Rule2026-11884
Partial Withdrawals of Findings of Failure To Submit State Implementation Plan (SIP) Revisions To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction
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Published
June 12, 2026
Effective
July 13, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The U.S. Environmental Protection Agency (EPA) is partially withdrawing two final actions finding that 13 States and/or local air pollution control agencies failed to submit State Implementation Plan (SIP) revisions to address the Agency's 2015 findings of substantial inadequacy and "SIP call" for provisions applying to excess emissions during periods of startup, shutdown, and malfunction (SSM). The partial withdrawal affects six air pollution control agencies. Withdrawing relevant parts of the findings for failure to submit is consistent with the decision from the U.S. Court of Appeals for the District of Columbia Circuit Court (D.C. Circuit) partially vacating the findings of substantial inadequacy and SIP call. This final action renders no longer applicable certain CAA deadlines for the EPA to impose sanctions if a State does not submit a complete SIP revision addressing the outstanding requirements, and to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).
Full Text
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<title>Federal Register, Volume 91 Issue 113 (Friday, June 12, 2026)</title>
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[Federal Register Volume 91, Number 113 (Friday, June 12, 2026)]
[Rules and Regulations]
[Pages 35628-35631]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11884]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2021-0863; EPA-R03-OAR-2023-0179; FRL-12161-04-OAR]
RIN 2060-AW38
Partial Withdrawals of Findings of Failure To Submit State
Implementation Plan (SIP) Revisions To Amend Provisions Applying to
Excess Emissions During Periods of Startup, Shutdown, and Malfunction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is partially
withdrawing two final actions finding that 13 States and/or local air
pollution control agencies failed to submit State Implementation Plan
(SIP) revisions to address the Agency's 2015 findings of substantial
inadequacy and ``SIP call'' for provisions applying to excess emissions
during periods of startup, shutdown, and malfunction (SSM). The partial
withdrawal affects six air pollution control agencies. Withdrawing
relevant parts of the findings for failure to submit is consistent with
the decision from the U.S. Court of Appeals for the District of
Columbia Circuit Court (D.C. Circuit) partially vacating the findings
of substantial inadequacy and SIP call. This final action renders 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).
DATES: This final action is effective on July 13, 2026.
ADDRESSES: The EPA has established two dockets for this action under
Docket ID Nos. EPA-HQ-OAR-2021-0863 and EPA-R03-OAR-2023-0179. All
documents in the dockets are listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a>
website. Although listed in the index, some information is not publicly
available, e.g., Confidential Business Information (CBI) or other
information the disclosure of which 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 electronically
through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For information about this final
action, contact Carrie Wheeler, Office of State Air Partnerships, Air
Quality Planning Division (C504-05), Environmental Protection Agency,
109 T.W. Alexander Drive, P.O. Box 12055, Research Triangle Park, NC
27711; telephone number: (919) 541-9771; email address:
<a href="/cdn-cgi/l/email-protection#285f404d4d444d5a064b495a5a414d684d5849064f475e"><span class="__cf_email__" data-cfemail="a3d4cbc6c6cfc6d18dc0c2d1d1cac6e3c6d3c28dc4ccd5">[email protected]</span></a>.
Preamble acronyms and abbreviations. Throughout this preamble, the
use of ``we,'' ``us,'' or ``our'' is intended to refer to the EPA. We
use multiple acronyms and terms in this preamble. While this list may
not be exhaustive, to ease the reading of this preamble and for
reference purposes, the EPA defines the following terms and acronyms
here:
CAA Clean Air Act
CBI Confidential Business Information
D.C. District of Columbia Circuit Court
EPA Environmental Protection Agency
FIP Federal Implementation Plan
SIP State Implementation Plan
SSM startup, shutdown, malfunction
SUPPLEMENTARY INFORMATION: Organization of this document. The
information in this preamble is organized as follows:
I. Background and Overview of the Final Action
II. Response to Comments
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act of 1995 (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Congressional Review Act (CRA)
L. Judicial Review
I. Background and Overview of the Final Action
On January 12, 2022, the EPA took final action (the ``January 2022
Findings of Failure to Submit'') \1\ to find that 12 air agencies
failed to submit SIP revisions that were due by November 22, 2016, to
address a now partially vacated 2015 SSM SIP Call.\2\ On April 17,
2023, EPA Region 3 took final action (the ``April 2023 Finding of
Failure to Submit'') to find that the State of West Virginia failed to
submit a SIP revision in response to the now partially vacated 2015 SSM
SIP Call.\3\ On November 26, 2024, the EPA issued a direct final action
\4\ and parallel proposal (the ``November 2024 Action'') to partially
withdraw the January 2022 Findings of Failure to Submit and the April
2023 Finding of Failure to Submit. The EPA is now taking final action
to partially withdraw certain prior Agency actions that found that 13
States and/or local air pollution control agencies (``air agencies'')
failed to timely submit SIP revisions required by the CAA.
