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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Rules and Regulations]
[Pages 106328-106330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30747]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2019-0212; FRL-10997-04-R6]

Air Plan Disapproval; Louisiana; Removal of Excess Emissions 
Provisions; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action; correction.

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

DATES: This final action is effective on December 30, 2024.

ADDRESSES:  The EPA has established a docket for this action under 
Docket ID Number EPA-R06-OAR-2019-0212. All documents in the docket are 
listed on the www.regulations.gov website. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information (CBI) 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 through www.regulations.gov, or please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section for 
additional availability information.

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 [email protected].

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 8, 2024, the EPA proposed to correct an error in an 
earlier EPA action, using the authority of section 110(k)(6) of the 
CAA. Specifically, the proposed action explained that the error 
occurred in a December 7, 2023, EPA action \1\ disapproving revisions 
to the SIP for the State of Louisiana submitted in response to the 2015 
SSM SIP Action.\2\
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    \1\ 88 FR 85112 (December 7, 2023).
    \2\ 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 (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

[[Page 106329]]

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.\3\ 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 \4\ 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.\5\
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    \3\ See 78 FR 12460, 12521-12522 (February 22, 2013) and 80 FR 
33840 at 33967 (June 12, 2015).
    \4\ See 88 FR 85112 (December 7, 2023).
    \5\ 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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    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 deficiencies identified in the SIP call.\6\ 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 proposed to correct the EPA's December 7, 2023, 
disapproval action with respect to the consequences of that 
disapproval.
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    \6\ 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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    A more complete explanation of the reasons for the proposed error 
correction can be found in the November 8, 2024, proposed action. 
Comments on the November 8, 2024, proposed action were due on or before 
December 9, 2024. The EPA did not receive any comments on the November 
8, 2024, proposed action.

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 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 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 Louisiana and the 
FIP obligation for the EPA that were triggered as a result of the 
December 7, 2023, 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 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 finding that the 
triggering of mandatory sanctions and FIP obligation following the 
December 7, 2023, 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

    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 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, 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

[[Page 106330]]

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 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.
    This action is subject to the Congressional Review Act, 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 by February 28, 2025. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
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, and Reporting and recordkeeping requirements.

    Dated: December 19, 2024.
Earthea Nance,
Regional Administrator, EPA Region 6.
[FR Doc. 2024-30747 Filed 12-27-24; 8:45 am]
BILLING CODE 6560-50-P
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