[Federal Register Volume 79, Number 206 (Friday, October 24, 2014)]
[Rules and Regulations]
[Pages 63536-63539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25279]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2014-0646; FRL-9918-38-Region 9]


Findings of Failure To Submit State Implementation Plan; 
California; Interstate Transport Requirements for 2006 24-Hour Fine 
Particulate Matter (PM2.5) National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is making a 
finding that California has not submitted a State Implementation Plan 
(SIP) revision for the Clean Air Act (CAA or Act) provisions that 
require the SIP to contain adequate provisions to address the transport 
of air pollution to other states. Specifically, these requirements 
pertain to significant contribution to nonattainment, or interference 
with maintenance, of the 2006 24-hour fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS) in 
any other state. EPA refers to such submittals as ``interstate 
transport'' SIPs and often refers to the specific requirements 
addressed in this final rule as ``prongs 1 and 2'' since they address 
the first two of several interstate transport requirements. This 
finding of failure to submit establishes a deadline of 24 months after 
the effective date of this final rule for EPA to promulgate a Federal 
Implementation Plan (FIP) to address these two interstate transport 
requirements for California for the 2006 24-hour PM2.5 NAAQS 
unless, prior to that time, the state submits, and EPA approves, a 
submittal that meets these requirements.

DATES: Effective Date: This final rule is effective on November 24, 
2014.

ADDRESSES: EPA has established a docket for this action, identified by 
Docket ID Number EPA-R09-OAR-2014-0646. The index to the docket for 
this action is available electronically at http://www.regulations.gov 
and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, 
California. While all documents in the docket are listed in the index, 
some information may be publicly available only at the hard copy 
location (e.g., copyrighted material), and some may not be publicly 
available in either location (e.g., confidential business information 
(CBI)). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed 
directly below.

FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), EPA Region IX, (415) 972-3227, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to EPA.
    Section 553 of the Administrative Procedures Act, 5 United States 
Code (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. EPA has 
determined that there is good cause for making this rule final without 
prior proposal and opportunity for

[[Page 63537]]

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 submittals, or incomplete submittals, to 
meet the requirement by the statutory date. Thus, notice and public 
procedure are unnecessary. EPA finds that this constitutes good cause 
under 5 U.S.C. 553(b)(B).

