[Federal Register Volume 89, Number 214 (Tuesday, November 5, 2024)]
[Proposed Rules]
[Pages 87826-87828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25457]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0206; FRL-11037.1-02-R3]


Air Plan Disapproval; Delaware; Removal of Excess Emissions 
Provisions; Proposed Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed action.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
determine 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 to make a correction pursuant to 
section 110(k)(6) of the Clean Air Act (CAA).

DATES: Comments must be received on or before December 5, 2024.

ADDRESSES:  Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2023-0206 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 www.epa.gov/dockets/commenting-epa-dockets.

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#4c3f25203a293e212d22623f292d220c293c2d622b233a"><span class="__cf_email__" data-cfemail="72011b1e0417001f131c5c0117131c321702135c151d04">[email protected]</span></a>.

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.'' Ass'n of Irritated 
Residents v. EPA, 790 F.3d 934, 948 (9th Cir. 2015).
    The EPA notes that this statutory provision provides the EPA with 
authority to make corrections to actions

[[Page 87827]]

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\
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    \1\ See, e.g., 89 FR 76737 (September 19, 2024); 85 FR 57733 
(September 16, 2020); 82 FR 14461 (March 21, 2017).
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    The error at issue here 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\ 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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    \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).
    \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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    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 EPA's 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 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 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 is proposing to correct the EPA's 
October 23, 2023, disapproval action with respect to the consequences 
of that disapproval.
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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 SIPs' 
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'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 at 948 (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, F.3d at 948 (section 110(k)(6) grants the ``EPA the discretion to 
decide when to act pursuant to the 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 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 (November 19, 
2020). The EPA's error in the prior action disapproving Delaware's SIP 
revision is discussed below.
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    \8\ See 85 FR 73636, 73637 (November 19, 2020).
    \9\ See 85 FR 73637-38 (November 19, 2020).
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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 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 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. 
As a result, the states with provisions to which those vacated portions 
of the SIP call previously applied, including Delaware, 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 Delaware on November 22, 2016, is no

[[Page 87828]]

longer considered a mandatory submission; EPA is therefore proposing to 
find that the EPA's October 23, 2023 (88 FR 72688), 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 October 
23, 2023 disapproval nor is it withdrawing that 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 Delaware and the FIP 
obligation for the EPA that were triggered as result of the October 23, 
2023 (88 FR 72688), final disapproval action would no longer be 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 proposing to determine 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 proposing 
to find 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 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.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
(E.O.) can be found at www.epa.gov/laws-regulations/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. 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 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.

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, and 
Reporting and recordkeeping requirements.

Adam Ortiz,
Regional Administrator, EPA Region III.
[FR Doc. 2024-25457 Filed 11-4-24; 8:45 am]
BILLING CODE 6560-50-P


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