[Federal Register Volume 83, Number 67 (Friday, April 6, 2018)]
[Rules and Regulations]
[Pages 14759-14762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06989]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2018-0135; FRL-9976-35-OAR]
Findings of Failure To Submit State Implementation Plan
Submissions for the 2012 Fine Particulate Matter National Ambient Air
Quality Standards (NAAQS)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is taking final
action to find that three states have failed to submit timely revisions
to their state implementation plans (SIPs) as required to satisfy
certain requirements under the Clean Air Act (CAA) for implementation
of the annual 2012 Fine Particulate Matter National Ambient Air Quality
Standards (2012 PM2.5 NAAQS). These findings of failure to
submit apply to states with overdue SIP revisions (or attainment plans)
for certain areas initially designated as nonattainment and classified
as Moderate for the 2012 PM2.5 NAAQS on April 15, 2015. The
SIP revisions to address all applicable Moderate area attainment plan
requirements for these areas were due on October 15, 2016. If a state
does not make the required complete SIP submission within 18 months of
the effective date of these findings, the CAA requires the imposition
of sanctions for the affected area(s). In addition, EPA is obligated to
promulgate a federal implementation plan (FIP) to address any
outstanding SIP requirements, if a state does not submit, and EPA does
not approve, a state's submission within 24 months of the effective
date of these findings.
DATES: The effective date of this action is May 7, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2018-0135. All documents in the docket are listed and
publicly available at http://www.regulations.gov. Although listed in
the index, some information is not publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically at http://www.regulations.gov or in
hard copy at the EPA Docket Center (EPA/DC), EPA WJC West Building,
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.
FOR FURTHER INFORMATION CONTACT: Mr. Patrick Lessard, U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, Air Quality Policy Division, Mail Code: C539-01, 109 T.W.
Alexander Drive, Research Triangle Park, NC 27711; by telephone (919)
541-5383; 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)(e)(B), provides that, when
an agency for good cause finds that notice and public procedures are
impracticable, unnecessary or contrary to the public interest, the
agency may issue a rule without providing notice and an opportunity for
public comment. 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
findings of failure to submit SIPs, or elements of SIPs. Rather, the
findings are required by the CAA where states have made no submissions
to meet the SIP requirements, or where EPA has separately determined
that they made incomplete submissions. Thus, notice and public comment
procedures are unnecessary. 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?
In addition to being available in the docket, an electronic copy of
this action will be posted at https://www.epa.gov/pm-pollution/implementation-national-ambient-air-quality-standards-naaqs-fine-particulate-matter.
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:
[[Page 14760]]
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Regional offices States
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Susan Spielberger, Associate Director, Office Pennsylvania.
of Air Program Planning, Mailcode 3AP30,
(215) 814-5356 or Gerallyn Duke, Acting
Associate Director, Office of Permits and
State Programs, Mailcode 3AP10, Region 3,
1650 Arch Street, Philadelphia, PA 19103,
(215) 814-2084.
Doris Lo, Chief, Rulemaking Office, Mailcode California.
AIR-4, (415) 972-3959 or Laura Lawrence,
Acting Chief, Planning Office, Mailcode AIR-
4, Region 9, 75 Hawthorne Street, San
Francisco, CA 94105, (415) 972-3407.
Gina Bonifacino, Acting Unit Manager, Air Idaho.
Planning Unit, Mailcode AWT-50, Office of Air
and Waste, 1200 6th Avenue, Suite 900,
Seattle, WA 98101, (206) 553-2970.
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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 a specific state question?
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
Moderate Nonattainment Area SIP Submission
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. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act of 1995 (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
M. Judicial Review
II. Background
Airborne particulate matter (PM) can be composed of a complex
mixture of particles in both solid and liquid form. Particulate matter
can be of different sizes, commonly referred to as ``coarse'' and
``fine'' particles. Fine particles, in general terms, are PM with an
aerodynamic diameter less than or equal to a nominal 2.5 micrometers
([micro]m). For this reason, particles of this size are referred to as
PM2.5.
