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Federal Register / Vol. 86, No. 227 / Tuesday, November 30, 2021 / Rules and Regulations
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submit a SIP submission that meets all the Marginal nonattainment area planning requirements for the newly expanded El Paso-Las Cruces TexasNew Mexico nonattainment area. See CAA section 301a1.
Setting a separate deadline for El Pasos SIP submission is not at odds with the EPAs decision to keep a consistent attainment date for the entirety of the El Paso-Las Cruces TexasNew Mexico nonattainment area, or CAA section 182j. The CAA requires that states take reasonable steps to coordinate planning efforts for joint nonattainment areas. Providing additional time to allow Texas to make a Marginal area submission will not interfere, and could better serve, future coordination on planning efforts for the entire nonattainment area. Other parts of the CAA also provide support for this final actions decisions regarding attainment dates and SIP submission deadlines. Section 182i of the CAA
allows the Administrator to adjust SIP
deadlines but not attainment dates upon mandatory reclassification of certain ozone nonattainment areas. In addition, areas subject to Marginal area requirements are not required to plan for attainment in the same way as areas classified Moderate and above. The primary substantive obligations associated with a Marginal classification are the requirement to submit an emissions inventory and the requirement that new sources in the area must implement nonattainment new source review. Neither requirement is integrally related to attainment planningthey are not submitted to demonstrate how the area will attain or make reasonable further progress towards attainment, and they are not suspended if the area is attaining.
Setting a reasonable future deadline for SIP submissions is consistent with the EPAs past practice and D.C. Circuit precedent. On January 4, 2013, the D.C.
Circuit remanded the EPAs 2007 PM2.5
Implementation Rule,9 finding that the EPA had applied the incorrect set of implementation provisions within the CAA, including a series of deadlines for SIP submissions.10 Upon remand, the deadlines that should have applied to the relevant areas were in the past.
Given that, the EPA took final action in 2014 to set up relatively brief but reasonable deadlines for required SIP
9 Final Clean Air Fine Particle Implementation Rule, 72 FR 20585 April 25, 2007.
10 Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan SIP Provisions for the 1997
Fine Particle PM2.5 National Ambient Air Quality Standard NAAQS and 2006 p.m.2.5 NAAQS, 79
FR 31,566 June 2, 2014.

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submissions. While the action changed the submission deadlines, it also left in place the attainment dates that had occurred in the past for the relevant nonattainment areas. Petitioners challenged the EPAs rule establishing future SIP submittal deadlines on the basis that the CAA established SIP
submittal deadlines, those should have applied based on the D.C. Circuits earlier decision, and the EPA lacked discretion to change those deadlines.
The EPAs rule establishing new, future SIP submittal deadlines in this circumstance was upheld by the D.C.
Circuit in WildEarth Guardians v. EPA, 830 F.3d 529 D.C. Cir. 2016 finding that the EPA acted within its authority in novel circumstances where a SIP
submission deadline passed without states awareness due to a remanded action.
The EPA recognizes that the Agency did not specifically provide notice in its June 14, 2021 intended designations that Texass Marginal area SIP
submission deadlines would be extended from August 3, 2020 to December 30, 2022. However, as discussed in the previous section, under CAA section 107d2B, designations actions are specifically exempted from the notice and comment requirements of the APA. See CAA section 172b requiring the Administrator to establish a schedule for SIP requirements at the time the Administrator promulgates a nonattainment designation. In addition, the Agency did not specify what deadline would apply, and numerous commenters addressed the issue in comments, suggesting that the Agency in fact provided enough notice on the issue that it is appropriate to finalize without additional notice. As such, the EPA does not believe that a more specific notice was necessary to extend Texass SIP submission deadlines.
Even if additional notice were required, the EPA would have good cause to waive such a requirement to finalize an extension of Texass SIP
submission deadlines for the revised additional portion of the El Paso-Las Cruces TXNM nonattainment area, as providing an additional notice and comment period would be impracticable and contrary to the public interest. See APA Section 553bB. Upon the effective date of this final action, without a finalized extension of Texass SIP deadline, the EPA would immediately be vulnerable to deadline litigation for the Agencys failure to issue findings of failure to submit under CAA section 107k1Bfor a state that until today was not required to submit anything to the Agency. And, the Agency does not have time, given the
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deadlines for other statutorily-required actions and the Clean Wisconsin courts direction for the EPA to act as expeditiously as practicable, to wait to finalize these revised designations for a full notice-and-comment process on this lone issue, which is a small part of a large and complex series of Agency actions. Further, a specific, brief, and reasonable deadline set in the future provides the state and stakeholders with certainty and the ability to develop and submit the SIP revisions at issue on a timely basis, rather than complications and potential mandatory duty deadline suit litigation that could ensue if the EPA established a submittal deadline that had already lapsed.
IX. Environmental Justice EJ
Considerations Consideration of EJ concerns is consistent with an Administrator directive and presidential executive orders. On April 7, 2021, the Administrator directed the EPA offices to take immediate and affirmative steps to incorporate EJ considerations into the regulatory development processes.11
The EPA has defined environmental justice 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. 12 The Administrators directive came as part of implementing the Biden-Harris Administrations executive order E.O.
13985, 86 FR 7009, January 25, 2021
directing all federal agencies to embed equity into their programs and services to ensure the consistent and systematic fair, just, and impartial treatment of all individuals, including those who belong to underserved communities that have been denied such treatment.13 E.O.
13985 defines the term underserved communities as referring to populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, 11 Message from the EPA Administrator, Our Commitment to Environmental Justice issued April 7, 2021 at https www.epa.gov/sites/production/
files/2021-04/documents/regan-messageon commitmenttoenvironmentaljusticeapril072021.pdf.
12 See https www.epa.gov/environmentaljustice/
learn-about-environmental-justice.
13 Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government E.O. 13985, issued January 20, 2021 at https
www.whitehouse.gov/briefing-room/presidentialactions/2021/01/20/executive-order-advancingracial-equity-and-support-for-underservedcommunities-through-the-federal-government/.

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