[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2392-2395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-779]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-8762-7]


Finding of Failure To Submit State Implementation Plans Required 
by the 1999 Regional Haze Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking a final action finding that 37 states, the 
District of Columbia, and the U.S. Virgin Islands have failed to submit 
for EPA review and approval State Implementation Plans (SIPs) for 
improving visibility in the nation's national parks and wilderness 
areas. Under the Clean Air Act (CAA) and EPA's implementing 
regulations, states were required to submit these SIPs to EPA by 
December 17, 2007. These SIPs must contain a number of elements, 
including importantly: For each mandatory Class I federal area in a 
state, reasonable progress goals providing for an improvement in 
visibility for the most impaired days and ensuring no degradation in 
visibility for the least impaired days; a long-term strategy for 
improving visibility, including enforceable emissions limitations, for 
meeting the reasonable progress goals; and Best Available Retrofit 
Technology (BART) determinations for certain older existing stationary 
sources. By this action, the EPA is making a finding of failure to 
submit for those states that have not submitted a SIP or have submitted 
a SIP that addresses only part of the requirements.

DATES: Effective Date: This action is effective on January 15, 2009.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Mr. Todd Hawes, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code: C539-
04, 109 TW Alexander Drive, Research Triangle Park, NC 27709; telephone 
(919) 541-5591.

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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Anne Arnold, Manager, Air Quality        Connecticut, Maine,
 Planning Unit, EPA New England, I        Massachusetts, New Hampshire,
 Congress Street, Suite 1100 (CAQ),       Rhode Island, Vermont.
 Boston, MA 02114-2023.
Raymond Werner, Chief, Air Programs      New Jersey, New York, Virgin
 Branch, EPA Region II, 290 Broadway,     Islands.
 25th Floor, New York, NY 10007-1866.
Christina Fernandez, Chief, Air Quality  District of Columbia, Maryland,
 Planning Branch, EPA Region III, 1650    Pennsylvania, Virginia.
 Arch Street, Philadelphia, PA 19103-
 2187.
Dick A. Schutt, Chief, Air Planning      Florida, Georgia.
 Branch, EPA Region IV, Sam Nunn
 Atlanta Federal Center, 61 Forsyth,
 Street, SW., 12th Floor, Atlanta, GA
 30303.
Jay Bortzer, Chief, Air Programs         Illinois, Indiana, Michigan,
 Branch, EPA Region V, 77 West Jackson    Minnesota, Ohio, Wisconsin.
 Street, Chicago, IL 60604.
Tom Diggs, Associate Director Air        Oklahoma, New Mexico, Texas.
 Programs, EPA Region VI, 1445 Ross
 Avenue, Dallas, TX 75202-2733.
Joshua A. Tapp, Chief, Air Programs      Kansas, Nebraska.
 Branch, EPA Region VII, 901 North 5th
 Street, Kansas City, Kansas 66101-2907.
Monica S. Morales, Unit Chief, Air       Colorado, Montana, North
 Quality Planning Unit, EPA Region VIII   Dakota, South Dakota, Wyoming.
 Air Program, 1595 Wynkoop St. (8P-AR),
 Denver, CO 80202-1129.
Lisa Hanf, Chief, Air Planning Office,   Arizona, California, Hawaii,
 EPA Region IX, 75 Hawthorne Street,      Nevada.
 San Francisco, CA 94105.
Mahbubul Islam, Manager, State and       Alaska, Idaho, Oregon,
 Tribal Air Programs, EPA Region X,       Washington.
 Office of Air, Waste, and Toxics, Mail
 Code OAQ-107, 1200 Sixth Avenue,
 Seattle, WA 98101.
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Table of Contents

