[Federal Register Volume 79, Number 226 (Monday, November 24, 2014)]
[Rules and Regulations]
[Pages 69769-69772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27679]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2014-0337; FRL-9919-67-OAR]
RIN 2060-AS33


Findings of Failure To Submit a Complete State Implementation 
Plan for Section 110(a) Pertaining to the 2010 Nitrogen Oxide 
(NO2) Primary National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action finding that the District of Columbia and seven states (Alaska, 
Arkansas, Hawaii, Minnesota, New Jersey, Vermont and Washington) have 
not submitted complete infrastructure State Implementation Plans (SIPs) 
that provide the basic Clean Air Act (CAA) program elements necessary 
to implement the 2010 nitrogen dioxide (NO2) primary 
national ambient air quality standard (NAAQS). Three out of the seven 
states (Alaska, Arkansas and Vermont) have not made any submittals. The 
District of Columbia and the remaining four out of the seven states 
(Hawaii, Minnesota, New Jersey and Washington) have made submittals 
that are partially incomplete due to the lack of complete SIP approved 
Prevention of Significant Deterioration (PSD) permit programs. The 
purpose of an infrastructure SIP submission is to assure that a state, 
local or tribal air agency's SIP contains the necessary structural 
requirements for any new or revised NAAQS. The remaining 43 states have 
made complete submissions. Each finding of failure to submit a complete 
infrastructure SIP establishes a 24-month deadline for the EPA to 
promulgate a Federal Implementation Plan (FIP) to address the 
outstanding SIP elements unless, prior to the EPA promulgating a FIP, 
the affected air agency submits, and the EPA approves, a revised SIP 
that corrects the deficiency. In those areas without a state-adopted 
PSD permit program, the FIP obligation has already been met through 
federal regulations that govern PSD permits issued in some cases by the 
EPA and in other cases by state or local agencies under delegation 
agreements.

DATES: Effective date of this action is December 24, 2014.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
document should be addressed to Ms. Mia South, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code C504-2, 
109 TW Alexander Drive, Research Triangle Park, NC 27709; telephone 
(919) 541-5550; email: south.mia@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Notice and Comment Under the Administrative Procedures 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).

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-2014-0337. Publicly available docket materials are 
available either electronically through https://www.regulations.gov or 
in hard copy at the EPA Docket Center, EPA/DC, William Jefferson 
Clinton 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.

C. How is the preamble organized?

Table of Contents

I. General Information
    A. Notice and Comment Under the Administrative Procedures Act 
(APA)
    B. How can I get copies of this document and other related 
information?
    C. How is the preamble organized?
    D. Where do I go if I have specific state questions?
II. Background and Overview
    A. Infrastructure SIPs
    B. Mandatory Duty Suit for the EPA's Failure To Make Findings of 
Failure To Submit for Areas That Did Not Submit Infrastructure SIPs 
by January 22, 2013
    C. What elements are outside the scope of infrastructure SIP 
actions?
III. Findings of Failure To Submit for States That Failed To Make an 
Infrastructure SIP Submission in Whole or in Part for the 2010 
NO2 NAAQS
IV. Environmental Justice Considerations
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review 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 69770]]

D. Where do I go if I have specific state questions?

    The table below lists the states and additional area (District of 
Columbia) that failed to make an infrastructure SIP submittal in whole 
or in part for the 2010 NO2 NAAQS. For questions related to 
specific states or areas mentioned in this document, please contact the 
appropriate EPA Regional Office:

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          Regional offices                          States
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EPA Region 1: Dave Conroy, Air        Vermont.
 Program Branch Manager, Air
 Programs Branch, EPA New England, 1
 Congress Street, Suite 1100,
 Boston, MA 02203-2211. 617-918-1661.
EPA Region 2: Richard Ruvo, Chief,    New Jersey.
 Air Programs Branch, EPA Region II,
 290 Broadway, 21st Floor, New York,
 NY 10007-1866. 212-637-4014.
EPA Region 3: Cristina Fernandez,     District of Columbia.
 Air Division Director, Air Quality
 Planning Branch, EPA Region III,
 1650 Arch Street, Philadelphia, PA
 19103-2187. 215-814-2178.
EPA Region 5: John Mooney, Air        Minnesota.
 Program Branch Manager, Air
 Programs Branch, EPA Region 5, 77
 West Jackson Street, Chicago, IL
 60604-3590. 312-886-6043.
EPA Region 6: Guy Donaldson, Chief,   Arkansas.
 Air Planning Section, EPA Region
 VI, 1445 Ross Avenue, Dallas, TX
 75202-2733. 214-665-7242.
EPA Region 9: Matt Lakin, Air         Hawaii.
 Program Manager, Air Planning
 Office, EPA Region 9, 75 Hawthorne
 Street, San Francisco, CA 94105.
 415-972-3851.
EPA Region 10: Debra Suzuki, Air      Alaska, Washington.
 Program Manager, Air Planning Unit,
 EPA Region X, Office of Air, Waste,
 and Toxics, Mail Code AWT-107, 1200
 Sixth Avenue, Seattle, WA 98101.
 206-553-0985.
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II. Background and Overview

