[Federal Register Volume 88, Number 203 (Monday, October 23, 2023)]
[Rules and Regulations]
[Pages 72686-72688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23256]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2022-0605; FRL-11128-02-R6]


Air Plan Approval; Arkansas; Excess Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA, the Act), the 
Environmental Protection Agency (EPA) is approving two revisions to the 
Arkansas State Implementation Plan (SIP) submitted by the Governor on 
May 12, 2022, and November 1, 2022. These SIP revisions were submitted 
in response to EPA's June 12, 2015, finding of substantial inadequacy 
and SIP call concerning excess emissions during periods of startup, 
shutdown, and malfunction (SSM) events. EPA is approving these SIP 
revisions and finds that the revisions correct the inadequacies 
identified in Arkansas' SIP in the June 12, 2015, SIP call.

DATES: This rule is effective on November 22, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2022-0605. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
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. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: James E. Grady, EPA Region 6 Office, 
Regional Haze and SO2 Section, (214) 665-6745; 
[email protected]. Please call or email Mr. Grady above or call Mr. 
Bill Deese at 214-665-7253 if you need alternative access to material 
indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' mean ``the EPA.''

I. Background

    The background for this action is discussed in detail in our July 
21, 2023, proposed action (88 FR 47095). In that document we proposed 
to approve revisions to the Arkansas SIP which were submitted on May 
12, 2022, and November 1, 2022, subsequent to EPA's January 12, 2022, 
finding of failure to submit concerning excess emissions during periods 
of SSM.\1\ We proposed to approve the removal of two SSM provisions 
identified as substantially inadequate in the June 12, 2015, SIP 
call.\2\ Specifically, we proposed to approve the removal of Regulation 
19.602-Emergency Conditions and Regulation 19.1004(H)-Malfunctions, 
Breakdowns, Upsets from the Arkansas SIP. We also proposed to determine 
that such SIP revisions correct the substantial inadequacies in the 
Arkansas SIP as identified in the June 2015 SIP call and in response to 
EPA's January 2022 finding of failure to submit.
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    \1\ 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, 87 FR 1680 
(Jan. 12, 2022), available at www.regulations.gov, Docket ID No. 
EPA-HQ-OAR-2021-0863.
    \2\ 80 FR 33839 (June 12, 2015).
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II. Response to Comments

    The public comment period for our proposed approval and 
determination expired on August 21, 2023, and no adverse comments were 
received. We received one comment from Sierra Club and Environmental 
Integrity Project supporting removal of Regulation 19.602 and 
Regulation 19.1004(H) from the Arkansas SIP. Therefore, we are 
finalizing our action as proposed.

III. Final Action

    The EPA is approving the revisions to the Arkansas SIP submitted by 
the State

[[Page 72687]]

of Arkansas on May 12, 2022, and November 1, 2022, in response to EPA's 
national SIP call of June 12, 2015, concerning excess emissions during 
periods of SSM. Specifically, we are approving the removal of 
Regulation 19.602--Emergency Conditions and Regulation 19.1004(H)--
Malfunctions, Breakdowns, Upsets of Rule 19 from the Arkansas SIP. We 
are approving these revisions in accordance with section 110 of the 
Act. EPA is also determining that these SIP revisions correct the 
substantial inadequacies in the Arkansas SIP as identified in the June 
12, 2015, SSM SIP Action and in response to EPA's January 12, 2022, 
finding of failure to submit.

IV. Environmental Justice Considerations

    As stated in the proposed action for informational purposes only, 
EPA provided additional information regarding potentially impacted 
populations living within Pulaski County as well as the State of 
Arkansas as a whole.\3\ As discussed in the proposal, this action is 
intended to ensure that all communities and populations across 
Arkansas, and downwind areas, receive the full human health and 
environmental protection provided by the CAA. The removal of 
impermissible automatic exemptions or impermissible affirmative defense 
provisions from the SIP is necessary to preserve the enforcement 
structure of the CAA, to preserve the jurisdiction of courts to 
adjudicate questions of liability and remedies in judicial enforcement 
actions and to preserve the potential for enforcement by the EPA and 
other parties under the citizen suit provision as an effective 
deterrent to violations. There is nothing in the record which would 
indicate that this action will have disproportionately high or adverse 
human health or environmental effects on communities with environmental 
justice concerns.
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    \3\ https://www.census.gov/quickfacts/fact/table/pulaskicountyarkansas,AR,US/PST045222.
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V. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is removing the incorporation by reference of certain 
sections of ``Regulation 19'' in 40 CFR 52.170, as described in section 
III of this Final Action. The EPA has made, and will continue to make, 
these materials generally available through www.regulations.gov (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information). Therefore, these 
materials have been approved by EPA for removal from the Arkansas SIP, 
have been removed from incorporation by reference by EPA into that 
plan, are no longer federally enforceable under sections 110 and 113 of 
the CAA as of the effective date of the final rulemaking of EPA's 
approval, and incorporation by reference will be removed in the next 
update to the SIP compilation.

VI. Statutory and Executive Order Reviews

    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. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA.
     Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to 
identify and address ``disproportionately high and adverse human health 
or environmental effects'' of their actions on minority populations and 
low-income populations to the greatest extent practicable and permitted 
by law. EPA defines environmental justice (EJ) as ``the fair treatment 
and meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The air agency did not evaluate environmental justice 
considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. The EPA performed an environmental justice analysis, as is 
described above in the section titled, ``Environmental Justice 
Considerations.'' The analysis was done for the purpose of providing 
additional context and information about this rulemaking to the public, 
not as a basis of the action. Due to the nature of the action being 
taken here, this action is expected to have a neutral to positive 
impact on the air quality of the affected area by removal of an 
automatic exemption provision and an affirmative defense provision from 
the Arkansas SIP. In addition, there is no information in the record 
upon which this decision is based inconsistent with the stated goal of 
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    This action is subject to the Congressional Review Act, and the EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action

[[Page 72688]]

is not a ``major rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 22, 2023. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: October 16, 2023.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart E--Arkansas

0
2. In Sec.  52.170, the table in paragraph (c) titled ``EPA-Approved 
Regulations in the Arkansas SIP'' is amended under the heading for 
Regulation 19 by:
0
a. Removing the entry for Reg. 19.602 under the heading for Chapter 6; 
and
0
b. Revising the entry for Reg. 19.1004 under the heading for Chapter 
10.
    The revision reads as follows:


Sec.  52.170  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved Regulations in the Arkansas SIP
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                                                  State submittal/
        State citation            Title/subject    effective date     EPA approval date         Explanation
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         Regulation No. 19: Regulations of the Arkansas Plan of Implementation for Air Pollution Control
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             Chapter 10: Regulations for the Control of Volatile Organic Compounds in Pulaski County
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                                                  * * * * * * *
Reg. 19.1004..................  General           1/25/2009, 5/12/  3/4/2015, 80 FR        Reg. 19.1004(H) is no
                                 Provisions.       2022.             11573, 10/23/2023,     longer in SIP, 10/23/
                                                                     [Insert Federal        2023.
                                                                     Register citation].
 
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[FR Doc. 2023-23256 Filed 10-20-23; 8:45 am]
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