Table of Contents

I. Background
II. Final Action
III. Statutory and Executive Order Reviews

I. Background

    CAA section 110(a)(1) requires states to submit SIP revisions that 
provide for the implementation, maintenance, and enforcement of a new 
or revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a)(2) sets the content requirements of such a plan, which generally 
relate to the information and authorities, compliance assurances, 
procedural requirements, and control measures that constitute the 
``infrastructure'' of a state's air quality management program. A SIP 
revision addressing these requirements is referred to as an 
``infrastructure SIP.'' Within these requirements, section 
110(a)(2)(D)(i) contains requirements to address interstate transport 
of NAAQS pollutants. A SIP revision submitted for this sub-section is 
referred to as an ``interstate transport SIP.'' In turn, section 
110(a)(2)(D)(i)(I) requires that such a plan contain adequate 
provisions to prohibit emissions from the state that will contribute 
significantly to nonattainment of the NAAQS in any other state (``prong 
1'') or interfere with maintenance of the NAAQS in any other state 
(``prong 2''). Interstate transport prongs 1 and 2 are the SIP content 
requirements relevant to this findings notice.
    On September 21, 2006, EPA promulgated a final rule revising the 
existing 1997 24-hour PM2.5 NAAQS from 65 micrograms per 
cubic meter ([micro]g/m\3\) to 35 [micro]g/m\3\ and retained the 1997 
annual PM2.5 NAAQS of 15 [micro]g/m\3\.\1\ This set an 
infrastructure SIP submittal deadline of September 21, 2009 for the 
2006 PM2.5 NAAQS, including the interstate transport 
requirements. EPA issued guidance for satisfying the interstate 
transport requirements for the 2006 24-hour PM2.5 NAAQS on 
September 25, 2009 (``EPA's 2009 Guidance''), including guidance on 
interstate transport prongs 1 and 2.\2\
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    \1\ 71 FR 61144, October 17, 2006. Note that only new or revised 
standards trigger the requirement for states to submit 
infrastructure SIPs and interstate transport SIPs, pursuant to CAA 
section 110(a)(1), while retained standards, such as the 2006 annual 
PM2.5 NAAQS, do not trigger that requirement.
    \2\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, OAQPS, ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particulate 
Matter National Ambient Air Quality Standards,'' September 25, 2009, 
pp. 3-4.
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    Prior to issuance of this guidance, California Air Resources Board 
(ARB) submitted an infrastructure SIP certification letter for the 2006 
PM2.5 NAAQS on July 7, 2009 (``2009 Submittal'').\3\ This 
submittal referred to an interim draft of EPA's 2009 Guidance and 
largely relied on California's earlier infrastructure SIP submittal of 
November 16, 2007 for the 1997 PM2.5 NAAQS, including 
reliance on that earlier submittal's response to the requirements for 
interstate transport prongs 1 and 2. On the basis of California's 2009 
Submittal, California was not included in EPA's 2010 notice that made 
findings of failure to submit SIP revisions for such requirements for 
the 2006 24-hour PM2.5 NAAQS for 29 states and 
territories.\4\
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    \3\ Letter from Lynn Terry, Deputy Executive Officer, California 
Air Resources Board to Laura Yoshii, Acting Regional Administrator, 
U.S. EPA Region IX, July 7, 2009.
    \4\ 75 FR 32673, June 9, 2010.
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    Sierra Club sued EPA on December 21, 2012, alleging that EPA had 
failed to take action on infrastructure SIP submittals for the 2006 
PM2.5 NAAQS from several states, including California.\5\ In 
the same filing, Sierra Club also alleged that EPA had failed to 
promulgate FIPs for several other states addressing CAA section 
110(a)(2)(D)(i)(I) (i.e., interstate transport prongs 1 and 2) for the 
2006 PM2.5 NAAQS. That lawsuit was stayed by the U.S. 
District Court for the Northern District of California on March 29, 
2013 as it related to on-going litigation in EME Homer City v. EPA 
(pertaining to EPA's Cross State Air Pollution Rule (CSAPR), which EPA 
promulgated to address interstate transport prongs 1 and 2 in the 
eastern portion of the U.S.).\6\
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    \5\ Sierra Club v. EPA, No. 12-6472, U.S. District Court for the 
Northern District of California, December 21, 2012.
    \6\ EME Homer City Generation, L.P. v. EPA, No. 11-1302, U.S. 
Court of Appeals for the D.C. Circuit Court, August 21, 2012.
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    On March 6, 2014, California submitted a multi-pollutant 
infrastructure SIP revision for several NAAQS (``2014 Submittal'') that 
includes a SIP revision for the 2006 PM2.5 NAAQS, except for 
the requirements of CAA section 110(a)(2)(D)(i)(I).\7\ With respect to 
interstate transport prongs 1 and 2, the submittal stated that 
California was not addressing these requirements pursuant to the U.S. 
Court of Appeals for the D.C. Circuit Court ruling in EME Homer City v. 
EPA, which ARB read as concluding that ``states do not need to address 
Prong 1 and Prong 2 until U.S. EPA quantifies each state's transport 
obligation.'' \8\ Shortly thereafter, the U.S. Supreme Court reversed 
this part of the judgment of the U.S. Court of Appeals for the D.C. 
Circuit Court.\9\ Thus, California's submittal of an interstate 
transport SIP for prongs 1 and 2 for the 2006 24-hour PM2.5 
NAAQS, or any other NAAQS, is not contingent on EPA first defining 
California's CAA section 110(a)(2)(D)(i)(I) obligations for the 2006 
PM2.5 NAAQS.
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    \7\ ``California Infrastructure SIP,'' March 6, 2014, p. 1.
    \8\ 2014 Submittal, p. 18.
    \9\ EME Homer City Generation, L.P. v. EPA, No. 12-1182, U.S. 
Supreme Court, certiorari to the U.S. Court of Appeals for the D.C. 
Circuit, April 29, 2014.
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    On July 18, 2014, California withdrew its 2009 Submittal, stating 
that ARB would submit a SIP revision to address the outstanding 
requirements.\10\ The effect of this withdrawal letter is that 
California does not have an approved or pending submittal addressing 
the interstate transport prongs for the 2006 PM2.5 NAAQS. We 
must therefore make a finding that California has failed to submit a 
SIP revision to address the requirements of interstate transport prongs 
1 and 2 by the applicable deadline of September 21, 2009.
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    \10\ Letter from Lynn Terry, Deputy Executive Officer, 
California Air Resources Board to Jared Blumenfeld, Regional 
Administrator, U.S. EPA Region IX, July 18, 2014.
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II. Final Action

