[Federal Register Volume 81, Number 53 (Friday, March 18, 2016)]
[Rules and Regulations]
[Pages 14736-14739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06063]
[[Page 14736]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52
[EPA-HQ-OAR-2016-0098; FRL-9943-90-OAR]
Findings of Failure To Submit State Implementation Plans Required
for Attainment of the 2010 1-Hour Primary Sulfur Dioxide National
Ambient Air Quality Standard (NAAQS)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking a final
action to find that several states have failed to submit State
Implementation Plans (SIPs) to satisfy certain nonattainment area
planning requirements of the Clean Air Act (CAA) for the 2010 1-Hour
Primary Sulfur Dioxide (SO2) National Ambient Air Quality
Standard (NAAQS). The purpose of the development and implementation of
nonattainment area SIPs is to provide for attainment of the NAAQS as
expeditiously as practicable following the designation of an area as
nonattainment. These findings of failure to submit establish certain
CAA deadlines for the EPA to impose sanctions if a state does not
submit a SIP addressing those requirements and for the EPA to
promulgate a Federal Implementation Plan (FIP) to address any
outstanding SIP requirements.
DATES: The effective date of this action is April 18, 2016.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to Dr. Larry D. Wallace, Office of Air
Quality Planning and Standards, Air Quality Policy Division, Mail Code:
C504-2, 109 TW Alexander Drive, Research Triangle Park, NC 27709; by
telephone (919) 541-0906; or by email at [email protected].
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)(3)(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 final agency action 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 procedures are
unnecessary. The EPA finds that this constitutes good cause under 5
U.S.C. 553(b)(3)(B).
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-2016-0098 for this action. All documents in the docket
are listed on http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or information whose disclosure is
restricted by statue. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form through http://www.regulations.gov.
C. Where do I go if I have a specific state question?
For questions related to specific states mentioned in this notice,
please contact the appropriate EPA Regional office:
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Regional offices States
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EPA Region I: Dave Conroy, Chief, Air Program Branch, New Hampshire.
Air Programs Branch, EPA New England, 1 Congress
Street, Suite 1100, Boston, MA 02203-2211.
EPA Region III: Cristina Fernandez, Associate Director, Pennsylvania, West Virginia.
Office of Air Program Planning, EPA Region III, 1650
Arch Street, Philadelphia, PA 19103-2187.
EPA Region IV: R. Scott Davis, Chief, Air Planning Tennessee, Kentucky.
Branch, EPA Region IV, Sam Nunn Federal Center, 61
Forsyth Street, 12th Floor, Atlanta, GA 30303-8960.
EPA Region V: John Mooney, Chief, Air Programs Branch, Michigan, Ohio.
EPA Region V, 77 West Jackson Street, Chicago, IL
60604.
EPA Region VI: Guy Donaldson, Chief, Air Planning Louisiana.
Section, EPA Region VI, 1445 Ross Avenue, Dallas, TX
75202-2733.
EPA Region VII: Michael Jay, Chief, Air Programs Iowa.
Branch, EPA Region 7, 11201 Renner Blvd., Lenexa,
Kansas 66219.
EPA Region VIII: Monica Morales, Chief, Air Program Montana.
Manager, Air Quality Planning Unit, EPA Region VIII
Air Program, 1595 Wynkoop St. (8P-AR), Denver, CO
80202-1129.
EPA Region IX: Matt Lakin, Air Planning Office, EPA Arizona.
Region 9, 75 Hawthorne Street, San Francisco, CA 94105.
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D. How is the 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. Where do I go if I have specific state questions?
D. How is the preamble organized?
II. Background
III. Consequences of Findings of Failure To Submit
IV. Findings of Failure To Submit for States That Failed To Make a
Nonattainment Area SIP Submittal
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
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 (CRA)
L. Judicial Review
[[Page 14737]]
II. Background
In June 2010, the EPA promulgated a new 1-hour primary
SO2 NAAQS of 75 parts per billion (ppb), which is met when
the 3-year average of the annual 99th percentile of 1-hour daily
maximum concentrations does not exceed 75 ppb, as determined in
accordance with Appendix T of 40 Code of Federal Regulations (CFR) part
50. See 40 CFR 50.17(a)-(b). On August 5, 2013, the EPA, as part of a
first round of area designations, initially designated 29 areas in 16
states as nonattainment for the 2010 SO2 NAAQS. 78 FR 47191,
codified at 40 CFR part 81, subpart C. These initial area designations
had an effective date of October 4, 2013.
Areas designated nonattainment for the SO2 NAAQS are
subject to the general nonattainment area planning requirements of CAA
section 172 and to the SO2-specific planning requirements of
subpart 5 of part D of Title I of the CAA (sections 191 and 192). All
components of the SO2 part D nonattainment area SIP,
including the emissions inventory, attainment demonstration, reasonably
available control measures (RACM) and reasonably available control
technology (RACT), reasonable further progress (RFP) plan, and
contingency measures, are due to the EPA within 18 months of the
effective date of designation of an area under CAA section 191. Thus,
the nonattainment area SIPs for areas designated as of October 4, 2013,
were due on April 4, 2015. These SIPs are required to demonstrate that
their respective areas will attain the NAAQS as expeditiously as
practicable, but no later than 5 years from the effective date of
designation, or October 4, 2018.
