[Federal Register Volume 80, Number 133 (Monday, July 13, 2015)]
[Rules and Regulations]
[Pages 39961-39966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16922]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2012-0943, FRL-9930-25-OAR]


Findings of Failure To Submit a Section 110 State Implementation 
Plan for Interstate Transport for the 2008 National Ambient Air Quality 
Standards for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action finding that 24 states have failed to submit infrastructure 
State Implementation Plans (SIPs) to satisfy certain interstate 
transport requirements of the Clean Air Act (CAA) with respect to the 
2008 8-hour ozone national ambient air quality standard (NAAQS). 
Specifically, these requirements pertain to significant contribution to 
nonattainment, or interference with maintenance, of the 2008 8-hour 
ozone NAAQS in other states. These findings of failure to submit 
establish a 2-year deadline for the EPA to promulgate a Federal 
Implementation Plan (FIP) to address the interstate transport SIP 
requirements pertaining to significant

[[Page 39962]]

contribution to nonattainment and interference with maintenance unless, 
prior to the EPA promulgating a FIP, the state submits, and the EPA 
approves, a SIP that meets these requirements.

DATES: Effective date of this action is August 12, 2015.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
document should be addressed to Mrs. Gobeail McKinley, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mail Code 
C539-04, 109 TW Alexander Drive, Research Triangle Park, NC 27711; 
telephone (919) 541-5246; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Notice and Comment Under the Administrative Procedures Act (APA)

    Section 553 of the APA, 5 U.S.C. 553(b)(3)(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. Thus, notice and public procedure are 
unnecessary. The EPA finds that this constitutes good cause under 5 
U.S.C. 553(b)(3)(B).

B. How can I get copies of this document and other related information?

    The EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2012-0943. Publicly available docket materials are 
available either electronically through https://www.regulations.gov or 
in hard copy at the EPA Docket Center, EPA/DC, William Jefferson 
Clinton West Building, Room 3334, 1301 Constitution Avenue NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744 and the telephone 
number for the Office of Air and Radiation Docket and Information 
Center is (202) 566-1742.

C. How is the preamble organized?

Table of Contents

I. General Information
    A. Notice and Comment Under the Administrative Procedures Act 
(APA)
    B. How can I get copies of this document and other related 
information?
    C. How is the preamble organized?
    D. Where do I go if I have specific state questions?
II. Background and Overview
    A. Interstate Transport SIPs
    B. Background on 2008 Ozone NAAQS and Related Rulemakings
    C. Mandatory Duty Suit for the EPA's Failure to Make Findings of 
Failure to Submit for States that Did Not Submit SIPs
    D. Further Background Specific to North Carolina SIP Status
III. Findings of Failure to Submit for States That Failed to Make a 
Good Neighbor SIP Submission for the 2008 Ozone NAAQS
IV. Environmental Justice Considerations
V. 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 (RFA)
    D. Unfunded Mandates Reform Act of 1995 (UMRA)
    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. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority and Low Income Populations
    K. Congressional Review Act
    L. Judicial Review

D. Where do I go if I have specific state questions?

    The table below lists the states that failed to make an interstate 
transport SIP submittal addressing CAA section 110(a)(2)(D)(i)(I) 
requirements for the 2008 ozone NAAQS. For questions related to 
specific states mentioned in this document, please contact the 
appropriate EPA Regional Office:

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            Regional offices                          States
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EPA Region 1: Anne Arnold, Manager, Air  Maine, Massachusetts, New
 Quality Planning Unit (OEP05-02), EPA    Hampshire, Vermont
 Region I, 5 Post Office Square, Suite
 100, Boston, MA 02109-3912. (617) 918-
 1047.
EPA Region 3: Cristina Fernandez,        Pennsylvania, Virginia, West
 Associate Director, Office of Air        Virginia
 Program Planning (3AP30), Air
 Protection Division, EPA Region III,
 1650 Arch Street, Philadelphia, PA
 19103-2187. (215) 814-2178.
EPA Region 4: R. Scott Davis, Chief,     Alabama, Florida, Georgia,
 Air Planning & Implementation Branch,    Mississippi, North Carolina,
 EPA Region IV, Sam Nunn Atlanta          South Carolina, Tennessee
 Federal Center, 61 Forsyth Street SW,
 12th Floor, Atlanta, GA 30303. (404)
 562-9127.
EPA Region 5: John Mooney, Air Program   Illinois, Michigan, Minnesota
 Branch Manager, Air Programs Branch,
 EPA Region 5, 77 West Jackson Street,
 Chicago, IL 60604-3590. (312) 886-6043.
EPA Region 6: Guy Donaldson, Chief, Air  Arkansas, New Mexico, Oklahoma
 Planning Section, EPA Region VI, 1445
 Ross Avenue, Dallas, TX 75202-2733.
 (214) 665-7242.
EPA Region 7: Joshua A. Tapp, Branch     Iowa, Kansas, Missouri
 Chief, Air Planning and Development
 Branch, EPA Region VII, 11201 Renner
 Blvd., Lenexa, KS 66219. (913) 551-
 7606.
EPA Region 9: Matt Lakin, Air Program    California
 Manager, Air Planning Office, EPA
 Region 9, 75 Hawthorne Street, San
 Francisco, CA 94105. (415) 972-3851.
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[[Page 39963]]

