[Federal Register Volume 78, Number 10 (Tuesday, January 15, 2013)]
[Rules and Regulations]
[Pages 2882-2892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00566]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2012-0943, FRL-9769-4]
RIN 2060
Findings of Failure To Submit a Complete State Implementation
Plan for Section 110(a) Pertaining to the 2008 Ozone National Ambient
Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is finding that 28 states, the District of Columbia
and the Commonwealth of Puerto Rico have not made complete state
implementation plan (SIP) submissions to address certain SIP elements,
as required by the Clean Air Act (CAA). Specifically, the EPA is
determining that these states have not submitted complete SIPs that
provide the basic CAA program elements as necessary to implement the
2008 8-hour ozone national ambient air quality standards (NAAQS). The
EPA refers to these SIP submissions as ``infrastructure'' SIPs. By this
action, the EPA is identifying states that either have not made any
submission to address the applicable elements or have made a complete
submission to address some applicable elements but did not make a
complete submission for other applicable elements. The EPA recognizes
that its efforts to reconsider the 2008 8-hour ozone NAAQS delayed and
complicated the efforts of some states to develop and submit these
infrastructure SIPs, but at this time the EPA is nevertheless required
by court order to make these findings. These findings of failure to
submit establish a 24-month deadline for the EPA to promulgate federal
implementation plans (FIPs) to address the outstanding SIP elements
unless, prior to that time, the affected states submit and the EPA
approves, a SIP that corrects the deficiency.
DATES: The effective date of this rule is February 14, 2013.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to Dr. Karl Pepple: telephone (919) 541-
2683, email pepple.karl@epa.gov; or Mr. Lynn Dail: telephone (919) 541-
2363, email dail.lynn@epa.gov, Office of Air Quality Planning and
Standards, Air Quality Policy Division, Mail Code C539-02, 109 TW
Alexander Drive, Research Triangle Park, NC 27709.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Notice and Comment Under the Administrative Procedure Act (APA)
Section 553 of the APA, 5 U.S.C. 553(b)(B), provides that, when an
agency for good cause finds that notice and public procedure are
impracticable, unnecessary, or contrary to the public interest, the
agency may issue a rule without providing notice and an opportunity for
public comment. The EPA has determined that there is good cause for
making this rule final without prior proposal and opportunity for
comment 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, or incomplete submissions,
to meet the requirement. Thus, notice and public procedure are
unnecessary. The EPA finds that this constitutes good cause under 5
U.S.C. 553(b)(B).
[[Page 2883]]
B. How can I get copies of this document and other related information?
The EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2012-0943. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution
Avenue NW., Washington, DC. The Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744 and the
telephone number for the Office of Air and Radiation Docket and
Information Center is (202) 566-1742.
C. Contact Information
For questions related to a specific state, the District of Columbia
or the Commonwealth of Puerto Rico, please contact the appropriate EPA
Regional Office:
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Regional offices States
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EPA Region I: Dave Conroy, Air Program Connecticut, Maine,
Branch Manager, Air Programs Branch, Massachusetts, New Hampshire,
EPA New England, 1 Congress Street, Rhode Island and Vermont.
Suite 1100, Boston, MA 02203-2211.
EPA Region II: Raymond Werner, Chief, New Jersey, New York and Puerto
Air Programs Branch, EPA Region II, Rico.
290 Broadway, 21st Floor, New York, NY
10007-1866.
EPA Region III: Donna Mastro, Air Delaware, District of Columbia,
Program Manager, Air Quality Planning Maryland, Pennsylvania,
Branch, EPA Region III, 1650 Arch Virginia and West Virginia.
Street, Philadelphia, PA 19103-2187.
EPA Region IV: R. Scott Davis, Air Alabama, Florida, Georgia,
Program Manager, Regulatory Kentucky, Mississippi, North
Development Section, EPA Region IV, Carolina, South Carolina and
Sam Nunn, Atlanta Federal Center, 61 Tennessee.
Forsyth Street SW., 12th Floor,
Atlanta, GA 30303.
EPA Region V: John Mooney, Air Program Illinois, Indiana, Michigan,
Branch Manager, Air Programs Branch, Minnesota, Ohio and Wisconsin.
EPA Region V, 77 West Jackson Street,
Chicago, IL 60604.
EPA Region VI: Guy Donaldson, Chief, Arkansas, Louisiana, New
Air Planning Section, EPA Region VI, Mexico, Oklahoma and Texas.
1445 Ross Avenue, Dallas, TX 75202-
2733.
EPA Region VII: Joshua A. Tapp, Branch Iowa, Kansas, Missouri and
Chief, Air Planning and Development Nebraska.
Branch, EPA Region VII, 11201 Renner
Blvd., Lenexa, KS 66219.
EPA Region VIII: Monica Morales, Air Colorado, Montana, North
Program Manger, Air Quality Planning Dakota, South Dakota, Utah and
Unit, EPA Region VIII Air Program, Wyoming.
1595 Wynkoop St. (8P-AR), Denver, CO
80202-1129.
EPA Region IX: Doris Lo, Acting Air Arizona, California, Hawaii and
Program Manager, Air Planning Office, Nevada.
EPA Region IX, 75 Hawthorne Street,
San Francisco, CA 94105.
EPA Region X: Debra Suzuki, Air Program Alaska, Idaho, Oregon and
Manager, Air Planning Unit, EPA Region Washington.
X, Office of Air, Waste, and Toxics,
Mail Code AWT-107, 1200 Sixth Avenue,
Seattle, WA 98101.
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D. How is this preamble organized.
Table of Contents
I. General Information
A. Notice and Comment Under the Administrative Procedure Act
(APA)
B. How can I get copies of this document and other related
information?
