Watchdog Finds Major EPA Backlog in State-submitted Air Quality Implementation Plans

Litigation issues, late state submittals and other factors delaying approval of 39% of federally mandated plans to meet air quality standards.
June 25, 2021

A federal watchdog found that factors like litigation issues and late submittals have led to a large backlog in action on plans submitted by states to prove they will meet federal air quality standards.

The delay could be exposing millions of Americans, including Hoosiers, to unsafe levels of toxic air pollution.

A U.S. Environmental Protection Agency’s Office of Inspector General report found that action on 39% of more than 900 state implementation plans was delayed by at least 12 months due to a series of factors, potentially increasing the risk of local governments putting human health and the environment at risk by not meeting federal air quality standards.

Under the Clean Air Act, states are required to submit a state implementation plan to prove that they have a program in place to meet National Ambient Air Quality Standards, the maximum level of a pollutant allowed.

State implementation plans detail how the state plans to limit pollution from all sources in order to meet the federal standards.

Currently, NAAQS exist for six principal pollutants — carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter and sulfur dioxide.

The standards are periodically revised. When that happens, states have a year to submit an implementation plan and supporting documentation to the EPA, though there are exceptions.

Since the enactment of the Clean Air Act in 1970, the state of Indiana has struggled to meet NAAQS requirements for different pollutants all around the state, and areas that have not met federal standards have been considered to be in NAAQS “nonattainment.”

The designation has required the state, through the Indiana Department of Environmental Management, to submit state implementation plans to tell the EPA what actions the state will take to improve air quality to meet federal standards.

According to the EPA Office of Inspector General, the agency has struggled to clear the backlog of state implementation plans from Indiana and other states due to delays from the state and the federal government.

“While the percentage of SIPs backlogged at the EPA has decreased from 64% at the beginning of 2015 to 39% at the beginning of 2021, the EPA still faces challenges in taking timely SIP actions,” the report states. “Both the EPA and state agencies are frequently late in taking required actions. For example, the EPA only took actions within the one-year time frame required by the CAA for 24 percent of required SIP elements submitted since 2013. In addition, from 2013 through 2020, state agencies submitted 51 percent of the required SIP elements to the EPA six months or more after the statutory deadline.”

The OIG found that the number and complexity of state submittals, compounded by limited resources to review and approve the submittals, led to delays.

In other instances, national policy changes slowed the rate of EPA review of state implementation plans.

The OIG found that EPA Headquarters during the Trump administration purposely slowed action on state implementation plans, especially plans concerning the EPA’s startup-shutdown-malfunction emissions policy, a 2015 rule that closed a loophole allowing emitting sources to emit without regard to air pollution rules while starting up, shutting down or when a malfunction occurs

Three dozen states, including Indiana, were mandated by the rule to have a plan to require emissions sources to follow air pollution rules in those situations.

The Trump administration, spurred by lawsuits from states and polluting industries, ordered EPA regions to take no action on state implementation plans regarding the startup-shutdown-malfunction policy until further notice from headquarters.

The administration began planning an alternative to the SSM rule and found ways to let states off the hook for SSM NAAQS requirements by citing the as-yet-unwritten rule as the legal basis for doing so.

In October 2020, former EPA administrator Andrew Wheeler issued guidance directing the agency regions to issue SSM plan exemptions to states and bypass financial penalties for emitters for air pollution violations for malfunctions.

The OIG said the backlog in state implementation plan action could impact states’ ability to achieve federal air quality standards.

“If a state fails to implement or enforce regulations to maintain or attain the NAAQS, communities could be exposed to harmful pollutant levels,” the report states. “Delayed EPA action also increases the time in which regulated entities must adhere to state-enforceable requirements in a revised SIP that a state has submitted for EPA review, as well as to any federally enforceable requirements from the previous EPA-approved SIP. Because these two sets of requirements may be different from one another, they can result in prolonged periods of regulatory uncertainty for regulated entities.”

The OIG submitted several recommendations to the EPA under the new Biden administration.

The agency has agreed to most of the recommendations, including making the state implementation plan data accessible to the public through a new online dashboard, developing a plan to address regional workload disparities and prioritizing plans from states that failed to meet federal standards.

Watchdog Finds Major EPA Backlog in State-submitted Air Quality Implementation Plans