88688 Federal Register / Vol. 89, No. 217 / Friday, November 8, 2024 / Proposed Rules 

1See, e.g., 89 FR 76737 (September 19, 2024); 85 

FR 57733 (September 16, 2020); 82 FR 14461 

(March 21, 2017). 

2 88 FR 85112 (December 7, 2023). 

3State 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). 

4See 78 FR 12460, 12521–12522 (February 22, 

2013) and 80 FR 33840 at 33967 (June 12, 2015). 

5See 88 FR 85112 (December 7, 2023). 

6On October 5, 2022, EPA Region 6 finalized 

approval of a portion of Louisiana’s SIP revision 

that corrected six of Louisiana’s seven deficient SIP 

provisions originally identified in EPA’s 2015 SSM 

SIP Call. See 87 FR 60292. On December 7, 2023 

(88 FR 85112), the EPA Region 6 finalized 

disapproval of Louisiana’s SIP revision that sought 

to correct the remaining deficient provision. 

(38 U.S.C. 5302; Pub. L. 117–328, Title II, 

Subtitle E, sec. 254 (Dec. 29, 2022), unless 

otherwise noted.) 

[FR Doc. 2024–25965 Filed 11–7–24; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2019–0212; FRL–10997– 

03–R6] 

Air Plan Disapproval; Louisiana; 

Removal of Excess Emissions 

Provisions; Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed action; correction. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to determine 

that a portion of a December 7, 2023, 

final disapproval action of a state 

implementation plan (SIP) revision 

submitted by the State of Louisiana was 

in error and to make a correction 

pursuant to the Clean Air Act (CAA). 

DATES: Comments must be received on 

or before December 9, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2019–0212 at 

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 submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure 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: 

General questions concerning this 

publication should be addressed to 

Michael Feldman, Regional Haze and 

SO2 Section, Air & Radiation Division, 

U.S. Environmental Protection Agency, 

Region VI, 1201 Elm Street, Dallas, 

Texas 75270; by telephone (214) 665– 

9793 or by email at feldman.michael@

epa.gov. 

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’s authority to correct 

errors in SIP rulemakings? 

IV. What is the EPA proposing to correct? 

V. What action is the EPA taking? 

VI. Statutory and Executive Order Reviews 

II. Background 

This proposed action is to correct an 

error in an earlier EPA action, using the 

authority of section 110(k)(6) of the 

CAA. Section 110(k)(6) provides the 

EPA with explicit authority to correct 

errors in prior rulemaking actions: 

Whenever the Administrator 

determines that the Administrator’s 

action approving, disapproving, or 

promulgating any plan or plan revision 

(or part thereof), area designation, 

redesignation, classification, or 

reclassification was in error, the 

Administrator may in the same manner 

as the approval, disapproval, or 

promulgation revise such action as 

appropriate without requiring any 

further submission from the State. Such 

determination and the basis thereof 

shall be provided to the State and the 

public. 

Section 110(k)(6) of the CAA has been 

interpreted by courts as a ‘‘broad 

provision [that] was enacted to provide 

the EPA with an avenue to correct its 

own erroneous actions and grant the 

EPA the discretion to decide when to 

act pursuant to the provision.’’ Miss. 

Comm’n on Envtl. Quality v. EPA, 790 

F.3d 138, 150 (D.C. Cir. 2015). 

The EPA notes that this statutory 

provision provides the EPA with 

authority to make corrections to actions 

on SIP submissions that are 

subsequently found to be in error. While 

CAA section 110(k)(6) provides the EPA 

with the authority to correct its own 

‘‘error,’’ nowhere does this provision or 

any other provision in the CAA define 

what qualifies as ‘‘error,’’ and the EPA 

has used this explicit statutory authority 

on multiple occasions to correct various 

types of errors.1

The error at issue here occurred in a 

December 7, 2023, EPA action 2

disapproving revisions to the SIP for the 

State of Louisiana submitted in response 

to the 2015 SSM SIP Action.3 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 (SSM). 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 

Louisiana on the basis that Louisiana’s 

SIP contained impermissible automatic 

and discretionary exemptions 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. On December 7, 

2023, the EPA took final action 5 to 

disapprove certain portions of a SIP 

revision submitted by the State of 

Louisiana on November 20, 2016, and 

supplemented on June 9, 2017, because 

the EPA found that Louisiana’s SIP 

revision did not correct the deficiency 

identified in Louisiana’s SIP in the 2015 

SSM SIP Action.6

On March 1, 2024, the United States 

Court of Appeals for the District of 

Columbia Circuit issued a decision in 

Environ. Comm. Fl. Elec. Power v. EPA, 

94 F.4th 77 (D.C. Cir. 2024). The case 

was a consolidated set of petitions for 

review of the 2015 SSM SIP Action. The 

Court granted the petitions in part, 

vacating the SIP calls that were based on 

SIP provisions that included automatic 

exemptions, director’s discretion 

provisions, and ‘‘complete affirmative 


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Federal Register / Vol. 89, No. 217 / Friday, November 8, 2024 / Proposed Rules 88689 

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 SIPs’ relevant emission restrictions in 

fact amount to (or must amount to) ‘‘emission 

limitations’’ per the statutory definition.’’). 