C. Contact Information
II. Background and Overview
III. Findings of Failure To Submit for States That Failed To Make an
Infrastructure SIP Submittal in Whole or in Part for the 2008 8-hour
Ozone NAAQS
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act of 1995 (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority and Low Income Populations
K. Congressional Review Act
L. Judicial Review
II. Background and Overview
On March 12, 2008, the EPA promulgated new NAAQS for ozone.\1\ The
agency revised the previous 8-hour primary ozone standard of 0.08 parts
per million (ppm) to 0.075 ppm. The EPA also revised the secondary 8-
hour standard to the level of 0.075 ppm making it identical to the
revised primary standard. In September 2009, the EPA announced it would
reconsider the 2008 8-hour ozone NAAQS and informed the states of this
plan. On January 19, 2010, the EPA extended by 1 year the deadline for
promulgating initial area designations for the 2008 ozone NAAQS.
However, in September 2011, the EPA announced its decision to merge the
reconsideration of the 2008 NAAQS with the next scheduled 5-year review
of the ozone NAAQS, and advised the states that the 2008 NAAQS would be
implemented.
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\1\ See 73 FR 16436, March 27, 2008, National Ambient Air
Quality Standards for Ozone, Final Rule.
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The CAA section 110(a) imposes an obligation upon states to make a
SIP submission with respect to the 2008 8-hour ozone NAAQS. CAA section
110(a)(1) requires states to submit SIPs that provide for the
implementation, maintenance and enforcement of a new or revised NAAQS
within 3 years following the promulgation of the new or revised NAAQS,
or within such shorter period as the EPA may prescribe.\2\ Section
110(a)(2) lists specific requirements that states must meet in these
SIP submissions, as applicable. The EPA refers to this type of SIP
submission as the ``infrastructure'' SIP. The requirements for
infrastructure SIPs include basic SIP
[[Page 2884]]
elements such as requirements for monitoring, basic program
requirements and legal authority that are designed to assure attainment
and maintenance of the NAAQS. 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 affect the content of
the submission. The content of such a SIP submission may also vary
depending upon what provisions the state's existing SIP already
contains. Two elements identified in section 110(a)(2) are not governed
by the 3-year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area requirements are not
due within 3 years after promulgation of a new or revised NAAQS, but
rather are due at the time the nonattainment area plan requirements are
due pursuant to section 182.\3\ These requirements are: (i) Submissions
required by section 110(a)(2)(C) to the extent that subsection refers
to a nonattainment area new source review permit program for major
sources as required in part D of title I of the CAA; and (ii)
submissions required by section 110(a)(2)(I) which pertains to the
nonattainment planning requirements of part D of title I of the CAA.
Therefore, this action does not cover these specific SIP elements in
section 110(a)(2). This action does cover the requirement that
infrastructure SIPs provide for a minor source permitting program. In
the case of the 2008 8-hour ozone NAAQS, the period during which the
EPA was making efforts to reconsider the 2008 NAAQS with the
expectation of revising it in the near term extended about 6 months
beyond March 12, 2011, the normal deadline for submission of
infrastructure SIPs. The EPA therefore did not prepare and issue timely
guidance for the states to assist them in preparing their submissions.
Also, states were given the impression that if the NAAQS were revised
as a result of the reconsideration, the 3-year deadline would reset.
However, given that the NAAQS have not been revised, March 12, 2011,
remains the legally applicable deadline for infrastructure SIPs for the
2008 8-hour ozone NAAQS.
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\2\ The EPA has not prescribed a shorter period for the 2008 8-
hour ozone NAAQS.
\3\ Nonattainment area plans required by part D title I of the
CAA for the 2008 8-hour ozone NAAQS are due by various dates as
established throughout subpart 2 of part D, i.e., reasonably
available control measures are due in 2 years under 182(b)(2),
reasonable further progress plans are due in 3 years under
182(b)(1), and attainment demonstrations are due in 4 years under
182(c)(2). The EPA has interpreted these dates to run from the
effective dates of the nonattainment designations, see 68 FR 32802,
32816-817 (June 2, 2003) (``subpart 2 SIP submittals will be due as
a general matter by the same period of time after designation and
classification under the 8-hour standard as provided in subpart 2
for areas designated and classified at the time of enactment of the
1990 CAA.'') The designations for the 2008 ozone standard were
effective on July 20, 2012. See 77 FR 30088 (May 21, 2012) and 77 FR
34221 (June 11, 2012). The EPA notes that it has recently become
aware that in several actions on ozone infrastructure SIPs the EPA
incorrectly indicated that nonattainment SIPs would be due according
to schedules established under section 172. Those statements were
incorrect and the result of inadvertently using language applicable
to particulate matter SIPs in ozone SIP actions. Section 172 sets
SIP submittal dates only for SIPs subject to subpart 1 of part D.
Section 182 sets the dates for ozone SIPs which are governed by
subpart 2 of part D.
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The EPA recognizes that many states would have developed and made
timely infrastructure SIP submissions for purposes of the 2008 8-hour
ozone NAAQS but for the uncertainty of the submission date requirement
as a result of the EPA's efforts to reconsider that NAAQS, the EPA's
associated interim advice to states regarding implementation of those
NAAQS, and the lack of guidance from the EPA regarding what such
infrastructure submissions should include. The EPA believes that many
states in fact have SIPs in place that meet all or many of the basic
program elements required in section 110(a)(2), as a result of their
earlier SIP submissions in connection with previous ozone NAAQS and
NAAQS for other pollutants. Since the September 2011 announcement that
the 2008 8-hour NAAQS would be implemented, many states have been
working to prepare infrastructure SIP submissions documenting that this
is the case (and supplementing the SIP with new provisions when needed)
and to complete required public comment opportunity steps. About one-
half of the states have successfully made complete submissions and a
number of others are less than a month away from doing so. Some states
are on track to make a submittal somewhat later.
