[Federal Register Volume 74, Number 227 (Friday, November 27, 2009)]
[Rules and Regulations]
[Pages 62251-62255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28257]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2009-0670; FRL-8985-6]


Finding of Failure To Submit State Implementation Plans Required 
for the 1997 Particulate Matter Less Than 2.5 Micrometer 
(PM2.5) National Ambient Air Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking a final action in which it finds that three 
States, Georgia, Illinois, and Pennsylvania, have failed to submit 
State Implementation Plans (SIPs) to satisfy requirements of the Clean 
Air Act (CAA) for attaining the 1997 National Ambient Air Quality 
Standards (NAAQS) for particulate matter less than 2.5 micrometers 
(PM2.5). Under the CAA and EPA's implementing regulations, 
States with nonattainment areas were required to submit SIPs by April 
5, 2008, demonstrating how each nonattainment area would attain the 
1997 PM2.5 standards as expeditiously as practicable. If 
within 18 months of the effective date of this notice EPA has not 
determined that the State has submitted the required nonattainment 
plan, then any new or modified source in the nonattainment area will be 
required to obtain emission reduction offsets that exceed its emission 
increases on a two-to-one basis. If within 24 months of the effective 
date of this notice EPA has not determined that the State has submitted 
the required SIP, then the highway funding sanction also will apply in 
the nonattainment area. No later than 2 years after EPA makes the 
finding, EPA must promulgate a Federal Implementation Plan (FIP) if the 
State has not submitted the required nonattainment SIP and EPA has not 
approved it.

DATES: Effective Date. This action is effective on November 27, 2009.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Mr. Butch Stackhouse, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mail Code: 
C504-2, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; 
telephone (919) 541-5208.

[[Page 62252]]


SUPPLEMENTARY INFORMATION: For questions related to a specific State 
please contact the appropriate regional office:

------------------------------------------------------------------------
           Regional offices                          States
------------------------------------------------------------------------
Cristina Fernandez, Associate          Pennsylvania.
 Director, Office of Air Program
 Planning (3AP30), Air Protection
 Division, U.S. Environmental
 Protection Agency, Region III, 1650
 Arch Street, Philadelphia, PA 19103-
 2023.
Dick Schutt, Chief, Air Planning       Georgia.
 Branch, Air, Pesticides and Toxics
 Management Division, EPA Region IV,
 61 Forsyth Street, SW., Atlanta,
 Georgia 30303-8960.
Jay Bortzer, Chief, Air Programs       Illinois.
 Branch, EPA Region V, 77 West
 Jackson Street, Chicago, IL 60604.
------------------------------------------------------------------------

Table of Contents

I. Background.
    A. Statutory 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 Procedures Act.
    B. Effective Date Under the Administrative Procedures 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. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations.
    L. National Technology Transfer and Advancement Act.
    M. Congressional Review Act.
    N. Judicial Review.

I. Background

    The CAA requires States with areas that are designated 
nonattainment for the 1997 PM2.5 NAAQS to develop a SIP 
providing how the State will attain the NAAQS. Section 172 of the CAA 
specifies the required elements of a SIP for an area designated 
nonattainment for the 1997 PM2.5 NAAQS. These requirements 
include, but are not limited to, an attainment demonstration, 
reasonably available control measures (RACM) and reasonably available 
control technology (RACT), annual emissions reductions to ensure 
reasonable further progress (RFP), and contingency measures. Most 
States with PM2.5 nonattainment areas designated in 2005 
have submitted SIPs addressing these requirements as required under the 
CAA and EPA's implementing regulations. However, three States (Georgia, 
Illinois, and Pennsylvania) have not yet submitted SIPs to satisfy 
these requirements for four PM2.5 nonattainment areas. By 
this action, EPA is making a finding that these States have failed to 
submit the required SIPs for these areas.

