Rule2024-30654
Air Plan Approval; Air Plan Disapproval; Delaware; Removal of Excess Emissions Provisions; Final Correction
Primary source
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Published
December 23, 2024
Effective
December 23, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is determining that a portion of an October 23, 2023, final disapproval action of a State implementation plan (SIP) revision submitted by the State of Delaware was in error and making a correction pursuant to section 110(k)(6) of the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 89 Issue 246 (Monday, December 23, 2024)</title>
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[Federal Register Volume 89, Number 246 (Monday, December 23, 2024)]
[Rules and Regulations]
[Pages 104433-104435]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-30654]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2023-0206; FRL-11037.1-01-R3]
Air Plan Approval; Air Plan Disapproval; Delaware; Removal of
Excess Emissions Provisions; Final Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
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SUMMARY: The Environmental Protection Agency (EPA) is determining that
a portion of an October 23, 2023, final disapproval action of a State
implementation plan (SIP) revision submitted by the State of Delaware
was in error and making a correction pursuant to section 110(k)(6) of
the Clean Air Act (CAA).
DATES: This final action is effective on December 23, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R03-OAR-2023-0206. All documents in the docket are
listed at <a href="http://www.regulations.gov">www.regulations.gov</a>. Although listed in the index, some
information may not be publicly available, i.e., Confidential Business
Information 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 either
electronically through <a href="http://www.regulations.gov">www.regulations.gov</a> or please contact the person
listed in the FOR FURTHER INFORMATION CONTACT for additional
availability information.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
publication should be addressed to Sean Silverman, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, Four Penn Center, 1600
John F. Kennedy Boulevard, Philadelphia, Pennsylvania 19103; by
telephone (215) 814-5511 or by email at <a href="/cdn-cgi/l/email-protection#03706a6f7566716e626d2d7066626d436673622d646c75"><span class="__cf_email__" data-cfemail="d5a6bcb9a3b0a7b8b4bbfba6b0b4bb95b0a5b4fbb2baa3">[email protected]</span></a>.
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SUPPLEMENTARY INFORMATION:
I. General Information
A. How is the preamble organized?
The information presented in this preamble is organized as follows:
Table of Contents
I. General Information
A. How is the preamble organized?
II. Background
III. What is the EPA correcting?
IV. What action is the EPA taking?
V. Statutory and Executive Order Reviews
II. Background
On November 5, 2024, the EPA proposed to correct an error in an
earlier EPA action, using the authority of section 110(k)(6) of the
CAA.\1\ Specifically, the proposed action explained that the error
occurred in an October 23, 2023, EPA action \2\ disapproving revisions
to the State of Delaware's SIP which were submitted in response to the
2015 Startup, Shutdown, and Malfunction (SSM) SIP Action.\3\
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\1\ 89 FR 87826 (November 5, 2024).
\2\ 88 FR 72688 (October 23, 2023).
\3\ 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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On June 12, 2015, the EPA finalized the 2015 SSM SIP Action, which
clarified, restated, and updated the EPA's national policy regarding
SIP provisions applying to excess emissions during periods of startup,
shutdown, and malfunction. As part of the 2015 SSM SIP Action, the EPA
issued a finding that certain SIP provisions for 36 States that were
applicable in 45 statewide and local jurisdictions were substantially
inadequate to meet CAA requirements due to how those SIP provisions
treated excess emissions during SSM periods. Further, the EPA issued a
``SIP call'' to each of those 45 air agencies, including the State of
Delaware, on the basis that Delaware's SIP contained impermissible
director's discretion provisions that were substantially inadequate to
meet CAA requirements.\4\ To respond to the EPA's SIP call in the 2015
SSM SIP Action, each affected State was required to submit its
corrective SIP revision by November 22, 2016. The State of Delaware
submitted a SIP revision purporting to address the seven issues
identified in EPA's 2015 SSM SIP Action on November 22, 2016. On
October 23, 2023, the EPA took final action \5\ disapproving certain
portions of Delaware's November 22, 2016, SIP revision based on EPA's
finding that the SIP revision did not correct the remaining
deficiencies in Delaware's SIP identified by the 2015 SSM SIP
Action.\6\
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\4\ See 78 FR 12460, 12495-12496 (February 22, 2013) and 80 FR
33840 at 33960 (June 12, 2015).
\5\ See 88 FR 72688 (October 23, 2023).
\6\ EPA Region 3 issued two final actions that corrected three
of Delaware's seven deficient SIP provisions originally identified
in EPA's 2015 SSM SIP call. See 87 FR 41074 (July 11, 2022) and 88
FR 9399 (February 14, 2023). On October 23, 2023 (88 FR 72688), the
EPA Region 3 finalized disapproval of Delaware's SIP revision that
sought to correct the remaining four deficient provisions.
