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

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R03-OAR-2023-0206; FRL-11037.1-02-R3]</DEPDOC> <SUBJECT>Air Plan Disapproval; Delaware; Removal of Excess Emissions Provisions; Proposed Correction</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Proposed action. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before December 5, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R03-OAR-2023-0206 at <E T="03">www.regulations.gov.</E> Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">Regulations.gov</E> . 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 ( <E T="03">i.e.,</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 <E T="03">www.epa.gov/dockets/commenting-epa-dockets.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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 <E T="03">silverman.sean@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. General Information</HD> <HD SOURCE="HD2">A. How is the preamble organized?</HD> The information presented in this preamble is organized as follows: <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. General Information</FP> <FP SOURCE="FP1-2">A. How is the preamble organized?</FP> <FP SOURCE="FP-2">II. Background</FP> <FP SOURCE="FP-2">III. What is the EPA's authority to correct errors in SIP rulemakings?</FP> <FP SOURCE="FP-2">IV. What is the EPA proposing to correct?</FP> <FP SOURCE="FP-2">V. What action is the EPA taking?</FP> <FP SOURCE="FP-2">VI. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">II. Background</HD> 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: <EXTRACT> 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. </EXTRACT> 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.” <E T="03">Ass'n of Irritated Residents</E> v. <E T="03">EPA,</E> 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 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. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See, e.g.,</E> 89 FR 76737 (September 19, 2024); 85 FR 57733 (September 16, 2020); 82 FR 14461 (March 21, 2017). </FTNT> The error at issue here occurred in an October 23, 2023, EPA action  <SU>2</SU> <FTREF/> disapproving revisions to the State of Delaware's SIP which were submitted in response to the 2015 Startup, Shutdown, and Malfunction (SSM) SIP Action. <SU>3</SU> <FTREF/> 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. <SU>4</SU> <FTREF/> 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  <SU>5</SU> <FTREF/> 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. <SU>6</SU> <FTREF/> <FTNT> <SU>2</SU>  88 FR 72688 (October 23, 2023). </FTNT> <FTNT> <SU>3</SU>  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). </FTNT> <FTNT> <SU>4</SU>   <E T="03">See</E> 78 FR 12460, 12495-12496 (February 22, 2013) and 80 FR 33840 at 33960 (June 12, 2015). </FTNT> <FTNT> <SU>5</SU>   <E T="03">See</E> 88 FR 72688 (October 23, 2023). </FTNT> <FTNT> <SU>6</SU>  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. <E T="03">See</E> 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. </FTNT> On March 1, 2024, the United States Court of Appeals for the District of Columbia Circuit issued a decision in <E T="03">Environ. Comm. Fl. Elec. Power</E> v. <E T="03">EPA,</E> 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” ( <E T="03">i.e.,</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 <E T="03">Environ. Comm. Fl. Elec. Power</E> v. <E T="03">EPA,</E> 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. <SU>7</SU> <FTREF/> 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. <FTNT> <SU>7</SU>  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. <E T="03">See e.g.</E> 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.”). </FTNT> <HD SOURCE="HD1">III. What is the EPA's authority to correct errors in SIP rulemakings?</HD> Section 110(k)(6) of the CAA provides the EPA with the auth ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 20k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━