As of early 2012, which was only a few months after the
announcement that the deadline for infrastructure SIPs would not reset
and thus had already passed on March 12, 2011, many states had not yet
submitted an infrastructure SIP for the 2008 8-hour ozone NAAQS.
Litigants filed a mandatory duty lawsuit alleging: (i) That the EPA had
failed to take timely mandatory action under section 110(k) on
infrastructure SIPs submitted by Kentucky and Tennessee; and (ii) that
the EPA had failed to make completeness findings or findings of failure
to submit for many other states that had not yet submitted such
infrastructure SIP submissions as of that point in time. On October 17,
2012, the court granted summary judgment to the litigants against the
EPA and ordered the EPA to take certain actions, including making
findings of failure to submit for any of the listed states that had not
yet made an infrastructure SIP submission.\4\ The court ordered the EPA
to sign a final rule issuing these findings of failure to submit for
each of the states listed in the order for each of the listed
infrastructure SIP elements, no later than January 4, 2013. The EPA
interprets the court's order to require a determination whether or not
each of the listed states has made a complete infrastructure SIP
submission for the listed elements of section 110(a)(2), as applicable,
and if the state in question has not made such a complete submission
for one or more relevant elements of section 110(a)(2), to make a
finding of failure to submit with respect to any such element. Whether
or not a submittal is ``complete'' pertains to the requirements in
section 110(k)(1)(B) and EPA's regulations at 40 CFR 51 Appendix V.
Thus, the EPA is making findings of failure to submit, in whole or in
part, based upon whether the states at issue have made a complete
infrastructure SIP for the relevant elements of section 110(a)(2).\5\
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\4\ WildEarth Guardians v. Lisa P. Jackson, U.S. District Court
for the Northern District of California, Case No.:11-CV-5651 YGR and
Consolidated Case No.: 11-CV-05694 YGR.
\5\ The court also ordered the EPA to sign a final rule or rules
taking action on infrastructure SIP submittals from Tennessee and
Kentucky. The date for these final actions was subsequently extended
by the court to March 4, 2013. These actions will be addressed in
separate Federal Register notices.
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The EPA also is not issuing in this notice any findings of failure
to submit SIPs addressing section 110(a)(2)(D)(i)(I) of the CAA. The
EPA has historically interpreted section 110(a)(1) of the CAA as
establishing the required submittal date for SIPs addressing all of the
``interstate transport'' requirements in section 110(a)(2)(D) including
the provisions in section 110(a)(2)(D)(i)(I) regarding significant
contribution to nonattainment and interference with maintenance. The DC
Circuit's recent opinion in EME Homer City Generation v. EPA, 696 F.3d
7, 31 (D.C. Cir. 2012), however, concluded that a SIP cannot be deemed
to lack a required submission or deemed deficient for failure to meet
the 110(a)(2)(D)(i)(I) obligation until after the EPA quantifies that
obligation. This decision is not yet final as the mandate has not been
issued and the EPA has petitioned for rehearing en banc, asking the
full court to reconsider that conclusion. Nonetheless, during the
pendency of the appeal, the EPA intends to act in accordance with the
holdings in the
[[Page 2885]]
EME Homer City opinion. Therefore, at this time the EPA is not making
findings that states failed to submit SIPs to comply with section
110(a)(2)(D)(i)(I).
After excluding SIP elements required by CAA sections 110(a)(2)(C)
to the extent that subsection refers to a nonattainment area new source
review permit program for major sources as required in part D of title
I of the CAA, 110(a)(2)(I) regarding plans for nonattainment areas, and
110(a)(2)(D)(i)(I) regarding interstate transport affecting attainment
and maintenance of the NAAQS, as explained above, the remaining
elements that are relevant to this action are the requirements of CAA
sections 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M).
For those states that have not yet made an infrastructure SIP
submittal and those states that have made a submittal that was not
complete with respect to each relevant element of section 110(a)(2), as
applicable, the EPA is making a finding of failure to submit. For those
states that have not made any submittal, the EPA is making a finding
with respect to all of the relevant section 110(a)(2) SIP elements. For
those states that have made a SIP submittal, but whose submittal is
incomplete for some or all of the relevant section 110(a)(2) elements,
as applicable, the EPA is issuing findings of failure to submit only
with respect to those specific elements which a state has not yet
submitted a complete SIP submission to meet. For both sets of states,
these findings reflect submissions received or not received as of
January 3, 2013.
These findings establish a 24-month deadline for the promulgation
by the EPA of a FIP, in accordance with section 110(c)(1). These
findings of failure to submit do not impose sanctions, or set deadlines
for imposing sanctions as described in section 179 of the CAA, because
these findings do not pertain to the elements of a part D, title I plan
for nonattainment areas as required under section 110(a)(2)(I) and
because this action is not a SIP call pursuant to section 110(k)(5).
The EPA is not making any finding in this notice regarding 22
states that have submitted infrastructure SIPs that have become
complete by operation of law under CAA section 110(k)(1)(B) or have
already been determined by the EPA to be complete for all elements
relevant to this action. These states are Alaska, Alabama, Colorado,
Connecticut, Florida, Georgia, Idaho, Indiana, Kentucky, Maryland,
Mississippi, New Hampshire, North Carolina, Ohio, Oregon, Rhode Island,
South Carolina, Tennessee, Texas, Virginia and West Virginia. Arizona
and Illinois have made submissions that have been determined by the EPA
to be complete except for elements related to prevention of significant
deterioration (PSD). Also, the infrastructure SIP submitted by Delaware
was determined by the EPA to be incomplete for all elements prior to
this notice; the EPA is anticipating that Delaware will submit a
revised SIP soon. Also, New Mexico has submitted an infrastructure SIP
covering Bernalillo County that has already been approved by the EPA.
