[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43180-43183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17738]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2011-0338; FRL-9435-7]
Finding of Failure To Submit Section 110 State Implementation
Plans for Interstate Transport for the 2006 National Ambient Air
Quality Standards for Fine Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, EPA is finding that Tennessee has failed to
submit a State Implementation Plan (SIP) to satisfy the requirements of
the Clean Air Act (CAA) with respect to the 2006 24-hour National
Ambient Air Quality Standards (NAAQS) for fine particulate matter (24-
hour PM2.5). Although Tennessee has submitted a SIP to
address the requirements, the state subsequently withdrew that portion
of its SIP submittal because it relied on the Clean Air Interstate Rule
to address transport. This finding creates a 2-year deadline for the
promulgation of a Federal Implementation Plan (FIP) by EPA. In a
separate action, commonly referred to as the Transport Rule, EPA is
finalizing a FIP for Tennessee to address these requirements.
DATES: The effective date of this rule is August 19, 2011.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
final rule should be addressed to Edgar Mercado, Office of Atmospheric
Programs, Clean Air Markets Division, 2400 Pennsylvania Avenue, Mail
Code 6204J, Washington, DC 20460; telephone (202) 343-9440; e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION: For questions related to Tennessee, please
contact Richard A. Schutt, Chief, Regulatory Development Section, EPA
Region IV, Sam Nun Atlanta Federal Center, 61 Forsyth Street, SW., 12th
Floor, Atlanta, GA 30303.
Table of Contents
I. Background
II. This Action
III. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedures Act
(APA)
B. Executive Order 12866: Regulatory Planning and Review
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132 (Federalism)
G. Executive Order 13175
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act
M. Judicial Review
I. Background
On October 17, 2006, EPA published a final rule revising the 24-
hour standard for fine particulate matter (PM2.5) from 65
micrograms per cubic meter ([mu]g/m3) to 35[mu]g/m3. Section 110(a)(1)
of the CAA requires states to submit revised SIPs that provide for the
implementation, maintenance, and enforcement of a new or revised
standard within 3 years after promulgation of such standard, or within
such shorter period as EPA may prescribe. Section 110(a)(2)(D)(i)
contains four elements that revised SIPs must address. This findings
notice addresses the first two elements which require each state to
submit SIPs which contain adequate provisions to prohibit air pollution
within the state that (1) contributes significantly to another state's
nonattainment of the NAAQS; or (2) interferes with another state's
maintenance of the NAAQS. Section 110(a)(1) imposes the obligation upon
states to make a SIP submission for a new or revised NAAQS, but the
contents of that submission may vary depending upon the facts and
circumstances. In particular, the data and analytical tools available
at the time the state develops and submits the SIP for a new or revised
NAAQS necessarily affects the content of the submission.
States were required to have submitted complete SIPs that addressed
the section 110(a)(2)(D)(i)(I) requirement related to interstate
transport for the 2006 24-hour PM2.5 NAAQS by September 21,
2009. On June 9, 2010, in a separate final rulemaking (75 FR 32763),
EPA found that 29 states and territories had not made a SIP submittal
that addressed this requirement. Although Tennessee has submitted a SIP
intended to address the Section 110(a)(2)(D)(i) requirements, the state
subsequently withdrew the Section 110(a)(2)(D)(i) of its infrastructure
SIP with respect to the 2006 24-hour PM2.5 NAAQS on December
2, 2010, because it relied on the Clean Air Interstate Rule. Although
deficient to address the transport of pollution as highlighted in
recent EPA air quality modeling to support the final Transport Rule,
EPA acknowledges the State's efforts in making this SIP submittal. In
response to Tennessee's withdrawal of the 110(a)(2)(D)(i)(I) portions
of its SIP because it relied on the Clean Air Interstate Rule, EPA is
making a finding that Tennessee has failed to submit the required
infrastructure SIP elements with respect to nonattainment or
interference with maintenance of the 2006 24-hour PM2.5
NAAQS. In accordance with Section 110(c)(1), this finding creates a 2-
year deadline for the promulgation of a Federal Implementation Plan
(FIP) by EPA unless, prior to promulgation of a FIP, the state makes a
submission to meet and EPA approves such submission as meeting the
attainment and
[[Page 43181]]
maintenance requirements of section 110(a)(2)(D)(i)(I) for the 2006 24-
hour PM2.5 NAAQS. The State's SIP submittal to address other
portions of Section 110(a)(2)(D)(i) will be addressed in a separate
rulemaking.
