[Federal Register Volume 75, Number 110 (Wednesday, June 9, 2010)]
[Rules and Regulations]
[Pages 32673-32676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13457]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2010-0409; FRL-9159-5]
Finding of Failure To Submit Section 110 State Implementation
Plans for Interstate Transport for the 2006 National Ambient Air
Quality Standards for Fine Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is making a finding that certain states have failed to
submit State Implementation Plans (SIPs) to satisfy the attainment and
maintenance interstate transport requirements of the Clean Air Act
(CAA) with respect to the 2006 24-hour National Ambient Air Quality
Standards (NAAQS) for fine particulate matter (24-hour
PM2.5). Pursuant to the CAA, states are required to submit
SIPs that satisfy the requirements of the CAA related to interstate
transport of pollution. This document addresses two elements of that
requirement. A state must address its significant contribution to
nonattainment and its interference with maintenance of a NAAQS in any
neighboring state. The CAA requires that states submit SIPs to meet the
applicable requirements of the CAA within 3 years after the
promulgation of a new or revised NAAQS, or within such shorter period
as EPA may provide. On September 21, 2006, EPA promulgated a final rule
establishing new standards for the 24-hour PM2.5 NAAQS. At
present, 29 states or territories have not yet submitted complete SIPs
to satisfy the section 110(a) nonattainment and maintenance transport
requirements. Through this action, EPA is making a finding of failure
to submit these SIPs which creates a 2-year deadline for the
promulgation of a Federal Implementation Plan (FIP) by EPA unless,
prior to that deadline, a state makes a submission to meet these two
requirements of the CAA and EPA approves such submission.
DATES: The effective date of this rule is July 9, 2010.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
final rule should be addressed to Ms. Gobeail McKinley, Office of Air
Quality Planning and Standards, Geographic Strategies Group, Mail Code
C539-04, Research Triangle Park, NC 27711; telephone (919) 541-5246; e-
mail address: [email protected].
SUPPLEMENTARY INFORMATION: For questions related to a specific state,
please contact the appropriate regional office:
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Regional offices States
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Ray Werner, Chief, Air Programs Branch, EPA Puerto Rico and the U.S.
Region II, 290 Broadway, 25th Floor, New Virgin Islands.
York, NY 10007-1866.
Cristina Fernandez, Associate Director, Maryland, Pennsylvania,
Office of Air Program Planning (3AP30), Air Virginia, West Virginia,
Protection Division, U.S. Environmental and the District of
Protection Agency, Region III, 1650 Arch Columbia.
Street, Philadelphia, PA 19103-2023.
Jay Bortzer, Chief, Air Programs Branch, EPA Illinois, Michigan,
Region V, 77 West Jackson Street, Chicago, Minnesota, and
IL 60604. Wisconsin.
Guy Donaldson, Chief, Air Planning Section, Louisiana and Oklahoma.
EPA Region VI, 1445 Ross Avenue, Dallas, TX
75202.
Josh Tapp, Chief, Air Programs Branch, EPA Iowa and Nebraska.
Region VII, 901 North 5th Street, Kansas
City, Kansas 66101-2907, (913) 551-7606.
Monica Morales, Leader, Air Quality Planning Colorado, Montana, North
Unit, EPA Region VIII, U.S. EPA Region VIII, Dakota, South Dakota,
1595 Wynkoop Street, Denver, CO 80202-1129. Utah, and Wyoming.
Lisa Hanf, Chief, Air Planning Office, EPA Hawaii, American Samoa,
Region IX, 75 Hawthorne Street, San the Commonwealth of the
Francisco, CA 94105. Northern Mariana
Islands, and Guam.
Michael McGown, Manager, State and Tribal Air Alaska, Idaho, Oregon,
Programs, EPA Region X, Office of Air, and Washington.
Waste, and Toxics, Mail Code AWT-107, 1200
Sixth Avenue, Suite 900, Seattle, WA 98101.
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Table of Contents
I. Background
II. This Action
III. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedures Act
(APA)
B. Executive Order 12866: Regulatory Planning and Review
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132 (Federalism)
G. Executive Order 13175
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act
M. Judicial Review
I. Background
On October 17, 2006, EPA published a final rule revising the 24-
hour standard for fine particulate matter (PM2.5) from 65
micrograms per cubic meter ([micro]g/m\3\) to 35 [micro]g/m\3\. Section
110(a)(1) of the CAA requires states to submit revised SIPs that
provide for the implementation, maintenance, and enforcement of a new
or revised standard within 3 years after promulgation of such standard,
or within such shorter period as EPA may prescribe. Section
110(a)(2)(D)(i) contains four elements that revised SIPs must address.
