 18 months to comply with any final
SIP calls, the EPA also does not believe that this action, if
finalized, would engender any serious reliance interests. See id. at
515-16.
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B. Texas
As explained in section V.B. of this document, on January 7, 2020,
EPA Region 6 adopted an alternative policy regarding the permissibility
of affirmative defense provisions for Texas and subsequently withdrew
the SIP call that was issued to Texas as part of the 2015 SSM SIP
Action. In light of EPA's SSM policy as outlined in the 2015 SSM SIP
Action and McCabe memo, EPA is proposing in this document to reinstate
the SIP call that was issued to Texas in 2015 on the basis that
affirmative defense provisions are impermissible in SIPs.
In EPA's 2020 SIP call withdrawal for Texas, EPA stated that that
imposition of a penalty for sudden and unavoidable malfunctions caused
by circumstances beyond the control of the owner or operator may not be
appropriate. Region 6 concluded that the Texas SIP provisions
containing affirmative defenses were appropriately narrowly tailored
and would not undermine the fundamental requirement of attainment and
maintenance of the NAAQS, or any other requirement of the CAA. Region 6
explained in that action that the
[[Page 11855]]
differences in scope and relative balance of state and federal
authority between CAA sections 110 and 112 suggest that the D.C.
Circuit's reasoning in NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014),
with respect to limits on EPA's authority under section 110 does not
address the distinct question of whether a state may include
affirmative defense provisions as part of an overall strategy for
inclusion in their SIP submissions under section 110. Given the
distinction between sections 112 and 110, and in light of the Luminant
decision, which upheld EPA's previous approval of the Texas affirmative
defense provisions, EPA determined that the appropriate policy was to
consider the Texas affirmative defense provisions to be consistent with
CAA requirements.\47\
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\47\ Luminant Generation v. EPA, 714 F.3d 841 (5th Cir. 2013).
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The EPA is now proposing that the withdrawal of the SIP call for
Texas was inappropriate. In this action, EPA is proposing to return to
its interpretation of the CAA in the 2015 SSM SIP action, which is more
consistent with the reasoning of the D.C. Circuit in NRDC and is thus
proposing to reinstate the SIP call for Texas that was issued in 2015.
The statutory interpretations extensively discussed in the 2015 SSM SIP
Action are more consistent with the CAA and relevant case law for the
reasons explained in the 2015 SSM SIP Action. The CAA clearly states
that private citizens have the right to sue over violations of SIP-
approved emission limits.\48\ Federal district courts are granted
exclusive jurisdiction to hear such cases, enforce against violations
of emission limits, and apply civil penalties as appropriate. These
courts also have jurisdiction to enforce against emission limitation
violations and assess civil penalties in civil actions brought by the
EPA.\49\ As explained in EPA's 2015 SSM SIP Action, the enforcement
structure of the CAA, embodied in CAA section 113 and CAA section 304,
precludes any affirmative defense provisions that would operate to
limit a court's jurisdiction or discretion to determine the appropriate
remedy in an enforcement action. Affirmative defense provisions are not
appropriate under the CAA, no matter what type of event they apply to,
what criteria they contain or what forms of remedy they purport to
limit or eliminate. For these reasons, the EPA is now proposing to
reinstate the SIP call that was issued to Texas in 2015 and find that
Texas's affirmative defense provisions are impermissible under the CAA.
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\48\ Id. Sec. 7604(a)(1), (f).
\49\ Id. Sec. 7413(b).
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Further support for EPA's proposal is as follows. Section 113(b) of
the CAA provides courts with explicit jurisdiction to determine
liability and to impose remedies of various kinds, including injunctive
relief, compliance orders and monetary penalties, in judicial
enforcement proceedings. This grant of jurisdiction comes directly from
Congress, and the EPA is not authorized to alter or eliminate this
jurisdiction under the CAA or any other law. With respect to monetary
penalties, CAA section 113(e) explicitly includes the factors that
courts and the EPA are required to consider in the event of judicial or
administrative enforcement for violations of CAA requirements,
including SIP provisions. Because Congress has already given federal
courts the jurisdiction to determine what monetary penalties are
appropriate in the event of judicial enforcement for a violation of a
SIP provision, neither the EPA nor states can alter or eliminate that
jurisdiction by superimposing restrictions on that jurisdiction and
discretion granted by Congress to federal courts. Affirmative defense
provisions by their nature purport to limit or eliminate the authority
of federal courts to determine liability or to impose remedies through
factual considerations that differ from, or are contrary to, the
explicit grants of authority in CAA section 113(b) and section 113(e).
Accordingly, pursuant to CAA section 110(k) and section 110(l), the
approval of affirmative defense provisions in SIPs would be
inconsistent with the above-articulated interpretations of CAA sections
113(b) and (e).
In the 2020 SIP call withdrawal for Texas, Region 6 incorrectly
relied on a rationale that the 2015 SSM SIP Action inappropriately
applied the NRDC ruling to section 110 SIPs and that the Luminant, 714
F.3d 841, decision appropriately upheld EPA's approval of the Texas
affirmative defense provisions into the SIP.\50\ This was an incorrect
reading of NRDC. The NRDC court ruled that CAA sections 113 and 304
preclude the EPA's authority to create affirmative defense provisions
in the Agency's own regulations imposing emission limits on sources,
because such provisions purport to alter the jurisdiction of federal
courts to assess liability and impose penalties for violations of those
limits in private civil enforcement cases.
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\50\ Luminant, 714 F.3d 841.
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As is discussed at length in the 2015 SSM SIP Action, and in light
of the reasoning of the D.C. Circuit in the NRDC decision, the Agency
believes that the position the EPA advanced before the court in the
Luminant decision was not the best interpretation of the CAA, and that
the correct reading of the CAA is that affirmative defense provisions
are not appropriate in SIPs. In the Luminant decision, the Fifth
Circuit analyzed EPA's former interpretation of the CAA under step 2 of
Chevron and found that the Agency's position was reasonable.\51\ The
Fifth Circuit held that the CAA did not dictate the outcome put forth
by environmental petitioners in the Luminant case; the court did not
hold that the Agency could not reasonably interpret the CAA provisions
at issue to come to the new position articulated in the 2015 SSM SIP
Action. In fact, the Fifth Circuit upheld EPA's reading of the statute
to preclude affirmative defense provisions for planned events in the
same decision as a reasonable interpretation of the CAA. Crucially, the
Region 6 2020 SIP call withdrawal did not state that the only reading
of relevant sections of the CAA is that affirmative defense provisions,
when narrowly tailored, may be appropriate; instead, following the
Luminant court's example, Region 6's rationale rested on the
reasonableness of that interpretation.
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\51\ Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S.
837 (1984).
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While the D.C. Circuit in the NRDC decision applied its ruling
narrowly to section 112 of the CAA, the EPA believes the reasoning laid
out by the court is similarly applicable to section 110. The
distinctions identified in the 2020 SIP call withdrawal between
sections 110 and 112 are not relevant; as is discussed at length in the
2015 SSM SIP Action, the EPA reasonably believes that states, like the
EPA, have no authority in SIP provisions to alter the jurisdiction of
federal courts to assess penalties for violations of CAA requirements
through affirmative defense provisions. While it is true that states
are accorded discretion under section 110 to determine how to meet CAA
requirements, they are obligated to develop SIP provisions that meet
fundamental CAA requirements. The EPA has the responsibility to review
SIP provisions developed by states to ensure that they in fact meet
fundamental CAA requirements. Sections 113 and 304 of the CAA apply
with just as much force to CAA section 110 as CAA section 112.
