[Federal Register Volume 87, Number 8 (Wednesday, January 12, 2022)]
[Rules and Regulations]
[Pages 1680-1683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00138]



[[Page 1680]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2021-0863; FRL-9250-01-OAR]


Findings of Failure To Submit State Implementation Plan Revisions 
in Response to the 2015 Findings of Substantial Inadequacy and SIP 
Calls To Amend Provisions Applying To Excess Emissions During Periods 
of Startup, Shutdown, and Malfunction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to find that 12 States and local air pollution control agencies 
failed to submit State Implementation Plan (SIP) revisions required by 
the Clean Air Act (CAA) in a timely manner to address EPA's 2015 
findings of substantial inadequacy and ``SIP calls'' for provisions 
applying to excess emissions during periods of startup, shutdown, and 
malfunction (SSM). This action triggers certain CAA deadlines for the 
EPA to impose sanctions if a State does not submit a complete SIP 
revision addressing the outstanding requirements and to promulgate a 
Federal Implementation Plan (FIP) if the EPA does not approve the 
State's submission as a SIP revision.

DATES: This action is effective February 11, 2022.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to, Erin Lowder, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, 109 T.W. Alexander 
Drive, Research Triangle Park, NC 27711; by telephone (919) 541-5421; 
or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How is the preamble organized?

    The information presented in this preamble is organized as follows:

Table of Contents

I. General Information
    A. How is the preamble organized?
    B. Notice and Comment Under the Administrative Procedure Act 
(APA)
    C. How can I get copies of this document and other related 
information?
    D. Where do I go if I have specific air agency questions?
II. Background
III. Consequences of Findings of Failure To Submit
IV. Findings of Failure To Submit for Air Agencies That Failed To 
Make a SIP Submittal To Address EPA's 2015 SIP Calls for Provisions 
Applying To Excess Emissions During SSM Periods
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Executive 
Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act of 1995 (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority and Low Income Populations
    L. Congressional Review Act (CRA)
    M. Judicial Review

B. Notice and Comment Under the Administrative Procedure Act (APA)

    Section 553(b)(3)(B) of the Administrative Procedure Act (APA), 5 
U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds 
that notice and public procedures are impracticable, unnecessary, or 
contrary to the public interest, the agency may issue a rule without 
providing notice and an opportunity for public comment. The EPA has 
determined that there is good cause for making this final agency action 
without prior proposal and opportunity for comment because no 
significant EPA judgment is involved in making findings of failure to 
submit SIPs, or elements of SIPs, required by the Clean Air Act (CAA), 
where states have made no submissions to meet the requirement. As is 
discussed in further detail later, pursuant to CAA section 
110(k)(1)(B), the EPA ``shall determine'' no later than 6 months after 
the date by which a state is required to submit a SIP whether a state 
has made a submission that meets the minimum completeness criteria 
established pursuant to CAA section 110(k)(1)(A). EPA exercises no 
significant judgment in making a determination that a state failed to 
make a submission and subsequently issuing a finding of failure to 
submit. Thus, notice and public procedures are unnecessary to take this 
action. The EPA finds that this constitutes good cause under 5 U.S.C. 
553(b)(3)(B).

C. How can I get copies of this document and other related information?

    The EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2021-0863. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the EPA Docket Center, EPA/DC, William Jefferson 
Clinton Building, Room 3334, 1301 Constitution Avenue NW, Washington, 
DC. Out of an abundance of caution for members of the public and our 
staff, the EPA Docket Center and Reading Room are closed to the public, 
with limited exceptions, to reduce the risk of transmitting COVID-19. 
Our Docket Center staff will continue to provide remote customer 
service via email, phone, and webform. The telephone number for the 
Public Reading Room is (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 https://www.epa.gov/dockets.

D. Where do I go if I have specific air agency questions?

    For questions related to specific air agencies mentioned in this 
notice, please contact the appropriate EPA Regional Office:

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            Regional offices                       Air agencies
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EPA Region 1: Mr. John Rogan, Chief, Air  Rhode Island.
 Program Branch, EPA Region 1, 5 Post
 Office Square, Boston, MA 02109.
 [email protected].
EPA Region 3: Mr. Mike Gordon, Chief,     District of Columbia.
 Planning and Implementation Branch, EPA
 Region 3, 1650 Arch Street,
 Philadelphia, PA 19103.
 [email protected].