The submission date and completeness status of the infrastructure SIP
for each of these states are provided in Table 1, for informational
purposes only.
Table 1--Infrastructure SIPs (and SIP Elements) for the 2008 8-Hour
Ozone NAAQS That Have Become Complete by Operation of Law, Determined To
Be Complete or Determined To Be Incomplete or Approved Prior to Today's
Action
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Date of receipt by
the EPA (and date
State shown on the Completeness status
submittal)
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Alaska...................... Section Complete by
110(a)(2)(D)(i)--Ap operation of law.
ril 4, 2011
(submission was
dated March 29,
2011); other
sections--March 8,
2012 (submission is
dated March 2,
2012).
Alabama..................... August 23, 2012 Determined to be
(submission is complete on
dated August 20, December 14, 2012.
2012).
Arizona..................... December 27, 2012 Determined to be
(submission is complete for
dated December 27, relevant elements
2012). except those
related to PSD on
January 4, 2013.
Colorado.................... December 31, 2012 Determined to be
(submission is complete on January
dated December 31, 2, 2013.
2012).
Connecticut................. December 28, 2012 Determined to be
(submission is complete on January
dated December 28, 3, 2013.
2012).
Delaware.................... February 1, 2012 Determined to be
(submission is incomplete on March
dated January 17, 29, 2012.
2012).
Florida..................... November 3, 2011 Complete by
(submission is operation of law.
dated October 31,
2011).
Georgia..................... March 8, 2012 Complete by
(submission is operation of law.
dated March 6,
2012).
Idaho....................... June 28, 2010 Complete by
(submission is operation of law.
dated June 25,
2010).
Illinois.................... December 31, 2012 Determined to be
(submission is complete for
dated December 31, relevant elements
2012). except those
related to PSD on
January 2, 2013.
Indiana..................... December 15, 2011 Complete by
(submission is operation of law.
dated December 12,
2011).
Kentucky.................... July 23, 2012 Determined to be
(submission is complete on
dated July 17, December 14, 2012.
2012).
Maryland.................... December 31, 2012 Determined to be
(submission is complete on January
dated December 27, 2, 2013.
2012).
Mississippi................. August 17, 2012 Determined to be
(submission is complete on
dated July 26, December 18, 2012.
2012).
[[Page 2886]]
New Hampshire............... December 31, 2012 Determined to be
(submission is complete on January
dated December 31, 3, 2013.
2012).
New Mexico (for Bernalillo August 25, 2010 Final approval (77
County only). (submission is FR 58032, September
dated August 16, 19, 2012).
2010).
North Carolina.............. November 9, 2012 Determined to be
(submission is complete on
dated November 2, November 15, 2012.
2012).
Ohio........................ December 27, 2012 Determined to be
(submission is complete on January
dated December 27, 2, 2013.
2012).
Oregon...................... Section Complete by
110(a)(2)(D)(i)--Ju operation of law.
ne 28, 2010
(submission is
dated June 23,
2010); other
sections--December
28, 2011
(submission is
dated December 19,
2011).
Rhode Island................ January 2, 2013 Determined to be
(submission is complete on January
dated January 2, 3, 2013.
2013).
South Carolina.............. October 28, 2011 Complete by
(submission is operation of law.
dated October 24,
2011).
Tennessee................... October 21, 2009 Complete by
(submission is operation of law.
dated October 19,
2009).
Texas....................... December 19, 2012 Determined to be
(submission is complete on
dated December 13, December 20, 2012.
2012).
Virginia.................... July 26, 2012 Determined to be
(submission is complete on
dated July 23, December 10, 2012.
2012).
West Virginia............... February 21, 2012 Complete by
(submission is operation of law.
dated February 17,
2012).
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The EPA is finding that the 25 states not listed in Table 1,
Arizona, Illinois, New Mexico, the District of Columbia and the
Commonwealth of Puerto Rico, as identified in section III of this
notice, have not made a complete infrastructure submission to meet
certain requirements of section 110(a)(2) that are relevant to this
action, as applicable, for the 2008 8-hour ozone NAAQS. The EPA is
committed to working with these states and areas to expedite the needed
submissions and to working with all the states to review and act on
their infrastructure SIP submissions in accordance with the
requirements of the CAA.
III. Findings of Failure To Submit for States That Failed To Make an
Infrastructure SIP Submittal in Whole or in Part for the 2008 8-hour
Ozone NAAQS
The EPA is making findings that certain states have failed to
submit a complete infrastructure SIP that provides certain basic
program elements of section 110(a)(2) necessary to implement the 2008
8-hour ozone NAAQS, by January 3, 2013, as identified for each below.
The EPA is by this action starting a 24-month deadline by which time
the EPA must promulgate a FIP for each affected state to address the
identified section 110(a)(2) requirements, unless the state submits and
EPA approves a SIP revision that corrects the deficiency before the EPA
promulgates a FIP for the state, in accordance with section 110(c)(1).
This action will be effective 30 days after publication, on February
14, 2013.
The following states and territories failed to make a complete
submittal to satisfy certain of the requirements of section 110(a)(2).
Region I
Maine did not submit a SIP to address the requirements of section
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to
permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M).
Massachusetts did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II),
(D)(ii) and (J) (in all four subsections for the PSD-related and
notification-related requirements only) are already addressed for
Massachusetts through an existing PSD FIP that remains in place.
Therefore, this action will not trigger any additional FIP obligations
with respect to the PSD-related and notification-related requirements
in these four subsections.
Vermont did not submit a SIP to address the requirements of
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to
permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M).