This action does not result in sanctions pursuant to CAA section
179 because this finding of failure to submit does not pertain to a
part D plan for nonattainment areas, or to a SIP Call pursuant to
section 110(k)(5).
II. This Action
By this action, EPA is making the finding that Tennessee has failed
to submit a SIP that addresses the requirements of section
110(a)(2)(D)(i)(I) of the CAA for the revised 2006 24-hour
PM2.5 NAAQS. This finding creates a 2-year deadline for the
promulgation of a FIP by EPA for Tennessee unless the State submits a
SIP to satisfy these section 110(a)(2)(D)(i)(I) requirements, and EPA
approves such submission prior to promulgation of a FIP.
III. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedures Act (APA)
This is a final EPA action, which is subject to notice-and-comment
requirements of the Administrative Procedures Act (APA), 5 U.S.C.
553(b). However, EPA invokes, consistent with past practice (for
example, 61 FR 36294), the good cause exception pursuant to APA, 5
U.S.C. 553(b)(3)(B). Notice and comment are unnecessary because no
significant EPA judgment is involved in making a finding of failure to
submit SIPs or elements of SIPs required by the CAA, where states have
made no submissions to meet the requirement by the statutory deadline.
B. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review by the Office of Management and
Budget under the EO.
C. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This action relates to the
requirement in the CAA for states to submit SIPs under section
110(a)(1) that implements the CAA requirements for the revised 24-hour
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that
states submit SIPs that implement, maintain, and enforce a new or
revised NAAQS which satisfies the requirements of section 110(a)(2)
within 3 years of promulgation of such standard, or shorter period as
EPA may provide. The present final action does not establish any new
information collection requirement apart from that required by law.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the APA or any other
statute unless the EPA certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For the purpose of assessing the impacts of this final action on
small entities, small entity is defined as: (1) A small business that
is a small industry entity as defined in the U.S. Small Business
Administration (SBA) size standards. (See 13 CFR, part 121); (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for profit
enterprise which independently owned and operated is not dominate in
its field.
Courts have interpreted the RFA to require a regulatory flexibility
analysis only when small entities will be subject to the requirements
of the rule. See, Michigan v. EPA, 213 F.3d 663, 668-69 (DC Cir.,
2000), cert. den., 532 U.S. 903 (2001). This rule would not establish
requirements applicable to small entities. Instead, it would require
states to develop, adopt, and submit SIPs to meet the requirements of
section 110(a)(2)(D)(i), and would leave to the states the task of
determining how to meet those requirements, including which entities to
regulate. Moreover, because affected states would have discretion to
choose the sources to regulate and how much emissions reductions each
selected source would have to achieve, EPA could not predict the effect
of the rule on small entities. After considering the economic impacts
of this final rule on small entities, I certify that this action will
not have a significant economic impact on a substantial number of small
entities. In addition, although the action is subject to the
Administrative Procedures Act, the Agency has invoked the ``good
cause'' exemption under 5 U.S.C. 553(b); therefore, it is not subject
to the notice and comment requirement.
E. Unfunded Mandates Reform Act
This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. The action implements mandate(s) specifically and explicitly
set forth by the Congress in CAA section 110(a)(2)(D)(i)(I) without the
exercise of any policy discretion by EPA.
This action does not create any additional requirements beyond
those of the 2006 24-hour PM2.5 NAAQS (71 FR 61144, October
17, 2006). Therefore, no UMRA analysis is needed. This rule responds to
the requirement in the CAA for states to submit SIPs to satisfy the
requirements of section 110(a)(2) of the CAA for the 2006 24-hour
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that
states submit SIPs that implement, maintain, and enforce a new or
revised NAAQS within 3 years of promulgation of such standard, or
shorter period as EPA may provide. This action does not impose any
requirements beyond those specified in the Act.
Therefore, this action is not subject to the requirements of
sections 202 or 205 of the UMRA. This action is also not subject to the
requirements of section 203 of UMRA because it contains no regulatory
requirements that might significantly or uniquely affect small
governments.