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EPA Region 4: Ms. Lynorae Benjamin,       Alabama; North Carolina--
 Chief, Air Planning and Implementation    Forsyth; Tennessee--Shelby
 Branch, EPA Region 4, 61 Forsyth Street   (Memphis).
 SW, Atlanta, GA 30303.
 [email protected].
EPA Region 5: Mr. Doug Aburano, Manager,  Illinois; Ohio.
 Air Program Branch, EPA Region 5, 77
 West Jackson Boulevard, Chicago, IL
 60604. [email protected].
EPA Region 6: Mr. Guy Donaldson, Chief,   Arkansas.
 Air Program Branch, EPA Region 6, 1201
 Elm Street, Dallas, TX 75270.
 [email protected].
EPA Region 8: Mr. Scott Jackson, Chief,   South Dakota.
 Air Quality Planning Branch, EPA Region
 8, Mailcode 8ARD-QP, 1595 Wynkoop
 Street, Denver, CO 80202.
 [email protected].
EPA Region 9: Ms. Doris Lo, Manager,      California--San Joaquin Valley
 Rules Office, Air and Radiation           Air Pollution Control
 Division, EPA Region 9, 75 Hawthorne      District (APCD).
 Street, San Francisco, CA 94105.
 [email protected].
EPA Region 10: Ms. Debra Suzuki, Chief,   Washington--Energy Facility
 Air Program Branch, EPA Region 10, 1200   Site Evaluation Council
 Sixth Avenue, Seattle, WA 98101.          (EFSEC); Washington--
 [email protected].                     Southwest Clean Air Agency
                                           (SWCAA).
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II. Background

    On June 12, 2015, the EPA finalized an action (2015 SSM SIP 
Action), which clarified, restated, and updated EPA's national policy 
regarding SSM provisions in SIPs (2015 Policy).\1\ The 2015 Policy 
explained the EPA's interpretation of certain CAA requirements, 
affirming that SSM exemption provisions (e.g., automatic exemptions, 
discretionary exemptions, and overly broad enforcement discretion 
provisions) and affirmative defense SIP provisions are generally viewed 
as inconsistent with CAA requirements. At the same time, pursuant to 
CAA section 110(k)(5), the EPA issued findings of substantial 
inadequacy for SIP provisions applying to excess emissions during SSM 
periods for 36 states that were applicable in 45 statewide and local 
jurisdictions (air agencies).\2\ As part of the 2015 SSM SIP Action, 
the EPA also issued a ``SIP call'' (2015 SIP Call) to each of those 45 
air agencies. The 2015 SIP Call required air agencies to adopt and 
submit revisions to the EPA to correct identified SSM-related 
deficiencies in their SIPs by November 22, 2016. The 2015 SSM SIP 
Action also responded to a petition for rulemaking alleging specific 
deficiencies related to SSM provisions in existing SIPs. On July 27, 
2015, the 2015 SSM SIP Action was challenged in the United States Court 
of Appeals for the District of Columbia Circuit.\3\
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to 
SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction, 80 FR 33840 (June 12, 2015).
    \2\ For convenience, the EPA refers to ``air agencies'' in this 
action collectively when meaning to refer in general to states, the 
District of Columbia, and local air permitting authorities that are 
currently administering, or may in the future administer, EPA-
approved implementation plans.
    \3\ Environ. Comm. Fl. Elec. Power v. EPA, et al., No. 15-1239 
(D.C. Cir.) (and consolidated cases).
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    In 2017, the EPA requested that the pending litigation on the final 
2015 SSM SIP Action be held in abeyance to allow the new administration 
time to review the action. In 2020, Regions 4, 6, and 7 took final 
actions that were inconsistent with the 2015 Policy and the EPA 
withdrew the corresponding SIP calls previously issued to Texas, North 
Carolina, and Iowa. These state-specific actions are the subject of 
pending litigation.\4\ Moreover, in alignment with the SIP call 
withdrawals for Texas, North Carolina, and Iowa, the EPA issued a 
Memorandum in October 2020 (2020 Memorandum), which established a new 
national policy that permitted the inclusion of certain provisions 
governing SSM periods in SIPs, including those related to exemptions 
and affirmative defenses. Importantly, the 2020 Memorandum was not a 
regulatory action and did not alter or withdraw the 2015 SIP Call for 
any of the 45 air agencies identified in the 2015 SSM SIP Action. The 
2020 Memorandum did, however, indicate the EPA's intent at the time to 
review the remaining SIP calls that were issued in the 2015 SSM SIP 
Action to determine whether the EPA should maintain, modify, or 
withdraw particular SIP calls through future agency actions.
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    \4\ Sierra Club, et al. v. EPA, et al., No. 20-1115 (D.C. Cir. 
Apr. 7, 2020); Sierra Club, et al. v. EPA, et al., No. 20-1229 (D.C. 
Cir. June 29, 2020); Sierra Club, et al. v. EPA, et al., No. 21-1022 
(D.C. Cir. January 2021).
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    On September 30, 2021, the EPA issued a Memorandum (2021 
Memorandum) that announced a withdrawal of the 2020 Memorandum and 
EPA's intent to return to the 2015 Policy and implement it fully. As 
previously articulated in the 2015 Policy, the 2021 Memorandum states 
that SSM exemption provisions and affirmative defense provisions 
included in SIPs will generally be viewed as inconsistent with CAA 
requirements.
    As part of the reinstatement of the 2015 Policy, the EPA intends to 
implement the pending SIP calls, which remain in place from the 2015 
SSM SIP Action. Pursuant to CAA section 110(k)(1)(B), the EPA must 
determine no later than 6 months after the date by which a state is 
required to submit a SIP whether a state has made a submission that 
meets the minimum completeness criteria established pursuant to CAA 
section 110(k)(1)(A). These criteria are set forth at 40 CFR part 51, 
appendix V. The EPA refers to the determination that a state has not 
submitted a SIP submission that meets the minimum completeness 
criteria, or has not submitted a SIP at all, as a ``finding of failure 
to submit.''
    For the 2015 SIP Call, as previously discussed, SIP submissions 
were due by November 22, 2016. The EPA's determinations of whether air 
agencies made submittals were therefore due on May 22, 2017. The EPA 
has neither made such determinations nor issued findings of failure to 
submit. Accordingly, the EPA is now issuing findings of failure to 
submit to the 12 air agencies that, as of the date of this action, had 
not submitted SIPs responding to the SIP call: Alabama, Arkansas, 
California--San Joaquin Valley Air Pollution Control District (APCD), 
District of Columbia, Illinois, Ohio, North Carolina--Forsyth County, 
Rhode Island, South Dakota, Tennessee--Shelby County, Washington--
Energy Facility Site Evaluation Council (EFSEC), and Washington--
Southwest Clean Air Agency (SWCAA). The EPA also notes that on 
September 8, 2021, a group of non-governmental organizations filed suit 
in the Northern District of

