The EPA Office of Inspector General (OIG) issued a June 14, 2021, report that says continued delays by the EPA on State Implementation Plan (SIP) actions “increase the risk that state or local air agencies are not implementing plans sufficient to achieve or maintain the [National Ambient Air Quality Standards (NAAQS)]” under the Clean Air Act (CAA).
Responsibility on the States
Each state is primarily responsible for ensuring it achieves the NAAQS established by the EPA. States must put together an implementation plan to achieve their NAAQS and submit the SIP to the EPA for approval.
“States are given broad discretion in formulating SIPs,” according to a June 23, 2021, JD Supra article by Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. Nevertheless, the SIPs must contain measures and actions states propose to undertake to attain each NAAQS. These measures or actions must be enforceable through state regulations and typically include emissions limits applicable to certain types of stationary sources.
“The states are generally free to make their own choices as to how they will attain the NAAQS through their SIPs. However, the SIP (including revisions) must be reviewed and approved by EPA for determination that the criteria set forth in Section 110 of the Clean Air Act are met.”
The OIG report gives the EPA credit for reducing the number of SIPs awaiting action, including a portion that have been backlogged since before 2013.
“A SIP submittal is considered backlogged when it is not acted upon by the EPA within 12 months from the date of the completeness determination,” according to the OIG report.
EPA activities to reduce the backlog included:
- Taking final actions on SIPs backlogged since before 2013,
- Encouraging states to withdraw some SIP submittals, and
- Engaging with states earlier, before SIP submittal.
As of January 21, 2021, the OIG report stated approximately 39 percent of the Agency’s 903 active SIP submittals were in “backlogged” status.
Factors impacting the EPA’s ability to take timely action include:
- The number of SIP submittals received in a given year,
- The complexity of the SIP submittals received,
- Limited regional resources, and
- Unresolved litigation and legal and policy issues that would set national precedents.
“For example, as of February 2021, approximately 46 percent of backlogged SIP elements at the EPA were under further review due to ongoing national precedent or litigation concerns,” according to the OIG report.
Because the quality of the air that citizens breathe in each state is dependent upon the state’s meeting the NAAQS guidelines, it is imperative that the EPA be able to meet its congressionally mandated review and response timelines so that states can put their SIPs into action to achieve the NAAQS. Delayed actions can also result in “a lack of regulatory certainty and different enforceable requirements for regulated entities,” the OIG report adds.
The OIG’s recommendations to correct the issue are to:
- Develop and implement a process to identify which SIP elements are not submitted by statutory deadlines.
- Develop and implement a plan to address regional workload disparities to ensure timely SIP actions.
- Reassess certain decisions affecting the suspension of SIP requirements in Yuma, Arizona, and Mariposa, California.
- Issue findings of failure to submit or take disapproval actions for areas without an EPA-approved SIP in place that continue to exceed the NAAQS beyond their required attainment dates.
The EPA agreed with the OIG’s recommendations. Recommendations 1 and 3 are complete. Recommendation 4 is resolved, with corrective actions pending. Recommendation 2 is unresolved pending additional information on future years’ plans, including budgeting requests for additional resources for regional air programs.