II. Background and Overview

A. Interstate Transport SIPs

    The CAA section 110(a) imposes an obligation upon 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 
that NAAQS. Section 110(a)(2) lists specific requirements that states 
must meet in these SIP submissions, as applicable. The EPA refers to 
this type of SIP submission as the ``infrastructure'' SIP because it 
ensures that states can implement, maintain and enforce the air 
standards. 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, also called the ``good 
neighbor'' provisions, are the requirements relevant to this findings 
document.
    Pursuant to CAA section 110(k)(1)(B), the EPA must determine no 
later than 6 months after the date by which a state is required to 
submit a SIP whether a state has made a submission that meets the 
minimum completeness criteria established per section 110(k)(1)(A). The 
EPA refers to the determination that a state has not submitted a SIP 
submission that meets the minimum completeness criteria as a ``finding 
of failure to submit.'' If the EPA finds a state has failed to submit a 
SIP to meet its statutory obligation to address 110(a)(2)(D)(i)(I), 
pursuant to section 110(c)(1) the EPA has not only the authority, but 
the obligation, to promulgate a FIP within 2 years to address the CAA 
requirement. This finding therefore starts a 2-year clock for 
promulgation by the EPA of a FIP, in accordance with CAA section 
110(c)(1), unless prior to such promulgation the state submits, and the 
EPA approves, a submittal from the state to meet the requirements of 
CAA section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS. The EPA 
will work with states subject to these findings of failure to submit 
and provide assistance as necessary to help them develop approvable 
submittals in a timely manner. The EPA notes this action does not start 
a mandatory sanctions clock pursuant to CAA section 179 because this 
finding of failure to submit does not pertain to a part D plan for 
nonattainment areas required under CAA section 110(a)(2)(I) or a SIP 
call pursuant to CAA section 110(k)(5).