8See 85 FR 73636, 73637 (November 19, 2020). 9See 85 FR at 73637–38 (November 19, 2020). 

defenses’’ (i.e., affirmative defenses that 

are functionally exemptions); and 

denied the petitions in part, affirming 

the SIP calls based on SIP provisions 

that included overbroad enforcement 

discretion provisions and affirmative 

defenses against specific relief. As a 

result of the D.C. Circuit’s decision in 

Environ. Comm. Fl. Elec. Power v. EPA, 

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 

deficiencies 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 Louisiana’s 

SIP submission in response to the 2015 

SSM SIP Action voluntary rather than 

mandatory. As a result, the EPA is 

proposing to correct the EPA’s 

December 7, 2023, disapproval action 

with respect to the consequences of that 

disapproval. 

III. What is the EPA’s authority to 

correct errors in SIP rulemakings? 

Section 110(k)(6) of the CAA provides 

the EPA with the authority to make 

corrections to actions on CAA 

implementation plans that are 

subsequently found to be in error. Ass’n 

of Irritated Residents v. EPA, 790 F.3d 

934, 948 (9th Cir. 2015) (110(k)(6) is a 

‘‘broad provision [that] was enacted to 

provide the EPA with an avenue to 

correct its own erroneous actions’’). The 

key provisions of section 110(k)(6) are 

that the Administrator has the authority 

to ‘‘determine’’ that an action 

approving, disapproving, or 

promulgating a plan was ‘‘in error,’’ and 

when the Administrator does so, may 

then revise the action ‘‘as appropriate,’’ 

in the same manner as the prior action.8

Moreover, CAA section 110(k)(6) 

‘‘confers discretion on the EPA to 

decide if and when it will invoke the 

statute to revise a prior action.’’ Ass’n of 

Irritated Residents v. EPA, 790 F.3d at 

948 (section 110(k)(6) grants the ‘‘EPA 

the discretion to decide when to act 

pursuant to that provision’’). While 

CAA section 110(k)(6) provides the EPA 

with the authority to correct its own 

‘‘error,’’ nowhere does this provision or 

any other provision in the CAA define 

what qualifies as ‘‘error.’’ Thus, the EPA 

believes that the term should be given 

its plain language, everyday meaning, 

which includes all unintentional, 

incorrect, or wrong actions or mistakes.9

Under CAA section 110(k)(6), the EPA 

must make an error determination and 

provide the ‘‘the basis thereof.’’ There is 

no indication that this is a substantial 

burden for the EPA to meet. To the 

contrary, the requirement is met if the 

EPA clearly articulates the error and 

basis thereof. 790 F.3d at 948; see also 

85 FR 73636, 73638. The EPA’s error in 

the prior rulemaking disapproving 

Louisiana’s SIP revision is discussed 

below. 

IV. What is the EPA proposing to 

correct? 

In this action, the EPA is proposing to 

correct the erroneous triggering of 

mandatory sanctions under CAA section 

179 and 40 CFR 52.31 for the state of 

Louisiana following its December 7, 

2023, disapproval of Louisiana’s SIP 

revision submitted in response to the 

2015 SSM SIP Call. The EPA is also 

proposing to correct the erroneous 

triggering of the EPA’s obligation to 

issue a Federal Implementation Plan 

(FIP) under CAA section 110(c)(1)(B). 