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\1\ 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,'' 87
FR 1680 (Jan. 12, 2022).
\2\ See ``State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of the 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 (Jun.
12, 2015).
\3\ 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,'' 88 FR 23353 (Apr. 17, 2023).
\4\ See ``Excess Emissions During Periods of Startup, Shutdown,
and Malfunction; Partial Withdrawals of Findings of Failure to
Submit State Implementation Plan (SIP),'' 89 FR 93187 (Nov. 26,
2024).
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In total, the 13 air agencies that were included in the findings of
failure to submit can be found in Table 1. For those air agencies
subject to the prior findings of failure to submit for which the EPA
has fully approved their submitted SIP revision, the obligation under
the findings of failure to submit has been fulfilled, and there is no
need for the Agency or those air agencies to take further action. The
air agencies that have not submitted a SIP revision in response to the
prior findings of failure to submit, 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.
[[Page 35629]]
Table 1--13 States and/or Local Air Pollution Control Agencies Included
in the January 2022 Findings of Failure To Submit and April 2023 Finding
of Failure To Submit
------------------------------------------------------------------------
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.
10.......................... Washington--Southwest Clean Air Agency.
------------------------------------------------------------------------
Table 2--Air Agencies Without Fully Approved SIP Revisions in Response
to the January 2022 Findings of Failure To Submit and April 2023 Finding
of Failure To Submit \5\
------------------------------------------------------------------------
EPA region State and/or local air agency
------------------------------------------------------------------------
1............................ Rhode Island.
3............................ District of Columbia.
3............................ West Virginia.
4............................ Alabama.
5............................ Illinois.
5............................ Ohio.
8............................ South Dakota.
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On March 1, 2024, the D.C. Circuit issued a decision in Environ.
Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024) (Florida
Electric). The D.C. Circuit granted the petitions in part, vacating the
SIP calls that were based on SIP provisions that included automatic
exemptions, director's discretion provisions, and 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.
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\5\ The EPA and its State partners work regularly on SIP
requirements including plan development, review and approval. After
the November 2024 proposal, the EPA took action on two SIP revisions
related to today's action: (1) Washington-Energy Facility Site
Evaluation Council (EFSEC) SIP call revision was finalized on
December 27, 2024, see, 89 FR 105456; and (2) Washington--Southwest
Clean Air Agency (SWCAA) SIP call revision was finalized on May 9,
2025, see, 89 FR 19650. These fully approved SIP revisions in
response to the January 2022 Findings of Failure to Submit fulfilled
their findings of failure to submit obligations.
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As a result of the D.C. Circuit's decision in Florida Electric, the
EPA issued the November 2024 Action to partially withdraw the January
2022 Findings of Failure to Submit and the April 2023 Finding of
Failure to Submit. The EPA withdrew the direct final rule effective
January 10, 2025, due to comments received.\6\
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\6\ See ``Excess Emissions During Periods of Startup, Shutdown,
and Malfunction; Partial Withdrawals of Findings of Failure to
Submit State Implementation Plan (SIP),'' 90 FR 1903 (Jan. 10,
2025).
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After reviewing comments received on the proposed action, the EPA
is finalizing this action to partially withdraw the January 2022
Findings of Failure to Submit and the April 2023 Finding of Failure to
Submit. The partial withdrawal affects six air agencies. Because
certain portions of the SIP call were vacated by the D.C. Circuit and,
therefore, have no legal effect, the 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.\7\ 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. As a result of this final action, the January 2022
Findings of Failure to Submit and April 2023 Finding of Failure to
Submit are withdrawn with respect to the air agency SIP provisions
listed in Table 3.