Region II
New Jersey did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II),
(D)(ii) and (J) (in all four subsections for the PSD-related and
notification-related requirements only) are already addressed for New
Jersey through an existing PSD FIP that remains in place. Therefore,
this action will not trigger any additional FIP obligations with
respect to the PSD-related and notification-related requirements in
these four subsections. The EPA anticipates that New Jersey will
propose a SIP for public comment that certifies New Jersey's existing
EPA-approved SIP, meets all the requirements of the infrastructure SIP
elements included in today's finding that are not related to PSD or to
notification.
New York did not submit a SIP to address the requirements of
section
[[Page 2887]]
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to
permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). A SIP proposed for public comment by New York certifies
that New York's existing EPA-approved SIP, including its PSD program,
meets all the requirements of the infrastructure SIP elements included
in today's finding.
The Commonwealth of Puerto Rico did not submit a SIP to address the
requirements of section 110(a)(2)(A), (B), (C) to the extent it refers
to enforcement, to permitting programs for minor sources and to PSD
permitting programs required by part C of title I of the CAA,
(D)(i)(II), (D)(ii), (E)-(H) and (J)-(M). Regarding this finding,
sections 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in all four
subsections for the PSD-related and notification-related requirements
only) are already addressed for the Commonwealth of Puerto Rico through
an existing PSD FIP that remains in place. Therefore, this action will
not trigger any additional FIP obligations with respect to the PSD-
related and notification-related requirements in these four
subsections.
Region III
The District of Columbia did not submit a SIP to address the
requirements of section 110(a)(2)(A), (B), (C) to the extent it refers
to enforcement, to permitting programs for minor sources and to PSD
permitting programs required by part C of title I of the CAA,
(D)(i)(II), (D)(ii), (E)-(H) and (J)-(M). Regarding this finding,
sections 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in all four
sections for the PSD-related and notification-related requirements
only) are already addressed for the District of Columbia through an
existing PSD FIP that remains in place. Therefore, this action will not
trigger any additional FIP obligations with respect to the PSD-related
and notification-related requirements in these four subsections.
Pennsylvania did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II),
(D)(ii) and (J) (in all four subsections for the PSD-related and
notification-related requirements only) are already addressed for
Allegheny County through an existing PSD FIP that remains in place.
Therefore, this action will not trigger any additional FIP obligations
with respect to the PSD-related and notification-related requirements
in these four subsections in Allegheny County.
Region V
Illinois did not submit a complete SIP to address the requirements
of section 110(a)(2)(C) and (J) to the extent these refer to PSD
permitting programs required by part C of title I of the CAA. Illinois
also failed to submit a complete SIP to address the PSD-related
requirement of section 110(a)(2)(D)(i)(II) to the extent it refers to
interference with other states' PSD permitting programs required by
part C by sources in Illinois. Illinois also failed to submit a
complete SIP to address the requirement of section 110(a)(2)(D)(ii) to
the extent it refers to notification to other states. Regarding this
finding, sections 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in all
four subsections for the PSD-related and notification-related
requirements only) are already addressed for Illinois through an
existing PSD FIP that remains in place. Therefore, this action will not
trigger any additional FIP obligations with respect to the PSD-related
and notification-related requirements in these four subsections.
Michigan did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M).
Minnesota did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II),
(D)(ii) and (J) (in all four subsections for the PSD-related and
notification-related requirements only) are already addressed for
Minnesota through an existing PSD FIP that remains in place. Therefore,
this action will not trigger any additional FIP obligations with
respect to the PSD-related and notification-related requirements in
these four subsections.
Wisconsin did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M).
Region VI
Arkansas did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M).
Louisiana did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M).
New Mexico did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M) for all portions of the state other than Bernalillo County.
Oklahoma did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M).
Region VII
Iowa did not submit a complete SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). On December 17, 2012, the state by letter submitted a
document that describes the actions the state has taken to address the
infrastructure SIP requirements for the 2008 8-hour ozone NAAQS, to
demonstrate that the state is taking necessary and possible steps
needed to ensure that its rules and procedures are sufficient to
implement the new standards. However, while the state provided this
document to the public for comment on December 6, 2012, that comment
period does not close until January 8, 2013. In addition, the state has
scheduled a public hearing on this submission for January 8, 2013, as
required by CAA section 110(a)(1) and 40 CFR 51.102. The EPA
anticipates that Iowa will submit a complete SIP soon after conclusion
of the public comment period.
Kansas did not submit a SIP to address the requirements of section
110(a)(2)(A), (B), (C) to the extent it
[[Page 2888]]
refers to enforcement, to permitting programs for minor sources and to
PSD permitting programs required by part C of title I of the CAA,
(D)(i)(II), (D)(ii), (E)-(H) and (J)-(M). The EPA anticipates that
Kansas will submit a SIP to address these requirements after conclusion
of the public comment period currently underway.
Missouri did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). The EPA anticipates that Missouri will submit a SIP to
address these requirements soon.
Nebraska did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). The EPA anticipates that Nebraska will submit a SIP to
address these requirements after conclusion of the public comment
period currently underway.
Region VIII
Montana did not submit a SIP to address the requirements of section
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to
permitting programs for minor sources and to PSD permitting programs
required by CAA part C title I, (D)(i)(II), (D)(ii), (E)-(H) and (J)-
(M).
North Dakota did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). The state anticipates undergoing rulemaking and public
notice early in 2013.
South Dakota did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). The state anticipates undergoing rulemaking and public
notice early in 2013.