I. Background
    A. Statutory and Regulatory Requirements
    B. Consequences of Findings of Failure To Submit
II. This Action
III. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedure Act
    B. Effective Date Under the Administrative Procedure Act
    C. Executive Order 12866: Regulatory Planning and Review
    D. Paperwork Reduction Act
    E. Regulatory Flexibility Act (RFA)
    F. Unfunded Mandates Reform Act
    G. Executive Order 13132: Federalism
    H. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    I. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    J. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    K. National Technology Transfer Advancement Act
    L. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    M. Congressional Review Act
    N. Judicial Review

I. Background

    In CAA section 169A, Congress declared as a national goal the 
prevention of any future, and the remedying of any existing, impairment 
of visibility in mandatory class I Federal areas (Class I areas) \1\ 
which impairment results from manmade air pollution. EPA's visibility 
regulations, codified at 40 CFR 51.300-51.309, require states to 
develop regional haze SIPs with measures necessary to make reasonable 
progress towards remedying visibility impairment in Class I areas. The 
required SIP elements include: (1) For states with one or more Class I 
areas, the

[[Page 2393]]

setting of reasonable progress goals for each Class I area; (2) 
calculations of baseline and natural visibility conditions for each 
Class I area located in a state; (3) the development of long term 
strategies addressing visibility impairment; (4) a monitoring strategy 
that is representative of all Class I areas within a state and 
reporting requirements; (5) the BART requirements; and (6) a 
description of how the state addressed any comments provided by Federal 
Land Managers. 40 CFR 51.308. EPA's visibility regulations also provide 
certain states with the option to submit regional haze SIPs based on 
the recommendations of the Grand Canyon Visibility Transport 
Commission. Such SIPs are required to include certain emission 
reduction strategies, including a program to reduce emissions of sulfur 
dioxide from stationary sources. 40 CFR 51.309.
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    \1\ Areas designated as mandatory Class I Federal areas are 
those national parks exceeding 6,000 acres, wilderness areas and 
national memorial parks exceeding 5,000 acres, and all international 
parks which were in existence on August 7, 1977. Visibility has been 
identified as an important value in 156 of these areas. See 40 CFR 
part 81, subpart D.
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    Some states have submitted regional haze SIPs as required under the 
CAA and EPA's implementing regulations, but at present a number of 
states have not yet submitted final SIPs to EPA to satisfy these 
requirements of the CAA. The EPA is by this action making a finding of 
failure to submit for those states.

A. Statutory and Regulatory Requirements

    Sections 169A and 169B of the CAA set forth the goals of the 
regional haze program and mandate that states develop SIPs to ensure 
that reasonable progress is made towards meeting those goals, including 
the requirements for BART. The regional haze rule issued in 1999 
specifies the requirements and deadlines for state and local SIPs 
designed to meet the visibility protection provisions of the CAA. See 
64 FR 35714. EPA revised certain requirements of the regional haze rule 
on July 6, 2005 (70 FR 39104) including the deadline for submitting 
regional haze SIPs, pursuant to the Consolidated Appropriations Act for 
Fiscal Year 2004, Public Law 108-199, January 23, 2004 (codified at 42 
U.S.C. 7407(d)(7), CAA section 107(d)(7)). This statutory deadline for 
SIP submittals was December 17, 2007.

B. Consequences of Findings of Failure To Submit

    Under the CAA section 110(c), EPA is required to promulgate a 
Federal Implementation Plan (FIP) within two years of the effective 
date of a finding that a state has failed to submit a SIP. The FIP 
requirement is void if a state submits a regional haze SIP, and EPA 
approves that SIP within the two year period.