This findings notice addresses the first two elements which require
each state to submit SIPs which contain adequate provisions to prohibit
air pollution within the state that (1) contributes significantly to
another state's nonattainment of the NAAQS; or (2) interferes with
another state's maintenance of the NAAQS. Section 110(a)(1) imposes the
obligation upon states to make a SIP submission for a new or revised
NAAQS, but the contents of that submission may vary depending upon the
facts and circumstances. In particular, the data and analytical tools
available at the time the state develops and submits the SIP for a new
or revised NAAQS necessarily affects the content of the submission.
States were required to have submitted complete SIPs that addressed
[[Page 32674]]
the section 110(a)(2)(D)(i)(I) requirement related to interstate
transport for the 2006 24-hour PM2.5 NAAQS by September 21,
2009. At present, 29 states and territories have not made a SIP
submittal that addresses the attainment and maintenance aspects of this
requirement. This includes the following states or territories: Alaska,
Colorado, Hawaii, Idaho, Illinois, Iowa, Louisiana, Maryland, Michigan,
Minnesota, Montana, Nebraska, North Dakota, Oklahoma, Oregon,
Pennsylvania, South Dakota, Utah, Virginia, Washington, West Virginia,
Wisconsin, Wyoming, the District of Columbia, American Samoa, the
Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and
the U.S. Virgin Islands. EPA is making a finding of failure to submit
SIPs for these two transport requirements for all these states and
territories. It should be noted that a number of other states initially
submitted SIP revisions to address this requirement. EPA will review
and make a separate determination for those SIPs.
This finding establishes a 2-year deadline for promulgation by EPA
of a FIP, in accordance with section 110(c)(1), for any state that
either does not submit or EPA can not approve a SIP as meeting the
attainment and maintenance requirements of section 110(a)(2)(D)(i)(I)
for the 2006 24-hour PM2.5 NAAQS. This action does not
result in sanctions pursuant to section 179 because this finding of
failure to submit does not pertain to a part D plan for nonattainment
areas, or to a SIP Call pursuant to section 110(k)(5).
II. This Action
By this action, EPA is making the finding that states have failed
to submit complete SIPs to address the attainment and maintenance
requirements of section 110(a)(2)(D)(i)(I) of the CAA for the revised
2006 24-hour PM2.5 NAAQS. This finding creates a 2-year
deadline for the promulgation of a FIP by EPA for a particular state or
territory, unless that state or territory submits a SIP to satisfy
these section 110(a)(2)(D)(i)(I) requirements, and EPA approves such
submission prior to that deadline.
III. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedures Act (APA)
This is a final EPA action, which is subject to notice-and-comment
requirements of the Administrative Procedures Act (APA), 5 U.S.C.
553(b). However, EPA invokes, consistent with past practice (for
example, 61 FR 36294), the good cause exception pursuant to APA, 5
U.S.C. 553(b)(3)(B). Notice and comment are unnecessary because no
significant EPA judgment is involved in making a finding of failure to
submit SIPs or elements of SIPs required by the CAA, where states have
made no submissions to meet the requirement by the statutory deadline.
B. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review by the Office of Management and
Budget under the EO.
C. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This action relates to the
requirement in the CAA for states to submit SIPs under section
110(a)(1) that implements the CAA requirements for the revised 24-hour
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that
states submit SIPs that implement, maintain, and enforce a new or
revised NAAQS which satisfies the requirements of section 110(a)(2)
within 3 years of promulgation of such standard, or shorter period as
EPA may provide. The present final action does not establish any new
information collection requirement apart from that required by law.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the APA or any other
statute unless the EPA certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For the purpose of assessing the impacts of this final action on
small entities, small entity is defined as: (1) A small business that
is a small industry entity as defined in the U.S. Small Business
Administration (SBA) size standards. (See 13 CFR, part 121); (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for profit
enterprise which independently owned and operated is not dominate in
its field.
Courts have interpreted the RFA to require a regulatory flexibility
analysis only when small entities will be subject to the requirements
of the rule. See, Michigan v. EPA, 213 F.3d 663, 668-69 (DC Cir.,
2000), cert. den., 532 U.S. 903 (2001). This rule would not establish
requirements applicable to small entities. Instead, it would require
states to develop, adopt, and submit SIPs to meet the requirements of
section 110(a)(2)(D)(i), and would leave to the states the task of
determining how to meet those requirements, including which entities to
regulate. Moreover, because affected states would have discretion to
choose the sources to regulate and how much emissions reductions each
selected source would have to achieve, EPA could not predict the effect
of the rule on small entities. After considering the economic impacts
of this final rule on small entities, I certify that this action will
not have a significant economic impact on a substantial number of small
entities. In addition, although the action is subject to the
Administrative Procedures Act, the Agency has invoked the ``good
cause'' exemption under 5 U.S.C. 553(b); therefore, it is not subject
to the notice and comment requirement.
E. Unfunded Mandates Reform Act
This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. The action implements mandate(s) specifically and explicitly
set forth by the Congress in CAA section 110(a)(2)(D)(i)(I) without the
exercise of any policy discretion by EPA.