Utah did not submit a complete SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). On December 12, 2012, the state by letter submitted
documents that summarize the state's existing infrastructure SIP
elements and explain that these elements satisfy the state's obligation
for the 2008 ozone NAAQS. However, the state had not yet completed a
public comment process on this submission, although the state has
provided these documents to the public for a comment period between
December 18, 2012, and January 18, 2013. As a result, the December 12,
2012, submittal has not yet satisfied the requirement for public notice
and opportunity for a public hearing established in CAA section
110(a)(1) and 40 CFR 51.102. See also CAA section 110(l). The state's
letter offers its position that because all of the elements in the
existing infrastructure SIP were previously subject to a public comment
process, including the opportunity for public hearing(s), when they
were first submitted for the EPA's approval and incorporation into the
SIP, no public comment requirements should apply to the December 12,
2012, submittal. Utah's position is inconsistent with the plain text of
section 110(a)(1) of the CAA. Section 110(a)(1) first provides that
``[e]ach State shall, after reasonable notice and public hearings,
adopt and submit to the Administrator, within 3 years (or such shorter
period as the Administrator may prescribe) after the promulgation of a
[primary NAAQS] (or any revision thereof) * * * a plan [i.e.,
infrastructure SIP] which provides for implementation, maintenance, and
enforcement of such primary standard.'' The clause ``after reasonable
notice and public hearings'' is most naturally read as imposing that
procedure on the immediately following phrase, ``adopt and submit,''
the direct object of which is the infrastructure SIP itself. Utah's
position would instead apply the phrase ``after reasonable notice and
public hearings'' to SIP revisions submitted before the promulgation of
the new or revised primary NAAQS, despite the complete absence of a
reference to those earlier SIP revisions in section 110(a)(1). Any
possible residual ambiguity is removed by the last sentence of section
110(a)(1), which requires an infrastructure SIP for a secondary NAAQS
to be considered (unless a separate public hearing is provided) ``at
the hearing required by the first sentence of this paragraph.'' The
only possible interpretation of this sentence is that there must be an
opportunity for public hearing for the infrastructure SIPs for both the
primary and secondary NAAQS. As explained in an EPA memorandum,\6\ the
requirement in the CAA and EPA rules for public notice and opportunity
for a hearing is to inform the public that the SIP is being revised and
allow for comment as to whether the state regulations satisfy the
relevant specific obligation under the CAA, in this case the new
obligation stemming from the promulgation of the revised 2008 ozone
NAAQS. Finally, draft submittals are not considered plan submittals
under the CAA because they have not been adopted by the state.
Consequently, Utah's SIP submittal does not qualify for a finding of
completeness. Because the requirements for public notice and
opportunity for a hearing apply to Utah's December 12, 2012, submittal,
the EPA's determination in this action that the submittal did not
satisfy those requirements is also a determination that the December
12, 2012, submittal is incomplete in its entirety under the criteria in
40 CFR part 51, Appendix V, specifically the criteria in subsections
2.1(f) and (g). As Utah's submittal did not meet the minimum criteria
in Appendix V, we are treating the state as not having made the
required infrastructure SIP submission. See CAA section 110(k)(1)(C).
---------------------------------------------------------------------------
\6\ See Attachment B, ``Regional Consistency for the
Administrative Requirements of State Implementation Plan Submittals
and the Use of `Letter Notices' '', Memorandum from Janet McCabe,
Deputy Assistant Administrator for the Office of Air & Radiation, to
EPA Regional Administrators, April 6, 2011.
---------------------------------------------------------------------------
Wyoming did not submit a SIP to address the requirements of section
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to
permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). The state anticipates undergoing rulemaking and public
notice early in 2013.
Region IX
Arizona did not submit a complete SIP to address the requirements
of section 110(a)(2)(C) and (J) to the extent these refer to the
Prevention of Significant Deterioration (PSD) permitting programs
required by part C, title I of the CAA for sources in Maricopa County,
Pima County, and Pinal County. Arizona did not submit a complete SIP to
address the PSD-related requirements of section 110(a)(2)(D)(i)(II) to
the extent it refers to interference with other states' PSD permitting
programs required by part C by sources in these counties. Arizona did
not submit a complete SIP to address the requirement of section
110(a)(2)(D)(ii) to the extent it refers to
[[Page 2889]]
notification to other states for sources in these counties. Finally,
did not submit a complete SIP to address the requirement of section
110(a)(2)(K) for the same counties. In Pinal County, PSD sources are
subject to a SIP-approved PSD program but the state has not yet
submitted SIP revisions to address PSD requirements for the 2008 8-hour
ozone NAAQS. In Maricopa and Pima counties, sections 110(a)(2)(C),
(D)(i)(II), (D)(ii), (J) and (K) (in all five subsections for the PSD-
related and notification-related requirements only) are currently
addressed by an existing PSD FIP that remains in place. Therefore, this
action will not trigger any additional FIP obligations with respect to
these PSD-related and notification-related requirements in Maricopa and
Pima counties.
California did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II),
(D)(ii) and (J) (in all four subsections for the PSD-related and
notification-related requirements only) are already addressed for some
portions of California through an existing PSD FIP that remains in
place. Therefore, this action will not trigger any additional FIP
obligations with respect to the PSD-related and notification-related
requirements in these four subsections in those portions of California.
Hawaii did not submit a SIP to address the requirements of section
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to
permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II),
(D)(ii) and (J) (in all four subsections for the PSD-related and
notification-related requirements only) are already addressed for
Hawaii through an existing PSD FIP that remains in place. Therefore,
this action will not trigger any additional FIP obligations with
respect to the PSD-related and notification-related requirements in
these four subsections.
