Excess Emissions During Periods of Startup, Shutdown, and Malfunction; Partial Withdrawals of Findings of Failure To Submit State Implementation Plan (SIP)

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR PART 52</CFR> <DEPDOC>[EPA-HQ-OAR-2021-0863; EPA-R03-OAR-2023-0179; FRL-12161-02-OAR]</DEPDOC> <SUBJECT>Excess Emissions During Periods of Startup, Shutdown, and Malfunction; Partial Withdrawals of Findings of Failure To Submit State Implementation Plan (SIP)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Direct final action. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is taking direct final action to partially withdraw two final actions finding that 13 States and/or local air pollution control agencies failed to submit State Implementation Plan (SIP) revisions required by the Clean Air Act (CAA) in a timely manner to address the EPA's 2015 findings of substantial inadequacy and “SIP calls” for provisions applying to excess emissions during periods of startup, shutdown, and malfunction (SSM). This final action would render no longer applicable certain CAA deadlines for the EPA to impose sanctions if a State does not submit a complete SIP revision addressing the outstanding requirements and to promulgate a Federal Implementation Plan (FIP). Concurrently, the EPA is also issuing a parallel proposal of this withdrawal action. <E T="03">See</E> the proposed action published in the Proposed Rules section of this issue of the <E T="04">Federal Register</E> . </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This action is effective on January 10, 2025, without further notice, unless the EPA receives significant adverse comment by December 26, 2024. If significant adverse comments are received on the accompanying proposed action, the EPA will publish a timely withdrawal of this direct final action in the <E T="04">Federal Register</E> . If the direct final action is withdrawn, all comments will be addressed in a subsequent final action based on the accompanying proposed action. The EPA will not institute a second comment period pertaining to the revisions on the subsequent final action. Any parties interested in commenting should do so at this time. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may send comments, identified by Docket ID Nos. EPA-HQ-OAR-2021-0863 and EPA-R03-OAR-2023-0179, by any of the following methods: • <E T="03">Federal eRulemaking Portal: https://www.regulations.gov/</E> (our preferred method). Follow the online instructions for submitting comments. • <E T="03">Email: a-and-r-Docket@epa.gov.</E> Include Docket ID Nos. EPA-HQ-OAR-2021-0863 and EPA-R03-OAR-2023-0179. • <E T="03">Fax:</E> (202) 566-9744 • <E T="03">Mail:</E> U.S. Environmental Protection Agency, EPA Docket Center, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460. • <E T="03">Hand Delivery or Courier:</E> EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m., Monday-Friday (except Federal Holidays). <E T="03">Instructions:</E> All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to <E T="03">https://www.regulations.gov,</E> including personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the <E T="02">SUPPLEMENTARY INFORMATION</E> section of this document. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> General questions concerning this notice should be addressed to, Sydney Lawrence, Office of Air Quality Planning and Standards, Air Quality Policy Division, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; by telephone (919) 541-4768; or by email at <E T="03">lawrence.sydney@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="FP1-2">B. Why is the EPA issuing a direct final action and parallel proposed action?</FP> <FP SOURCE="FP1-2">C. Written Comments</FP> <FP SOURCE="FP1-2">D. How can I get copies of this document and other related information?</FP> <FP SOURCE="FP1-2">E. Where do I go if I have specific air agency questions?</FP> <FP SOURCE="FP-2">II. Background</FP> <FP SOURCE="FP-2">III. Partial Withdrawals of Findings of Failure To Submit for Air Agencies That Failed To Make a SIP Submittal To Address EPA's 2015 SSM SIP Action</FP> <FP SOURCE="FP-2">IV. Consequences of Partial Withdrawals of Findings of Failure To Submit and Remaining Air Agency Obligations</FP> <FP SOURCE="FP-2">V. Statutory and Executive Order Reviews</FP> <FP SOURCE="FP1-2">A. Executive Order 12866: Regulatory Planning and Executive Order 13563: Improving Regulation and Regulatory Review</FP> <FP SOURCE="FP1-2"> B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs </FP> <FP SOURCE="FP1-2">C. Paperwork Reduction Act (PRA)</FP> <FP SOURCE="FP1-2">D. Regulatory Flexibility Act (RFA)</FP> <FP SOURCE="FP1-2">E. Unfunded Mandates Reform Act of 1995 (UMRA)</FP> <FP SOURCE="FP1-2">F. Executive Order 13132: Federalism</FP> <FP SOURCE="FP1-2">G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments</FP> <FP SOURCE="FP1-2">H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks</FP> <FP SOURCE="FP1-2">I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use</FP> <FP SOURCE="FP1-2">J. National Technology Transfer and Advancement Act (NTTAA)</FP> <FP SOURCE="FP1-2">K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority and Low-Income Populations</FP> <FP SOURCE="FP1-2">L. Congressional Review Act (CRA)</FP> <FP SOURCE="FP1-2">M. Judicial Review</FP> </EXTRACT> <HD SOURCE="HD2">B. Why is the EPA issuing a direct final action and parallel proposed action?</HD> As is discussed in further detail later, the EPA is taking this action as a result of the United States Court of Appeals for the District of Columbia mandate in <E T="03">Environ. Comm. Fl. Elec. Power</E> v. <E T="03">EPA,</E> 94 F.4th 77 (D.C. Cir. 2024). In that decision, the D.C. Circuit vacated portions of the EPA's 2015 findings of substantial inadequacy and SIP calls for provisions applying to excess emissions during periods of SSM (“2015 SSM SIP Call”)  <SU>1</SU> <FTREF/> as it applied to State provisions including automatic exemptions, director's discretion provisions, and affirmative defenses that are functionally exemptions. Subsequent to the issuance of the 2015 SIP Call, EPA issued two findings of failure to submit (FFS) impacting multiple States. <E T="51">2 3</E> <FTREF/> This action seeks to withdraw relevant parts of the FFS that were invalidated by the D.C. Circuit's vacatur. Because of the D.C. Circuit's vacatur, there is no longer a legally valid predicate submission obligation for those particular SIP-called provisions. As a result, the EPA's findings that such obligation was not met are also no longer valid and must be withdrawn. Concurrently, the EPA is also issuing a parallel proposal of this withdrawal action. See the proposed action published in the Proposed Rules section of this issue of the <E T="04">Federal Register</E> . If we receive no significant adverse comment, we will not take further action on the proposed action and this direct final action will become effective as prescribed. <FTNT> <SU>1</SU>   <E T="03">See “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,”</E> 80 FR 33840 (June 12, 2015). </FTNT> <FTNT> <SU>2</SU>   <E T="03">See “Findings of Failure To Submit State Implementation Plan Revisions in Response to the 2015 Findings of Substantial Inadequacy and SIP Calls To Amend Provisions Applying To Excess Emissions During Periods of Startup, Shutdown, and Malfunction,”</E> 87 FR 1680 (January 12, 2022). <SU>3</SU>   <E T="03">See “West Virginia; Finding of Failure To Submit State Implementation Plan Revision in Response to the 2015 Findings of Substantial Inadequacy and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction,”</E> 88 FR 23353 (April 17, 2023). </FTNT> <HD SOURCE="HD2">C. Written Comments</HD> Submit your comments, identified by Docket ID Nos. EPA-HQ-OAR-2021-0863 and EPA-R03-OAR-2023-0179, at <E T="03">https://www.regulations.gov</E> (our preferred method), or the other methods identified in the <E T="02">ADDRESSES</E> section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at <E T="03">https://www.regulations.gov</E> any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Our preferred method to receive CBI, PBI, or other information who disclosure is restricted by statue is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( <E T="03">e.g.,</E> Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS C ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 38k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━