[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Pages 21118-21120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07655]



[EPA-HQ-OGC-2022-0175; FRL-9570-01-OGC]

Proposed Consent Decree, Clean Air Act Citizen Suit

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed consent decree; request for public comment.


SUMMARY: In accordance with the Clean Air Act, as amended (CAA or the 
Act), notice is given of a proposed consent decree in Sierra Club et 
al. v. Regan, No. 21-cv-6956 (N.D. Cal, September 8, 2021). On 
September 8, 2021, Plaintiffs Sierra Club, Environmental Integrity 
Project, and Natural Resources Defense Council (collectively, 
Plaintiffs) filed a complaint in the United States District Court for 
the Northern District of California, Oakland Division. Plaintiffs 
alleged that the Environmental Protection Agency (EPA or the Agency) 
failed to undertake certain non-discretionary duties in accordance with 
the Act to timely respond to numerous state implementation plan 
submissions and to issue findings of failure to submit to numerous 
other states who had failed to respond to an EPA finding that their 
state plans were substantially inadequate under the Act. The proposed 
consent decree would establish deadlines for EPA to act on certain 
submissions and establish that certain claims in the Complaint are now 

DATES: Written comments on the proposed consent decree must be received 
by May 11, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2022-0175, online at https://www.regulations.gov (EPA's preferred 
method). Follow the online instructions for submitting comments.
    Instructions: All submissions received must include the Docket ID 
number for this action. Comments received may be posted without change 
to https://www.regulations.gov, including any personal information 
provided. For detailed instructions on sending

[[Page 21119]]

comments and additional information on the rulemaking process, see the 
``Additional Information about Commenting on the Proposed Consent 
Decree'' heading under the SUPPLEMENTARY INFORMATION section of this 
document. Out of an abundance of caution for members of the public and 
our staff, the EPA Docket Center and Reading Room are closed to the 
public, with limited exceptions, to reduce the risk of transmitting 
COVID-19. Our Docket Center staff will continue to provide remote 
customer service via email, phone, and webform. We encourage the public 
to submit comments via https://www.regulations.gov, as there may be a 
delay in processing mail and faxes. Hand-deliveries and couriers may be 
received by scheduled appointment only. For further information on EPA 
Docket Center services and the current status, please visit us online 
at https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the CDC, local area health departments, and our Federal partners 
so that we can respond rapidly as conditions change regarding COVID-19.

FOR FURTHER INFORMATION CONTACT: Seth Buchsbaum, Air and Radiation Law 
Office (mail code), Office of General Counsel, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; 
telephone (202) 564-2484; email address [email protected].


I. Obtaining a Copy of the Proposed Consent Decree

    The official public docket for this action (identified by Docket ID 
No. EPA-HQ-OGC-2022-0175) contains a copy of the proposed consent 
    The electronic version of the public docket for this action 
contains a copy of the proposed consent decree and is available through 
https://www.regulations.gov. You may use https://www.regulations.gov to 
submit or view public comments, access the index listing of the 
contents of the official public docket, and access those documents in 
the public docket that are available electronically. Once in the 
system, key in the appropriate docket identification number then select 