Nevada did not submit a complete SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to PSD permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). On December 20, 2012, the state by letter submitted
documents that summarize the state's existing infrastructure SIP
elements. The state's letter offers its position that ``[s]ince no
revisions for the Nevada infrastructure SIP for the 1997 ozone NAAQS
are required to meet the infrastructure SIP requirements of the 2008
ozone NAAQS'', no public notice requirements should apply at this time
for the revised ozone standard. The state's letter also requested that
the EPA act on these submittals pursuant to the ``parallel processing''
procedures set forth in 40 CFR part 51, Appendix V. The state has not
yet completed a public comment process on this submission, but the
state letter provided information on the schedule for public comment
periods and public hearings for three geographic subdivisions of the
state indicating that all steps in the public comment processes would
be finished by the end of February 2013. The state letter maintains
that the EPA can make a completeness finding on Nevada's submittal
under section 2.3 of 40 CFR part 51, Appendix V. For the reasons
explained below, the EPA disagrees with both rationales offered by the
state and hereby finds that Nevada has failed to submit a complete SIP
to address the infrastructure SIP requirements of CAA section 110(a)(2)
for the 2008 8-hour ozone NAAQS. Nevada's first rationale that no
public comment process is needed because no revisions for the Nevada
infrastructure SIP for the 1997 ozone NAAQS are required to meet the
infrastructure SIP requirements of the 2008 ozone NAAQS is inconsistent
with the plain text of section 110(a)(1) of the CAA. Section 110(a)(1)
first provides that ``[e]ach State shall, after reasonable notice and
public hearings, adopt and submit to the Administrator, within 3 years
(or such shorter period as the Administrator may prescribe) after the
promulgation of a [primary NAAQS] (or any revision thereof) * * * a
plan [i.e., infrastructure SIP] which provides for implementation,
maintenance, and enforcement of such primary standard.'' The clause
``after reasonable notice and public hearings'' is most naturally read
as imposing that procedure on the immediately following phrase, ``adopt
and submit,'' the direct object of which is the infrastructure SIP
itself. Nevada's position would instead apply the phrase ``after
reasonable notice and public hearings'' to SIP revisions submitted
before the promulgation of the new or revised primary NAAQS, despite
the complete absence of a reference to those earlier SIP revisions in
section 110(a)(1). Any possible residual ambiguity is removed by the
last sentence of section 110(a)(1), which requires an infrastructure
SIP for a secondary NAAQS to be considered (unless a separate public
hearing is provided) ``at the hearing required by the first sentence of
this paragraph.'' The only possible interpretation of this sentence is
that there must be an opportunity for public hearing for the
infrastructure SIPs for both the primary and secondary NAAQS. As
explained in an EPA memorandum,\7\ the requirement in the CAA and EPA
rules for public notice and opportunity for a hearing is to inform the
public that the SIP is being revised and allow for comment as to
whether the state regulations satisfy the relevant specific obligation
under the CAA, in this case the new obligation stemming from the
promulgation of the revised 2008 ozone NAAQS. Finally, draft submittals
are not considered plan submittals under the CAA because they have not
been adopted by the state. Consequently, Nevada's SIP submittal does
not qualify for a finding of completeness. Regarding Nevada's second
rationale based on the parallel processing provisions of section 2.3 of
40 CFR part 51, Appendix V, the EPA agrees that this section provides
for EPA to propose an approval action for a draft SIP submittal
accompanied by a request for parallel processing as a way to reduce the
time elapsed before final approval can be given after completion of the
public comment process. However, draft submittals are not considered
plan submittals under the CAA because they have not been adopted by the
state. Consequently, a draft SIP submittal accompanied by a request for
parallel processing under 40 CFR part 51, Appendix V does not qualify
for a finding of completeness.\8\ Because the requirements for public
notice and opportunity for a hearing apply to Nevada's December 20,
2012, submittal, the EPA's determination in this action that the
submittal did not satisfy those requirements is also a determination
that the December 20, 2012, submittal is incomplete in its entirety
under the criteria in Appendix V, Part 51 of Title 40 of the Code of
Federal Regulations, specifically the criteria in subsections 2.1(f)
and (g). As Nevada's submittal did not meet the
[[Page 2890]]
minimum criteria in Appendix V, we are treating the state as not having
made the required infrastructure SIP submission. See CAA section
110(k)(1)(C).
---------------------------------------------------------------------------
\7\ See Attachment B, ``Regional Consistency for the
Administrative Requirements of State Implementation Plan Submittals
and the Use of `Letter Notices' '', Memorandum from Janet McCabe,
Deputy Assistant Administrator for the Office of Air & Radiation, to
EPA Regional Administrators, April 6, 2011.
\8\ See Memorandum from John Calcagni, Air Quality Management
Division, OAQPS, to EPA Air Division Directors, Regions I through X,
``State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (Act) Deadlines,'' October 28, 1992.
---------------------------------------------------------------------------
Region X
Washington did not submit a SIP to address the requirements of
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement,
to permitting programs for minor sources and to permitting programs
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H)
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II),
(D)(ii) and (J) (in all four subsections for the PSD-related and
notification-related requirements only) are already addressed for
Washington through an existing PSD FIP that remains in place.
Therefore, this action will not trigger any additional FIP obligations
with respect to the PSD-related and notification-related requirements
in these four subsections.
As noted earlier, the EPA is committed to working with these states
and areas to expedite the needed submissions and to review and act on
their infrastructure SIPs submission in accordance with the requirement
of the CAA.
IV. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Executive Order
13563: Improving Regulation and Regulatory 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 under EO 12866 and 13563 (76 FR
3821, January 21, 2011).
B. 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.
This final rule does not establish any new information collection
requirement apart from that already required by law. This rule relates
to the requirement in the CAA for states to submit SIPs under section
110(a) to satisfy certain infrastructure and general authority-related
elements required under section 110(a)(2) of the CAA for the 2008 8-
hour ozone NAAQS. Section 110(a)(1) of the CAA requires that states
submit SIPs that implement, maintain and enforce a new or revised NAAQS
which satisfy the requirements of section 110(a)(2) within 3 years of
promulgation of such standard, or such shorter period as the EPA may
provide.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install and utilize
technology and systems for the purposes of collecting, validating and
verifying information, processing and maintaining information and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in the
CFR are listed in 40 CFR Part 9.
