[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Rules and Regulations]
[Pages 55577-55581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22838]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2011-0747; FRL-9460-4]


Findings of Failure To Submit a Complete State Implementation 
Plan for Section 110(a) Pertaining to the 2006 Fine Particulate Matter 
(PM2.5) NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is making a finding that certain states, the District 
of Columbia, and the Commonwealth of Puerto Rico have not submitted a 
complete State Implementation Plan (SIP) that addresses basic program 
elements of the Clean Air Act (CAA or Act) necessary to implement, 
maintain, and enforce the 2006 24-hour Fine Particulate Matter 
(PM2.5) National Ambient Air Quality Standards (NAAQS). The 
EPA refers to these SIP submissions as ``infrastructure'' SIPs, because 
they address basic structural requirements specified in section 
110(a)(1) and (2) that states must establish that they meet following 
the promulgation of a new or revised NAAQS. Specifically, the EPA is 
evaluating whether these states, the District of Columbia, and the 
Commonwealth of Puerto Rico made complete infrastructure SIP 
submissions to address the applicable requirements of section 
110(a)(2)(A) through (M) necessary to implement the 2006 
PM2.5 NAAQS, with the exception of section 110(a)(2)(I), 
portions of section 110(a)(2)(C) pertaining to nonattainment area 
requirements and section 110(a)(2)(D)(i)(I). By this action, the EPA is 
identifying those states, the District of Columbia, and the 
Commonwealth of Puerto Rico that have failed to make a complete 
submission for some or all of these specific requirements. The finding 
of failure to submit for some or all of these specific elements 
establishes a 24-month deadline for the EPA to promulgate a Federal 
Implementation Plan (FIP) to address each state's outstanding 
infrastructure SIP elements unless, prior to that time, the state 
submits, and the EPA approves, a submission that meets the required 
elements, or unless the state is already subject to an existing FIP 
that addresses the SIP deficiency.

DATES: The effective date of this rule is October 11, 2011.

FOR FURTHER INFORMATION CONTACT: David Sanders, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code C539-01, 
Research Triangle Park, NC 27709; telephone (919) 541-3356; fax number 
(919) 541-0824; email address: [email protected].

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures 
Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause 
finds that notice and public procedure are impracticable, unnecessary 
or contrary to the public interest, the agency may issue a rule without 
providing notice and an opportunity for public comment. The EPA has 
determined that there is good cause for making this rule final without 
prior proposal and opportunity for comment 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, or incomplete submissions, to meet the requirement by the 
statutory date. Thus, notice and public procedure are unnecessary. The 
EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).
    For questions related to a specific state, the District of 
Columbia, and the Commonwealth of Puerto Rico, please contact the 
appropriate regional office below.

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         Regional offices                          States
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Region II--Raymond Werner, Chief,   Puerto Rico.
 Air Programs Branch, EPA Region
 II, 290 Broadway, 25th Floor, New
 York, NY 10007-1866.

[[Page 55578]]

 
Region III--Cristina Fernandez,     District of Columbia.
 Branch Chief, Air Quality
 Planning Branch, EPA Region III,
 1650 Arch Street, Philadelphia,
 PA 19103-2187.
Region VII--Joshua A. Tapp, Chief,  Iowa.
 Air Programs Branch, EPA Region
 VII, 901 North 5th Street, Kansas
 City, KS 66101-2907.
Region VIII--Monica Morales, Air    Montana.
 Quality Planning Unit Manager,
 EPA Region VIII Air Program, 1595
 Wynkoop St. (8P-AR), Denver, CO
 80202-1129.
Region IX--Lisa Hanf, Air Planning  Arizona and Hawaii.
 Office, EPA Region IX, 75
 Hawthorne Street, San Francisco,
 CA 94105.
Region X--Robert Elleman, Manager,  Alaska and Washington.
 State and Tribal Air Programs,
 EPA Region X, 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
II. This Action
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    J. National Technology Transfer and Advancement Act
    K. Congressional Review Act
    L. Judicial Review