    This action reflects EPA's determination with respect to the 
requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour 
PM2.5 NAAQS for California only, as discussed in section I 
of this findings notice. EPA is making a finding of failure to submit 
for California for the interstate transport requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. This 
finding establishes a deadline of 24 months after the effective date of 
this final rule for EPA to promulgate a FIP, in accordance with section 
110(c)(1), unless prior to that time California submits, and EPA 
approves, a submittal that addresses these interstate transport 
requirements. This finding of failure to submit does not impose 
sanctions, and does not set deadlines for imposing sanctions as 
described in section 179,

[[Page 63538]]

because it does not pertain to the elements of a CAA 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).

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 requirements pertaining to 
interstate transport of air pollution 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 satisfy the requirements of section 
110(a)(2), including the interstate transport requirements of section 
110(a)(2)(D)(i)(I), within 3 years of promulgation of such standard, or 
shorter period as EPA may provide. This final rule does not establish 
any new information collection requirement apart from that already 
required by law. The OMB control numbers for 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.
    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 requirements pertaining to interstate 
transport of air pollution 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 satisfy the requirements of section 110(a)(2), 
including the interstate transport requirements of section 
110(a)(2)(D)(i)(I), within 3 years of promulgation of such standard, or 
shorter period as 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 requirements pertaining to interstate 
transport of air pollution 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 satisfy the requirements of section 110(a)(2), 
including the interstate transport requirements of section 
110(a)(2)(D)(i)(I), within 3 years of promulgation of such standard, or 
shorter period as 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 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.

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

    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 a 
finding as to whether or not California has submitted a complete SIP 
for the interstate transport requirements specified in CAA section 
110(a)(2)(D)(i)(I) necessary to implement the 2006 PM2.5 
NAAQS. This finding of failure to submit for these interstate transport 
requirements establishes a deadline of 24 months after the effective 
date of this final rule for EPA to a promulgate FIP to address the 
outstanding SIP elements unless, prior to that time, California 
submits, and EPA approves, the required SIP.

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,

[[Page 63539]]

distribution, or use of energy. At the time of proposal of the 
implementation rule for the prior 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 2006 
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. (71 
FR 60853, October 17, 2006)

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 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 EPA to provide Congress, through OMB, explanations when 
the Agency decides not to use available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

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.
    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 
California has submitted or failed to submit a complete SIP for the 
interstate transport requirements specified in CAA section 
110(a)(2)(D)(i)(I) 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. 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 November 24, 2014.

L. 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 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.''
    The Administrator is determining that 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 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 finding of failure to submit a SIP applies to a 
rulemaking of national scope and effect. 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 finding 
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

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

    Dated: September 29, 2014.
Jared Blumenfeld,
Regional Administrator, U.S. EPA, Region IX.
[FR Doc. 2014-25279 Filed 10-23-14; 8:45 am]
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