C. Regulatory Flexibility Act (RFA)
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 agency 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 rule 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 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 is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this final rule on small
entities, I certify that this rule will not have a significant economic
impact on a substantial number of small entities. This final rule will
not impose any requirements on small entities. This action relates to
the requirement in the CAA for states to submit SIPs under section
110(a) to satisfy certain infrastructure and general authority-related
elements required under section 110(a)(2) of the CAA for the 2008 ozone
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 such shorter period as EPA may
provide.
D. Unfunded Mandates Reform Act of 1995 (UMRA)
This action contains no federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local and tribal governments and the private sector.
The action imposes no enforceable duty on any state, local or tribal
governments or the private sector. Therefore, this action is not
subject to the requirements of section 202 and 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. This action relates
to the requirement in the CAA for states to submit SIPs under section
110(a) to satisfy certain infrastructure and general authority-related
elements required under section 110(a)(2) of the CAA for the 2008 ozone
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 such shorter period as the EPA may
provide.
E. Executive Order 13132: Federalism
EO 13132, titled ``Federalism'' (64 FR 43255, August 10, 1999),
requires the EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the EO to
include regulations that have ``substantial direct effects on the
states, or the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government.'' This final rule 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 rule will not
[[Page 2891]]
modify the relationship of the states and the EPA for purposes of
developing programs to implement the NAAQS. Thus, EO 13132 does not
apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
EO 13175, titled ``Consultation and Coordination with Indian Tribal
Governments'' (65 FR 67249, November 9, 2000), requires the EPA to
develop an accountable process to ensure ``meaningful and timely input
by Tribal officials in the development of regulatory policies that have
Tribal implications.'' This final rule does not have tribal
implications, as specified in EO 13175. This rule responds to the
requirement in the CAA for states to submit SIPs under section 110(a)
to satisfy certain elements required under section 110(a)(2) of the CAA
for the 2008 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires
that states submit SIPs that provide for implementation, maintenance
and enforcement of a new or revised NAAQS, and which satisfy the
applicable requirements of section 110(a)(2), within 3 years of
promulgation-of such standard, or within such shorter period as the EPA
may provide. No tribe is subject to the requirement to submit an
implementation plan under section 110(a) within 3 years of promulgation
of a new or revised NAAQS and the court order requiring this final
action does not affect any tribe or its implementation plan.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as
applying only to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the EO
has the potential to influence the regulation. This action is not
subject to EO 13045 because it is making findings that certain states
have failed to submit a complete SIP that provides certain basic
program elements of section 110(a)(2) necessary to implement the 2008
8-hour ozone NAAQS.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in EO
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001)
because it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impracticable. VCS are technical standards
(e.g., materials specifications, test methods, sampling procedures and
business practices) that are developed or adopted by VCS bodies. The
NTTAA directs EPA to provide Congress, through OMB, explanations when
the Agency decides not to use available and applicable VCS. This action
does not involve technical standards. Therefore, EPA did not consider
the use of any VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EO 12898 (59 FR 7629, February 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. The EPA has determined that this final rule will not
have disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
directly affect the level of protection provided to human health or the
environment. This notice is making a finding that certain states have
failed to submit a complete SIP that provides certain of the basic
program elements of section 110(a)(2) necessary to implement the 2008
8-hour ozone NAAQS.
K. Congressional Review Act
The Congressional Review Act, 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. EPA will submit a report containing this rule 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 rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective February 14, 2013.
L. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final agency actions by
the EPA under the CAA. 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 agency 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.''
This final rule consisting of findings of failure to submit certain
required infrastructure SIP provisions is ``nationally applicable''
within the meaning of section 307(b)(1). First, this rule affects many
states, the District of Columbia and the Commonwealth of Puerto Rico.
Second, the action affects states across the U.S. that are located in
nine of the 10 EPA Regions, 10 different federal circuits and multiple
time zones. Third, the rule addresses a common core of knowledge and
analysis involved in formulating the decision and a common
interpretation of the requirements of 40 CFR 51 appendix V applied to
determining the completeness of SIPs in states across the country.
This determination is appropriate because in the 1977 CAA
Amendments that revised CAA section 307(b)(1), 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 action extends to numerous judicial circuits because the action
affects states throughout the country. In these circumstances, section
307(b)(1) and its legislative history authorize the Administrator to
find the rule to be of ``nationwide scope or effect'' and thus to
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indicate that venue for challenges to be in the D.C. Circuit.
Accordingly, the EPA is determining that this is a rule of nationwide
scope or effect. In addition, pursuant to CAA section 307(d)(1)(V), the
EPA is determining that this rulemaking action will be subject to the
requirements of section 307(d). Under section 307(b)(1) of the CAA,
petitions for judicial review of this action must be filed in the
United States Court of Appeals for the District of Columbia Circuit
Court within 60 days from the date final action is published in the
Federal Register. Filing a petition for review by the Administrator of
this final action does not affect the finality of the action for the
purposes of judicial review nor does it extend the time within which a
petition for judicial review must be filed, and shall not postpone the
effectiveness of such rule or action. Thus, any petitions for review of
this action 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
Approval and promulgation of implementation plans, Environmental
protection, Administrative practice and procedures, Air pollution
control, Incorporation by reference, Intergovernmental relations and
Reporting and recordkeeping requirements.
Dated: January 4, 2013.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2013-00566 Filed 1-14-13; 8:45 am]
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