In the 2020 SIP call withdrawal for Texas, Region 6 focused on
whether the affirmative defense provisions at issue were narrowly
tailored enough to threaten the fundamental requirement of
[[Page 11856]]
attainment and maintenance of the NAAQS. However, the EPA's proposed
finding of substantial inadequacy is based not on those provisions'
direct impact on attainment and maintenance of the NAAQS, but instead
on a different portion of section 110(k)(5): whether the Texas
provisions are ``substantially inadequate . . . to otherwise comply
with any requirement of this chapter.'' In addition, the 2020 SIP call
withdrawal for Texas relied on the rationale that the cooperative
federalism framework of the CAA allowed the Agency flexibility in
determining whether affirmative defense provisions are appropriate
under the CAA. However, such flexibility is not appropriate here in
light of the clear statutory language at issue. As discussed earlier
and at length in the 2015 SSM Action, affirmative defense provisions in
SIPs alter or eliminate federal court jurisdiction by superimposing
restrictions on that jurisdiction and discretion granted by Congress to
the courts. The 2020 Texas SIP call withdrawal action applied an
impermissible interpretation of the CAA. Even if such an interpretation
were permissible, the EPA's view is that this formulation of an
affirmative defense in effect means that there is no emission
limitation that applies when the criteria are met, i.e., the
affirmative defense operates to create a conditional exemption for
emissions from the source during SSM events. As explained in the 2015
SSM SIP Action, the CAA requires that emission limitations must apply
continuously and cannot contain exemptions, conditional or otherwise.
Exemptions for emissions during SSM events, whether automatic or
conditional based upon the criteria of an affirmative defense, are
inconsistent with the requirement for continuous controls on
sources.\52\ Moreover, as described in section III of this document,
such provisions allow opportunities for sources to emit pollutants
during SSM periods repeatedly and in quantities that could cause
unacceptable air pollution in nearby communities with no legal pathway
within the existing EPA-approved SIP for air agencies, the EPA, the
public or the courts to require the sources to make reasonable efforts
to reduce these emissions.
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\52\ See 80 FR 33840 at 33854-33855, 33981.
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For the reasons noted in the 2015 SSM SIP Action and those
discussed in this document, the EPA reasonably determined that
affirmative defense provisions in SIPs are inappropriate. The EPA
reaffirmed that policy position in the McCabe memo and is proposing to
apply that policy to Texas's affirmative defense provisions and
reinstate the SIP call for 30 TAC 101.222(b)-(e) on the basis that
those provisions are substantially inadequate to meet the requirements
of the Act.
C. Iowa
As explained in section V.B. of this action, on December 17, 2020,
EPA Region 7 issued a final action that withdrew the SIP call issued to
Iowa as part of EPA's 2015 SSM SIP Action. In light of EPA's SSM policy
as outlined in the 2015 SSM SIP Action and McCabe memo, the EPA is
proposing in this document to reinstate the SIP call that was issued to
Iowa in 2015 on the basis that automatic exemption provisions are
impermissible in SIPs. The statutory interpretations extensively
discussed in the 2015 SSM SIP Action are more consistent with the CAA
and relevant case law for the reasons explained in the 2015 SSM SIP
Action.
In the 2020 SIP call withdrawal for Iowa, EPA Region 7 applied a
policy regarding SSM provisions that was consistent with EPA's national
policy at that time, as outlined in the Wheeler memo. As noted in
section V.C. of this action, on October 9, 2020, the EPA issued the
Wheeler Memo which outlined a new national policy related to specific
SIP provisions governing excess emissions during SSM events. In light
of that policy and EPA's evaluation of Iowa's SIP, Region 7 withdrew
the SIP call issued to Iowa as part of the 2015 SSM SIP Action.
In the Wheeler memo, consistent with the rationale presented by
Region 4 in the North Carolina action, the EPA expressed that exemption
provisions may be permissible in SIPs under certain circumstances.
Specifically, the Wheeler memo stated that the general requirements in
CAA section 110 to attain and maintain the NAAQS and the latitude
provided to states through the SIP development process create a
framework in which a state may be able to ensure attainment and
maintenance of the NAAQS notwithstanding the presence of SSM exemptions
in the SIP. The Wheeler memo stated that it is permissible for a SIP to
contain SSM exemptions only if the SIP is composed of numerous planning
requirements that are collectively NAAQS-protective by design. Such
redundancy helps to ensure that the NAAQS are both attained and
maintained, which was Congress's goal in creating the SIP development
and adoption process. In evaluating whether the requirements of a SIP
are collectively NAAQS protective despite the inclusion of an SSM
exemption provision, the Wheeler memo stated that the EPA would conduct
an in-depth analysis of the SIP, including a multifactor, weight-of-
evidence exercise that balances many considerations. If the SIP
contains limitations on whether SSM events are considered emission
standard violations or requires that source owners or operators limit
the duration and severity of SSM events, it may be reasonable to
conclude that such a provision, when considered alongside other
factors, would not jeopardize a state's ability to attain and maintain
the NAAQS.
Accordingly, Region 7 evaluated the Iowa SIP and identified
numerous provisions in the SIP that, when taken as a whole, led Region
7 to conclude that the SIP in its entirety is protective of the NAAQS.
Specifically, Region 7 found that the Iowa SIP includes a series of
overlapping requirements that provide for testing, reporting, and
accountability for sources, including during periods of excess
emissions. Region 7 argued that such overlapping requirements enable
Iowa Department of Natural Resources (IDNR) to implement the NAAQS,
allowing IDNR to maintain oversight, work with sources to maintain
compliant operation, and, if necessary, enforce against sources. The
specific Iowa provision that was SIP called in 2015 does allow for an
exemption during excess emissions, but Region 7 stated that it also
provides for two backstops that protect air quality and help to ensure
attainment and maintenance of the NAAQS: (1) startup, shutdown and
cleaning is to be accomplished expeditiously; and, (2) startup,
shutdown, and cleaning is to be accomplished in a way that is
consistent with good practice for minimizing emissions. In light of
EPA's 2020 national policy, as outlined in the Wheeler Memo, and
informed by a weight-of-evidence analysis of the Iowa SIP, Region 7
withdrew the SIP call that was issued to Iowa.
The EPA is now proposing that the withdrawal of the SIP call for
Iowa was inappropriate. In this action, EPA is proposing to return to
its interpretation of the Act in the 2015 SSM SIP action, which is
consistent with Sierra Club \53\ and is thus proposing to reinstate the
SIP call for Iowa that was issued in 2015. Specifically, the McCabe
memo noted that, ``the statutory interpretations extensively discussed
in the 2015 policy are more consistent with the CAA and relevant case
law for the reasons explained in the 2015 SSM SIP Action.'' The Wheeler
memo, for example, did not adequately address CAA requirements other
than NAAQS
[[Page 11857]]
attainment and maintenance. These include, but are not limited to, CAA
section 110(l)'s procedural requirements governing SIP revisions.
Additionally, the Wheeler memo did not address CAA section 302(k)'s
requirement that all emission limitations apply on a ``continuous''
basis. As a legal matter, the SIP called provision specifically allows
for an exemption from the applicable emission limitations. This is
impermissible under EPA's reading of CAA section 110(a)(2)(A) alongside
CAA section 302(k). Emission limitations must apply at all times and
exemptions from those limitations are contrary to the statute and
inappropriate.\54\
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\53\ See 551 F.3d 1019 (D.C. Cir. 2008).
\54\ The rationale laid out in section VI.A. of this document as
to the inappropriate nature of the North Carolina provisions is also
relevant to the Iowa provisions.
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The backstops identified by Region 7 in its weight-of-evidence
analysis of the Iowa SIP in its SIP call withdrawal points to a number
of provisions that lack meaningful measures and means for ensuring the
attainment and maintenance of the NAAQS. The two specific backstops in
the originally SIP called provision, IAC 567-24.1(1,) are vague and
unenforceable, and certainly would not constitute alternative emissions
limitations that would appropriately fill the gap left by Iowa's
automatic exemption. The provision lays out the two cited backstops by
stating that excess emissions during SSM periods are not violations if
the startup and shutdown events are accomplished ``expeditiously and in
a manner consistent with good practice for minimizing emissions.'' This
terminology is not defined in the Iowa SIP and is not practically
enforceable. Practically speaking, a source could be excused from an
applicable emission limit for a long period during which the EPA would
have absolutely no assurance that the NAAQS is being attained or
maintained (not to mention assurance of compliance with all of the
other requirements of the Act).