III. Consequences of Findings of Failure To Submit
If the EPA finds that a state has failed to make the required SIP
submittal or that a submitted SIP is incomplete, then CAA section
179(a) establishes specific consequences, including the imposition of
mandatory sanctions for the affected area. Additionally, such a finding
also triggers an obligation under CAA section 110(c) for the EPA to
promulgate a FIP no later than 2 years from the finding of failure to
submit, if the affected state has not submitted, and the EPA has not
approved, the required SIP submittal. The statutory attainment date of
October 4, 2018, applies to all areas designated nonattainment
effective as of October 4, 2013, and not otherwise redesignated to
attainment, regardless of the status of the SIP or FIP that applies to
that area.
If the EPA has not affirmatively determined that a state has made
the required complete SIP submittal for an area within 18 months of the
effective date of this rulemaking, then, pursuant to CAA section 179(a)
and (b) and 40 CFR 52.31, the offset sanction identified in CAA section
179(b)(2) will apply in the affected nonattainment area. If the EPA has
not affirmatively determined that the state has made a complete
submission within 6 months after the offset sanction is imposed, then
the highway funding sanction will apply in the affected nonattainment
area, in accordance with CAA section 179(b)(1) and 40 CFR 52.31. The
sanctions will not take effect, if, within 18 months after the date of
these findings, the EPA finds that the affected state has made a
complete SIP submittal addressing the deficiency for which the finding
was made. Additionally, if the state makes the required SIP submittal
and the EPA takes final action to approve the submittal within 2 years
of the effective date of these findings, the EPA is not required to
promulgate a FIP for the affected nonattainment area, pursuant to CAA
section 179(a) and 40 CFR 52.31.
IV. Findings of Failure To Submit for States That Failed To Make a
Nonattainment Area SIP Submittal
As of the date of signature of this action, six states have made
complete SIP submittals for 14 SO2 nonattainment areas
designated effective on October 4, 2013.\1\ In this action, the EPA is
making a finding of failure to submit SO2 nonattainment area
SIP submittals for 16 areas in 11 states.\2\ The EPA is finding that
the states and areas listed in the table below have failed to submit a
complete SIP submittal required under part D of Title 1 of the CAA.
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\1\ These six states and 14 areas are: Hillsborough County, FL;
Nassau County, FL; Lake County, OH; Muskingum River, OH;
Steubenville, OH-WV (OH portion); Marion County, IN: Morgan County,
IN: Vigo County, IN; South West Indiana, IN; Rhinelander, WI;
Jefferson County, MO; Jackson County, MO; Lemont, IL; and, Pekin,
IL.
\2\ There are currently 29 nonattainment areas in 16 states.
However, the sum totals of areas and states with complete SIP
submittals versus those without complete submittals are 30 and 17,
respectively. The difference in these totals can be attributed to
the fact that multiple SIP submittals are required for the two
multi-state SO2 nonattainment areas. For example, the EPA
received a complete SIP submittal for the OH portion of the
Steubenville, OH-WV multi-state nonattainment area, as noted in
footnote #1. However, because WV has not made a complete SIP
submittal for the area, WV is included in this findings notice for
the Steubenville, OH-WV area. The area thus is counted both as an
area for which a state (OH) made a complete SIP submittal and as an
area for which a state (WV) still owes a complete SIP submittal.
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The EPA notes that the Billings, Montana nonattainment area is
listed in this findings notice because the state has failed to submit a
complete SIP for the area. However, the EPA has proposed both a clean
data determination and a redesignation of the area to attainment in a
separate action (81 FR 11727, March 7, 2016). Should the Billings,
Montana nonattainment area be redesignated to attainment within the
timeframes described above, the state will not be required to submit a
nonattainment SIP for the area and no sanctions will take effect for
the area. Likewise, the Campbell-Clermont multi-state nonattainment
area is listed in this findings notice because Ohio and Kentucky have
failed to submit complete SIPs for the area. However, both states have
submitted redesignation requests for their respective parts of the
Campbell-Clermont multi-state nonattainment area, seeking to have that
area redesignated as attainment. The EPA has not yet acted on these
requests. Should the EPA propose and then finalize redesignation of the
area to attainment within the timeframes described above, neither state
will be required to submit a nonattainment SIP for the area and no
sanctions will take effect.
States and SO2 Nonattainment Areas Affected by These Findings of Failure To Submit
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Regional office State Nonattainment area
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Region I................................ New Hampshire.............. Central New Hampshire: Hillsborough
County (p), Merrimack County (p),
Rockingham County (p).
Region III.............................. Pennsylvania............... Allegheny: Allegheny County (p).
Region III.............................. Pennsylvania............... Beaver: Beaver County (p).
Region III.............................. Pennsylvania............... Indiana: Armstrong County (p), Indiana
County (p).
Region III.............................. Pennsylvania............... Warren: Warren County (p).
[[Page 14738]]
Region III.............................. West Virginia.............. Marshall: Marshall County (p).