B. Background on 2008 Ozone NAAQS and Related Rulemakings

    On March 12, 2008, the EPA strengthened the NAAQS for ozone.\1\ The 
EPA revised the previous 8-hour primary ozone standard of 0.08 parts 
per millions (ppm) to 0.075 ppm. The EPA also revised the secondary 8-
hour standard to the level of 0.075 ppm making it identical to the 
revised primary standard. Infrastructure SIPs addressing the revised 
standard were due March 12, 2011. In September 2009, the EPA announced 
it would reconsider the 2008 8-hour ozone NAAQS.\2\ To reduce the 
workload for states during the interim period of reconsideration, the 
EPA also announced its intention to propose staying implementation of 
the 2008 ozone NAAQS for a number of the requirements. Then, on January 
6, 2010, as part of its voluntary rulemaking on reconsideration, the 
EPA proposed to revise the 2008 NAAQS for ozone from 75 ppb to a level 
within the range of 60 to 70 ppb. See 75 FR 2938 (January 19, 2010). 
The EPA indicated its intent to issue final standards, based upon the 
reconsideration, by summer 2011.
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    \1\ See 73 FR 16436 (March 27, 2008) (National Ambient Air 
Quality Standards for Ozone, Final Rule).
    \2\ The EPA's Fact Sheet, EPA to reconsider Ozone Pollution 
Standards, is available at http://www.epa.gov/groundlevelozone/pdfs/O3_Reconsideration_FACT%20SHEET_091609.pdf.
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    On July 6, 2011, the EPA finalized the Cross-State Air Pollution 
Rule (CSAPR), 76 FR 48208, in response to the remand by the United 
States Court of Appeals for the District of Columbia Circuit (DC 
Circuit) of the EPA's earlier rule, the Clean Air Interstate Rule 
(CAIR).\3\ See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), 
modified by 550 F.3d 1176 (remanding CAIR). CSAPR addresses ozone 
transport with respect to the 1997 ozone NAAQS, but does not address 
the 2008 ozone standard, because the 2008 ozone NAAQS was under 
reconsideration by the EPA during the analytical work for CSAPR.
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    \3\ See 70 FR 25162 (May 12, 2005) (Rule To Reduce Interstate 
Transport of Fine Particulate Matter and Ozone (Clean Air Interstate 
Rule); Revisions to the Acid Rain Program; Revisions to the 
NOX SIP Call, Final Rule).
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    On September 2, 2011, consistent with the direction of the 
President, the Administrator of the Office of Information and 
Regulatory Affairs of the Office of Management and Budget returned the 
draft final 2008 ozone NAAQS rule to the EPA for further 
consideration.\4\ In view of this direction and the timing of the EPA's 
ongoing periodic review of the ozone NAAQS required under CAA section 
109 (as announced on September 29, 2008), the EPA decided to coordinate 
further proceedings on its voluntary rulemaking on reconsideration of 
the 2008 ozone NAAQS with that ongoing periodic review, by deferring 
the completion of its voluntary rulemaking on reconsideration until it 
completed its statutorily-required periodic review.\5\ During this time 
period for renewed implementation of the 2008 ozone standard, however, 
a number of legal developments pertaining to the EPA's promulgation of 
CSAPR created uncertainty over the EPA's statutory interpretation and 
implementation of the ``good neighbor'' requirement as to that 
standard.
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    \4\ See Policy Assessment for the Review of the Ozone National 
Ambient Air Quality Standards, August 2014, pages 1-9. The Policy 
assessment is available at http://www.epa.gov/ttn/naaqs/standards/ozone/data/20140829pa.pdf.
    \5\ Id.
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    On August 21, 2012, the DC Circuit issued a decision in EME Homer 
City Generation, L.P. v. EPA addressing several legal challenges to 
CSAPR and holding, among other things, that states had no obligation to 
submit good neighbor SIPs until the EPA had first quantified each 
state's good neighbor obligation.\6\ Accordingly, under that decision 
the submission deadline for good neighbor SIPs under the CAA would not 
necessarily be tied to the promulgation of a new or revised NAAQS. 
While the EPA disagreed with this interpretation of the statute and 
sought review first with the DC Circuit en banc and then with the 
United States Supreme Court, the EPA complied with the DC Circuit's 
ruling during the pendency of its appeal. In particular, the EPA 
indicated that consistent with the DC Circuit's opinion, it would not 
at that time issue findings that states had failed to submit SIPs 
addressing the good neighbor requirements in CAA section 
110(a)(2)(D)(i)(I).\7\ Moreover, when the EPA made findings that states 
had failed to submit infrastructure SIPs

[[Page 39964]]

addressing the 2008 ozone NAAQS, the EPA explained that it was not 
issuing findings as to the good neighbor requirements in accordance 
with the court's holding in EME Homer City Generation. 78 FR 2882, 2884 
(January 15, 2013) (Findings of Failure To Submit a Complete State 
Implementation Plan for Section 110(a) Pertaining to the 2008 Ozone 
National Ambient Air Quality Standard).
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    \6\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 31 (D.C. 
Cir. 2012).
    \7\ See, e.g., Memorandum from the Office of Air and Radiation 
former Assistant Administrator Gina McCarthy to the EPA Regions, 
``Next Steps for Pending Redesignation Requests and State 
Implementation Plan Actions Affected by the Recent Court Decision 
Vacating the 2011 Cross-State Air Pollution Rule,'' November 19, 
2012; 78 FR 65559 (November 1, 2013) (final action on Florida 
infrastructure SIP submission for 2008 8-hour ozone NAAQS); and 78 
FR 14450 (March 6, 2013) (final action on Tennessee infrastructure 
SIP submissions for 2008 8-hour ozone NAAQS).
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    While the DC Circuit declined to consider the EPA's appeal en 
banc,\8\ on January 23, 2013, the Supreme Court granted the EPA's 
petition for certiorari.\9\ During 2013 and early 2014, as the EPA 
awaited a decision from the Supreme Court, the EPA initiated efforts 
and technical analyses aimed at identifying and quantifying state good 
neighbor obligations for the 2008 ozone NAAQS. As part of this effort, 
the EPA solicited stakeholder input and also provided states with, and 
requested input on, emissions inventories for 2011 and emissions 
inventory projections for 2018.
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    \8\ EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. 
Cir. January 24, 2013), ECF No. 1417012 (denying the EPA's motion 
for rehearing en banc).
    \9\ EPA v. EME Homer City Generation, L.P., 133 S. Ct. 2857 
(2013) (granting the EPA's and other parties' petitions for 
certiorari).
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    On April 29, 2014, the Supreme Court issued a decision reversing 
the DC Circuit's EME Homer City opinion on CSAPR and held, among other 
things, that under the plain language of the CAA, states must submit 
SIPs addressing the good neighbor requirement in CAA section 
110(a)(2)(D)(i)(I) within 3 years of promulgation of a new or revised 
NAAQS, regardless of whether the EPA first provides guidance, technical 
data or rulemaking to quantify the state's obligation. Thus, the 
Supreme Court affirmed that states have an obligation in the first 
instance to address the good neighbor provision after promulgation of a 
new or revised NAAQS, a holding that also applies to states' obligation 
to address interstate transport for CAA section 110(a)(2)(D)(i)(I) for 
the 2008 ozone NAAQS.