For those reasons, the reasons laid out in section VI.A of this
action, and the reasons laid out in the 2015 SSM SIP Action, the EPA
correctly determined in its 2015 SSM SIP Action that automatic
exemption provisions in SIPs are impermissible because they are
inconsistent with fundamental requirements of the CAA. The EPA
reaffirmed that policy position in the McCabe memo and, as such, is
proposing to find that IAC 567-24.1(1) is substantially inadequate to
comply with CAA requirements, and thus is reinstating the SIP call for
IAC 567-24.1(1).
VII. Proposed Action To Issue Additional Findings of Substantial
Inadequacy and SIP Calls for Connecticut, Maine, North Carolina,
Including Buncombe and Mecklenburg Counties, Shelby County, Tennessee,
Wisconsin, and Louisiana
A. Connecticut
CT Sec. 22a-174-38(c)(11)
The EPA is proposing in this document to make a finding of
substantial inadequacy and issue a SIP call to Connecticut for CT Sec.
22a-174-38(c)(11) on the basis that it constitutes an impermissible
automatic exemption. As explained earlier in this document, EPA's
position is that the best reading of the CAA is that it does not allow
for exemptions from otherwise applicable SIP emission limitations,
whether automatic or through the exercise of a state official's
discretion. In accordance with the requirements of CAA section
110(a)(2)(A), emission limitations that appear in SIPs must be
continuous, in accordance with the definition of ``emission
limitations'' in CAA section 302(k). Thus, any excess emissions above
the level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup, shutdown, or malfunctions are not violations
are inconsistent with the fundamental requirements of the CAA with
respect to emission limitations in SIPs.
CT Sec. 22a-174-38(c)(11), which applies to municipal waste
combustors (MWCs), states, ``The emission limits and operating
requirements of this section shall apply at all times except during
periods of startup, shutdown or malfunction provided in this
subdivision: (A) For determining compliance with an applicable carbon
monoxide emissions limit, if a loss of boiler water level control or a
loss of combustion air control is determined to be a malfunction, the
duration of the malfunction period shall be limited to fifteen (15)
hours per occurrence. Otherwise, the duration of each startup, shutdown
or malfunction period shall be limited to three hours per occurrence
for all MWC units; (B) For the purpose of compliance with the opacity
emission limits, during each period of startup, shutdown or
malfunction, the opacity limits shall not be exceeded during more than
five (5) 6-minute arithmetic average measurements; and (C) During
periods of startup, shutdown, or malfunction, monitoring data shall be
excluded from calculations of compliance with the emission limits and
operating requirements of this subdivision but shall be recorded and
reported in accordance with subsections (k) and (l) of this section.''
The EPA proposes to find that this provision is impermissible even
though the state has imposed some time limitations on its potential
scope. For example, CT Sec. 22a-174-38(c)(11)(A) limits malfunction
periods to ``fifteen (15) hours per occurrence'' and the duration of
SSM periods to: three hours per occurrence for all MWC units.'' CT Sec.
22a-174-38(c)(11)(B) limits opacity limit exceedances during SSM events
to ``five (5) 6-minute arithmetic measurements.'' Although the CAA does
allow for alternative emission limitations or other enforceable control
measures or techniques that apply during startup or shutdown, the CT
SIP provision does not comply with the CAA's requirements as
interpreted in EPA's SSM policy \55\ because the provision still
contains periods of time when no limit (numerical or otherwise)
applies. There are no other provisions in the CT SIP that could act as
alternative emission limits to fill those periods of time. In addition,
the provision does not adequately explain how the time limitations will
be legally and practically enforceable. This provision thus appears to
provide for an automatic exemption from the emission limitations that
would otherwise apply to municipal waste combustors in the Connecticut
SIP and is substantially inadequate to comply with CAA requirements
under sections 110(a)(2)(A), 110(a)(2)(C), and 302(k).
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\55\ See EPA's 2015 SSM SIP Action, 80 FR 33913-33917, for a
discussion of EPA's policy regarding alternative emission
limitations.
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B. Maine
ME 06-096 Chapter 138-3-O
The EPA is proposing in this document to make a finding of
substantial inadequacy and issue a SIP call to Maine for provision ME
06-096 Chapter 138-3-O on the basis that it constitutes an
impermissible automatic exemption. As explained earlier in this
document, EPA's position is that the best reading of the CAA is that it
does not allow for exemptions from otherwise applicable SIP emission
limitations, whether automatic or through the exercise of a state
official's discretion. In accordance with the requirements of CAA
section 110(a)(2)(A), emission limitations that appear in SIPs must be
continuous, in accordance with the definition of
[[Page 11858]]
``emission limitations'' in CAA section 302(k). Thus, any excess
emissions above the level of the applicable emission limitation must be
considered violations, whether or not the state elects to exercise its
enforcement discretion. SIP provisions that create exemptions such that
the excess emissions during startup, shutdown, or malfunctions are not
violations are inconsistent with the fundamental requirements of the
CAA with respect to emission limitations in SIPs.
This provision, which applies to Reasonably Available Control
Technology (RACT) standards for stationary sources of Nitrogen Oxides
(NO<INF>X</INF>), states, ``For any source that employs the use of a
continuous emissions monitoring system, periods of startup, shutdown,
equipment malfunction and fuel switching shall not be included in
determining 24-hour daily block arithmetic average emission rates
provided that operating records are available to demonstrate that the
facility was being operated to minimize emissions.'' EPA proposes to
find that the inclusion of this exemption from otherwise applicable SIP
emission limitations is thus a substantial inadequacy and renders this
specific SIP provision impermissible.
The EPA proposes to find that this exemption is impermissible even
though the state has imposed some factual limitations on its potential
scope: the requirement to provide operating records ``to demonstrate
that the facility was being operated to minimize emissions.'' While the
CAA does allow for alternative emission limitations or other
enforceable control measures or techniques that apply during startup or
shutdown, this SIP provision does not comply with the Act's
requirements for an alternative emission limit as interpreted in EPA's
SSM policy. The provision does not adequately address emissions
limitations during SSM events. Instead, it only explains how facilities
will ensure that emissions are ``minimized.'' In addition, similar to
the Iowa provision discussed above, such a vague requirement is not
legally and practically enforceable, as it does not provide a
meaningful and objective standard for a court to assess. This provision
thus appears to provide for an automatic exemption from the emission
limitations that would otherwise apply to RACT standards for stationary
sources of NO<INF>X</INF> in the Maine SIP without meaningful
restrictions and is substantially inadequate to comply with CAA
requirements under sections 110(a)(2)(A), 110(a)(2)(C), and 302(k).
ME 06-096 Chapter 150-4-C
The EPA is proposing in this document to make a finding of
substantial inadequacy and issue a SIP call to Maine for provision ME
06-0096 Chapter 150-4-C on the basis that it constitutes an
impermissible automatic exemption. As explained earlier in this
document, EPA's position is that the best reading of the CAA is that it
does not allow for exemptions from otherwise applicable SIP emission
limitations, whether automatic or through the exercise of a state
official's discretion. In accordance with the requirements of CAA
section 110(a)(2)(A), emission limitations that appear in SIPs must be
continuous, in accordance with the definition of ``emission
limitations'' in CAA section 302(k). Thus, any excess emissions above
the level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup, shutdown, or malfunctions are not violations
are inconsistent with the fundamental requirements of the CAA with
respect to emission limitations in SIPs.
