[Federal Register Volume 86, Number 231 (Monday, December 6, 2021)]
[Proposed Rules]
[Pages 68960-68961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26406]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2017-0031; FRL-9177-01-R10]


Air Plan Approval; AK; Removal of Excess Emissions Provision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
State of Alaska, through the Alaska Department of Environment 
Conservation, on January 9, 2017. The revision was submitted by Alaska 
in response to a finding of substantial inadequacy and SIP call 
published on June 12, 2015, for a provision in the Alaska SIP related 
to excess emissions during startup, shutdown, and malfunction (SSM) 
events. EPA is proposing approval of the SIP revision and proposing to 
determine that such SIP revision corrects the deficiency identified in 
the June 12, 2015, SIP call.

DATES: Comments must be received on or before January 5, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2017-0031 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov. EPA may publish any comment 
received to its public docket. Do not electronically submit any 
information you consider to be Confidential Business Information (CBI) 
or other information, the disclosure of which is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Randall Ruddick, EPA Region 10, 1200 
Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999; or email 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or 
``our'' is used, it refers to EPA.

Table of Contents

I. Background
II. Analysis of SIP Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Review

I. Background

    On February 22, 2013, a Federal Register notice of proposed 
rulemaking was published outlining EPA's policy at the time with 
respect to SIP provisions related to periods of SSM. EPA analyzed 
specific SSM SIP provisions and explained how each one either did or 
did not comply with the CAA with regard to excess emission events.\1\ 
For each SIP provision that EPA determined to be inconsistent with the 
CAA, EPA proposed to find that the existing SIP provision was 
substantially inadequate to meet CAA requirements and thus proposed to 
issue a SIP call under CAA section 110(k)(5). On September 17, 2014, 
EPA issued a document supplementing and revising what the Agency had 
previously proposed on February 22, 2013, in light of a D.C. Circuit 
decision that determined the CAA precludes authority of the EPA to 
create affirmative defense provisions applicable to private civil 
suits. EPA outlined its updated policy that affirmative defense SIP 
provisions are not consistent with CAA requirements. EPA proposed in 
the supplemental proposal document to apply its revised interpretation 
of the CAA to specific affirmative defense SIP provisions and proposed 
SIP calls for those provisions where appropriate (79 FR 55920, 
September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. EPA established an 18-month deadline by which the 
affected states had to submit such SIP revisions. States were required 
to submit corrective revisions to their SIPs in response to the SIP 
calls by November 22, 2016. The detailed rationale for issuing the SIP 
call to Alaska can be found in the 2015 SSM SIP Action and preceding 
proposed actions.
    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\2\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Alaska in 2015. The 2020 Memorandum did, 
however, indicate EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether EPA should 
maintain, modify, or withdraw particular SIP calls through future 
agency actions.
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    \2\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if

[[Page 68961]]

contained in a SIP submission. The 2021 Memorandum also retracted the 
prior statement from the 2020 Memorandum of EPA's plans to review and 
potentially modify or withdraw particular SIP calls. That statement no 
longer reflects EPA's intent. EPA intends to implement the principles 
laid out in the 2015 SSM SIP Action as the agency takes action on SIP 
submissions, including this SIP submittal provided in response to the 
2015 SIP call.
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    \3\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
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    With regard to the Alaska SIP, in the 2015 SSM SIP Action, EPA 
determined that 18 AAC 50.240 was substantially inadequate to meet CAA 
requirements (80 FR 33973, June 12, 2015). The provision provided: 
``Excess emissions determined to be unavoidable under this section will 
be excused and are not subject to penalty. This section does not limit 
the department's power to enjoin the emission or require corrective 
action.'' The rationale underlying EPA's determination that the 
provision was substantially inadequate to meet CAA requirements, and 
therefore to issue a SIP call to Alaska to remedy the provision, is 
detailed in the 2015 SSM SIP Action and the accompanying proposals.
    Alaska submitted a SIP revision on January 9, 2017, in response to 
the SIP call issued in the 2015 SSM SIP Action. In its submission, 
Alaska is requesting that EPA revise the Alaska SIP by removing 18 AAC 
50.240 in its entirety, thereby removing this provision from the Alaska 
SIP.

II. Analysis of SIP Submission

    EPA is proposing to approve Alaska's January 9, 2017, SIP 
submission, which would remove the provision identified as inconsistent 
with CAA requirements from the Alaska SIP. Alaska is retaining 18 AAC 
50.240 for state law purposes only, with revisions to clarify that (1) 
all excess emissions are violations and (2) the provision applies only 
to Alaska in exercising its enforcement authority and therefore does 
not preclude citizens or EPA from seeking injunctive relief or civil 
penalties for excess emissions. Alaska submitted the revised state-only 
version of 18 AAC 50.240 solely for informational purposes to show a 
complete record of the clarifications. Based on the revisions to 18 AAC 
50.240 made by Alaska and Alaska's request to remove it from the Alaska 
SIP, EPA proposes to find that Alaska's January 9, 2017, SIP revision 
is consistent with CAA requirements and adequately addresses the 
specific deficiencies that EPA identified in the 2015 SSM SIP Action 
with respect to the Alaska SIP.

III. Proposed Action

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is 
proposing to approve Alaska's January 9, 2017, SIP submission 
requesting removal of 18 AAC 50.240 ``Excess Emissions'' from the 
Alaska SIP. We are proposing approval of the SIP revision because we 
have determined that it is consistent with the requirements for SIP 
provisions under the CAA. EPA is further proposing to determine that 
such SIP revision corrects the deficiency identified in the June 12, 
2015, SIP call. EPA is not reopening the 2015 SSM SIP Action and is 
only taking comment on whether this SIP revision is consistent with CAA 
requirements and whether it addresses the substantial inadequacy in the 
specific Alaska SIP provision (18 AAC 50.240) identified in the 2015 
SSM SIP Action.

IV. Incorporation by Reference

    In this document, EPA is proposing to remove in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to remove the 
incorporation by reference of ``18 AAC 50.240'' in 40 CFR 52.70, as 
described in Section II of this preamble. EPA has made, and will 
continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves removal of State law not meeting 
Federal requirements and does not impose additional requirements beyond 
those already imposed by State law. For that reason, this proposed 
action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The Alaska SIP does not apply on any Indian reservation land or in 
any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, this 
rulemaking does not have tribal implications as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000), nor will it impose 
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: November 30, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2021-26406 Filed 12-3-21; 8:45 am]
BILLING CODE 6560-50-P