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\7\ In vacating certain portions of the 2015 SSM SIP Call, the
D.C. Circuit's decision did not determine whether the SIP-called
provisions were otherwise lawful under the CAA. See e.g., slip op.
at 55 (``We thus do not reach the question whether the called SIPs'
relevant emission restrictions in fact amount to (or must amount to)
`emission limitations' per the statutory definition.'').
Table 3--SIP Provisions for Which the EPA Is Withdrawing the Agency's
Findings of Failure To Submit \8\
------------------------------------------------------------------------
Applicable provisions for
which the findings of
Region State failure to submit are
withdrawn
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1................. Rhode Island........... 25-4-13 R.I. Code R. Sec.
16.2.
3................. District of Columbia... D.C. Mun. Regs. tit. 20
Sec. 107.3.
D.C. Mun. Regs. tit. 20
Sec. 606.1.
D.C. Mun. Regs. tit. 20
Sec. 606.2.
West Virginia.......... W. Va. Code R. Sec. 45-2-
9.1.
W. Va. Code R. Sec. 45-7-
10.3.
W. Va. Code R. Sec. 45-40-
100.8.
[[Page 35630]]
W. Va. Code R. Sec. 45-2-
10.1
W. Va. Code R. Sec. 45-3-
7.1.
W. Va. Code R. Sec. 45-5-
13.1.
W. Va. Code R. Sec. 45-6-
8.2.
W. Va. Code R. Sec. 45-7-
9.1.
W. Va. Code R. Sec. 45-7-
10.4.
W. Va. Code R. Sec. 45-10-
9.1.
W. Va. Code R. Sec. 45-21-
9.3.
W. Va. Code R. Sec. 45-3-
3.2.
W. Va. Code R. Sec. 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).
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).
------------------------------------------------------------------------
For those air agencies' SIP provisions in Table 3 for which the
prior findings of failure to submit 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 air agency's SIP provisions for which the findings of failure to
submit 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 (see Table 4).
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\8\ Because the D.C. Circuit only vacated certain portions of
the EPA's 2015 SSM SIP Action, the 2015 SIP Call is still applicable
for certain provisions in some States. As such, the EPA is only
withdrawing the findings of failure to submit as they apply to those
provisions that clearly correspond to the vacatur. As a result, the
findings of failure to submit remain in place for now for provisions
that may correspond to the portions of the 2015 SSM SIP Action that
were not vacated (i.e., provisions that were SIP called because they
include an affirmative defense that provides specific relief and
provisions that constitute overbroad enforcement discretion). Some
States were included in the findings of failure to submit for both
types of provisions.
Table 4--States and/or Local Air Agencies With Remaining Findings of
Failure To Submit Obligations
------------------------------------------------------------------------
Applicable provisions for
State and/or local air which the findings of
EPA region agency failure to submit remain in
effect
------------------------------------------------------------------------
3................. District of Columbia... D.C. Mun. Regs. tit. 20
Sec. 606.4.
3................. West Virginia.......... W. Va. Code R. Sec. 45-2-
9.4.
4................. Tennessee--Shelby Shelby County Code Sec.
(Memphis). 16-87.
5................. Illinois............... Ill. Admin. Code tit. 35
Sec. 201.261.
Ill. Admin. Code tit. 35
Sec. 201.262.
Ill. Admin. Code tit. 35
Sec. 201.265.
------------------------------------------------------------------------
The EPA notes that the D.C. Circuit issued another decision related
to the court's interpretation of the CAA relevant to SSM provisions,
SSM Litigation Group v. EPA, 150 F.4th 593 (D.C. Cir. 2025). In that
case, the D.C. Circuit reversed the EPA's July 2023 removal of
affirmative defense provisions from the title V regulations.\9\
However, the SSM Litigation Group v. EPA decision is not directly
relevant to this action, which is focused on withdrawal of the SIP
calls vacated by the D.C. Circuit in the Florida Electric decision.
Further, none of the provisions for which the EPA is withdrawing the
SIP call in this action are affirmative defense provisions.
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\9\ 88 FR 47029 (Jul. 21, 2023).