II. Additional Information About the Proposed Consent Decree

    On June 15, 2015, EPA issued findings of substantial inadequacy 
pursuant to CAA section 110(k)(5) for SIP provisions applying to excess 
emissions during startup, shutdown, and malfunction (``SSM'') periods 
for 45 states and air districts. 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). EPA 
accordingly issued a SIP Call requiring those 45 states and air 
districts to submit plan revisions to correct SSM-related deficiencies 
in their SIPs within 18 months, i.e., by November 22, 2016 (2015 SSM 
SIP Call).
    The proposed consent decree would establish deadlines for EPA to 
take action pursuant to CAA section 110(k) on certain SIP revisions 
that were submitted by the following states and air districts in 
response to the 2015 SSM SIP Call: Alaska, Arizona--Arizona Department 
of Environmental Quality, Arizona--Maricopa County Air Quality 
Department, California--Eastern Kern Air Pollution Control District, 
California--Imperial County Air Pollution Control District, Colorado, 
Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, 
Maine, Michigan, Minnesota, Missouri, Mississippi, Montana, New Jersey, 
New Mexico, North Dakota, New Mexico--Albuquerque-Bernalillo County, 
Oklahoma, South Carolina, Tennessee, Virginia, Washington, and West 
Virginia. Plaintiffs also alleged that EPA had failed to take action on 
SIP revisions submitted by Texas and North Carolina in response to the 
SIP call; however, EPA has withdrawn the SIP Calls submitted to those 
states, mooting that portion of the litigation. SIP Call Withdrawal and 
Air Plan Approval; NC: Large Internal Combustion Engines NOX 
Rule Changes, 85 FR 23700 (April 28, 2020); Withdrawal of Finding of 
Substantial Inadequacy of Implementation Plan and of Call for Texas 
State Implementation Plan Revision-Affirmative Defense Provisions, 85 
FR 7232 (February 7, 2020; effective March 9, 2020).
    CAA section 110(k) sets forth the process by which EPA reviews SIP 
submissions and revisions. 42 U.S.C. 7410(k). According to that 
process, EPA must determine no later than 6 months after the date by 
which a state is required to submit a SIP submittal whether a state has 
made a submission that meets the minimum completeness criteria. Id. 
7410(k)(1)(B). EPA refers to the determination that a state has not 
submitted a requisite SIP submittal as a ``finding of failure to 
submit.'' Plaintiffs alleged in the complaint that EPA failed to make 
findings of failure to submit SIP revisions that remove or amend the 
SIP-called provisions pursuant to CAA section 110(k)(1)(B), 42 U.S.C. 
7410(k)(1)(B), for twelve additional states and air districts. However, 
on January 12, 2022, EPA published findings of failure to submit in the 
Federal Register for those twelve states and air districts, mooting 
that portion of the litigation. 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 
Excess Emissions During Periods of Startup, Shutdown, and Malfunction, 
87 FR 1680 (January 12, 2022).
    Additionally, during the pendency of this litigation, in the 
ordinary course of its administrative action, EPA has taken final 
action on some of the SIP submissions originally at issue in the 

    \1\ See 87 FR 7725 (February 10, 2022); 87 FR 8952 (February 17, 
2022); 87 FR 14802 (March 16, 2022).

    Under the terms of the proposed consent decree, EPA shall sign a 
notice or notices approving, disapproving, conditionally approving, or 
approving in part and conditionally approving or disapproving in part 
the SIP revisions as listed and identified in the proposed consent 
decree by the established deadlines. The proposed consent decree 
provides that if any State withdraws one of the listed SIP revisions, 
EPA's obligation to take such an action is terminated.
    In accordance with section 113(g) of the CAA, for a period of 
thirty (30) days following the date of publication of this document, 
the Agency will accept written comments relating to the proposed 
consent decree. EPA or the Department of Justice may withdraw or 
withhold consent to the proposed consent decree if the comments 
disclose facts or considerations that indicate that such consent is 
inappropriate, improper, inadequate, or inconsistent with the 
requirements of the Act.

III. Additional Information About Commenting on the Proposed Consent 

    Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2022-
0175, via https://www.regulations.gov. Once submitted, comments cannot 
be edited or removed from this docket. EPA may publish any comment 
received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential 
Business Information (CBI) or other

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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 (i.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 https://www.epa.gov/dockets/commenting-epa-dockets. For additional information 
about submitting information identified as CBI, please contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section of this 
document. Note that written comments containing CBI and submitted by 
mail may be delayed and deliveries or couriers will be received by 
scheduled appointment only.
    If you submit an electronic comment, EPA recommends that you 
include your name, mailing address, and an email address or other 
contact information in the body of your comment. This ensures that you 
can be identified as the submitter of the comment and allows EPA to 
contact you in case EPA cannot read your comment due to technical 
difficulties or needs further information on the substance of your 
comment. Any identifying or contact information provided in the body of 
a comment will be included as part of the comment that is placed in the 
official public docket and made available in EPA's electronic public 
docket. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment.
    Use of the https://www.regulations.gov website to submit comments 
to EPA electronically is EPA's preferred method for receiving comments. 
The electronic public docket system is an ``anonymous access'' system, 
which means EPA will not know your identity, email address, or other 
contact information unless you provide it in the body of your comment.
    Please ensure that your comments are submitted within the specified 
comment period. Comments received after the close of the comment period 
will be marked ``late.'' EPA is not required to consider these late 

Gautam Srinivasan,
Associate General Counsel.
[FR Doc. 2022-07655 Filed 4-8-22; 8:45 am]