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

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R03-OAR-2023-0206; FRL-11037.1-01-R3]</DEPDOC> <SUBJECT>Air Plan Approval; Air Plan Disapproval; Delaware; Removal of Excess Emissions Provisions; Final Correction</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final action. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final action is effective on December 23, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">www.regulations.gov.</E> Although listed in the index, some information may not be publicly available, <E T="03">i.e.,</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 <E T="03">www.regulations.gov</E> or please contact the person listed in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> for additional availability information. <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 correcting?</FP> <FP SOURCE="FP-2">IV. What action is the EPA taking?</FP> <FP SOURCE="FP-2">V. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">II. Background</HD> 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. <SU>1</SU> <FTREF/> Specifically, the proposed action explained that the error 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/> <FTNT> <SU>1</SU>  89 FR 87826 (November 5, 2024). </FTNT> <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> 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>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> As a result of the March 1, 2024, decision from the United States Court of Appeals for the District of Columbia Circuit in <E T="03">Environ. Comm. Fl. Elec. Power</E> v. <E T="03">EPA,</E> 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. <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 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. <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 SIP's 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 correcting?</HD> 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. <HD SOURCE="HD1">IV. What action is the EPA taking?</HD> 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> 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. <HD SOURCE="HD1">V. Statutory and Executive Order Reviews</HD> Additional information about these statutes and Executive orders (E.O.) can be found at <E T="03">www.epa.gov/laws-regulations/laws-and-executive-orders.</E> 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 15k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━