Region III.............................. West Virginia.............. Steubenville (OH-WV): Brooke County, WV
(p).
Region IV............................... Kentucky................... Campbell-Clermont (OH-KY): Campbell
County, KY (p).
Region IV............................... Kentucky................... Jefferson County: Jefferson County (p).
Region IV............................... Tennessee.................. Sullivan County: Sullivan County (p).
Region V................................ Michigan................... Detroit: Wayne County (p).
Region V................................ Ohio....................... Campbell-Clermont (OH-KY): Clermont
County, OH (p).
Region VI............................... Louisiana.................. St. Bernard Parish: St. Bernard Parish.
Region VII.............................. Iowa....................... Muscatine: Muscatine County (p).
Region VIII............................. Montana.................... Billings: Yellowstone County (p).
Region IX............................... Arizona.................... Hayden: Gila County (p), Pinal County
(p).
Region IX............................... Arizona.................... Miami: Gila County (p).
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Note: Partial counties are indicated in the table above as (p).
V. Environmental Justice Considerations
The EPA believes that the human health or environmental risks
addressed by this action will not have disproportionately high or
adverse human health or environmental effects on minority, low-income,
or indigenous populations because it does not affect the level of
protection provided to human health or environment under the
SO2 NAAQS. The purpose of this rule is to make findings that
the affected states named have failed to submit the required SIPs to
provide for timely attainment of the 1-hour primary SO2
NAAQS, which results in certain CAA-required deadlines for actions to
provide for such attainment. In finding that certain states have failed
to submit a complete SIP that satisfies the nonattainment area plan
requirements under section 172 and subpart 5 of part D of Title I of
the CAA (sections 191 and 192) for the 1-hour primary SO2
NAAQS, this action does not directly affect the level of protection
provided for human health or the environment. However, it is intended
that the required actions and deadlines resulting from this notice will
lead to greater protection for U.S. citizens, including minority, low-
income, or indigenous populations, by reducing exposure to high ambient
concentrations of SO2.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Executive Order
13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the provisions of the PRA. This final rule does not establish any new
information collection requirement apart from what is already required
by law. This rule relates to the requirement in the CAA for states to
submit SIPs under section 172 and subpart 5 of part D of Title I of the
CAA (sections 191 and 192) which address the statutory requirements
that apply to areas designated as nonattainment for the SO2
NAAQS.
C. Regulatory Flexibility Act (RFA)
I certify that this rule will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. The rule is
a finding that the named states have not submitted the necessary SIP
requirements for nonattainment areas to meet the requirements of part
D, title I of the CAA.
D. Unfunded Mandates Reform Act of 1995 (UMRA)
This action does not contain any unfunded mandate as described in
UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This rule finds that several states failed to
submit a complete SIP that satisfies the nonattainment area plan
requirements under section 172 and subpart 5 of part D of Title I of
the CAA (sections 191 and 192) for the 1-hour primary SO2
NAAQS. No tribe is subject to the requirement to submit an
implementation plan under section 172 or under subpart 5 of part D of
Title I of the CAA. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks that the EPA has
reason to believe may disproportionately affect children, per the
definition of ``covered regulatory action'' in section 2-202 of the
Executive Order. This action is not subject to Executive Order 13045
because it is a finding that several states have failed to submit a
complete SIP that satisfies the nonattainment area plan requirements
under section 172 and subpart 5 of part D of Title I of the CAA for the
1-hour primary SO2 NAAQS and does not directly or
disproportionately affect children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
[[Page 14739]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income,
or indigenous populations. In finding that several states have failed
to submit a complete SIP that satisfies the nonattainment area plan
requirements under section 172 and subpart 5 of part D of Title I of
the CAA for the 1-hour primary SO2 NAAQS, this action does
not directly affect the level of protection provided to human health or
the environment. The results of this evaluation are contained in the
Section V of this preamble titled ``Environmental Justice
Considerations.''
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Judicial Review
Section 307(b)(l) 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 United States 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.''
The EPA has determined that this final rule consisting of findings
of failure to submit certain of the required SIP provisions is
``nationally applicable'' within the meaning of section 307(b)(1). This
final agency action affects 16 nonattainment areas across the country
that are located in 11 states, eight of the 10 EPA Regional offices,
and eight different federal circuits, and multiple time zones. In
addition, 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)(l), 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 the five judicial circuits that include the
states across the country affected by this action. 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 indicate that venue for challenges lies in the
D.C. Circuit. Accordingly, the EPA is determining that this rule is of
nationwide scope or effect. 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
within 60 days from the date this 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 United States Court of Appeals for the
District of Columbia Circuit within 60 days from the date this final
action is published in the Federal Register.
List of Subjects in 40 CFR Part 52
Environmental protection, Approval and promulgation of
implementation plans, Administrative practice and procedures, Air
pollution control, Incorporation by reference, Intergovernmental
relations, and Reporting and recordkeeping requirements.
Dated: March 10, 2016.
Janet G. McCabe,
Acting Assistant Administrator.
[FR Doc. 2016-06063 Filed 3-17-16; 8:45 am]
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