II. This Action

    In this action, EPA is finding that 37 states, the District of 
Columbia, and the U.S. Virgin Islands have failed to make all or part 
of the required SIP submissions to address regional haze. This finding 
starts the two year clock for the promulgation by EPA of a FIP. EPA is 
not required to promulgate a FIP if the state makes the required SIP 
submittal and EPA takes final action to approve the submittal within 
two years of EPA's finding.
    At approximately the same time as the signing of this notice, EPA 
Regional Administrators are sending letters informing each state 
identified below that they have failed to make the required regional 
haze SIP submissions. These letters, and any accompanying enclosures, 
have been included in the docket to this action. This action will be 
effective on January 15, 2009. The states listed in the tables below 
failed to submit all or part of the required SIP elements per section 
169A of the CAA and associated implementing regulations at 40 CFR 
51.308 and 40 CFR 51.309.
    Arizona, New Mexico, and Wyoming have opted to develop SIPs based 
on the recommendations of the Grand Canyon Visibility Transport 
Commission under 40 CFR 51.309. All three States have failed to submit 
the plan elements required by 40 CFR 51.309(g), the reasonable progress 
requirements for areas other than the 16 Class I areas covered by the 
Grand Canyon Visibility Transport Commission Report. Arizona and New 
Mexico have also failed to submit the plan element required by 40 CFR 
51.309(d)(4), the alternate stationary source program for control of 
sulfur dioxide (SO2).
    Colorado has failed to submit plan elements required by 40 CFR 
51.308(d), specifically, reasonable progress goals and long-term 
strategy elements addressing reasonable progress. Colorado has also 
failed to submit a plan meeting the BART requirements of 40 CFR 
51.308(e), specifically, BART determinations and requirements, for two 
sources located in the state, Colorado Springs Utilities' Martin Drake 
Power Plant in Colorado Springs, Colorado and Cemex, Inc. Lyons 
Portland Cement Plant in Lyons, Colorado.
    Michigan has also failed to submit plan elements required by 40 CFR 
51.308(d), specifically, reasonable progress goals and long-term 
strategy elements addressing reasonable progress. In addition, Michigan 
has failed to submit a plan meeting the BART requirements of 40 CFR 
51.308(e). Specifically, for the following six sources located in the 
state, Michigan has failed to submit a plan with BART determinations 
and requirements: LaFarge Midwest, Inc. in Alpena, Michigan; St. Mary's 
Cement in Charlevoix, Michigan; Smurfit/Stone Container Corporation in 
Ontonagon, Michigan; Escanaba Paper Company in Escanaba, Michigan; and 
Cleveland Cliffs Corporation Tilden Mining Company and the Empire Iron 
Mining, both in Marquette, Michigan.

States and Territories Failing To Submit SIPs Addressing Any of the 
Required Regional Haze SIP Elements of 40 CFR 51.308

    Alaska, California, Connecticut, District of Columbia, Florida, 
Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Maine, Maryland, 
Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New 
Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, 
Rhode Island, South Dakota, Texas, Vermont, U.S. Virgin Islands, 
Virginia, Washington, and Wisconsin.

States Failing To Submit SIPs Addressing Part of the Required Regional 
Haze SIP Elements

    Arizona--40 CFR 51.309(g) and 40 CFR 51.309(d)(4).
    Colorado--40 CFR 51.308(d) and 40 CFR 51.308(e) for two sources.
    Michigan--40 CFR 51.308(d) and 40 CFR 51.308(e) for six sources.
    New Mexico--40 CFR 51.309(g) and 40 CFR 51.309(d)(4).
    Wyoming--40 CFR 51.309(g).

III. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedure Act

    This is a final EPA action, but is not subject to notice-and-
comment requirements of the Administrative Procedure Act (APA), 5 
U.S.C. 553(b). EPA believes that because of the limited time provided 
to make findings of failure to submit regarding SIP submissions, 
Congress did not intend such findings to be subject to notice-and-
comment rulemaking. However, to the extent such findings are subject to 
notice-and-comment rulemaking, EPA invokes the good cause exception 
pursuant to the APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are 
unnecessary because no EPA judgment is involved in making a finding of 
failure to submit a SIP or required elements of SIP submissions 
pursuant to the CAA. Furthermore, providing notice and comment would be 
impracticable

[[Page 2394]]

because of the limited time provided under the statute for making such 
determinations. Finally, notice and comment would be contrary to the 
public interest because it would divert agency resources from the 
critical substantive review of SIPs that have already been submitted. 
See 58 FR 51270, 51272, n.17 (Oct. 1, 1993); 59 FR 39832, 39853 (Aug. 
4, 1994).