This provision, which applies to visible emission standards for
outdoor wood boilers and outdoor pellet boilers, states, ``No person
shall cause or allow the emission of a smoke plume from any outdoor
wood boiler or outdoor pellet boiler to exceed an average of 30 percent
opacity on a six-minute block average basis, except for no more than
two six minute block averages in a 3-hour period.'' While this
provision does not explicitly mention periods of startup, shutdown, or
malfunction, the EPA is proposing to find that the provision is
impermissible under the CAA requirement that some emission limit must
apply at all times. There are no other provisions in the ME SIP that
could act as an appropriate alternative emission limit to fill the
periods of time the emission limit does not apply. This provision
appears to provide for an automatic exemption from the emission
limitations that would otherwise apply to visible emission standards
for outdoor wood boilers and outdoor pellet boilers in the Maine SIP
and is substantially inadequate to comply with CAA requirements under
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k).
C. North Carolina
15A NCAC 02D .1423(g)
Separately from the reinstatement of the 2015 SIP Call discussed in
the previous section, the EPA is also proposing in this document to
make a finding of substantial inadequacy and issue a SIP Call to North
Carolina for provision 15A NCAC 02D .1423(g) on the basis that it
contains an impermissible automatic exemption.
As explained earlier in this document, EPA's position is that the
best reading of the CAA is that it does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), emission limitations
that appear in SIPs must be continuous, in accordance with the
definition of ``emission limitations'' in CAA section 302(k). Thus, any
excess emissions above the level of the applicable emission limitation
must be considered violations, whether or not the state elects to
exercise its enforcement discretion. SIP provisions that create
exemptions such that the excess emissions during startup, shutdown, or
malfunctions are not violations are inconsistent with the fundamental
requirements of the CAA with respect to emission limitations in SIPs.
The provision 15A NCAC 02D .1423(g), which applies to large
internal combustion engines, states, ``The emission standards of this
Rule shall not apply to the following periods of operation: (1) start-
up and shut-down periods and periods of malfunction, not to exceed 36
consecutive hours; (2) regularly scheduled maintenance activities.''
\56\ The EPA is proposing to find the inclusion of these exemptions
renders the provision impermissible under the CAA requirement that some
emission limit must apply at all times. There are no other provisions
in the NC SIP that could act as an appropriate alternative emission
limit to fill the periods of time the emission limit does not apply, as
is discussed in more detail above. The provision 15A NCAC 02D .1423(g)
appears to provide for an impermissible automatic exemption and is
substantially inadequate to comply with CAA requirements under sections
110(a)(2)(A), 110(a)(2)(C), and 302(k).
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\56\ The EPA notes that ``emission standard'' and ``emission
limitation'' have the same definition under section 302(k) of the
CAA, and EPA considers the terms interchangeable.
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Mecklenburg County, NC: Mecklenburg County Air Pollution Control
Ordinance (MCAPCO) Rule 2.0535(c)
The EPA is proposing in this document to make a finding of
substantial inadequacy and issue a SIP call to North Carolina for local
provision MACAPCO Rule 2.0535(c) on the basis
[[Page 11859]]
that it contains an impermissible director's discretion provision. As
explained earlier in this document, EPA's position is that the best
reading of the CAA is that it does not allow for exemptions through the
exercise of a state official's discretion. In accordance with the
requirements of CAA section 110(a)(2)(A), emission limitations that
appear in SIPs must be continuous, in accordance with the definition of
``emission limitations'' in CAA section 302(k). Thus, any excess
emissions above the level of the applicable emission limitation must be
considered violations, whether or not the state elects to exercise its
enforcement discretion. SIP provisions that create exemptions such that
the excess emissions during startup, shutdown, or malfunctions are not
violations are inconsistent with the fundamental requirements of the
CAA with respect to emission limitations in SIPs. In addition,
director's discretion provisions functionally could allow de facto
revisions of the approved emission limitations required by the SIP,
without complying with the process for SIP revisions required by the
CAA.
The local provision, which applies to excess emissions reporting
and malfunctions, states ``Any excess emissions that do not occur
during start-up or shut-down are considered a violation of the
appropriate Regulation unless the owner or operator of the source of
excess emissions demonstrates to the Director, that the excess
emissions are the result of a malfunction.'' The provision relies on
the same unbounded director's discretion language found in 15A NCAC 02D
.0535(c), including the list of factors to be considered by the
director, and is inadequate for the same reasons. As explained in EPA's
February 22, 2013, SIP call proposal on the state's rule, and
reiterated in part earlier in this document, this director's discretion
provision authorizes exemptions from otherwise applicable emission
limitations, in violation of EPA's SSM Policy that emission limits
apply at all times. In addition, this provision makes the state
official the unilateral arbiter of whether the excess emissions in a
given event constitute a violation, which could preclude enforcement by
the EPA or the public who might disagree about whether enforcement
action is warranted. There are no other provisions in the NC SIP that
could act as an appropriate alternative emission limit to fill the
periods of time the emission limit does not apply, as is discussed in
more detail above. The EPA is proposing to find that the provision
MCAPCO Rule 2.0434(c) appears to provide for of an unbounded director's
discretion exemption and is thus substantially inadequate to meet CAA
requirements in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k).
Buncombe County, NC: Western North Carolina Regional Air Quality Agency
Air Quality Code (WNCRAQ Air Quality Code) Section 1-137(c)
The EPA is also proposing in this document to make a finding of
substantial inadequacy and issue a SIP Call to North Carolina for local
provision WNCRAQ Air Quality Code section 1-137(c) on the basis that it
contains an impermissible director's discretion exemption. As explained
earlier in this document, EPA's position is that the best reading of
the CAA is that it does not allow for exemptions through the exercise
of a state official's discretion. In accordance with the requirements
of CAA section 110(a)(2)(A), emission limitations that appear in SIPs
must be continuous, in accordance with the definition of ``emission
limitations'' in CAA section 302(k). Thus, any excess emissions above
the level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup, shutdown, or malfunctions are not violations
are inconsistent with the fundamental requirements of the CAA with
respect to emission limitations in SIPs. In addition, director's
discretion provisions functionally could allow de facto revisions of
the approved emission limitations required by the SIP, without
complying with the process for SIP revisions required by the CAA.
The local provision, which applies to excess emissions reporting
and malfunctions, states ``Any excess emissions that do not occur
during start-up or shut-down are considered a violation of the
appropriate Regulation unless the owner or operator of the source of
excess emissions demonstrates to the Director, that the excess
emissions are the result of a malfunction.'' The provision relies on
the same unbounded director's discretion language found in MCAPCO Rule
2.0535(c) and 15A NCAC 02D .0535(c), including the list of factors to
be considered by the director, and is inadequate for the same reasons.
This director's discretion provision authorizes exemptions from
otherwise applicable emission limitations, in violation of EPA's SSM
Policy that emission limits apply at all times. There are no other
provisions in the NC SIP that could act as an appropriate alternative
emission limit to fill the periods of time the emission limit does not
apply, as is discussed in more detail above. In addition, this
provision makes the state official the unilateral arbiter of whether
the excess emissions in a given event constitute a violation, which
could preclude enforcement by the EPA or the public who might disagree
about whether enforcement action is warranted. The EPA is proposing to
find provision WNCRAQ Air Quality Code section 1-137(c) appears to
provide for an unbounded director's discretion exemption and is thus
substantially inadequate to meet CAA requirements 110(a)(2)(A),
110(a)(2)(C), and 302(k).
D. Tennessee
Shelby County, Tennessee: Shelby County Air Code 3-17 (City of Memphis
Code 16-83)
The EPA is proposing in this document to make a finding of
substantial inadequacy and issue a SIP Call to Tennessee for local
provisions Shelby County Air Code 3-17 (City of Memphis Code 16-83)
\57\ on the basis that they contain impermissible unbounded director's
discretion exemptions.