A. Statutory Requirements

    On July 18, 1997, EPA promulgated the NAAQS for fine particles 
(PM2.5). The 1997 annual standard was set at a level of 15 
micrograms per cubic meter, based on the 3-year average of annual mean 
PM2.5 concentrations. The 1997 24-hour standard was set at a 
level of 65 micrograms per cubic meter, based on the 3-year average of 
the 98th percentile of 24-hour concentrations. (62 FR 38652). These 
standards remain in effect. See 40 CFR section 50.7.
    The designation of PM2.5 nonattainment areas was delayed 
due to the need to obtain 3 years of data from an expanded nationwide 
air quality monitoring network, as well as due to a series of legal 
challenges to the 1997 standards which were resolved in 2002. See 
Whitman v. American Trucking Associations, Inc., 121 S.Ct. 903 (2001). 
The Transportation Equity Act for the Twenty-first Century revised the 
deadline for promulgation of designations to December 31, 2004, in 
order to provide additional time to collect air quality monitoring 
data, obtain designation recommendations from the States, and finalize 
the designation process.
    The PM2.5 designations based on 2001-2003 air quality 
data were published in the Federal Register on January 5, 2005 (70 FR 
943). A total of 47 nonattainment areas were identified. EPA noted that 
because 2004 air quality data was just becoming available, it would 
consider such data and modify the designations as appropriate prior to 
the April 5, 2005, effective date. EPA issued a supplemental notice on 
April 5, 2005 (70 FR 19844; published April 14, 2005), indicating that 
eight areas changed status to attainment based on consideration of 
2002-2004 data, resulting in a final list of 39 areas designated as 
nonattainment for the 1997 PM2.5 NAAQS.
    On April 25, 2007 (72 FR 20586), EPA published a final rule 
describing the requirements for implementation plans designed to meet 
the 1997 PM2.5 standards (the ``PM2.5 
Implementation Rule''). Section 172 of the CAA requires States with 
nonattainment areas to submit nonattainment SIPs within 3 years of the 
effective date of the designation. Therefore, the PM2.5 
plans were required to be submitted by April 5, 2008.
    As explained in further detail in the PM2.5 
Implementation Rule, the key required elements of the nonattainment SIP 
include the attainment demonstration, RACM and RACT, RFP, and 
contingency measures. The attainment demonstration is required to show 
how the nonattainment area would attain the 1997 PM2.5 
standards as expeditiously as practicable, but no later than April 5, 
2010. (Note that for an area with a more severe or complex 
nonattainment problem, the State could propose in its plan to have an 
extended attainment date of an additional one to 5 years beyond the 
initial 5-year period if it meets the statutory and regulatory 
requirements.) The attainment demonstration takes into account 
projected emission reductions from existing Federal and State measures, 
plus any additional RACM/RACT that can be adopted by the State to 
attain ``as expeditiously as practicable.'' Air quality modeling of 
these projected emissions reductions in future years is an important 
element of the attainment demonstration.
    Each nonattainment SIP must include RACM and RACT as necessary for 
the area to attain the 1997 PM2.5 NAAQS. The CAA requires 
the State to demonstrate that it has adopted all RACM, considering 
economic and technical feasibility and other factors, that are needed 
to show that the area will attain the fine particle standards as 
expeditiously as practicable. The PM2.5 Implementation Rule 
sets forth more specific requirements and guidance for making RACM and 
RACT determinations.
    Each plan must also ensure that the area is making RFP in terms of 
emission reductions and air quality improvements toward attainment. The 
PM2.5 Implementation Rule provides that, for areas with an 
attainment date

[[Page 62253]]

within 5 years of designation, the attainment demonstration is 
considered to satisfy the RFP requirement. Areas with attainment dates 
beyond 2010 are required to submit an RFP plan according to the 
requirements in the implementation rule.
    SIPs must also include contingency measures, which are emission 
reduction measures to be undertaken if the area fails to satisfy the 
RFP requirement or fails to attain the standards by the attainment 
date. These measures are to take effect without significant further 
action by the State or EPA.
    We note that several PM2.5 nonattainment areas currently 
have air quality that attains the level of the 1997 PM2.5 
NAAQS, but have not yet completed the process for redesignating the 
area to attainment. Under EPA's ``Clean Data Policy,'' certain 
nonattainment SIP submission requirements may be suspended if the area 
is monitoring attainment. See 40 CFR 50.1004(c). EPA identifies these 
areas through clean data determinations published in the Federal 
Register. Pursuant to 40 CFR 51.1004, the States' obligation to submit 
the RACM/RACT, contingency measures, RFP, and attainment demonstrations 
are stayed as of the effective date of a final approval of the clean 
air determination for these areas. This stay will remain in effect for 
so long as the area remains in attainment and will no longer apply if 
the area is redesignated to attainment. For this reason, States with 
areas that have received final clean data determinations are not 
subject to the final action in this notice.

