[Federal Register Volume 89, Number 217 (Friday, November 8, 2024)]
[Proposed Rules]
[Pages 88688-88690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25816]


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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.

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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 
SO<INF>2</INF> 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 <a href="/cdn-cgi/l/email-protection#6a0c0f060e070b0444070309020b0f062a0f1a0b440d051c"><span class="__cf_email__" data-cfemail="3751525b535a5659195a5e545f56525b7752475619505841">[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.'' 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\
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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 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\
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    \2\ 88 FR 85112 (December 7, 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, 12521-12522 (February 22, 2013) and 80 FR 
33840 at 33967 (June 12, 2015).
    \5\ See 88 FR 85112 (December 7, 2023).
    \6\ On 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.
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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 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

[[Page 88689]]

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.
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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 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.
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    \8\ See 85 FR 73636, 73637 (November 19, 2020).
    \9\ See 85 FR at 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 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/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. 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.
    <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

[[Page 88690]]

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 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.
    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


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