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[Federal Register Volume 89, Number 246 (Monday, December 23, 2024)]
[Rules and Regulations]
[Pages 104433-104435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30654]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0206; FRL-11037.1-01-R3]

Air Plan Approval; Air Plan Disapproval; Delaware; Removal of 
Excess Emissions Provisions; Final Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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

DATES: This final action is effective on December 23, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R03-OAR-2023-0206. All documents in the docket are 
listed at www.regulations.gov. Although listed in the index, some 
information may not be publicly available, i.e., Confidential Business 
Information 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 either 
electronically through www.regulations.gov or please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT for additional 
availability information.

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 [email protected].

[[Page 104434]]

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 correcting?
IV. What action is the EPA taking?
V. Statutory and Executive Order Reviews

II. Background

    On November 5, 2024, the EPA proposed to correct an error in an 
earlier EPA action, using the authority of section 110(k)(6) of the 
CAA.\1\ Specifically, the proposed action explained that the error 
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\
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    \1\ 89 FR 87826 (November 5, 2024).
    \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).
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    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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    \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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    As a result of the March 1, 2024, decision from the United States 
Court of Appeals for the District of Columbia Circuit in Environ. Comm. 
Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024), 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 proposed to correct the EPA's October 23, 2023, 
disapproval action with respect to the consequences of that 
disapproval. A more complete explanation of the reasons for the 
proposed error correction can be found in the November 5, 2024, 
proposed action. Comments on the November 5, 2024, proposed action were 
due on or before December 5, 2024. The EPA did not receive any comments 
on the November 5, 2024, proposed action.
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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 SIP's 
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 correcting?

    In this action, the EPA is correcting the erroneous triggering of 
mandatory sanctions under CAA section 179 and 40 Code of Federal 
Regulations (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 
correcting the erroneous triggering of the EPA's obligation to issue a 
Federal Implementation Plan (FIP) under CAA section 110(c)(1)(B). As a 
result, in finalizing this error correction action, 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 are no longer 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 determining 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 finding 
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 terminating 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:
     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 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

[[Page 104435]]

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 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, 
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.

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).
    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 within 60 days from the date this final action 
is published in the Federal Register. Filing a petition for 
reconsideration by the Administrator of this final action does not 
affect the finality of the action for the purposes of judicial review, 
nor does it extend the time within which a petition for judicial review 
must be filed and shall not postpone the effectiveness of such rule or 
action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-30654 Filed 12-20-24; 8:45 am]
BILLING CODE 6560-50-P
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