A. Infrastructure SIPs

    The CAA section 110(a) imposes an obligation upon 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. 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 
because the SIP ensures that states can implement, maintain and enforce 
the air standards. States are required to develop and maintain an air 
quality management program that meets various basic structural 
requirements, including, but not limited to: Enforceable emission 
limitations; an ambient air monitoring program; an enforcement program; 
air quality modeling capabilities; and adequate personnel, resources 
and legal authority.
    The contents of an infrastructure SIP 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 infrastructure SIP for a new or revised NAAQS necessarily affect 
the content of the submission. The content of such an infrastructure 
SIP submission may also vary depending upon what provisions the state's 
existing SIP already contains.
    On January 22, 2010, the EPA strengthened the health-based primary 
NAAQS for NO2. The EPA set a new 1-hour NO2 
standard at the level of 100 parts per billion (ppb). This level 
defines the allowable concentration in a nonattainment area. In 
addition to establishing an averaging time and level, the EPA set a new 
``form'' for the standard. The form is the air quality statistic used 
to determine if an area meets the standard. The form for the 1-hour 
NO2 standard is the 3-year average of the 98th percentile of 
the annual distribution of daily maximum 1-hour average concentrations. 
Finally, the EPA retained, with no change, the current annual average 
NO2 standard of 53 ppb.\1\ The obligation to submit an 
infrastructure SIP was triggered with the revision of the 
NO2 NAAQS in 2010, and, because the EPA did not prescribe a 
shorter deadline, January 22, 2013, was the applicable deadline for 
such submissions. In the case of the 2010 NO2 NAAQS, the EPA 
believes that many of the states have met many of the program elements 
identified in this document required under section 110(a)(2) through 
earlier SIP submissions in connection with previous NAAQS.
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    \1\ See 75 FR 6474, February 9, 2010, Primary National Ambient 
Air Quality Standard for Nitrogen Dioxide, Final Rule.
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B. Mandatory Duty Suit for the EPA's Failure To Make Findings of 
Failure To Submit for Areas That Did Not Submit Infrastructure SIPs by 
January 22, 2013

    On October 9, 2013, WildEarth Guardians (WEG) filed a complaint in 
the U.S. District Court for the District of Colorado to enforce the 
EPA's mandatory duty to make findings of failure to submit with respect 
to NO2 infrastructure SIPs for the following states: 
Colorado, Idaho, New Mexico, Oklahoma, Oregon, South Dakota, Utah, 
Washington and Wyoming.\2\ On January 24, 2014, Alaska and Hawaii were 
added to the complaint. These infrastructure SIPs were due on January 
22, 2013. Most states identified in the complaint have made complete 
submissions as of the date of this document. In response to the WEG 
complaint, the EPA is issuing a national finding of failure to submit 
certain elements of NO2 infrastructure SIPs for the 
requirements of CAA sections 110(a)(2)(A), (B), (C) (but not with 
respect to the permitting program required by CAA title I subpart D), 
(D)(i)(II), (D)(ii), (E)-(H) and (J)-(M), addressing all states (and 
the District of Columbia) that have not made complete submissions.
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    \2\ Complaint, WildEarth Guardians v EPA, USDC Colorado, October 
9, 2013, Case 1:13-cv-02748-RBJ. The complaint was amended on 
January 24, 2014, to add Hawaii and Alaska.
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C. What elements are outside the scope of infrastructure SIP actions?

    Two elements identified in section 110(a)(2) are not governed by 
the 3-year submission deadline 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. These requirements 
are: (i) Submissions required by section 110(a)(2)(C) to the extent 
that 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. Nonattainment area plans required by part D title I of the 
CAA for the 2010 NO2 NAAQS are generally due 18 months after 
the effective date of designation of an area as nonattainment.