B. Consequences of Findings of Failure To Submit

    Section 179(a)(1) of the CAA establishes specific consequences if 
EPA finds that a State has failed to submit a SIP or, with regard to a 
submitted SIP, if EPA determines it is incomplete or if EPA disapproves 
it. Additionally, any of these findings also triggers an obligation for 
EPA to promulgate a FIP if the State has not submitted, and EPA has not 
approved, the required SIP within 2 years of the finding. CAA section 
110(c). The first finding, that a State has failed to submit a plan or 
one or more elements of a plan required under the CAA, is the finding 
that EPA is making in this action.
    EPA is finding that three States have failed to make the required 
nonattainment SIP submissions for four nonattainment areas. If EPA has 
not affirmatively determined that a State has made the required 
complete nonattainment SIP submission within 18 months of the effective 
date of this action, pursuant to CAA section 179(a) and (b) and 40 CFR 
52.31, the offset sanction identified in CAA section 179(b)(2) will 
apply in the area subject to the finding. If EPA has not affirmatively 
determined that the State has made a complete submission within 6 
months after the emission offset sanction is imposed, then the highway 
funding sanction will also apply in areas designated nonattainment, in 
accordance with CAA section 179(b)(1) and 40 CFR 52.31. The 18-month 
clock will stop and the sanctions will not take effect if, within 18 
months after the date of the finding, EPA finds that the State has made 
a complete nonattainment SIP submission for each area for which the 
finding is made. In addition, 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 2 years of EPA's finding.
    At approximately the same time as the signing of this notice, EPA 
Regional Administrators are sending letters to the States of Georgia, 
Illinois, and Pennsylvania, informing them that EPA is determining that 
they have failed to make one or more of the required SIP submissions 
for the specified areas. These letters, and any accompanying 
enclosures, have been included in the docket to this rulemaking.

II. This Action

    In this action, EPA is making a finding of failure to submit for 
three States with regard to the PM2.5 nonattainment areas 
listed below. In each case, the State failed to submit one or more of 
the required nonattainment SIP elements identified in the CAA and in 
the PM2.5 Implementation Rule:

--Attainment demonstration (including emission inventory and modeling; 
CAA section 172(c)(1) and (3), and 40 CFR 51.1007 and 1008);
--RACM/RACT (CAA section 172(c)(1) and 40 CFR 51.1010);
--RFP (CAA sections 172(c)(2) and 40 CFR 51.1009); and
--Contingency measures (CAA sections 172(c)(9) and 40 CFR 51.1012).

    In accordance with CAA section 179, this finding starts the 18-
month emission offset sanctions clock, the 24-month highway funding 
sanctions clock, and a 24-month clock for the promulgation by EPA of a 
FIP. This action will be effective on November 27, 2009.

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                   State                                Area
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Georgia...................................  Atlanta.
Illinois..................................  St. Louis (Illinois portion
                                             only).
Pennsylvania..............................  Liberty-Clairton.
Pennsylvania..............................  Philadelphia-Wilmington (PA
                                             portion only).
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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 
nonsubstantive finding of failure to submit elements of SIP submissions 
required by the CAA. Furthermore, providing notice and comment would be 
impracticable 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 complete SIPs. 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 November 27, 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. In addition, this action 
simply starts a ``clock'' that will not result in sanctions against the 
States for 18 months, and that the States may ``turn off'' by 
submitting complete SIPs to 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 12866 (58 FR 51735, October 4, 1993) and is 
therefore not

[[Page 62254]]

subject to review by the Office of Management and Budget (OMB) under 
the Executive Order.

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 1320.3(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 to satisfy elements required for the 1997 
PM2.5 NAAQS. The present final rule does not establish any 
new information collection requirement.

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), 
therefore it is not subject to the notice and comment requirement. Thus 
Executive Order 13132 does not apply to this action.

F. Unfunded Mandates Reform Act

    This action contains no Federal mandate 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. 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 
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

    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 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 
NAAQS. 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 nonattainment area requirements of the CAA for the 1997 
PM2.5 NAAQS. The CAA requires States with areas that are 
designated nonattainment for the NAAQS to develop a SIP describing how 
the State will attain and maintain the NAAQS. The rule will not have a 
substantial direct effect on one or more Indian Tribes, on the 
relationship between the Federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply 
to this action.

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

    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This action does not directly affect 
the level of protection provided to human health or the environment.

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

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. In this 
action, EPA is finding that several States have failed to submit SIPs 
to satisfy the nonattainment area requirement of the CAA for the 
PM2.5 NAAQS.

K. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 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 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 VCS.

L. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 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.

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 report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and

[[Page 62255]]

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 November 27, 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 Court within 60 days from the date 
final action is published in the Federal Register. Filing a petition 
for reconsideration by the Administrator of this final action does not 
affect the finality of this 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 action.
    Thus, any petitions for review of this action making findings of 
failure to submit PM2.5 SIPs for the nonattainment areas 
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, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: November 19, 2009.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. E9-28257 Filed 11-25-09; 8:45 am]
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