EPA first promulgated annual and 24-hour NAAQS for PM2.5
in July 1997 \1\ and then revised the 24-hour PM2.5 NAAQS in
October 2006.\2\ Most recently, on December 14, 2012, EPA revised the
primary annual PM2.5 standard by lowering the level from
15.0 to 12.0 micrograms per cubic meter of air ([micro]g/m\3\) to
provide increased protection against health effects associated with
long- and short-term PM2.5 exposures. EPA did not revise the
secondary annual PM2.5 standard, which remains at 15.0
[micro]g/m\3\.\3\ In addition, EPA retained the level and form of the
primary and secondary 24-hour PM2.5 standards to continue to
provide supplemental protection against health and welfare effects
associated with short-term PM2.5 exposures.
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\1\ 62 FR 38652 (July 18, 1997).
\2\ 71 FR 61143 (October 17, 2006).
\3\ 78 FR 3086 (January 15, 2013).
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Promulgation of a revised NAAQS triggers a requirement for EPA to
designate areas of the country as nonattainment, attainment, or
unclassifiable for the standards. As prescribed by CAA section 188(a),
areas designated as nonattainment for a PM2.5 NAAQS are
initially classified as Moderate. Designations and initial
classifications for 14 areas in six states as Moderate nonattainment
for the 2012 PM2.5 NAAQS became effective on April 15,
2015.\4\
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\4\ 80 FR 2206 (January 15, 2015).
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Nonattainment areas for PM2.5 are subject to the general
nonattainment area planning requirements of CAA section 172 and to the
PM-specific planning requirements of CAA sections 188-189. On August
24, 2016, EPA established a final implementation rule (PM2.5
SIP Requirements Rule) \5\ outlining the attainment planning and
control requirements for current and future PM2.5 NAAQS.
Accordingly to that rule, Moderate area PM2.5 SIP
submissions shall include base year emissions inventory requirements,
an attainment projected emissions inventory, a control strategy
including reasonably available control measures and reasonably
available control technology (RACM/RACT), an attainment demonstration
with air quality modeling, a reasonable further progress (RFP)
demonstration, quantitative milestones, contingency measures, and a
nonattainment new source review (NNSR) program.\6\ The PM2.5
SIP Requirements Rule also established the due date for Moderate area
PM2.5 SIP submissions as no later than 18 months from the
effective date of area designations.\7\ Accordingly, the areas
designated as nonattainment for the 2012 PM2.5 NAAQS (with
an effective date of April 15, 2015) were required to submit Moderate
area attainment plans to EPA no later than October 15, 2016.
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\5\ Fine Particulate Matter National Ambient Air Quality
Standards: State Implementation Plan Requirements; final rule; 81 FR
58009 (August 24, 2016).
\6\ 40 CFR 51.1003(a)(2).
\7\ 40 CFR 51.1003(a)(1).
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III. Consequences of Findings of Failure To Submit
For plan requirements under part D, title I of the CAA, such as
those for PM2.5 nonattainment areas, if EPA finds that a
state has failed to make the required complete SIP submission, then CAA
section 179 establishes specific consequences, including the eventual
imposition of mandatory sanctions for the affected area(s).
Additionally, such a finding triggers an obligation under CAA section
110(c) for EPA to promulgate a FIP no later than 2 years from the
effective date of the finding, if the affected state has not submitted,
and EPA has not approved, the required SIP submission.
If EPA has not affirmatively determined that a state has submitted
a complete SIP addressing the deficiency that is the basis for these
findings within 18 months of the effective date of this rulemaking, or
the submission has not become complete by operation of law 6 months
after submission, then, pursuant to CAA section 179(a) and (b) and 40
CFR 52.31, the emissions offset sanction identified in CAA section
179(b)(2) will apply in the affected nonattainment area. If EPA has not
affirmatively determined that the state has submitted a complete SIP
addressing the deficiencies that are the basis for these findings
within 6 months
[[Page 14761]]
after the offset sanction is imposed, or the submission has not become
complete by operation of law 6 months after submission, 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 state
must make the required SIP submission and EPA must take final action to
approve the submission within 2 years of the effective date of these
findings; otherwise, EPA is required to promulgate a FIP to address the
relevant requirements. This is required pursuant to CAA section 110(c)
for the affected nonattainment area.