[[Page 1682]]

California alleging that the EPA is in violation of its mandatory duty 
to issue findings of failure to submit for those states that have not 
yet responded to the 2015 SIP Call.\5\
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    \5\ Sierra Club et al. v. Regan et al., No. 4:21-cv-06956 (N.D. 
Cal. Sept 8, 2021).
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III. Consequences of Findings of Failure To Submit

    If the EPA finds that a state has failed to make the required SIP 
submittal or that a submitted SIP is incomplete, then CAA section 
179(a) establishes specific consequences, after a period of time, 
including the imposition of mandatory sanctions under CAA section 
179(b) for the affected areas or states. The two applicable sanctions 
enumerated in CAA section 179(b) are: (1) The 2-to-1 emission offset 
requirement for all new and modified major sources subject to the 
nonattainment NSR program, and (2) restrictions on highway funding. 
Additionally, a finding that a state has failed to submit a complete 
SIP triggers an obligation under CAA section 110(c) for the EPA to 
promulgate a FIP no later than 2 years after issuance of the finding of 
failure to submit if the affected state has not submitted, and the EPA 
has not approved, the required SIP submittal.
    With respect to mandatory sanctions, if the EPA has not 
affirmatively determined that a state has made the required complete 
SIP submittal within 18 months \6\ of the effective date of this final 
action, then, pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, 
the offset sanction identified in CAA section 179(b)(2) will apply in 
the affected nonattainment area or state. If the EPA has not 
affirmatively determined that the state has made the required complete 
SIP submittal within 6 months after the offset sanction is imposed, 
then the highway funding sanction will apply in the affected 
nonattainment area(s), in accordance with CAA section 179(b)(1) and 40 
CFR 52.31.\7\ The sanctions will not take effect if, within 18 months 
after the effective date of these findings, the EPA affirmatively 
determines that the state has made a complete SIP submittal addressing 
the deficiency for which the finding was made. Additionally, if the 
state makes the required SIP submittal and the EPA takes final action 
to approve the submittal within 2 years of the effective date of these 
findings, the EPA is not required to promulgate a FIP.
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    \6\ C.A.A. 110(k)(5).
    \7\ Such highway sanctions would only apply in nonattainment 
areas. If a state jurisdictional area does not contain any 
nonattainment areas, then the highway sanctions would not apply in 
that state.
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IV. Findings of Failure To Submit for Air Agencies That Failed To Make 
a SIP Submittal in Response to EPA's 2015 SIP Call for Provisions 
Applying to Excess Emissions During SSM Periods

    Based on a review of SIP submittals received and deemed complete as 
of the date of signature of this action, the EPA finds that 12 air 
agencies have failed to submit SIP revisions in response to the 2015 
SSM SIP Call that were statutorily due no later than November 22, 2016. 
These affected air agencies are Alabama, Arkansas, California--San 
Joaquin Valley APCD, District of Columbia, Illinois, Ohio, North 
Carolina--Forsyth County, Rhode Island, South Dakota, Tennessee--Shelby 
County, Washington--EFSEC, and Washington--SWCAA.