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II. Response to Comments
Commenters generally supported the proposed withdrawal of the
findings of failure to submit, and two supported the associated direct
final rule. While no commenter provided an adverse comment on the
provisions specified within the proposal, four commenters asserted that
the EPA should have included the applicable provisions for Illinois and
West Virginia (identified in Table 4) in the November 2024 Action. As
the EPA did not propose to withdraw the findings of failure to submit
for these specific provisions, the comments are considered outside the
scope of this rulemaking. The EPA intends to further consider these
comments outside of the context of this rulemaking before identifying
next steps regarding the applicable provisions for Illinois and West
Virginia.
III. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Executive Order
13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and, therefore,
was not submitted to the Office of Management and Budget (OMB) for
review.
[[Page 35631]]
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is considered an Executive Order 14192 deregulatory
action. This final action provides burden reduction for States because
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.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the provisions of the PRA. This final action does not establish any new
information collection requirement apart from what is already required
by law. This action relates to the requirement in the CAA for States to
submit SIPs in response to findings of substantial inadequacy under CAA
section 110(k)(5).
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This action
relates to the requirement in the CAA for States to submit SIPs in
response to findings of substantial inadequacy under CAA section
110(k)(5).
E. Unfunded Mandates Reform Act of 1995 (UMRA)
This action does not contain any unfunded mandate as described in
UMRA 2 U.S.C. 1531-1538 and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any State,
local, or Tribal governments, or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. No Tribe is subject to the requirement to submit
an implementation plan under the findings of inadequacy relevant to
this action. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks that the Agency
has reason to believe may disproportionately affect children, per the
definition of ``covered regulatory action'' in section 2-202 of the
Executive Order.
Therefore, this action is not subject to Executive Order 13045
because it relates to the requirement in the CAA for States to submit
SIPs in response to findings of substantial inadequacy under CAA
section 110(k)(5).
Furthermore, the EPA's Policy on Children's Health does not apply
to this action.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action relates to the requirement
in the CAA for States to submit SIPs in response to findings of
substantial inadequacy under CAA section 110(k)(5).
J. National Technology Transfer and Advancement Act (NTTAA)
This final action does not involve technical standards.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 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 is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Judicial Review
CAA section 307(b)(1) governs judicial review of final actions by
the EPA. This section generally provides that petitions for review of
final actions that are nationally applicable must be filed in the D.C.
Circuit, and petitions for judicial review of actions that are locally
or regionally applicable must be filed in the appropriate regional
circuit.\10\ However, petitions for judicial review of a final action
that is locally or regionally applicable must be filed in the D.C.
Circuit when ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.'' \11\
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\10\ CAA section 307(b)(1).
\11\ Id.
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As the Supreme Court recently articulated in EPA v. Calumet, 605
U.S. 627 (2025), the first step in determining the appropriate venue
for judicial review of an EPA final action is to ascertain whether the
action at issue is nationally applicable or locally or regionally
applicable.\12\ If the action is locally or regionally applicable,
venue lies in the appropriate regional circuit unless the ``nationwide
scope or effect'' exception applies to override the default rule of
regional circuit review.\13\ The exception applies, and judicial review
of the EPA's action belongs in the D.C. Circuit, if the Agency invokes
the exception for a final action that is ``based on a determination of
nationwide scope or effect'' and accompanied by an EPA finding of this
basis.\14\
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\12\ Calumet, 605 U.S. at 636-39.
\13\ Id. at 642.
\14\ Id.
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This rulemaking describes a number of final actions that are
``locally or regionally applicable'' because each action withdraws a
previous final action by the EPA finding that a State failed to submit
a required SIP revision under CAA section 110. Each withdrawal action
is a separate ``action'' for the purposes of determining venue under
CAA section 307(b)(1) and, because each action only applies to a single
State, each action is locally or regionally applicable. The
Administrator has not made and published a finding that these actions
are based on a determination of nationwide scope or effect.
Under CAA section 307(b)(1), petitions for judicial review of these
actions must be filed in the United States Court of Appeals for the
appropriate circuit by August 11, 2026.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedures,
Air pollution control, Approval and promulgation of implementation
plans, Incorporation by reference, Intergovernmental relations, and
Reporting and recordkeeping requirements.
Dated: June 9, 2026.
Aaron Szabo,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2026-11884 Filed 6-11-26; 8:45 am]
BILLING CODE 6560-50-P
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