[Federal Register Volume 79, Number 169 (Tuesday, September 2, 2014)]
[Rules and Regulations]
[Pages 51913-51916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20691]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2014-0589; FRL-9916-04-Region-9]
Finding of Failure To Submit a Prevention of Significant
Deterioration State Implementation Plan Revision for Particulate Matter
Less Than 2.5 Micrometers (PM2.5); California; North Coast
Air Quality Management District
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finding that the
North Coast Air Quality Management District (NCAQMD or District),
located in California, has not made a necessary Prevention of
Significant Deterioration (PSD) State Implementation Plan (SIP)
submission to address the PSD permitting of PM2.5 emissions,
as required by the Clean Air Act (CAA). Specifically, the EPA is
determining that NCAQMD has not submitted a SIP revision to address the
PM2.5 PSD increments and implementing regulations as
promulgated by EPA on October 20, 2010. The deadline for the District
to make the required submittal was July 20, 2012. The CAA requires EPA
to promulgate a Federal Implementation Plan (FIP) to address the
outstanding PSD SIP elements by no later than 24 months after the
effective date of this finding. EPA is making this finding in
accordance with section 110 and part C of the CAA.
DATES: The effective date of this rule is October 2, 2014.
FOR FURTHER INFORMATION CONTACT: Laura Yannayon, Air Division (Air-3),
Environmental Protection Agency, Region 9, 75 Hawthorne St, San
Francisco, CA 94105. By phone at (415) 972-3534 or by email at
[email protected].
SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures
Act (APA), 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 to meet the requirement. No additional fact
gathering is necessary. Thus, notice and public procedure are
unnecessary. Furthermore, providing notice and comment would be
impracticable because of the limited time provided under the CAA for
making such determinations. 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. Finally, notice and comment would be
contrary to the public interest because it would divert Agency
resources from the critical substantive review of submitted SIPs. See
58 FR 51270, 51272, note 17 (October 1, 1993); 59 FR 39832, 39853
(August 4, 1994). The EPA finds that these constitute good cause under
5 U.S.C. 553(b)(B).
Throughout this document wherever ``we,'' ``us,'' or ``our'' is
used, we mean the EPA.
Table of Contents
I. Background and Overview
A. Overview of Relevant PM NAAQS Requirements
B. Revisions to the PSD Program to Implement the PM NAAQS
II. Finding of Failure to Submit
III. Statutory and Executive Order Reviews
I. Background and Overview
A. Overview of Relevant PM NAAQS Requirements
The EPA initially established National Ambient Air Quality
Standards (NAAQS) for particulate matter (PM) under section 109 of the
CAA in 1971. Since then, the EPA has made a number of changes to these
standards to reflect continually expanding scientific information. The
history of the PM2.5 NAAQS is briefly summarized below.
In July 1997, new PM NAAQS were added, using
PM2.5 as the indicator for fine particles. The EPA's
PM10 standards were retained for the purpose of regulating
the coarse fraction of PM10. The EPA established two new
PM2.5 standards: an annual standard of 15 [mu]g/m\3\, based
on the 3-year average of annual arithmetic mean PM2.5
concentrations from single or multiple monitors sited to represented
community-wide air quality and a 24-hour standard of 65 [mu]g/m\3\,
based on the 3-year average of the 98th percentile of 24-hour
PM2.5 concentrations at each population-oriented monitor
within the area.
On October 17, 2006, the EPA promulgated revisions to the
NAAQS for PM2.5 and PM10 with an effective date
of December 18, 2006 (71 FR 61144). We lowered the 24-hour NAAQS for
PM2.5 from 65 [mu]g/m\3\ to 35 [mu]g/m\3\, and retained the
existing annual PM2.5 NAAQS of 15 [mu]g/m\3\. In addition,
we retained the existing PM10 24-hour NAAQS of 150 mg/m\3\,
and revoked the annual PM10 NAAQS (set at 50 mg/m\3\).
On January 15, 2013, the EPA promulgated revisions to the
NAAQS for PM2.5 and PM10 with an effective date
of March 18, 2013 (78 FR 3086). We lowered the annual standard for
PM2.5 to 12 [mu]g/m\3\ and retained the 24-hour
PM2.5 standard at the level of 35 [mu]g/m\3\. For
PM10, the EPA retained the current 24-hour PM10
primary and secondary standards.