I. Background

    On September 21, 2006, the EPA promulgated a final rule revising 
the existing 1997 24-hour NAAQS for PM2.5 from 65 micrograms 
per cubic meter ([mu]g/m\3\) to 35 [mu]g/m\3\. In that action, the EPA 
set the revised 2006 24-hour PM2.5 primary standard at 35 
[mu]g/m\3\.
    CAA section 110(a) requires states to submit SIPs that provide for 
the implementation, maintenance, and enforcement of a new or revised 
NAAQS within 3 years following the promulgation of such NAAQS, or 
within such shorter period as the EPA may prescribe. These SIPs were 
due on September 21, 2009. The EPA refers to these specific submissions 
as ``infrastructure'' SIPs because they are intended to address basic 
structural requirements for SIPs for a new or revised NAAQS. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
the EPA 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. The contents of such SIP submissions may 
also vary depending upon what provisions the state's existing SIP 
already contains.
    Section 110(a)(2) lists specific elements that states must meet, as 
applicable, in the general infrastructure SIP submissions. The 
requirements include basic SIP infrastructure elements such as SIP 
provisions to provide for monitoring, enforcement, and general legal 
authority, which are designed to assure attainment and maintenance of 
the NAAQS. In the case of section 110(a)(2)(D)(i), the provisions are 
intended to assure that the SIP of the state in question contains 
provisions necessary to prevent certain prohibited impacts on air 
quality in other states. In a September 25, 2009, memorandum titled 
``Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for 
the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air 
Quality Standards (NAAQS),'' the EPA identified the requirements that 
are the subject of this action, as applicable, and provided additional 
recommendations concerning the requirements. Most states submitted SIPs 
addressing section 110(a)(2). For various reasons, some of the 
submissions did not address all infrastructure SIP elements.
    Two elements identified in section 110(a)(2) are not governed by 
the 3-year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not due 
within 3 years after promulgation of a new or revised NAAQS, but rather 
are due at the time the nonattainment area plan requirements are due 
pursuant to section 172. These requirements are: (1) submissions 
required by section 110(a)(2)(C) to the extent that subsection refers 
to a permit program as required in part D Title I of the CAA; and (2) 
submissions required by section 110(a)(2)(I) which pertain to the 
nonattainment planning requirements of part D, Title I of the CAA. 
Therefore, this action does not cover these specific section 110(a)(2) 
elements. However, this action does pertain to the requirements in 
section 110(a)(2)(D)(i)(II) for prevention of significant deterioration 
(PSD). On June 9, 2010, in a separate final rulemaking (75 FR 32763), 
the EPA found that 29 states and territories had not made a SIP 
submittal that addressed the section 110(a)(2)(D)(i)(I) requirements 
related to interstate transport.\1\
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    \1\ That notice included, among others, the states of Alaska, 
Iowa, Montana, and the District of Columbia and the Commonwealth of 
Puerto Rico, some of which are also subject of this action. We are 
not superseding or otherwise affecting that limited finding with 
respect to those states which the finding remains in effect.
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    On January 12, 2011, WildEarth Guardians and Sierra Club filed a 
complaint against the EPA alleging that the agency had failed to take 
final action on infrastructure SIPs submitted by some states for the 
2006 PM2.5 NAAQS and that the agency had failed to make 
findings of failure to submit for other states that had failed to make 
such infrastructure SIP submissions.

II. This Action

    This action reflects the EPA's determinations with respect to the 
section 110(a)(2) requirements for the 2006 24-hour PM2.5 
NAAQS only. These are based upon the failure of states to submit 
infrastructure SIPs to address the requisite requirements, or failure 
to certify that they have already met the requisite requirements, or 
both. For those states that have not yet made a submittal and for those 
states that made a submittal that was not complete with respect to each 
element of section 110(a)(2), as applicable, the EPA is making a 
finding of failure to submit a complete SIP.
    For those states that did not make any submittal, except as noted 
above with respect to the June 9, 2010, finding, the EPA is making a 
finding of failure to submit a complete SIP with respect to all of the 
section 110(a)(2) SIP elements. In the same manner, for those states 
that did not make a submittal that addressed all of the section 
110(a)(2) elements, as applicable, the EPA is making a finding of 
failure to submit only with respect to those specific elements for 
which the

[[Page 55579]]

state did not make a complete submission. These findings establish a 
24-month deadline for the promulgation by the EPA of a FIP, in 
accordance with section 110(c)(1), unless prior to that time the state 
submits, and EPA approves, a submission from the state to address the 
elements for which the finding of failure to submit applies. These 
findings of failure to submit do not impose sanctions, and do not set 
deadlines for imposing sanctions as described in section 179, because 
these findings do not pertain to the elements of a Title I part D plan 
for nonattainment areas as required under section 110(a)(2)(I), and 
because this action is not a SIP call pursuant to section 110(k)(5). 
The EPA will work with these states and provide assistance as necessary 
to help them develop approvable submittals in a timely manner.
    This action will be effective on October 11, 2011.