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, as
specified in EO 13132. The CAA establishes the scheme whereby states
take the lead in developing plans to meet the NAAQS. This action will
not modify the relationship of the states and EPA for purposes of
developing programs to implement the NAAQS. Thus, Executive Order 13132
does not apply to this action.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action
responds to the requirement in the CAA for states to submit SIPs to
satisfy the requirements of section 110(a)(2) of the CAA for the
[[Page 43182]]
2006 24-hour PM2.5 NAAQS. Section 110(a)(1) of the CAA
requires that states submit SIPs that implement, maintain, and enforce
a new or revised NAAQS which satisfies the requirements of section
110(a)(2) within 3 years of promulgation of such standard, or shorter
period as EPA may provide. The CAA provides for states and tribes to
develop plans to regulate emissions of air pollutants within their
jurisdictions. The regulations clarify the statutory obligations of
states and tribes that develop plans to implement this rule. The Tribal
Authority Rule (TAR) gives tribes the opportunity to develop and
implement CAA programs, but it leaves to the discretion of the tribe
whether to develop these programs and which programs, or appropriate
elements of a program, the tribe will adopt.
This action does not have tribal implications as defined by
Executive Order 13175. It does not have a substantial direct effect on
one or more Indian tribes, because no tribe has implemented an air
quality management program related to the 2006 24-hour PM2.5
NAAQS at this time. Furthermore, this action does not affect the
relationship or distribution of power and responsibilities between the
federal government and Indian tribes. The CAA and the TAR establish the
relationship of the federal government and Tribes in developing plans
to attain the NAAQS, and this action does nothing to modify that
relationship. Because this action does not have tribal implications,
Executive Order 13175 does not apply.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action present a disproportionate
risk to children. Nonetheless, we have evaluated the environmental
health or safety effects of the 2006 24-hour PM2.5 NAAQS on
children. The results of this risk assessment are contained in the
final rule for 24-hour PM2.5 NAAQS (71 FR 61144, October 17,
2006).
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
J. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this final action. This action responds to the requirement
in the CAA for states to submit SIPs to satisfy the requirements of
section 110(a)(2)(D)(i)(I) of the CAA for the 2006 24-hour
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that
states submit SIPs that implement, maintain, and enforce a new or
revised NAAQS which satisfies the requirements of section 110(a)(2)
within 3 years of promulgation of such standard, or shorter period as
EPA may provide. EPA is merely determining whether Tennessee has
complied with this statutory requirement.
L. Congressional Review Act
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary or contrary to the public interest. This
determination must be supported by a brief statement. 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefore, and established an effective date of August 19,
2011. EPA will submit a report containing this action and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the action in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 808(2).
M. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by EPA. This
section provides, in part, that petitions for review must be filed in
the Court of Appeals for the District of Columbia Circuit: (i) When the
EPA action consists of ''nationally applicable regulations promulgated,
or final actions taken, by the Administrator,'' or (ii) when such
action is locally or regionally applicable, if ``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.''
The Administrator is determining that this action making a finding
of failure to submit SIPs related to the section 110(a)(2)(D)(i)(I)
requirements for the 2006 24-hour PM2.5 NAAQS is of
nationwide scope and effect for the purposes of section 307(b)(1). This
is particularly appropriate because in the report on the 1977
Amendments that revised section 307(b)(1) of the CAA, Congress noted
that the Administrator's determination that an action is of
``nationwide scope or effect'' would be appropriate for any action that
has ``scope or effect beyond a single judicial circuit.'' H.R. Rep. No.
95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the
scope and effect of this rulemaking extends to numerous judicial
circuits since the finding of failure to submit a SIP applies to a
rulemaking of national scope and effect. In these circumstances,
section 307(b)(1)
[[Page 43183]]
and its legislative history call for the Administrator to find the rule
to be of ``nationwide scope or effect'' and for venue to be in the
District of Columbia Circuit.
Thus, any petitions for review of this action related to a finding
of failure to submit SIPs related to the requirements of section
110(a)(2)(D)(i)(I) of the CAA must be filed in the Court of Appeals for
the District of Columbia Circuit within 60 days from the date final
action is published in the Federal Register.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: July 1, 2011.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2011-17738 Filed 7-19-11; 8:45 am]
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