B. Revisions to the PSD Program to Implement the PM2.5 NAAQS
To implement the PM2.5 NAAQS for PSD purposes, EPA
issued two separate final rules that establish the New Source Review
(NSR) permitting requirements for PM2.5: the NSR
PM2.5 Implementation Rule promulgated on May 16, 2008 (73 FR
28321), and the PM2.5 PSD Increments--Significant Impact
Levels (SILs)--Significant
[[Page 51914]]
Monitoring Concentration (SMC) Rule promulgated on October 20, 2010 (75
FR 64864) (PM2.5 PSD Increment--SILs--SMC Rule). This action
focuses solely on the PM2.5 PSD Increment--SILs--SMC Rule.
The PM2.5 PSD Increment--SILs--SMC Rule required states
to submit SIP revisions to EPA by July 20, 2012, adopting provisions
equivalent to or at least as stringent as the PM2.5 PSD
increments and associated implementing regulations. Specifically, the
rule required states to adopt and submit for EPA approval the
PM2.5 increments issued pursuant to section 166(a) of the
CAA to prevent significant deterioration of air quality in areas
meeting the NAAQS. States were also required to adopt and submit for
EPA approval revisions to the definitions for major source baseline
date, minor source baseline date, and baseline area as part of the
implementing regulations for the PM2.5 increment.
The PM2.5 PSD Increment--SILs--SMC Rule also allowed
States to discretionarily adopt and submit for EPA approval: (1) SILs,
which are used as a screening tool to evaluate the impact a proposed
new major source or major modification may have on the NAAQS or PSD
increment; and (2) a SMC (also a screening tool) which is used to
determine the subsequent level of data gathering required for a PSD
permit application for emissions of PM2.5. However, on
January 22, 2013, the U.S. Court of Appeals for the District of
Columbia granted a request from the EPA to vacate and remand portions
of the federal PSD regulations (40 CFR 51.166(k)(2) and 52.21(k)(2))
establishing the SILs for PM2.5 so that the EPA could
reconcile the inconsistency between the regulatory text and certain
statements in the preamble to the 2010 final rule. Sierra Club v. EPA,
705 F.3d 458, 463-64. The Court declined to vacate the portion of the
federal PSD regulations (40 CFR 51.165(b)(2)) establishing SILs for
PM2.5 that did not contain the same inconsistency in the
regulatory text. Id. at 465-66. The Court further vacated the portions
of the PSD regulations (40 CFR 51.166(i)(5)(i)(c) and
52.21(i)(5)(i)(c)) establishing a PM2.5 SMC, finding that
the EPA lacked legal authority to adopt and use the PM2.5
SMC to exempt permit applicants from the statutory requirement to
compile and submit ambient monitoring data. Id. at 468-69. On December
9, 2013, EPA issued a good cause final rule formally removing the
affected SILs and SMC provisions from the CFR. See 78 FR 73698. As
such, SIP submittals should no longer include the vacated
PM2.5 SILs at 40 CFR 51.166(k)(2) and 52.21(k)(2) or the
vacated PM2.5 SMC provisions at 40 CFR 51.166(i)(5)(i)(c)
and 52.21(i)(5)(i)(c) for PM2.5 PSD permitting. EPA notes
that today's finding of failure to submit for the NCAQMD does not
include the SILs or SMC components of the PM2.5 PSD
Increment--SILs--SMC Rule.
II. Finding of Failure To Submit
The EPA is making a finding that the NCAQMD has failed to submit a
required PSD SIP revision to address the implementation and permitting
of PM2.5 emissions in the NCAQMD PSD program. Specifically,
we are finding that NCAQMD failed to submit a SIP revision addressing
the required PM2.5 PSD elements establishing increments and
the implementing regulations by the specified deadline of July 20,
2012, as required by the 2010 PM2.5 PSD Increments--SILs--
SMC Rule. By no later than 24 months after the effective date of this
ruling, the EPA is required by the Act to promulgate a FIP for NCAQMD
to address the PM2.5 PSD requirements for increment. This
finding of failure to submit does not impose sanctions or set deadlines
for imposing sanctions as described in section 179 of the CAA, because
this finding does not pertain to the elements of a part D, title I 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).