As discussed in Section II of this 

document, the D.C. Circuit’s decision in 

Environ. Comm. Fl. Elec. Power v. EPA 

vacated several portions of the 2015 

SSM SIP Call, rendering those portions 

as no longer having a legal effect. The 

states with provisions to which those 

vacated portions of the SIP call 

previously applied, including 

Louisiana, no longer have a legal 

obligation to submit the revisions that 

the EPA had originally determined were 

required to correct the identified 

deficiency. As such, the SIP revision 

submitted by Louisiana on November 

20, 2016, and supplemented on June 9, 

2017, is no longer considered a 

mandatory submission; EPA is therefore 

proposing to find that the EPA’s 

December 7, 2023, disapproval action 

should not trigger imposition of 

mandatory sanctions under CAA section 

179 and 40 CFR 52.31 or a FIP 

obligation under CAA 110(c)(1)(B). The 

EPA notes that it is not proposing to 

correct the merits of the December 7, 

2023 disapproval nor is it withdrawing 

its disapproval action—the EPA does 

not believe that the substantive basis for 

the disapproval as explained in that 

final action was erroneous; rather, the 

EPA is proposing to find that because 

the SIP submittal itself is no longer 

mandatory following the D.C. Circuit’s 

partial vacatur, the triggering of 

sanctions under section 179 and 40 CFR 

52.31, and the triggering of the EPA’s 

FIP obligation under 110(c)(1)(B), was in 

error. Therefore, if the EPA finalizes this 

error correction action as proposed, the 

imposition of sanctions for the State of 

Louisiana and the FIP obligation for the 

EPA that were triggered as a result of the 

December 7, 2023 final disapproval 

action would no longer be in effect. 

V. 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 proposing to 

determine that, pursuant to section 

110(k)(6) of the CAA, a portion of the 

EPA’s December 7, 2023, final 

disapproval action of Louisiana’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 Louisiana’s SIP submission in 

response to the 2015 SSM SIP Action 

voluntary rather than mandatory. Thus, 

the EPA is proposing to find that the 

triggering of mandatory sanctions and 

FIP obligation following the December 

7, 2023, final disapproval was erroneous 

and, through this action, is proposing to 

terminate 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. 

VI. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders (E.O.) can 

be found at www.epa.gov/lawsregulations/laws-and-executive-orders. 

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. However, this action, which 

seeks to correct an error in a prior SIP 

disapproval action under section 

110(k)(6) of the CAA, is neither an 

approval nor a disapproval. This action 

merely corrects an error in EPA’s prior 

action and does not impose additional 

requirements beyond those imposed by 

state law. 

• 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); 

• Does not impose an information 

collection burden under the provisions 


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88690 Federal Register / Vol. 89, No. 217 / Friday, November 8, 2024 / Proposed Rules 

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 subject to Executive Order 

13045 (62 FR 19885, April 23, 1997) 

because it because it is an error 

correction taken under section 110(k)(6) 

of the CAA and does not directly or 

disproportionately affect children. 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); and 

• 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. 

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, 

Feb. 16, 1994) directs Federal agencies 

to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on communities with 

environmental justice (EJ) concerns to 

the greatest extent practicable and 

permitted by law. EPA defines 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. Although not a basis for that 

action, the EPA performed an EJ 

analysis for informational purposes only 

in its June 13, 2023, proposed 

disapproval of Louisiana’s SIP revision. 

See 88 FR 38448, 38453–38455 (June 13, 

2023) and 88 FR 85112, 85123–85124 

(December 7, 2023) for more 

information. The 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 

communities with EJ concerns. 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedures, 

Air pollution control, Incorporation by 

reference, Approval and promulgation 

of implementation plans, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements. 

Dated: October 31, 2024. 

Earthea Nance, 

Regional Administrator, EPA Region 6. 

[FR Doc. 2024–25816 Filed 11–7–24; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2024–0349; FRL–12130– 

01–R9] 

Air Plan Revisions; Arizona; Maricopa 

County Air Quality Department 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing a limited 

approval and limited disapproval of 

revisions to the Maricopa County Air 

Quality Department (MCAQD or 

‘‘County’’) portion of the Arizona State 

Implementation Plan (SIP). These 

revisions concern emissions of volatile 

organic compounds (VOC) from loading 

of organic liquids and gasoline. We are 

proposing action on local rules to 

regulate these emission sources under 

the Clean Air Act (CAA or ‘‘Act’’). We 

are also proposing to disapprove the 

MCAQD’s reasonably available control 

technology (RACT) demonstration for 

the source categories associated with 

these rules for the 2008 8-hour ozone 

national ambient air quality standards 

(NAAQS) in the Phoenix-Mesa ozone 

nonattainment area. We are taking 

comments on this proposal and plan to 

follow with a final action. 

DATES: Comments must be received on 

or before December 9, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2024–0349 at https://

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure 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. The 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, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For 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. If you need 

assistance in a language other than 

English or if you are a person with a 

disability 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: 

Donnique Sherman, EPA Region IX, 75 

Hawthorne St., San Francisco, CA 

94105. By phone: (415) 947–4129; email 

at sherman.donnique@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. The State’s Submittal 


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