2024-27263. Excess Emissions During Periods of Startup, Shutdown, and Malfunction; Partial Withdrawals of Findings of Failure To Submit State Implementation Plan (SIP)

EPA regional office	Air agencies
EPA Region 1: Alison Simcox, Air Quality Branch, EPA Region 1, 5 Post Office Square, Boston, Massachusetts 02109. [e-mail]	Rhode Island.
EPA Region 3: Sean Silverman, Planning and Implementation Branch, EPA Region 3, 1650 Arch Street, Philadelphia, Pennsylvania 19103. [e-mail]	District of Columbia.
EPA Region 3: Serena Nichols, Planning and Implementation Brach, EPA Region 3, 1650 Arch Street, Philadelphia, Pennsylvania 19103. [e-mail]	West Virginia.
EPA Region 4: Faith Goddard, Air Planning and Implementation Branch, EPA Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303. [e-mail]	Alabama; North Carolina-Forsyth; Tennessee-Shelby (Memphis).
EPA Region 5: Michael Leslie, Air Planning and Maintenance Section, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. [e-mail]	Illinois; Ohio.
EPA Region 6: Michael Feldman, Air Program Branch, EPA Region 6, 1201 Elm Street, Dallas, Texas 75270. [e-mail]	Arkansas.
EPA Region 8: Adam Clark, Air Quality Planning Branch, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202. [e-mail]	South Dakota.
EPA Region 9: Eugene Chen, Control Measures Section, Air and Radiation Division, EPA Region 9, 75 Hawthorne Street, San Francisco, California 94105. [e-mail]	California-San Joaquin Valley Air Pollution Control District (APCD).
EPA Region 10: Randall Ruddick, Air Planning Section, EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. [e-mail]	Washington-Energy Facility Site Evaluation Council (EFSEC); Washington-Southwest Clean Air Agency (SWCAA).

II. Background

On January 12, 2022, the EPA took final action (“January 2022 FFS”) ^[4] to find that 12 States and local air agencies failed to submit SIP revisions required by the 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 SSM (“2015 SSM SIP Call” ^[5] ) that were statutorily due no later than November 22, 2016. On April 17, 2023, the EPA Region 3 took final action (“April 2023 FFS”) to find that the State of West Virginia failed to timely submit a SIP revision required by the CAA to address the deficiencies identified in the EPA's 2015 SSM SIP Call that was statutorily due no later than November 22, 2016.^[6] In total, the 13 States and/or local air agencies that were issued an FFS can be found in Table 1. For those States and/or local air agencies subject to the FFS for which EPA has fully approved their submitted SIP revision—Arkansas, California-San Joaquin Valley Air Pollution Control District, and North Carolina-Forsyth—the FFS obligation has been fulfilled, and there is no need to for the EPA or those States to take further action. The States and/or local air agencies which have not submitted a SIP revision in response to the FFS or for which the EPA has not taken final action on their submittal— i.e., the States for which some obligation still exists—can be found in Table 2.

Table 1—13 States and/or Local Air Pollution Control Agencies Included in the January 2022 FFS and April 2023 FFS

EPA region	State and/or local air agency
1	Rhode Island.
3	District of Columbia.
3	West Virginia.
4	Alabama.
4	North Carolina-Forsyth.
4	Tennessee-Shelby (Memphis).
5	Illinois.
5	Ohio.
6	Arkansas.
8	South Dakota.
9	California-San Joaquin Valley Air Pollution Control District.
10	Washington-Energy Facility Site Evaluation Council.
10	Washington-Southwest Clean Air Agency.

Table 2—States and/or Local Air Agencies Without Fully Approved SIP Revisions in Response to the January 2022 FFS and April 2023 FFS  ⁷

EPA region	State and/or local air agency
1	Rhode Island.
3	District of Columbia.
( print page 93190)
3	West Virginia.
4	Alabama.
4	Tennessee-Shelby (Memphis).
5	Illinois.
5	Ohio.
8	South Dakota.
10	Washington-Energy Facility Site Evaluation Council.
10	Washington-Southwest Clean Air Agency.