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\57\ This Shelby County portion of the Tennessee SIP consists of
the Shelby County Air Code developed by the Shelby County Health
Department's Pollution Control Section and the mirrored regulations
for included municipalities and the City of Memphis. EPA selected
the City of Memphis Air Code to represent the SIP compilation in the
past. Shelby County Air Code section 3-17 corresponds to City of
Memphis Code section 16-83. The Shelby County LIP also includes the
Town of Arlington, City of Millington, Town of Collierville, City of
Bartlett, City of Germantown, and the City of Lakeland.
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As explained earlier in this document, EPA's position is that the
best reading of the CAA is that it does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), emission limitations
that appear in SIPs must be continuous, in accordance with the
definition of ``emission limitations'' in CAA section 302(k). Thus, any
excess emissions above the level of the applicable emission limitation
must be considered violations, whether or not the state elects to
exercise its enforcement discretion. SIP provisions that create
exemptions such that the excess emissions during startup, shutdown, or
malfunctions are not violations are inconsistent with the fundamental
requirements of the CAA with respect to emission limitations in SIPs.
[[Page 11860]]
Shelby County Air Code 3-17 (City of Memphis Code 16-83), which
incorporates by reference Chapter 1200-3-5 of the Tennessee Air
Pollution Control Regulations, applies to visible emissions from
stationary sources. Tennessee Compilation of Rules and Regulations
(Tenn. Comp. R. & Regs) 1200-3-5-.02(1), which was SIP-called in 2015,
states, ``Consistent with the requirements of Chapter 1200-3-20, due
allowance may be made for visible emissions in excess of that permitted
in this chapter which are necessary or unavoidable due to routine
startup and shutdown conditions.'' As explained in EPA's February 22,
2013, SIP call proposal, this provision creates an unbounded director's
discretion provision because it allows a state official to excuse
excess visible emissions after giving ``due allowance'' to the fact
that they were emitted during startup or shutdown events.\58\ More
importantly, the provision purports to authorize the local official to
create exemptions from applicable SIP emission limitations when such
exemptions are impermissible in the first instance. There are no other
provisions in the TN SIP that could act as an appropriate alternative
emission limit to fill the periods of time the emission limit does not
apply.
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\58\ Tenn. Comp. R. & Regs 1200-3-5-.02(1) refers to Chapter
1200-3-20 as prescribing the requirements for considering whether
violations can receive ``due allowance.'' As SIP-called, 1200-3-
20-.07(1) requires data to be reported ``to assist the Technical
Secretary in deciding whether to excuse or proceed upon'' violations
of applicable SIP emission limitations. Therefore, the due allowance
at 1200-3-5-.02(1) can be interpreted to mean the discretion of the
Technical Secretary to excuse violations during periods of SSM. The
EPA SIP called the Shelby County incorporation by reference of
Chapter 1200-3-20 in the 2015 SSM SIP Action, and Shelby County
submitted a SIP revision addressing that SIP call through the State
on March 1, 2022.
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As such, the EPA is proposing to find Shelby County Air Code 3-17
(City of Memphis Code 16-83), which appears to provide for director's
discretion exemptions from the emission limitations that would
otherwise apply to visible emission standards from stationary sources
in the TN SIP, is substantially inadequate to meet CAA requirements
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) as interpreted in EPA's
SSM Policy.
E. Wisconsin
Wis. Admin. Code NR 431.05(1)-(2) and NR 436.03(2)
The EPA is proposing in this document to make a finding of
substantial inadequacy and issue a SIP call to the state of Wisconsin
for Wis. Admin. Code provisions NR 431.05(1)-(2) and NR 436.03(2) on
the basis that these provisions contain impermissible automatic and
director's discretion exemptions.
As explained earlier in this document, EPA's position is that the
best reading of the CAA is that it does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), emission limitations
that appear in SIPs must be continuous, in accordance with the
definition of ``emission limitations'' in CAA section 302(k). Thus, any
excess emissions above the level of the applicable emission limitation
must be considered violations, whether or not the state elects to
exercise its enforcement discretion. SIP provisions that create
exemptions such that the excess emissions during startup, shutdown, or
malfunctions are not violations are inconsistent with the fundamental
requirements of the CAA with respect to emission limitations in SIPs.
In addition, director's discretion provisions functionally could allow
de facto revisions of approved emission limitations required by the
SIP, without complying with the process for SIP revisions required by
the CAA.
The provision NR 431.05(1), which applies to emissions limitations
and visible emissions control for all air contaminant sources, states,
``No owner or operator of a direct or portable source on which
construction or modification is commenced after April 1, 1972 may cause
or allow emissions of shade or density greater than number 1 of the
Ringlemann chart or 20% opacity with the following exceptions: (1) When
combustion equipment is being cleaned or a new fire started, emissions
may exceed number 1 of the Ringlemann chart or 20% opacity but may not
exceed number 4 of the Ringlemann chart or 80% opacity for 6 minutes in
any one hour. Combustion equipment may not be cleaned nor a fire
started more than 3 times per day.'' While the CAA does allow for
alternative emission limitations or other enforceable control measures
or techniques that apply during startup or shutdown, 431.05(1) does not
comply with the Act's requirements for an alternative emission limit as
interpreted in EPA's SSM policy. While the provision appears on its
face to provide for a numerical limitation on visible emissions
exceedances at all times, an 80% opacity limit provides for
functionally uncontrolled emissions. In EPA's experience, for most
source categories, a source displaying 80% opacity would likely be
operating without any emissions controls at all. Opacity limits in EPA
rules and permits that represent controlled sources are typically much
lower than 80% (most often 20% or lower). While framed as an
alternative emissions limitation, EPA views this provision as operating
in practice as an automatic exemption, which does not comply with the
CAA or EPA's SSM policy. Further, the limit applies to emissions
limitations and visible emissions control for all air contaminant
sources--it is not ``limited to specific, narrowly defined source
categories'' as EPA's SSM Policy for alternative emission limits
recommends. As articulated in 1999 SSM SIP Guidance and 2015 SSM SIP
Action, for some source categories, given the types of control
technologies available, there may exist short periods of emissions
during startup and shutdown when, despite best efforts regarding
planning, design, and operating procedures, otherwise applicable
emission limitation cannot be met. In these instances, it may be
appropriate to create SIP revisions providing for alternative emission
limitations, so long as they meet the criteria for developing and
evaluating alternative emission limitations laid out by EPA, including
that the revision be ``limited to specific, narrowly defined source
categories.'' \59\ Even if an 80 percent opacity limit were to be
appropriate for certain sources in very specific scenarios, it operates
too broadly to be appropriate in all situations.
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\59\ See 80 FR 33840 at 33914 and EPA's 1999 SSM Guidance
(Memorandum to EPA Regional Administrators, Regions I-X from Steven
A. Herman and Robert Perciasepe, USEPA, Subject: State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown, dated September 20, 1999).
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Both NR 431.05(2) and NR 436.03(2) provide for unbounded director's
discretion exemptions, authorizing exemptions from otherwise applicable
emission limitations, in violation of EPA's SSM Policy that emission
limits apply at all times. NR 431.05(2), which applies to emission
limitations and visible emissions control for all air contaminant
sources, states, ``No owner or operation of a direct or portable source
on which construction or modification is commenced after April 1, 1972
may cause or allow emissions of shade or density greater than number 1
of the Ringlemann chart or 2 percent opacity with the following
exceptions: (2) Emissions may exceed number 1 of the Ringlemann chart
or 20 percent opacity for stated periods of time, as permitted by the
department, for such
[[Page 11861]]
purpose as an operating test, use of emergency equipment, or other good
cause, provided no hazard or unsafe condition arises.'' This provision
constitutes a director's discretion exemption because it allows
exceptions ``as permitted by the department'' for various purposes
including ``other good cause.'' Although it limits the department
head's discretion so that ``no hazard or unsafe condition arises,''
this vague language provides the department head with extremely broad
discretion to approve emissions exceedances in accordance with ``good
cause'' which could preclude enforcement by the EPA or the public who
might disagree about whether enforcement action is warranted due to
emissions exceedances.