This action will be effective on October 2, 2014.
This action does not make a finding of failure to submit for NCAQMD
regarding the required PM2.5 PSD SIP revision due on May 19,
2011, pursuant to the 2008 NSR PM2.5 Implementation Rule,
because NCAQMD submitted a revised PSD rule to address these
requirements on February 28, 2011.
This action will start a FIP clock that will end 24 months from the
effective date of today's finding, and addresses the PSD revisions
required by the 2010 PM2.5 PSD Increments--SILs--SMC Rule.
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 (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under EO 12866 and 13563 (76 FR
3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This final rule does not establish any new information collection
requirement apart from what is already required by law. This rule
relates to the requirement in the CAA for states to submit PSD SIPs
under section 166(b) to satisfy certain prevention of significant
deterioration requirements under the CAA for the PM2.5
NAAQS. Burden means the total time, effort or financial resources
expended by persons to generate, maintain, retain or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install and utilize
technology and systems for the purposes of collecting, validating and
verifying information, processing and maintaining information and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for 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 rule subject to
notice and comment rulemaking requirements under the APA or any other
statute unless the agency 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 rule on small entities, small entity is defined as: (1) A
small business that is a small industry entity as defined in the U.S.
Small Business Administration (SBA) size standards (See 13 CFR 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 is independently owned and operated and is not
dominant in its field.
[[Page 51915]]
After considering the economic impacts of this final rule on small
entities, I certify that this rule will not have a significant economic
impact on a substantial number of small entities. This final rule will
not impose any requirements on small entities. This action relates to
the requirement in the CAA for states to submit PSD SIPs under section
166(b) to satisfy certain prevention of significant deterioration
requirements of the CAA for the PM2.5 NAAQS. Because EPA has
made a ``good cause'' finding that this action is not subject to
notice-and-comment requirements under the APA and any other statute, it
is not subject to the regulatory flexibility provisions of the RFA.
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 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 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 PSD SIPs under section
166(b) to satisfy certain prevention of significant deterioration
requirements under the CAA for the PM2.5 NAAQS. This rule
merely finds that NCAQMD has not met that requirement. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector result from this action.
Additionally, because EPA has made a ``good cause'' that this
action is not subject to notice-and-comment requirements under the APA
or any other statute, it is not subject to sections 202 and 205 of the
UMRA.
E. Executive Order 13132: Federalism
EO 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999),
requires the 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 EO to
include regulations that have ``substantial direct effects on the
states, or the relationship between the national government and the
states or on the distribution of power and responsibilities among the
various levels of government.'' This final rule does not have
federalism implications. It will not have substantial direct effects on
the states, on the relationship between the national government and the
states or on the distribution of power and responsibilities among the
various levels of government, as specified in EO 13132. The CAA
establishes the scheme whereby states take the lead in developing plans
to meet the NAAQS. This rule will not modify the relationship of the
states and the EPA for purposes of developing programs to implement the
NAAQS. Thus, EO 13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
EO 13175, entitled ``Consultation and Coordination with Indian
Tribal Governments'' (65 FR 67249, November 9, 2000), requires the EPA
to develop an accountable process to ensure ``meaningful and timely
input by Tribal officials in the development of regulatory policies
that have Tribal implications.'' This final rule does not have tribal
implications, as specified in EO 13175. This rule responds to the
requirement in the CAA for states to submit PSD SIPs under section
166(b) to satisfy certain prevention of significant deterioration
requirements under the CAA for PM2.5 NAAQS. No tribe is
subject to the requirement to submit an implementation plan under
section 166(b) within 21 months of promulgation of PSD regulations
under section 166(a).
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The 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 it merely finds that NCAQMD has failed to
make a submission that is required under the Act to implement the
PM2.5 NAAQS.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This rule is not a ``significant energy action'' as defined in EO
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.
I. 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, 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
EO 12898 (59 FR 7629, February 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 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 is making a finding that the NCAQMD failed to
submit a SIP revision that provides certain basic permitting
requirements for the 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. EPA will submit a report containing this rule and other
[[Page 51916]]
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.
section 804(2). This rule is effective on October 2, 2014.
L. Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 3, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposed of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental Relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 11, 2014.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2014-20691 Filed 8-29-14; 8:45 am]
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