[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.
------------------------------------------------------------------------

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

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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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