NR 436.03(2), which applies to emission limitations exceptions for
all air contaminant sources, states, ``Emissions in excess of the
emission limitations set in NR 400 to 499 may be allowed in the
following circumstances: (a) When an approved program or plan with a
time schedule for correction has been undertaken and correction is
being pursued with diligence; (b) When emissions in excess of the
limits are temporary and due to scheduled maintenance, startup or
shutdown of operations carried out in accord with a plan and schedule
approved by the department; (c) The use of emergency or reserve
equipment needed for meeting of high peak loads, testing of the
equipment or other uses approved by the department. Such equipment must
be specified in writing as emergency or reserve equipment by the
department. Upon startup of this equipment notification must be given
to the department which may or may not give approval for continued
equipment use.''
This provision constitutes a director's discretion exemption
because, for example, NR 436.03(2) references exceptions to emissions
limitations during periods of SSM as being acceptable so long as the
emissions are ``carried out in accord with a plan and schedule approved
by the department.'' Like NR 431.05(2), this vague language provides
the department head or director with extremely broad discretion to
approve emissions exceedances in accordance with an unspecified
department plan, which could preclude enforcement by the EPA or the
public who might disagree about whether enforcement action is
warranted. Most importantly, however, the provision may be read to
authorize the state official to create an exemption from applicable
emission limitations, and such an exemption is impermissible in the
first instance. There are no other provisions in the WI SIP that could
act as an appropriate alternative emission limit to fill the periods of
time the emission limits do not apply.
As such, the EPA proposes to find that Wis. Admin. Code NC
431.05(1)-(2) and NR 436.03(2), which appears to provide for automatic
and director's discretion exemptions from the emission limitations that
would otherwise apply to air contaminant sources in the WI SIP, are
substantially inadequate to comply with the CAA requirements in
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) and, thus, are
impermissible for the aforementioned reasons.
F. Louisiana
Louisiana Administrative Code (LAC) Title 33 Chapter 9 Section 917
The EPA is proposing in this document to make a finding of
substantial inadequacy and issue a SIP call to Louisiana for the LA.
Admin Code Tit. 33 section 917 provision on the basis that it contains
an impermissible director's discretion exemption.
As explained earlier in this document, EPA's position is that the
best reading of the CAA is that it does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), emission limitations
that appear in SIPs must be continuous, in accordance with the
definition of ``emission limitations'' in CAA section 302(k). Thus, any
excess emissions above the level of the applicable emission limitation
must be considered violations, whether or not the state elects to
exercise its enforcement discretion. SIP provisions that seek to
provide or create exemptions such that the excess emissions during
startup, shutdown, or malfunctions are not violations are inconsistent
with the fundamental requirements of the CAA with respect to emission
limitations in SIPs.
The EPA proposes to find that a provision in Louisiana's SIP that
allows emissions in excess of otherwise applicable SIP emission
limitations due to ``exceptional circumstances'' (LA. Admin Code Tit.
33 section 917) is impermissible under the CAA as interpreted in EPA's
SSM Policy because it includes an unbounded director's discretion
provision. The provision authorizes a state official to grant a
``variance'' from any generally applicable SIP emission limitation if
the state official ``finds that by reason of exceptional circumstances
strict conformity with any provisions of [Louisiana's air quality]
regulations would cause undue hardship, would be unreasonable,
impractical or not feasible under the circumstances.'' This provision
could be read to mean that once the state official has granted a
variance for excess emissions due to conditions that make it difficult
for sources to comply with otherwise applicable SIP limitations, those
excess emissions are not violations. In fact, the state of Louisiana
has granted several variances in recent years to allow for excess
emissions during periods of SSM.\60\ This is contrary to the
fundamental enforcement structure of the CAA, as provided in CAA
section 113 and CAA section 304, through which the EPA and other
parties are authorized to bring enforcement actions for violations of
SIP emission limitations.
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\60\ See Louisiana variance memorandum in Docket ID EPA-HQ-OAR-
2022-0814.
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As discussed in section V.A. of this document, such director's
discretion provisions are impermissible. Such an interpretation would
make the state official the unilateral arbiter of whether the excess
emissions in a given event constitute a violation, which could preclude
enforcement by the EPA or the public who might disagree about whether
enforcement action is warranted. Most importantly, however, the
provision may be read to authorize the state official to create an
exemption from applicable emission limitations, and such an exemption
is impermissible in the first instance. Inclusion of an unbounded
director's discretion provision in LA. Admin Code Tit. 33 section 917
is thus a substantial inadequacy and renders this specific SIP
provision impermissible for this reason.
The EPA notes that the Louisiana provision also states that ``No
variance may permit or authorize the maintenance of a nuisance, or a
danger to public health or safety.'' While this seems to be meant to
limit the scope of Louisiana's authority to grant such a variance, the
EPA does not believe that it provides any objective criteria that might
allow for meaningful EPA or citizen enforcement. Such a vague
limitation does not remedy the CAA inadequacies discussed above and
does not comply with EPA's interpretation of the CAA as applied through
EPA's SSM Policy regarding alternative emission limitations. There are
no other provisions in the LA SIP that could act as an appropriate
alternative emission limit to fill the periods of time the emission
limits do not apply.
[[Page 11862]]
The EPA proposes to find that LA. Admin Code Tit. 33 section 917
provision appears to provide for exemptions from otherwise applicable
emission limitations through a state official's unilateral exercise of
discretionary authority that is unbounded. Such provisions are
inconsistent with the fundamental requirements of the CAA with respect
to emission limitations in SIPs as required by CAA sections
110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is
proposing to find that this provision is substantially inadequate to
meet CAA requirements and thus proposing to issue a SIP call with
respect to this provision.
VIII. Legal Authority, Process, and Timing for SIP Calls
A. SIP Call Process Under CAA Section 110(k)(5)
Section 110(k)(5) of the CAA provides the EPA with authority to
determine whether a SIP is substantially inadequate to attain or
maintain the NAAQS or otherwise comply with any requirement of the CAA.
Where the EPA makes such a determination, the EPA then has a duty to
issue a SIP call. In addition to providing general authority for a SIP
call, CAA section 110(k)(5) sets forth the process and timing for such
an action.
First, the statute requires the EPA to notify the state of the
final finding of substantial inadequacy. The EPA intends to provide
notice to states via letter to the appropriate state officials in
addition to publication of the final action in the Federal Register.
Second, the statute requires the EPA to establish ``reasonable
deadlines (not to exceed 18 months after the date of such notice)'' for
the state to submit a corrective SIP submission to eliminate the
inadequacy in response to the SIP call. The EPA implements this by
proposing and taking comment on the schedule for the submission of
corrective SIP revisions in order to ascertain the appropriate
timeframe, depending on the nature of the SIP inadequacy. Third, the
statute requires that any finding of substantial inadequacy and notice
to the state be made public. By undertaking a notice-and-comment
rulemaking, the EPA ensures that the air agency, affected sources, and
members of the public all are adequately informed and afforded the
opportunity to participate in the process. Through this proposal
document and the subsequent final document, the EPA intends to provide
a full evaluation of the issues and to use this process as a means of
giving clear guidance concerning SIP provisions relevant to SSM events
that are consistent with CAA requirements.