V. Environmental Justice Considerations

    The purpose of this action is to make findings that the named air 
agencies failed to provide the identified SIP submissions to the EPA 
that are required under the CAA. As such, this action, in and of 
itself, does not adversely affect the level of protection provided for 
human health or the environment. Moreover, it is intended that the 
actions and deadlines resulting from this notice will promote greater 
protection for U.S. citizens, including minority, low-income, or 
indigenous populations, by ensuring that air agencies meet their 
statutory obligation to develop and submit SIPs to ensure that areas 
make progress toward reducing excess emissions during periods of SSM.

VI. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Executive Order 
13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, 
therefore, not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the PRA. This final action does not establish any new 
information collection requirement apart from what is already required 
by law. This action relates to the requirement in the CAA for states to 
submit SIPs in response to findings of substantial inadequacy under 
section 110(k)(5).

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The action 
is a finding that the named air agencies have not made the necessary 
SIP submission in response to findings of substantial inadequacy under 
section 110(k)(5) of the CAA.

E. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments, or the private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action finds that several air agencies have 
failed to submit SIP revisions in response to findings of substantial 
inadequacy under section 110(k)(5) of the CAA. No tribe is subject to 
the requirement to submit an implementation plan under the findings of 
inadequacy relevant to this action. Thus, Executive Order 13175 does 
not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks that the EPA has 
reason to believe may disproportionately affect children, per the 
definition of ``covered regulatory action'' in section 2-202 of the 
Executive Order. This action is not subject to Executive Order 13045 
because it is a finding that several air agencies failed to submit SIP 
revisions

[[Page 1683]]

in response to findings of substantial inadequacy under section 
110(k)(5) of the CAA and does not directly or disproportionately affect 
children.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This final action does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes this action will not have potential 
disproportionately high and adverse human health or environmental 
effects on minority, low-income, or indigenous populations. In finding 
that several air agencies have failed to submit SIP revisions in 
response to findings of substantial inadequacy under section 110(k)(5) 
of the CAA, this action does not directly affect the level of 
protection provided to human health or the environment.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

M. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the United States Court of Appeals for the 
District of Columbia Circuit: (i) When the agency action consists of 
``nationally applicable regulations promulgated, or final actions 
taken, by the Administrator,'' or (ii) when such action is locally or 
regionally applicable, but ``such action is based on a determination of 
nationwide scope or effect and if in taking such action the 
Administrator finds and publishes that such action is based on such a 
determination.'' For locally or regionally applicable final actions, 
the CAA reserves the EPA complete discretion whether to invoke the 
exception in (ii).
    This final action is ``nationally applicable'' within the meaning 
of CAA section 307(b)(1). In the alternative, to the extent a court 
finds this final action to be locally or regionally applicable, the 
Administrator is exercising the complete discretion afforded to him 
under the CAA to make and publish a finding that this action is based 
on a determination of ``nationwide scope or effect'' within the meaning 
of CAA section 307(b)(1).\8\ This final action consists of findings of 
failure to submit required SIPs from areas within 10 states and the 
District of Columbia, located in 8 of the 10 EPA regions, and in 8 
different federal judicial circuits.\9\ This final action is also based 
on a common core of factual findings concerning the receipt and 
completeness of the relevant SIP submittals. For these reasons, this 
final action is nationally applicable or, alternatively, the 
Administrator is exercising the complete discretion afforded to him by 
the CAA and hereby finds that this final action is based on a 
determination of nationwide scope or effect for purposes of CAA section 
307(b)(1) and is hereby publishing that finding in the Federal 
Register.
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    \8\ In deciding whether to invoke the exception by making and 
publishing a finding that this final action is based on a 
determination of nationwide scope or effect, the Administrator has 
also taken into account a number of policy considerations, including 
his judgment balancing the benefit of obtaining the D.C. Circuit's 
authoritative centralized review versus allowing development of the 
issue in other contexts and the best use of Agency resources.
    \9\ In the report on the 1977 Amendments that revised section 
307(b)(1) of the CAA, Congress noted that the Administrator's 
determination that the ``nationwide scope or effect'' exception 
applies would be appropriate for any action that has a scope or 
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
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    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the District of Columbia Circuit within 60 days from the date this 
final action is published in the Federal Register. Filing a petition 
for reconsideration by the Administrator of this final action does not 
affect the finality of the action for the purposes of judicial review, 
nor does it extend the time within which a petition for judicial review 
must be filed, and shall not postpone the effectiveness of such rule or 
action.

Janet G. McCabe,
Deputy Administrator.
[FR Doc. 2022-00138 Filed 1-11-22; 8:45 am]
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