C. Mandatory Duty Suit for the EPA's Failure to Make Findings of 
Failure To Submit for States That Did Not Submit SIPs

    On March 15, 2013, several states and the District of Columbia 
filed a complaint challenging the EPA's assertion in the January 15, 
2013 findings of failure to submit for the 2008 ozone NAAQS 
infrastructure SIPs that it did not have the authority to issue 
findings as to the good neighbor provision.\10\ After the Supreme Court 
issued its decision reversing the DC Circuit's vacatur of CSAPR, the 
EPA requested partial vacatur and remand of the January 15, 2013 
portion of the findings that pertained to the good neighbor provision. 
On August 1, 2014, the court granted the EPA's request, vacating the 
EPA's decision not to make findings of failure to submit with respect 
to the good neighbor provision and remanding the findings to the EPA 
for further consideration.
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    \10\ Maryland v. EPA, Case No. 13-1070 (D.C. Cir., filed March 
15, 2013).
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    Shortly thereafter, Sierra Club and WildEarth Guardians filed two 
separate cases alleging that the EPA had not fulfilled its mandatory 
duty to make findings of failure to submit good neighbor SIPs 
addressing interstate transport in CAA section 110(a)(2)(D)(i)(I) with 
respect to the 2008 ozone NAAQS. In the first case, Sierra Club filed a 
complaint in the U.S. District Court for the Northern District of 
California (Northern District of California) on July 15, 2014, seeking 
an order to compel the EPA to make findings of failure to submit with 
respect to the 2008 ozone NAAQS good neighbor SIP for the state of 
Tennessee.\11\ On November 18, 2014, Sierra Club and WildEarth 
Guardians filed another complaint in the same court seeking an order to 
compel the EPA to make findings of failure to submit with respect to 
the 2008 ozone NAAQS good neighbor SIPs for the following states: 
Arkansas, California, Connecticut, Georgia, Iowa, Illinois, Kansas, 
Massachusetts, Maine, Michigan, Minnesota, Missouri, New Hampshire, New 
Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Virginia, 
Washington and West Virginia.\12\ On January 15, 2015, the plaintiffs 
amended their complaint in the second case to add Alabama, Florida, 
North Carolina and Mississippi. On May 15, 2015, the court entered 
judgment ordering the EPA to, by June 30, 2015, sign a notice issuing 
its findings of failure to submit with respect to the 2008 ozone NAAQS 
interstate transport SIPs for the 26 states addressed in both 
cases.\13\
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    \11\ Complaint, Sierra Club vs. McCarthy, Case 4:14-cv-3198-JSW 
(N.D. Cal. July 15, 2014). The complaint also included a separate 
claim regarding the EPA's alleged failure to take final action to 
approve or disapprove infrastructure SIPs as to a number of states.
    \12\ Complaint, Sierra Club vs. McCarthy, Case 4:14-cv-05091-YGR 
(N.D. Cal. November. 18, 2014).
    \13\ See Judgment, Sierra Club v. McCarthy, Case 4:14-cv-05091-
YGR (N.D. Cal. May 15, 2015).
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    The EPA recognizes the practical and legal uncertainty that has 
surrounded the 2008 ozone NAAQS and the proper interpretation of the 
good neighbor provision. States were given the impression that if the 
NAAQS were revised as a result of the reconsideration, the 3-year SIP 
deadline would reset. The EPA also recognizes that this uncertainty may 
have influenced states' efforts to develop SIPs to address CAA section 
110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS. Given that 
the NAAQS have not been revised and the United States Supreme Court 
overturned the DC Circuit opinion on CSAPR, March 12, 2011, remains the 
legally applicable deadline for good neighbor SIPs for the 2008 8-hour 
ozone NAAQS.
    In response to the orders from the DC Circuit and the Northern 
District of California, the EPA is taking this action for all states 
that have failed to submit complete SIPs addressing CAA section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. To date, 26 states, the 
District of Columbia and Puerto Rico have submitted complete SIPs 
addressing CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. 
Three states specifically identified in the Northern District of 
California's order have made complete submissions as of the date of 
this document. Therefore, the EPA is issuing national findings of 
failure to submit good neighbor SIPs addressing the requirements of CAA 
sections 110(a)(2)(D)(i)(I) as to the 2008 ozone NAAQS, addressing all 
states that have not made complete submissions as to the date of this 
document.