On March 1, 2024, the United States Court of Appeals for the District of Columbia Circuit issued a decision in Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024). 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” ( i.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 Environ. Comm. Fl. Elec. Power v. EPA, the EPA is partially withdrawing the January 2022 FFS and the April 2023 FFS. Because certain portions of the SIP call were vacated by the D.C. Circuit and therefore have no legal effect, the States and/or local air agencies with provisions to which those vacated portions of the SIP call previously applied no longer have a legal obligation to submit the revisions that the EPA had originally determined were required pursuant to the 2015 SSM SIP Call.^[8] Further, as there is no longer a predicate submission obligation for those particular SIP-called provisions, the EPA's findings that such obligation was not met are no longer valid and must be withdrawn.

III. Partial Withdrawals of Findings of Failure To Submit

As a result of this final action, the January 22, 2022, national FFS and April 17, 2023, FFS are partially withdrawn with respect to the State and/or local air agency SIP provisions listed in Table 3.

Table 3—SIP Provisions for Which the EPA Is Withdrawing the Agency's Findings of Failure To Submit ⁹

Region	State/local air agency	Applicable provisions for which the FFS are withdrawn
1	Rhode Island	25-4-13 R.I. Code R. § 16.2.
3	District of Columbia	D.C. Mun. Regs. tit. 20 § 107.3. D.C. Mun. Regs. tit. 20 § 606.1.
		D.C. Mun. Regs. tit. 20 § 606.2.
	West Virginia	W. Va. Code R. § 45-2-9.1. W. Va. Code R. § 45-7-10.3.
		W. Va. Code R. § 45-40-100.8.
		W. Va. Code R. § 45-2-10.1.
		W. Va. Code R. § 45-3-7.1.
		W. Va. Code R. § 45-5-13.1.
		W. Va. Code R. § 45-6-8.2.
		W. Va. Code R. § 45-7-9.1.
		W. Va. Code R. § 45-7-10.4.
		W. Va. Code R. § 45-10-9.1.
		W. Va. Code R. § 45-21-9.3.
		W. Va. Code R. § 45-3-3.2.
		W. Va. Code R. § 45-2-10.2.
4	Alabama	Ala Admin Code Rule 335-3-14-.03(1)(h)(1). Ala Admin Code Rule 335-3-14- .03(1)(h)(2).
( print page 93191)
5	Ohio	Ohio Admin. Code 3745-15-06(A)(3). Ohio Admin. Code 3745-17-07(A)(3)(c).
		Ohio Admin. Code 3745-17- 07(B)(11)(f).
		Ohio Admin. Code 3745- 14-11(D).
		Ohio Admin. Code 3745- 15-06(C).
8	South Dakota	S.D. Admin. R. 74:36:12:02(3).

IV. Consequences of Withdrawn Portions of Findings of Failure To Submit and Remaining Air Agency Obligations

For those State and/or local air agency SIP provisions listed in Table 3 of Section III for which the FFS are withdrawn, the CAA deadlines for the EPA to impose sanctions under CAA sections 179(a) and (b) and promulgate a FIP under CAA section 110(c) are no longer applicable. For those State and/or local jurisdiction SIP provisions in which the FFS are not withdrawn and are still applicable, the CAA deadlines for the EPA to impose sanctions under CAA sections 179(a) and (b) and promulgate a FIP under CAA section 110(c) remain in effect as previously established.^[10 11] The States and/or local air agencies for which the FFS are not withdrawn and mandatory CAA deadlines remain in effect can be found in Table 4.

Table 4—States and/or Local Air Agencies With Remaining FFS Obligations

EPA region	State and/or local air agency	Applicable provisions for which the FFS remain in effect
3	District of Columbia	D.C. Mun. Regs. tit. 20 § 606.4.
3	West Virginia	W. Va. Code R. § 45-2-9.4.
4	Tennessee-Shelby (Memphis)	Shelby County Code § 16-87.
5	Illinois	Ill. Admin. Code tit. 35 § 201.261. Ill. Admin. Code tit. 35 § 201.262.
		Ill. Admin. Code tit. 35 § 201.265.
10	Washington-Energy Facility Site Evaluation Council	Wash. Admin. Code § 463-39-005.
10	Washington-Southwest Clean Air Agency	SWCAA 400-107.