[[Page 69771]]

However, in the case of NO2, no area has been designated 
nonattainment.

III. Findings of Failure To Submit for States That Failed To Make an 
Infrastructure SIP Submission in Whole or in Part for the 2010 
NO2 NAAQS

    Forty-three states have made complete submittals for their 
respective infrastructure SIPs for the 2010 NO2 NAAQS. With 
respect to the remaining seven states and the District of Columbia, the 
EPA is making findings of failure to submit.
    Alaska, Arkansas and Vermont have not made any submittal, and for 
these the EPA is making a finding of failure to submit with respect to 
CAA section 110(a)(2)(A), (B), (C) (but not with respect to the 
permitting program required by CAA title I subpart D), (D)(i)(II), 
(D)(ii), (E)-(H) and (J)-(M).
    The District of Columbia, Hawaii, New Jersey, Minnesota and 
Washington have made complete submissions except with respect to the 
PSD-related requirements of section 110, and for these states the EPA 
is making a finding of failure to submit with respect to the 
requirements of CAA sections 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) 
to the extent these refer to PSD permitting programs required by part C 
of title I of the CAA.
    To summarize, the EPA is finding that seven states and the District 
of Columbia have not made a complete infrastructure SIP submission to 
meet certain requirements of section 110(a)(2) that are relevant to 
this action, as identified above, for the 2010 NO2 NAAQS. 
The EPA is committed to working with the air agencies for these states 
and the District of Columbia to expedite submissions as necessary, and 
to working with all air agencies to review and act on their 
infrastructure SIP submissions in accordance with the requirements of 
the CAA.
    These findings establish a 24-month deadline for the promulgation 
by the EPA of a FIP, in accordance with section 110(c)(1), for each of 
those states for which the EPA is making a finding unless the EPA has 
approved a SIP by that date. The District of Columbia, Hawaii, 
Minnesota and Washington are currently subject to PSD FIPs. New Jersey 
is currently subject to a combination of a SIP and a FIP for PSD. In 
these areas, the FIP for PSD is either implemented by the EPA or 
delegated to a state or local agency for implementation. In these 
areas, the PSD FIP obligation has already been met through federal 
regulations that govern PSD permits issued in some cases by the EPA and 
in other cases by state or local agencies under delegation agreements. 
The EPA recognizes that states may choose to continue to rely on the 
existing PSD FIP or a combination of SIP and FIP PSD programs, which 
will continue to govern the permitting of their sources without the 
need for further action by the state. If so, then this rulemaking does 
not require these areas to take further action.
    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 these states have not failed to make 
submissions in response to a SIP call pursuant to section 110(k)(5).

IV. Environmental Justice Considerations

    This document is making a procedural finding 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 2010 
NO2 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. The EPA did not conduct an environmental analysis for this 
rule because this rule would not directly affect the air emissions of 
particular sources. The EPA notes that there are no areas of the U.S. 
in nonattainment with the health-based NO2 NAAQS. Because 
this rule will not directly affect the air emissions of particular 
sources, it does not affect the level of protection provided to human 
health or the environment. Therefore, this action will not have 
potential disproportionately high and adverse human health or 
environmental effects on minority, low-income or indigenous 
populations.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review 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 Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This final rule does not establish any new information collection 
requirement apart from what is already required by law.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
This rule is not subject to notice and comment requirements because the 
agency has invoked the APA ``good cause'' exemption under 5 U.S.C. 
553(b).

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 implements mandates specifically and 
explicitly set forth in the CAA under section 110(a) without the 
exercise of any policy discretion by the EPA.

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 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 2010 
NO2 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. Thus, Executive Order 13175 does not apply to this action.

[[Page 69772]]

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 environmental 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 does not concern an environmental 
health risk or safety risk.

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.

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 because it does not affect the level of 
protection provided to human health or the environment. The EPA's 
evaluation of environmental justice considerations is contained in 
section IV of this document.

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 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 infrastructure SIP 
provisions is ``nationally applicable'' within the meaning of section 
307(b)(1). This rule affects the District of Columbia and seven states 
across the country that are located in seven of the ten EPA Regions, 
five 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 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 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 is a rule 
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, Air 
pollution control, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: November 14, 2014.
Janet G. McCabe,
Acting Assistant Administrator.
[FR Doc. 2014-27679 Filed 11-21-14; 8:45 am]
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