[Federal Register Volume 70, Number 78 (Monday, April 25, 2005)]
[Rules and Regulations]
[Pages 21147-21151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5319]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-7885-7]


Finding of Failure To Submit Section 110 State Implementation 
Plans for Interstate Transport for the National Ambient Air Quality 
Standards for 8-Hour Ozone and PM 2.5

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is today making a finding that States have failed to 
submit State Implementation Plans (SIPs) to satisfy the requirements of 
section 110(a)(2)(D)(i) of the Clean Air Act (CAA) for the 8-hour ozone 
and PM2.5 (particles with an aerodynamic diameter less than or equal to 
a nominal 2.5 micrometers) National Ambient Air Quality Standards 
(NAAQS). Section 110(a)(1) of the CAA requires that States submit SIPs 
to meet the applicable requirements of section 110(a)(2) within 3 years 
after the promulgation of a new or revised NAAQS, or within such 
shorter period as EPA may provide. Pursuant to section 110(a)(1), 
States are required to submit SIPs that satisfy the requirements of 
section 110(a)(2)(D)(i) related to interstate transport of pollution. 
At present, States have not yet submitted SIPs to satisfy this 
requirement of the CAA, and EPA is by this action making a finding of 
failure to submit which starts a 2-year clock for the promulgation of a 
Federal Implementation Plan (FIP) by EPA unless, prior to that time, 
each State makes a submission to meet the requirements of section 
110(a)(2)(D)(i) and EPA approves such submission.

DATES: The effective date of this rule is May 25, 2005.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
final rule should be addressed to Mr. Larry D. Wallace, Ph.D., Office 
of Air Quality Planning and Standards, Air Qaulity Strategies and 
Standards Division, Mail Code C504-02, Research Triangle Park, N.C. 
27711; telephone (919) 541-0906.

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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Dave Conroy, Acting Branch Chief, Air    Connecticut, Maine,
 Programs Branch, EPA New England, I      Massachusetts, New Hampshire,
 Congress Street, Suite 1100, Boston,     Rhode Island, and Vermont.
 MA 02114-2023, (617) 918-1661.
Raymond Werner, Chief, Air Programs      New Jersey, New York, Puerto
 Branch, EPA Region II, 290 Broadway,     Rico, and Virgin Islands.
 25th Floor, New York, NY 10007-1866,
 (212) 637-4249.
Makeba Morris, Branch Chief, Air         Delaware, District of Columbia,
 Quality Planning Branch, EPA Region      Maryland, Pennsylvania,
 III, 1650 Arch Street, Philadelphia,     Virginia, and West Virginia.
 PA 19103-2187, (215) 814-2187.

[[Page 21148]]

 
Richard A. Schutt, Chief, Regulatory     Alabama, Florida, Georgia,
 Development Section, EPA Region IV,      Kentucky, Mississippi, North
 Sam Nun Atlanta Federal Center, 61       Carolina, South Carolina, and
 Forsyth, Street, SW, 12th Floor,         Tennessee.
 Atlanta, GA 30303, Kentucky, (404) 562-
 9033.
Jay Bortzer, Chief, Air Programs         Illinois, Indiana, Michigan,
 Branch, EPA Region V, 77 West Jackson    Minnesota, Ohio, and
 Street, Chicago, IL 60604, (312) 886-    Wisconsin.
 4447.
Rebecca Weber, Associate Director Air    Arkansas, Louisiana, New
 Programs, EPA Region VI, 1445 Ross       Mexico, Oklahoma, and Texas.
 Avenue, Dallas, TX 75202, (214) 665-
 7200.
Joshua A. Tapp, Chief, Air Programs      Iowa, Kansas, Missouri, and
 Branch, EPA Region VII, 901 North 5th    Nebraska.
 Street, Kansas City, Kansas 66101-
 2907, (913) 551-7606.
Richard R. Long, Director, Air and       Colorado, Montana, North
 Radiation Program, EPA Region VIII,      Dakota, South Dakota, Utah,
 999 18th, Suite 300, Denver, CO 80202,   and Wyoming.
 (303) 312-6005.
Steven Barhite, Air Planning Office,     Arizona, California, Guam,
 EPA Region IX, 75 Hawthorne Street,      Hawaii, and Nevada.
 San Francisco, CA 94105, (415) 972-
 3980.
Mahbubul Islam, Manager, State and       Alaska, Idaho, Oregon, and
 Tribal Air Programs, EPA Region X,       Washington.
 Office of Air, Waste, and Toxics, Mail
 Code OAQ-107, 1200 Sixth Avenue,
 Seattle, WA 98101, (206) 553-6985.
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Table of Contents