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As a result of the March 1, 2024, decision from the United States
Court of Appeals for the District of Columbia Circuit in Environ. Comm.
Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024), certain portions
of the EPA's SIP call in the 2015 SSM SIP Action were vacated by the
D.C. Circuit and therefore have no legal effect. Thus, certain States
subject to the 2015 SSM SIP Action no longer have a legal obligation to
submit the revisions that the EPA had originally determined were
required to correct the deficiency identified in the SIP call.\7\ In
other words, by partially vacating the EPA's 2015 SSM SIP Action, the
D.C. Circuit's decision rendered Delaware's SIP submission in response
to the 2015 SSM SIP Action voluntary rather than mandatory. As a
result, the EPA proposed to correct the EPA's October 23, 2023,
disapproval action with respect to the consequences of that
disapproval. A more complete explanation of the reasons for the
proposed error correction can be found in the November 5, 2024,
proposed action. Comments on the November 5, 2024, proposed action were
due on or before December 5, 2024. The EPA did not receive any comments
on the November 5, 2024, proposed action.
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\7\ In vacating certain portions of the 2015 SSM SIP Action, the
D.C. Circuit's decision did not determine whether the SIP-called
provisions were otherwise lawful under the CAA. See e.g. 94 F.4th at
110 (``We thus do not reach the question whether the called SIP's
relevant emission restrictions in fact amount to (or must amount to)
``emission limitations'' per the statutory definition.'').
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III. What is the EPA correcting?
In this action, the EPA is correcting the erroneous triggering of
mandatory sanctions under CAA section 179 and 40 Code of Federal
Regulations (CFR) 52.31 for the State of Delaware following its October
23, 2023 (88 FR 72688), disapproval of Delaware's SIP revision
submitted in response to the 2015 SSM SIP call. The EPA is also
correcting the erroneous triggering of the EPA's obligation to issue a
Federal Implementation Plan (FIP) under CAA section 110(c)(1)(B). As a
result, in finalizing this error correction action, the imposition of
sanctions for the State of Delaware and the FIP obligation for the EPA
that were triggered as result of the October 23, 2023 (88 FR 72688)
final disapproval action are no longer in effect.
IV. What action is the EPA taking?
As a result of the D.C. Circuit's decision in Environ. Comm. Fl.
Elec. Power v. EPA, the EPA is determining that, pursuant to section
110(k)(6) of the CAA, a portion of the EPA's October 23, 2023 (88 FR
72688), final disapproval action of Delaware's SIP revision was in
error with respect to the consequences of that disapproval. By
partially vacating the EPA's 2015 SSM SIP Action, the D.C. Circuit's
decision rendered Delaware's SIP submission in response to the 2015 SSM
SIP action voluntary rather than mandatory. Thus, the EPA is finding
that the triggering of mandatory sanctions and FIP obligation following
the October 23, 2023 (88 FR 72688), final disapproval was erroneous
and, through this action, is terminating the imposition of sanctions
for the State and the FIP obligation for the EPA triggered by that
disapproval as they are no longer legally valid.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
(E.O.) can be found at <a href="http://www.epa.gov/laws-regulations/laws-and-executive-orders">www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. This action merely
corrects an error in EPA's prior action and does not impose additional
requirements beyond those imposed by State law. For that reason, this
action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993), and 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely
[[Page 104435]]
affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is an error correction taken under section
110(k)(6) of the CAA and does not directly or disproportionately affect
children.
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA.
<bullet> In addition, the SIP is not approved to apply on any
Indian reservation land or in any other area where EPA or an Indian
Tribe has demonstrated that a Tribe has jurisdiction. In those areas of
Indian country, the action does not have Tribal implications and will
not impose substantial direct costs on Tribal governments or preempt
Tribal law as specified by Executive Order 13175 (65 FR 67249, November
9, 2000).
Executive Order 12898: Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA did not perform an EJ analysis and did not consider EJ
in this action as the EPA views this action as a necessary procedural
step following the D.C. Circuit decision and vacatur of portions of the
2015 SIP call. Consideration of EJ is not required as part of this
action, and there is no information in the record inconsistent with the
stated goal of E.O. 12898 of achieving environmental justice for people
of color, low-income populations, and Indigenous peoples.
Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit within 60 days from the date this final action
is published in the Federal Register. Filing a petition for
reconsideration by the Administrator of this final action does not
affect the finality of the action for the purposes of judicial review,
nor does it extend the time within which a petition for judicial review
must be filed and shall not postpone the effectiveness of such rule or
action.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedures,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-30654 Filed 12-20-24; 8:45 am]
BILLING CODE 6560-50-P
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