IV. Findings of Failure To Submit for States That Failed To Make a
Moderate Nonattainment Area SIP Submission
In this action, EPA is finding that the states listed in Table 1
have failed to submit specific Moderate area SIP elements for the 2012
PM2.5 NAAQS required under subpart 4 of part D of title I of
the CAA.
Table 1--Findings of Failure To Submit Certain Required SIP Elements for
2012 PM2.5 NAAQS Moderate Nonattainment Areas
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Region State Area name Required SIP elements
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3................................... PA..................... Allegheny County........... Emissions inventory;
Control strategy, including RACM/RACT;
Attainment demonstration;
RFP;
Quantitative milestones; and
Contingency measures;
NNSR program.
3................................... PA..................... Delaware County............ NNSR program.
3................................... PA..................... Lebanon County............. NNSR program.
9................................... CA..................... Imperial County............ Emissions inventory;
Control strategy, including RACM/RACT;
Attainment demonstration;
RFP;
Quantitative milestones; and
Contingency measures.
10.................................. ID..................... West Silver Valley......... Control strategy, including RACM/RACT;
Attainment demonstration;
RFP;
Quantitative milestones; and
Contingency measures.
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V. Environmental Justice Considerations
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. This is because it does not directly affect the level of
protection provided to human health or environment under the
PM2.5 NAAQS. The purpose of this rule is to make findings
that three states have failed to provide EPA with the identified SIP
submissions, which are required by the CAA for purposes of implementing
the 2012 PM2.5 NAAQS. As such, this action does not directly
affect the level of protection provided for human health or the
environment. Moreover, it is intended that the actions and deadlines
resulting from this notice will lead to greater protection for United
States citizens, including minority, low-income, or indigenous
populations by ensuring that states meet their statutory obligation to
develop and submit SIPs to ensure that areas make progress toward
attaining the 2012 PM2.5 NAAQS.
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 therefore,
was not submitted to the Office of Management and Budget (OMB) for
review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
C. 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 CAA sections 172, 188 and 189 which address the
statutory requirements that apply to areas designated as Moderate
nonattainment for the 2012 PM2.5 NAAQS.
D. 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
revisions.
E. 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.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
[[Page 14762]]
G. 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 three states have failed to
submit SIP revisions that satisfy the nonattainment area planning
requirements under sections 172, 188 and 189 of the CAA for the 2012
PM2.5 NAAQS. No tribe is subject to the requirement to
submit an implementation plan under section 172, or under subpart 4 of
part D of Title I of the CAA. Thus, Executive Order 13175 does not
apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks that 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 three states have failed to submit SIP
revisions that satisfy the Moderate nonattainment area planning
requirements under sections 172, 188 and 189 of the CAA for the 2012
PM2.5 NAAQS and does not directly or disproportionately
affect children.
I. 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.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
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 three states have failed to
submit SIP revisions that satisfy the Moderate nonattainment area
planning requirements under sections 172, 188 and 189 of the CAA for
the 2012 PM2.5 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 Section V of this
preamble titled ``Environmental Justice Considerations.''
L. Congressional Review Act (CRA)
This action is subject to the CRA, and 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).
M. 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
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.''
EPA has determined that this final rule consisting of findings of
failure to submit certain of the required SIP revisions is ``nationally
applicable'' within the meaning of section 307(b)(1) of the CAA. This
final agency action affects three states with Moderate nonattainment
areas located in three of the ten EPA Regional offices, and in two
different U.S. Federal Circuit Courts (3rd Circuit for Pennsylvania and
9th Circuit for California and Idaho).
In addition, EPA has determined that this rule has nationwide scope
or effect because it addresses a common core of knowledge and analysis
involved in formulating the decision and a common interpretation of the
requirements of 40 CFR part 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 two judicial circuits that include the states across the
country affected by this action. In these circumstances, CAA 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 District of Columbia
Circuit. Accordingly, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Approval and promulgation of
implementation plans, Administrative practice and procedures,
Incorporation by reference, Air pollution control, Intergovernmental
relations, and Reporting and recordkeeping requirements.
Dated: March 26, 2018.
William L. Wehrum,
Assistant Administrator.
[FR Doc. 2018-06989 Filed 4-5-18; 8:45 am]
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