I. Background
II. Today's Action
III. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedures Act
    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: 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 Advancement Act
    K. Congressional Review Act
    L. Judicial Review

I. Background

    On July 18, 1997, EPA issued new standards for the 8-hour ozone and 
particulate matter (PM) NAAQS. For ozone, EPA revised the NAAQS by 
adding an 8-hour averaging period (versus 1 hour for the previous 
NAAQS), and the level of the standard was changed from 0.12 ppm to 0.08 
ppm (62 FR 38856). For the PM NAAQS, EPA added a new 24-hour standard 
and a new annual standard for PM2.5.
    Section 110(a)(1) of the CAA requires States to submit new SIPs 
that provide for the implementation, maintenance, and enforcement 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) 
lists the elements that such new SIPs must address, including section 
110(a)(2)(D)(i) which applies to interstate transport of certain 
emissions. 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.
    For the 8-hour ozone standard and the PM2.5 standards, States 
should already have submitted SIPs that satisfied the section 
110(a)(2)(D)(i) requirement related to interstate transport for these 
new NAAQS. At present, States have not submitted plans to satisfy this 
requirement, and EPA is today making a finding of failure to submit. 
This finding starts a 2-year clock for promulgation by EPA of a FIP, in 
accordance with section 110(c)(1), for any State that does not submit a 
SIP meeting the requirements of section 110(a)(2)(D)(i) for the PM2.5 
and 8-hour ozone NAAQS. This action does not start a sanctions clock 
pursuant to section 179 because this finding of failure to submit does 
not pertain to a part D plan for nonattainment areas required under 
section 110(a)(2)(I) and because this action is not a SIP Call pursuant 
to section 110(k)(5).

II. Today's Action

    By today's action, EPA is making the finding that States have 
failed to submit SIPs to satisfy the requirements of section 
110(a)(2)(D)(i) of the CAA for the 8-hour ozone and PM2.5 NAAQS. This 
finding starts a 2-year clock for the promulgation by EPA of a FIP, 
unless each State submits a SIP to satisfy the section 110(a)(2)(D)(i) 
requirements, and EPA approves such submission prior to that time. 
Today's action will be effective on May 25, 2005.

III. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedures Act

    This is a final EPA action, but is not subject to notice-and-
comment requirements of the Administrative Procedures Act (APA), 5 
U.S.C. 553(b). The 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 date.

B. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and, 
therefore, subject to OMB review and the requirements of the Executive 
Order. The order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

[[Page 21149]]

    Pursuant to the terms of Executive Order 12866, a determination has 
been made that this rule is not a ``significant regulatory action'' 
because none of the above factors apply. As such, this final action was 
not formally submitted to The Office of Management and Budget (OMB) for 
review.

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. 
This rule relates to the requirement in the CAA for States to submit 
SIPs under section 110(a)(1) to satisfy certain infrastructure and 
general authority-related elements required under section 110(a)(2) of 
the CAA for the 8-hour ozone and the 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 rule does not 
establish any new information collection requirement apart from that 
required by law. Burden means that total time, effort, or financial 
resources expended by persons to generate, maintain, retain, or 
disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information. An Agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in the Code of Federal Regulations (CFR) are listed in 40 
CFR part 9.