This action does not create any additional requirements beyond
those of the 2006 24-hour PM2.5 NAAQS (71 FR 61144, October
17, 2006). Therefore, no UMRA analysis is needed. This rule responds to
the requirement in the CAA for states to submit SIPs to satisfy the
requirements of section 110(a)(2) of the CAA for the 2006 24-hour
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that
states submit SIPs that implement, maintain, and enforce a new or
revised NAAQS within 3 years of promulgation of such standard, or
shorter period as EPA may provide. This action does not impose any
requirements beyond those specified in the Act.
Therefore, this action is not subject to the requirements of
sections 202 or 205 of the UMRA. This action is also not subject to the
requirements of section 203 of UMRA because it contains no regulatory
requirements that might
[[Page 32675]]
significantly or uniquely affect small governments.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in EO 13132. The CAA establishes the scheme whereby states
take the lead in developing plans to meet the NAAQS. This action will
not modify the relationship of the states and EPA for purposes of
developing programs to implement the NAAQS. Thus, Executive Order 13132
does not apply to this action.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action
responds to the requirement in the CAA for states to submit SIPs to
satisfy the requirements of section 110(a)(2) of the CAA for the 2006
24-hour PM2.5 NAAQS. Section 110(a)(1) of the CAA requires
that states submit SIPs that implement, maintain, and enforce a new or
revised NAAQS which satisfies the requirements of section 110(a)(2)
within 3 years of promulgation of such standard, or shorter period as
EPA may provide. The CAA provides for states and tribes to develop
plans to regulate emissions of air pollutants within their
jurisdictions. The regulations clarify the statutory obligations of
states and tribes that develop plans to implement this rule. The Tribal
Authority Rule (TAR) gives tribes the opportunity to develop and
implement CAA programs, but it leaves to the discretion of the tribe
whether to develop these programs and which programs, or appropriate
elements of a program, the tribe will adopt.
This action does not have tribal implications as defined by
Executive Order 13175. It does not have a substantial direct effect on
one or more Indian tribes, because no tribe has implemented an air
quality management program related to the 2006 24-hour PM2.5
NAAQS at this time. Furthermore, this action does not affect the
relationship or distribution of power and responsibilities between the
federal government and Indian tribes. The CAA and the TAR establish the
relationship of the federal government and Tribes in developing plans
to attain the NAAQS, and this action does nothing to modify that
relationship. Because this action does not have tribal implications,
Executive Order 13175 does not apply.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action present a disproportionate
risk to children. Nonetheless, we have evaluated the environmental
health or safety effects of the 2006 24-hour PM2.5 NAAQS on
children. The results of this risk assessment are contained in the
final rule for 24-hour PM2.5 NAAQS (71 FR 61144, October 17,
2006).
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
J. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this final action. This action responds to the requirement
in the CAA for states to submit SIPs to satisfy the requirements of
section 110(a)(2)(D)(i)(I) of the CAA for the 2006 24-hour
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that
states submit SIPs that implement, maintain, and enforce a new or
revised NAAQS which satisfies the requirements of section 110(a)(2)
within 3 years of promulgation of such standard, or shorter period as
EPA may provide. EPA is merely determining whether states have complied
with this statutory requirement.
L. Congressional Review Act
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary or contrary to the public interest. This
determination must be supported by a brief statement. 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefore, and established an effective date of July 9,
2010. EPA will submit a report containing this action and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the action in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 808(2).
M. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by EPA. This
section provides, in part, that petitions for review must be filed in
the Court of Appeals for the District of Columbia Circuit: (i) When the
EPA action consists of ``nationally applicable regulations promulgated,
or
[[Page 32676]]
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 action making a finding of failure to submit SIPs related to
the section 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour
PM2.5 NAAQS is ``nationally applicable'' within the meaning
of section 307(b)(1).
For the same reasons, the Administrator also is determining that
the requirements related to these finding of failure to submit SIPs
related to the section 110(a)(2)(D)(i)(I) requirement is of nationwide
scope and effect for the purposes of section 307(b)(1). This is
particularly appropriate because in the report on the 1977 Amendments
that revised section 307(b)(1) of the CAA, Congress noted that the
Administrator's determination that an action is of ``nationwide scope
or effect'' would be appropriate for any action that has ``scope or
effect beyond a single judicial circuit.'' H.R. Rep. No. 95-294 at 323,
324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect
of this rulemaking extends to numerous judicial circuits since the
findings of failure to submit SIPs apply to all areas of the country.
In these circumstances, section 307(b)(1) and its legislative history
call for the Administrator to find the rule to be of ``nationwide scope
or effect'' and for venue to be in the District of Columbia Circuit.
Thus, any petitions for review of this action related to a findings
of failure to submit SIPs related to the requirements of section
110(a)(2)(D)(i)(I) of the CAA must be filed in the Court of Appeals for
the District of Columbia Circuit within 60 days from the date final
action is published in the Federal Register.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: May 28, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2010-13457 Filed 6-8-10; 8:45 am]
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