If the state fails to submit the corrective SIP revision concerning
the deficiency by the deadline that the EPA finalizes as part of the
SIP call, CAA section 110(c) authorizes the EPA to ``find that [the]
State has failed to make a required submission.'' \61\ Once EPA makes
such a finding of failure to submit, CAA section 110(c)(1) requires the
EPA to ``promulgate a Federal implementation plan at any time within 2
years after the [finding] * * * unless the State corrects the
deficiency, and [the EPA] approves the plan or plan revision, before
[the EPA] promulgates such [FIP].'' Thus, if EPA finalizes a SIP call
and then finds that the air agency failed to submit a complete SIP
revision that responds to the SIP call, or if the EPA disapproves such
SIP revision, then the EPA will have an obligation under CAA section
110(c)(1) to promulgate a FIP no later than 2 years from the date of
the finding or the disapproval, if the deficiency has not been
corrected before that time.\62\
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\61\ See CAA section 110(c)(1)(A).
\62\ The 2-year deadline does not necessarily apply to FIPs
following disapproval of a tribal implementation plan.
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The finding of failure to submit a revision in response to a SIP
call, or EPA's disapproval of that corrective SIP revision, can also
trigger sanctions under CAA section 179. If a state fails to submit a
complete SIP revision that responds to a final SIP call, CAA section
179(a) provides for the EPA to issue a finding of state failure. Such a
finding starts mandatory 18-month and 24-month sanctions clocks. The
two sanctions that apply under CAA section 179(b) are the 2-to-1
emission offset requirement for all new and modified major sources
subject to the nonattainment new source review program and restrictions
on highway funding. However, CAA section 179 leaves it to the EPA to
decide the order in which these sanctions apply. The EPA issued an
order of sanctions rule in 1994 but did not specify the order of
sanctions where a state fails to submit or submits a deficient SIP
revision in response to a SIP call.\63\ In this document, we are now
proposing and taking comment on the following timeline: the EPA
proposes that the 2-to-1 emission offset requirement will apply for all
new sources subject to the nonattainment new source review program 18
months following such finding or disapproval unless the state corrects
the deficiency before that date. The EPA proposes that the highway
funding restrictions sanction will also apply 24 months following such
finding or disapproval unless the state corrects the deficiency before
that date. The EPA is proposing that the provisions in 40 CFR 52.31
regarding staying the sanctions clock and deferring the imposition of
sanctions would also apply.
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\63\ See, ``Selection of Sequence of Mandatory Sanctions for
Findings Made Pursuant to Section 179 of the Clean Air Act,'' 59 FR
39832 (August. 4, 1994), codified at 40 CFR 52.31.
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Mandatory sanctions under CAA section 179 generally apply only in
nonattainment areas. By its definition, the emission offset sanction
applies only in areas required to have a part D NSR program, typically
areas designated nonattainment. CAA section 179(b)(1) expressly limits
the highway funding restriction to nonattainment areas. Additionally,
EPA interprets the section 179 sanctions to apply only in the area or
areas of the state that are subject to or required to have in place the
deficient SIP and for the pollutant or pollutants the specific SIP
element addresses. For example, if the deficient provision applies
statewide and applies for all NAAQS pollutants, then the mandatory
sanctions would apply in all areas designated nonattainment for all
NAAQS within the state. Following through on this interpretation, it is
reasonable to expect that any newly designated nonattainment areas
subsequent to the EPA taking final action on this proposal would also
be subject to sanctions for failure to comply with SIP submittal
obligations stemming from this SIP call, if finalized (or failure to
comply with similar obligations for previously identified deficient
statewide SSM provisions). In such cases, the EPA will evaluate the
geographic scope of potential sanctions at the time it makes a final
determination whether the state's SIP is substantially inadequate and
issues a SIP call, as this may vary depending upon the provisions at
issue.
B. SIP Call Timing Under CAA Section 110(k)(5)
If the EPA finalizes a proposed finding of substantial inadequacy
and a proposed SIP call for any state, CAA section 110(k)(5) requires
EPA to establish a SIP submission deadline by which the state must make
a SIP submission to rectify the identified deficiency. Pursuant to CAA
section 110(k)(5), the EPA has authority to set a SIP submission
deadline up to 18 months from the signature date of the final finding
of inadequacy. The EPA is proposing here that if it promulgates a final
finding of inadequacy and a SIP call for a state, it will establish a
date 18 months from the date of
[[Page 11863]]
promulgation of the final finding for the state to respond to the SIP
call. Thereafter, the EPA will review the adequacy of that new SIP
submission and take appropriate action on the submission in accordance
with the CAA requirements of sections 110(a), 110(k), 110(l), 113(b),
113(e), 193, and 304, including EPA's interpretation of the CAA
reflected in the SSM Policy as clarified and updated through this
action.
Considering the affected air agencies' need to develop appropriate
regulatory provisions to address the SIP call and conduct any required
processes for developing a SIP, we are proposing the 18-month due date
because we believe that states should be provided the maximum time
allowable under CAA section 110(k)(5) in order to ensure they have
sufficient time. EPA expects that such a schedule will allow for the
necessary SIP development process to correct the deficiencies yet still
achieve the necessary SIP improvements as expeditiously as practicable.
In light of the potential for public health impacts during this time
period, we solicit comment on whether establishing a shorter time
period than 18 months could instead be sufficient for the affected air
agencies to develop and submit their SIP revisions.
The EPA acknowledges that the longstanding existence of many of the
provisions at issue, such as automatic exemptions for SSM events, may
have resulted in undue reliance on them as a compliance mechanism by
some sources. As a result, development of appropriate SIP revisions may
entail reexamination of the applicable emission limitations themselves,
and this process may require the maximum time allowed by the CAA.
Nevertheless, the EPA encourages the affected states to make the
necessary revisions in as timely a fashion as possible and encourages
the states to work with the respective EPA Regional office as they
develop the corrective SIP revisions.
The EPA notes that the SIP calls that it is proposing for affected
states in this document would be narrow and apply only to the specific
SIP provisions determined to be inconsistent with the requirements of
the CAA. To the extent that a state is concerned that elimination of a
particular aspect of an existing emission limitation, such as an
impermissible exemption, will render that emission limitation more
stringent than the state originally intended and more stringent than
needed to meet the CAA requirements it was intended to address, EPA
anticipates that the state will revise the emission limitation
accordingly, but without the impermissible exemption or other feature
that necessitated the SIP call. The EPA will evaluate any such SIP
revision in accordance with applicable CAA requirements, including CAA
section 110(l).
Finally, the EPA notes that its authority under CAA section
110(k)(5) does not extend to requiring a state to adopt a particular
control measure in its SIP in response to the SIP call. Under
principles of cooperative federalism, the CAA vests air agencies with
substantial discretion to develop SIP provisions, so long as the
provisions meet the legal requirements and objectives of the CAA.\64\
Thus, the issuance of a SIP call should not be misconstrued as a
directive to the state in question to adopt a particular control
measure. The EPA is merely proposing to require that affected states
make a SIP revision to remove or revise existing SIP provisions that
fail to comply with fundamental requirements of the CAA. The states
retain discretion to remove or revise those provisions as they
determine best, so long as they bring their SIPs into compliance with
the requirements of the CAA.\65\
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\64\ See, Virginia, et al. v. EPA, 108 F.3d 1397 (D.C. Cir.
1997) (SIP call remanded and vacated because, inter alia, the EPA
had issued a SIP call that required states to adopt a particular
control measure for mobile sources).
\65\ Notwithstanding the latitude states have in developing SIP
provisions, the EPA is required to assure that states meet the basic
legal criteria for SIPs. See, Michigan, et al. v. EPA, 213 F.3d 663,
686 (D.C. Cir. 2000) (upholding NO<INF>X</INF> SIP call because,
inter alia, the EPA was requiring states to meet basic legal
requirement that SIPs comply with CAA section 110(a)(2)(D), not
dictating the adoption of a particular control measure).
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C. Severability
The findings of substantial inadequacy discussed in this action are
based on an individual analysis of whether each SIP at issue contains
provisions that are inconsistent with the CAA and EPA's SSM SIP policy.