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 Administrative 
Procedures Act (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 today's final rule on 
small entities, small entity is defined as: (1) A small business that 
is a small industry entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR, 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 (D.C. 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 today's final rule on 
small entities, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments to have 
meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small government on compliance with 
regulatory requirements.
    Today's action does not include a Federal mandate within the 
meaning of UMRA that may result in expenditures of $100 million or more 
in any 1 year by either State, local, or Tribal governments in the 
aggregate or to the private sector, and therefore, is not subject to 
the requirements of sections 202 and 205 of the UMRA. It does not 
create any additional requirements beyond those of the PM2.5 and 8-hour 
ozone NAAQS (62 FR 38652; 62 FR 38856, July 18, 1997). Therefore, no 
UMRA analysis is needed. This rule responds to the requirement in the 
CAA for States to submit SIPs under section 110(a)(1) to satisfy 
certain infrastructure and general authority-related elements required 
under section 110(a)(2) of the CAA for the 8-hour ozone and 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.
    Inasmuch as this action simply finds that States have failed to 
submit SIPs to address a pre-existing statutory requirement under the 
CAA, this Federal action will not impose mandates that will require 
expenditures of $100 million or more in the aggregate in any 1 year. 
However, EPA notes, that in another final rule signed today (the Clean 
Air Interstate Rule or CAIR), EPA is making findings of significant 
contribution for many States and requiring the submission of SIPs that 
will control sulfur dioxide and nitrogen oxide emissions in order to 
eliminate

[[Page 21150]]

interstate transport and that EPA has estimated in that action that 
such controls will have annual costs of $1.91 billion in 2010 and $2.56 
billion in 2015, assuming a 3 percent discount rate. The EPA plans to 
issue separate guidance concerning compliance with section 
110(a)(2)(D)(i) for States other than those subject to the CAIR.

F. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, or the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The CAA establishes the scheme 
whereby States take the lead in developing plans to meet the NAAQS. 
This rule 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 rule.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This final rule does not have 
``Tribal implications'' as specified in Executive Order 13175. This 
rule responds to the requirement in the CAA for States to submit SIPs 
under section 110(a)(1) to satisfy certain elements required under 
section 110(a)(2) of the CAA for the 8-hour ozone and PM2.5 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 
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 rule 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 8-hour ozone or the fine particle 
NAAQS at this time. Furthermore, this rule 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 rule does nothing to modify that 
relationship. Because this rule does not have Tribal implications, 
Executive Order 13175 does not apply.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health and safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA.
    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because EPA does not have reason to believe that the environmental 
health risks or safety risks addressed by this rule present a 
disproportionate risk or safety risk to children. Nonetheless, we have 
evaluated the environmental health or safety effects of the PM2.5 and 
the 8-hour ozone NAAQS on children. The results of this risk assessment 
are contained in the NAAQS for PM2.5 and 8-hour Ozone Standard, Final 
Rule [(62 FR 38652) and (62 FR 38856), July 18, 1997].

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions That 
Significantly Affect Energy Supply, Distribution, or Use,'' (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.
    Information on the methodology and data regarding the assessment of 
potential energy impacts is found in Chapter 6 of U.S. EPA 2002, Cost, 
Emission Reduction, Energy, and the Implementation Framework for the 
PM2.5 NAAQS, prepared by the Innovative Strategies and Economics Group, 
Office of Air Quality Planning and Standards, Research Triangle Park, 
N.C., April 24, 2003.

J. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impracticable. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by VCS bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when EPA decides not to use 
available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the Agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to

[[Page 21151]]

publication of the rule in the Federal Register.

L. 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 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 related to the 
section 110(a)(2)(D)(i) requirements related to the 8-hour ozone and 
the 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 the finding of failure to submit related to 
section 110(a)(2)(D)(i) 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 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 D.C. Circuit.
    Thus, any petitions for review of this action related to a findings 
of failure to submit related to the requirements of section 
110(a)(2)(D)(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

    Air pollution control.

    Dated: March 10, 2005.
Stephen L. Johnson,
Acting EPA Administrator.
[FR Doc. 05-5319 Filed 4-22-05; 8:45 am]
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