Findings of Failure To Submit for States That Failed To Make an 
Infrastructure SIP Submittal in Whole or in Part for the 2006 24 Hour 
PM2.5 NAAQS

Region II
    Puerto Rico failed to submit a SIP to satisfy the requirements of 
section 110(a)(2)(A)-(C), (D)(i)(II) (PSD prong only), (E)-(H) and (J)-
(M).
Region III
    District of Columbia failed to submit a SIP to satisfy the 
requirements of section 110(a)(2)(D)(i)(II) (PSD prong only). Regarding 
this finding, section 110(a)(2)(D)(i)(II) (PSD prong only) is already 
addressed for the District of Columbia through an existing FIP that 
remains in place. Therefore, this action will not trigger any 
additional FIP obligation with respect to these requirements.
Region VII
    Iowa failed to submit a SIP to satisfy the requirements of section 
110(a)(2)(A)-(C), (D)(i)(II) (PSD prong only), (E)-(H) and (J)-(M).
Region VIII
    Montana failed to submit for section 110(a)(2)(D)(i)(II) (PSD prong 
only).
Region IX
    Arizona failed to submit for section 110(a)(2)(G).
    Hawaii failed to submit for section 110(a)(2)(A)-(C), (D)(i)(II) 
(PSD prong only), (E)-(H) and (J)-(M).
Region X
    Alaska failed to submit for section 110(a)(2)(A)-(C), (E)-(H) and 
(J)-(M).
    Washington failed to submit for section 110(a)(2)(A)-(C), 
(D)(i)(II) (PSD prong only), (E)-(H) and (J)-(M).

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory 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 subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden. This 
rule relates to the requirement in the CAA for states to submit SIPs 
under section 110(a) to satisfy certain infrastructure and general 
authority-related elements required under section 110(a)(2) of the CAA 
for the 2006 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 the EPA may provide. The final rule does not establish any 
new information collection requirement apart from that already required 
by law. The OMB control numbers for the EPA's regulations in the CFR 
are listed in 40 CFR Part 9.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any action subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies that 
the action 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 size standards (See 13 CFR 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.
    After considering the economic impacts of this final action on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
relates to the requirement in the CAA for states to submit SIPs under 
section 110(a) to satisfy certain infrastructure and general authority-
related elements required under section 110(a)(2) of the CAA for the 
2006 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 
the EPA may provide.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action contains no federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local, and tribal governments and the private sector. 
The action does not impose any new enforceable duty on any state, local 
or private sector. Therefore, this action is not subject to the 
requirements of section 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 relates 
to the requirement in the CAA for states to submit SIPs under section 
110(a) to satisfy certain infrastructure and general authority-related 
elements required under section 110(a)(2) of the CAA for the 2006 
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 
the EPA may provide.

E. 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 Executive Order 13132. The CAA establishes the scheme 
whereby states take the lead in developing plans to meet the NAAQS. 
This action will not

[[Page 55580]]

modify the relationship of the states and the EPA for purposes of 
developing programs to implement the NAAQS. Thus, Executive Order 13132 
does not apply to this action.

F. 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). 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 
PM2.5 NAAQS. 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 Tribal Air Rule 
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. Thus, Executive Order 13175 does not apply to 
this action.

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

    The EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is making 
findings concerning whether or not each state has submitted a complete 
SIP that provides the basic program elements specified in CAA section 
110(a)(2) necessary to implement the 2006 PM2.5 NAAQS. The 
findings of failure to submit for all or a portion of states' SIP 
establish a 24-month deadline for the EPA to promulgate FIPs to address 
the outstanding SIP elements unless, prior to that time, the affected 
states submit, and the EPA approves, the required SIPs.

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

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (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. At the time of proposal of the 
implementation rule for the 1997 PM2.5 standard, information 
on the methodology and data regarding the assessment of potential 
energy impacts regarding implementation of the 2006 PM2.5 
standard was not addressed because the PM2.5 NAAQS is not a 
significant energy action. This is based on the fact that no impacts 
are specifically ascribed to the standard only. Potential energy 
impacts are ascribed during the implementation phase by the states. An 
energy impact analysis, as part of a regulatory impact analysis or 
other assessment for the PM2.5 NAAQS rule, was prepared by 
the Office of Air Quality Planning and Standards, Research Triangle 
Park, NC, April 24, 2003. [October 17, 2006 (71 FR 60853)]

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) 
directs the 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 technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by VCS bodies. The 
NTTAA directs the 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, the 
EPA did not consider the use of any VCS.

J. 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.
    The EPA has determined that this final action 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 is making a finding concerning whether each 
state has submitted or failed to submit a complete SIP that provides 
the basic program elements of section 110(a)(2) necessary to implement 
the 2006 PM2.5 NAAQS.

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 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. 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 action will be effective October 11, 2011.

L. 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 the 
final action is published in the Federal Register. Filing a petition 
for review 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 final, and shall not postpone the effectiveness of such action.
    Thus, any petitions for review of this action related to findings 
of failure to submit related to the requirements of section 110(a) to 
satisfy certain elements required under section 110(a)(2) of the CAA 
for the 2006 PM2.5 NAAQS 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

    Approval and promulgation of implementation plans, Environmental 
protection, Administrative practice and procedures, Air pollution 
control, Incorporation by reference, Intergovernmental relations, and 
Reporting and recordkeeping requirements.


[[Page 55581]]


    Dated: August 31, 2011.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2011-22838 Filed 9-7-11; 8:45 am]
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