[Federal Register Volume 88, Number 73 (Monday, April 17, 2023)]
[Rules and Regulations]
[Pages 23353-23355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07614]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0179; FRL-10883-02-R3]


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

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 the West Virginia Department of Environmental 
Protection (WVDEP) failed to timely submit a state implementation plan 
(SIP) revision required by the Clean Air Act (CAA) to address the 
deficiencies identified in EPA's 2015 findings of substantial 
inadequacy and ``SIP calls'' for provisions applying to excess 
emissions during periods of startup, shutdown, and malfunction (SSM). 
EPA is issuing this finding of failure to submit (FFS) without prior 
public notice and opportunity for comment. This action triggers certain 
CAA deadlines for 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 EPA does not approve 
the state's submission as a SIP revision. In a separate but related 
action, published elsewhere in this issue of the Federal Register, EPA 
is also issuing a final disapproval of a SIP revision submitted by West 
Virginia which allowed sources who could not meet emission limits 
during startup and shutdown events to apply for alternative emission 
limits (AELs) (see Docket ID No. EPA-R03-OAR-2022-0956).

DATES: This action is effective on May 17, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2023-0179. All documents in the docket are listed on 
the www.regulations.gov 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 
www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Serena Nichols, Planning and 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1600 John F. Kennedy 
Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is 
(215) 814-2053. Ms. Nichols can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

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

    Section 553(b)(3)(B) of the 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. 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 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), EPA ``shall determine'' no later than six 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. EPA finds that this constitutes good cause under 5 
U.S.C. 553(b)(3)(B).

I. Background

    On June 12, 2015, 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 
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), 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, 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 
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, 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 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, EPA issued a Memorandum in October 
2020 (2020 Memorandum), which established a new national policy that 
permitted the

[[Page 23354]]

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 EPA's intent at the time to review the remaining SIP 
calls that were issued in the 2015 SSM SIP Action to determine whether 
EPA should maintain, modify, or withdraw particular SIP calls through 
future agency actions.
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    \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, 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, 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), EPA must 
determine no later than six 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. 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. EPA's determinations of whether air 
agencies made submittals were therefore due on May 22, 2017. West 
Virginia submitted a SIP revision to EPA on June 13, 2017, which became 
complete by operation of law on December 13, 2017. The June 13, 2017 
SIP revision asked EPA to approve into the SIP new West Virginia 
regulations allowing sources that could not meet their emission limits 
during periods of startup or shutdown to apply for AELs during these 
periods of startup and/or shutdown. These new West Virginia regulations 
also prohibited sources which were subject to Federal new source 
performance standards (NSPS) or national emission standards for 
hazardous air pollutants (NESHAPS) from applying for AELs if the 
applicable NSPS or NESHAP had emission limits or provisions covering 
startup or shutdown. In a separate rulemaking action, EPA is taking 
final action to disapprove West Virginia's June 13, 2017 SIP revision 
published elsewhere in the ``Rules'' section of this issue of the 
Federal Register (see Docket ID No. EPA-R03-OAR-2022-0956).
    EPA originally assumed that WVDEP's June 13, 2017 submittal was 
intended as a response to the 2015 SIP Call. However, WVDEP submitted 
comments in response to EPA's December 22, 2022 notice of proposed 
rulemaking (NPRM) \5\ indicating that the 2017 SIP submittal was not 
intended to address the provisions identified in EPA's 2015 SSM SIP 
Action and that West Virginia would submit future SIP revisions to 
address the provisions identified in the 2015 SSM SIP Action.\6\ 
However, West Virginia has not submitted those future SIP revisions 
addressing the 2015 SSM SIP Action. This clarification means that WVDEP 
has not submitted the required SIP revisions responding to the 2015 SIP 
call. Accordingly, EPA is now issuing a finding of failure to submit 
(FFS).
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    \5\ 87 FR 78617.
    \6\ See West Virginia's comments in response to the NPRM, 
located in the docket for the NPRM. Docket ID EPA-R03-OAR-2022-0956.
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II. Finding of Failure To Submit

    In the 2015 SSM SIP Action, EPA issued a final determination that 
14 provisions in the West Virginia SIP were substantially inadequate to 
meet CAA requirements.\7\ Specifically, the 2015 SSM SIP Action issued 
a SIP call for the following sections of the West Virginia SIP: W. Va. 
Code R. 45-2-9.1, W. Va. Code R. 45-7-10.3, W. Va. Code R. 45-40-100.8, 
W. Va. Code R. 45-2-10.1, W. Va. Code R. 45-3-7.1, W. Va. Code R. 45-5-
13.1, W. Va. Code R. 45-6-8.2, W. Va. Code R. 45-7-9.1, W. Va. Code R. 
45-10-9.1, W. Va. Code R. 45-21-9.3, W. Va. Code R. 45-3-3.2, W. Va. 
Code R. 45-7-10.4, W. Va. Code R. 45-2-10.2, and W. Va. Code R. 45-2-
9.4.\8\ The rationale underlying EPA's determination that these 
provisions were substantially inadequate to meet CAA requirements, and 
therefore to issue a SIP call to West Virginia to remedy the 
provisions, is detailed in the 2015 SSM SIP Action and the relevant 
proposals prior to the SIP call and will not be repeated here.
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    \7\ 80 FR 33840, at 33961, June 12, 2015.
    \8\ Id.
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    West Virginia's June 13, 2017, SIP submittal did not remove any of 
these provisions from the West Virginia SIP, and West Virginia did not 
submit any other SIP revisions subsequent to the June 13, 2017 SIP 
submittal removing or otherwise addressing any of these West Virginia 
SIP provisions identified above and in the 2015 SSM SIP Action. As 
noted above, these revisions were due by May 22, 2017. Therefore, EPA 
is issuing a finding that West Virginia has failed to submit revisions 
to the substantially inadequate SIP provisions identified in EPA's 2015 
SSM SIP action.

III. Consequences of Findings of Failure To Submit

    If 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 New Source Review (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 EPA to promulgate a FIP no later than two years after issuance of 
the finding of failure to submit if the affected state has not 
submitted, and EPA has not approved, the required SIP submittal.
    With respect to mandatory sanctions, if EPA has not affirmatively 
determined that a state has made the required complete SIP submittal 
within 18 months \9\ 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 EPA has not affirmatively determined 
that the state has made the required complete SIP submittal within six 
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.\10\ The 
sanctions will not take effect if, within 18 months after the effective 
date of these findings, 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 EPA takes final action to approve the submittal within 
two years of the

[[Page 23355]]

effective date of these findings, EPA is not required to promulgate a 
FIP.
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    \9\ CAA 110(k)(5).
    \10\ 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. Final Action

    Based on a review of SIP submittals received and deemed complete as 
of the date of signature of this action, the EPA finds that WVDEP has 
failed to submit a SIP revision by November 22, 2016, addressing the 
deficiencies identified in the 2015 SSM SIP Call.

V. 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. 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).

C. 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.

D. 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.

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. 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.

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

H. 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.

I. National Technology Transfer and Advancement Act (NTTAA)

    This final action 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 (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.''
    EPA did not perform an EJ analysis and did not consider EJ in this 
action. 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.

K. 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).

L. Judicial Review

    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 by June 16, 2023. Filing a petition for 
reconsideration by the Administrator of this final action does not 
affect the finality of this action for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
may be filed, and shall not postpone the effectiveness of such action. 
This action may not be challenged later in proceedings to enforce its 
requirements (see CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Approval and promulgation of implementation 
plans, Incorporation by reference, Intergovernmental relations, 
Reporting and recordkeeping requirements.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-07614 Filed 4-14-23; 8:45 am]
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