As such, it is reasonable to consider each SIP call as severable from
the others because the SIP calls do not depend on one another. If any
particular SIP call is stayed or determined to be invalid by a court,
it is the EPA's intention that the remaining SIP calls shall continue
in effect.
IX. Environmental Justice Considerations
This proposal applies, but does not change, EPA's interpretation of
the statutory requirements of the CAA outlined in its 2015 SSM SIP
Action. Through the SIP calls issued to certain states as part of this
SIP call action under CAA section 110(k)(5), EPA is requiring each
affected state to revise its SIP to comply with existing requirements
of the CAA. EPA's action, therefore, leaves to each affected state the
flexibility bound by the CAA as to how to revise the SIP provision in
question to make it consistent with CAA requirements and to determine,
among other things, which of the several lawful approaches to the
treatment of excess emissions during SSM events will be applied to
particular sources. In the 2015 SSM SIP Action, the EPA did not perform
an environmental justice analysis for purposes of this action, because
it determined that it cannot geographically identify or quantify the
resulting source-specific emission reductions.\66\
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\66\ See 80 FR 33840 at 33982.
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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 believes that this
proposed action is likely to either reduce or have no adverse impact on
existing disproportionate and adverse effects on people of color, low-
income populations and/or indigenous peoples.
As articulated in the 2021 McCabe memo, 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. While there are many different kinds of
SSM provisions with varying scope and effect, the EPA notes that the
overarching effect of these provisions is to allow or excuse excess
emissions that exceed SIP limitations. Eliminating impermissible SSM
provisions is intended to ensure that all communities and populations,
including overburdened communities, receive the full health and
environmental protections provided by the CAA. The correction of SIP
deficiencies by the states affected by this document is, therefore,
expected to contribute to reduced excess emissions during SSM periods
and improve human and environmental health for U.S. citizens, including
people of color, low-income populations, and/or indigenous peoples.
Although not a basis for this proposed action, EPA would be
interested in hearing from communities that have
[[Page 11864]]
seen impacts from emissions events during SSM periods. This
information, while not necessary to justify this action, may be useful
to EPA in continuing to implement the Agency's SSM Policy. If the EPA
finalizes this action, as described elsewhere in this document,
affected states will be required to revise their SIPs. In complying
with minimum public notice and comment requirements associated with SIP
development processes, the EPA encourages affected state and local air
agencies to provide for meaningful public engagement during that SIP
review process and, where appropriate and applicable, evaluate
environmental justice considerations.
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
The EPA submitted this action to the Office of Management and
Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR
3821, January 21, 2011) and any changes made in response to OMB
recommendations have been documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This proposed action is merely reiterates EPA's interpretation of the
statutory requirements of the CAA and does not require states to
collect any additional information. To the extent that the EPA proposes
to issue a SIP call to a state under CAA section 110(k)(5), the EPA is
only proposing an action that requires the state to revise its SIP to
comply with existing requirements of the CAA.
C. Regulatory Flexibility Act
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.\67\ Instead,
the action merely reiterates EPA's interpretation of the statutory
requirements of the CAA. Through the SIP calls issued to certain states
as part of this SIP call action under CAA section 110(k)(5), EPA is
only requiring each affected state to revise its SIP to comply with
existing requirements of the CAA. EPA's action, therefore, leaves to
each affected state the choice as to how to revise the SIP provision in
question to make it consistent with CAA requirements and to determine,
among other things, which of the several lawful approaches to the
treatment of excess emissions during SSM events will be applied to
particular sources.
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\67\ Small entities include small businesses, small
organizations, and small governmental jurisdictions. For purposes of
assessing the impacts of this document on small entities, small
entity is defined as: (1) A small business that is a small
industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (see 13 CFR 121.201); (2) a
small governmental jurisdiction that is a government of a city,
county, town, school district, or special district with a population
of less than 50,000; or (3) a small organization that is any not-
for-profit enterprise that is independently owned and operated and
is not dominant in its field.
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D. Unfunded Mandates Reform Act (URMA)
This action does not contain an unfunded of $100 million or more as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. The action may impose a duty on
certain state governments to meet their existing obligations to revise
their SIPs to comply with CAA requirements. The direct costs of this
action on states would be those associated with preparation and
submission of a SIP revision by those states for which the EPA issues a
SIP call. Examples of such costs could include development of a state
rule, conducting notice and public hearing, and other costs incurred in
connection with a SIP submission. These aggregate costs would be far
less than the $100-million threshold in any 1 year. Thus, this action
is not subject to the requirements of sections 202 or 205 of the
Unfunded Mandates Reform Act (UMRA).
This proposed action is also not subject to the requirements of
section 203 of UMRA because it contains no regulatory requirements that
might significantly or uniquely affect small governments. The
regulatory requirements of this action would apply to the states for
which the EPA issues a SIP call. To the extent that such states allow
local air districts or planning organizations to implement portions of
the state's obligation under the CAA, the regulatory requirements of
this action would not significantly or uniquely affect small
governments because those governments have already undertaken the
obligation to comply with the CAA.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). In this
document, the EPA is not addressing any tribal implementation plans.
This action is limited to states. Thus, Executive Order 13175 does not
apply to this action. However, the EPA invites comment on this action
from tribal officials.
G. 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 environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it because it merely prescribes EPA's
action for states regarding their obligations for SIPs under the CAA.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTAA)
This rulemaking does not involve technical standards.
J. 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 minority populations (people of color and/or indigenous
peoples) and low-income populations.
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
[[Page 11865]]
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
believes that this proposed action is likely to either reduce or have
no adverse impact on existing disproportionate and adverse effects on
people of color, low-income populations and/or indigenous peoples. The
basis for this decision is contained in section IX of this preamble.
K. 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 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, if ``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).\68\
---------------------------------------------------------------------------
\68\ In deciding whether to invoke the exception by making and
publishing a finding that this action, if finalized, is based on a
determination of nationwide scope or effect, the Administrator
intends to take 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.
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The EPA is proposing to issue SIP calls to eight states (applicable
in 10 statewide and local jurisdictions) located in four of the ten EPA
regions pursuant to a uniform process and analytical approach. The EPA
is proposing to apply a nationally consistent policy regarding SSM
provisions in SIPs in each of these eight states as a follow-up to
EPA's larger 2015 SSM SIP Action, in which the Agency issued SIP calls
pursuant to the same nationally consistent policy to 36 states
(applicable in 45 statewide and local jurisdictions), for which
petitions for review were all filed in the D.C. Circuit in 2015. The
jurisdictions that would be affected by this action, if finalized,
represent a wide geographic area and fall within six different judicial
circuits.
If the Administrator takes final action on this proposal, then, in
consideration of the effects of the action across the country, the EPA
views this action to be ``nationally applicable'' within the meaning of
CAA section 307(b)(1). In the alternative, to the extent a court finds
this proposal, if finalized, to be locally or regionally applicable,
the Administrator intends to exercise 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).\69\
---------------------------------------------------------------------------
\69\ In the report on the 1977 Amendments that revised CAA
section 307(b)(1), 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
323-24, reprinted in 1977 U.S.C.C.A.N. 1402-03.
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XI. Statutory Authority
The statutory authority for this proposed action is provided in CAA
section 101 et seq. (42 U.S.C. 7401 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Affirmative defense, Air pollution
control, Carbon dioxide, Carbon dioxide equivalents, Carbon monoxide,
Excess emissions, Greenhouse gases, Hydrofluorocarbons, Incorporation
by reference, Intergovernmental relations, Lead, Methane, Nitrogen
dioxide, Nitrous oxide, Ozone, Particulate matter, Perfluorocarbons,
Reporting and recordkeeping requirements, Shutdown and malfunction,
Startup, State implementation plan, Sulfur hexafluoride, Sulfur oxides,
Volatile organic compounds.
Michael S. Regan,
Administrator.
[FR Doc. 2023-03575 Filed 2-23-23; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on February 24, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.