B. Effective Date Under the Administrative Procedure Act

    This action will be effective on January 15, 2009. Under the APA, 5 
U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days 
after the date of publication in the Federal Register if the agency has 
good cause to specify an earlier effective date. This action concerns 
SIP submissions that are already overdue; and EPA previously cautioned 
the affected states that the SIP submissions were overdue and that EPA 
was considering taking this action. In addition, this action simply 
starts a ``clock'' for EPA to promulgate a SIP within two years. There 
are no mandatory sanctions enacted against the states by this action, 
although the Agency may employ discretionary sanctions, and the clock 
may be ``turned off'' through the submission of complete SIPs by the 
states followed by approval of the SIPs by EPA. These reasons support 
an effective date prior to 30 days after the date of publication.

C. 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 under the EO. However, the EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review on December 11, 2008, and any changes made in response to OMB's 
recommendations have been documented in the docket for this action. The 
OMB released it on January 6, 2009.

D. 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(b). This rule relates to the 
requirement in the CAA for states to submit SIPs under section Part D 
of title I of the CAA.

E. Regulatory Flexibility Act (RFA)

    This final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the Administrative Procedure Act (APA) or any other statute. This rule 
is not subject to notice and comment requirements under the APA or any 
other statute because, although the rule is subject to the APA, the 
Agency has invoked the ``good cause'' exemption under 5 U.S.C. 553(b), 
and therefore it is not subject to the notice and comment requirement.

F. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1998 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposed no enforceable duty on any state, local, or 
tribal governments or the private sector. The action imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector. Therefore, this action is not subject to the 
requirements of sections 202 and 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 
significantly or uniquely affect small governments. This action does 
not impose any new obligations or enforceable duties on any small 
governments.

G. 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 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 Executive Order 13132. The CAA establishes the scheme 
whereby states take the lead in developing plans to meet the National 
Ambient Air Quality Standards and the Federal government acts as a 
backstop where states fail to take the required actions. This rule will 
not modify the relationship of the states and EPA for purposes of 
developing programs to implement the regional haze program. Thus, 
Executive Order 13132 does not apply to this rule.

H. 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 rule 
responds to the requirement in the CAA for states to submit SIPs to 
satisfy the requirements of the 1999 Regional Haze Regulations; Final 
Rule. The CAA requires each state to develop a SIP describing how the 
state will minimize the impacts of emissions emanating from within the 
state and contributing to visibility impairment in Class I areas. 
Tribes have elected not to submit Regional Haze SIPs and EPA will 
ensure air quality protection in Indian country consistent with the 
provisions of 40 CFR 49.11(a). Therefore, Executive Order 13175 does 
not apply to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because this action is a procedural step toward reducing 
visibility impairment, which may also reduce pollution that may be 
harmful to children.

J. Executive Order 13211: Actions 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.

K. 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. VCS are

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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 the Agency 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.

L. 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 has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
directly affect the level of protection provided to human health or the 
environment. This notice finds that certain states have not met the 
requirement to submit one or more SIPs and begins a clock requiring 
them to do so to meet this statutory obligation. If the state fails to 
submit the required SIPs or if they submit SIPs that EPA cannot 
approve, then EPA will be required to develop the plans in lieu of the 
states.

M. 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. EPA will submit a rule report, a copy of 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 publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective January 15, 2009.

N. Judicial Review

    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 reconsideration by the Administrator of this final rule does not 
affect the finality of this rule for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
must be filed, and shall not postpone the effectiveness of such rule or 
action.
    Thus, any petitions for review of this action making findings of 
failure to submit regional haze SIPs identified in section II above, 
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, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: January 9, 2009.
Robert J. Meyers,
Principal Deputy Assistant Administrator.
[FR Doc. E9-779 Filed 1-14-09; 8:45 am]
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