D. Further Background Specific to North Carolina SIP Status

    On November 12, 2012, the state of North Carolina submitted a SIP 
revision to the EPA addressing, among other things, the good neighbor 
provision of CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. 
The submission was determined to be complete by a letter dated November 
15, 2012. On July 15, 2014, Sierra Club filed a complaint in the 
Northern District of California alleging that the EPA had failed to 
take final action on the North Carolina SIP submission, including the 
interstate transport provisions, by the statutory deadline and asked 
the court to order the EPA to take such final action by a date 
certain.\14\ Subsequently, on September 3, 2014, the state of North 
Carolina submitted a letter withdrawing the good neighbor provision of 
the November 12, 2012, infrastructure SIP submission addressing CAA 
section

[[Page 39965]]

110(a)(2)(D)(i)(I).\15\ In reliance on the withdrawal, Sierra Club 
filed an amended complaint on December 12, 2014, that revised its claim 
to remove the allegation that the EPA had failed to act the good 
neighbor provision of North Carolina's SIP.\16\ The parties to the 
litigation subsequently entered into a consent decree that settled the 
remaining claim as to North Carolina.\17\ In further reliance on the 
withdrawal, Sierra Club and WildEarth Guardians also filed an amended 
complaint in case number 4:14-cv-05091, discussed above, alleging that 
the EPA had failed to make a finding of failure to submit as to North 
Carolina's good neighbor SIP for the 2008 ozone NAAQS.\18\
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    \14\ Complaint, Sierra Club v. McCarthy, Case 4:14-cv-03198-JSW, 
(N.D. Cal. July 15, 2014).
    \15\ See, Letter from Sheila Holman, Director, Division of Air 
Quality, NCDENR, to Heather McTeer Toney, Regional Administrator, 
USEPA Region 4, ``Withdrawal of Section 110(a)(2)(D)(i)(I) from 
North Carolina's 2008 Ozone Infrastructure State Implementation Plan 
Submittal'' (September 3, 2014).
    \16\ First Amended Complaint, Sierra Club v. McCarthy, Case 
4:14-cv-03198-JSW, (N.D. Cal. December 12, 2014).
    \17\ See Judgment, Sierra Club v. McCarthy, Case 4:14-cv-03198-
JSW, (N.D. Cal. May 15, 2015).
    \18\ See Amended Complaint, Sierra Club v. McCarthy, Case No. 
4:14-cv-05091 (N.D. Cal. Jan. 15, 2015).
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    On June 26, 2015, North Carolina submitted a letter indicating that 
it wished to ``rescind'' its September 3, 2014 withdrawal of its good 
neighbor SIP to address the 2008 ozone NAAQS.\19\ The letter explained 
that the November 12, 2012 submittal did not include modeling and that 
preliminary air quality modeling released by the EPA on January 22, 
2015, supported its interstate transport SIP. The letter also explained 
that, based on this modeling, the state concluded ``it has met its 
obligations under CAA section 110(a)(1) and (2)(D) related to 
interstate transport . . . and therefore, does not expect'' to be 
subject to this document finding certain states' failure to submit 
interstate transport SIPs for the 2008 ozone NAAQS.
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    \19\ See Letter from Sheila C. Holman, NCDENR, to Heather McTeer 
Toney, USEPA Region 4, ``Recession [sic] of North Carolina's 
September 3, 2014, Withdrawal of 2008 Ozone Infrastructure State 
Implementation Plan Certification Pertaining to Interstate Transport 
(Section 110(a)(2)(D)(i)(I))'' (June 26, 2015).
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    On June 30, 2015, the EPA responded to North Carolina's June 26, 
2015 letter.\20\ Because the EPA determined that it was not appropriate 
to rescind North Carolina's prior withdrawal of its November 12, 2012 
SIP submission, and because the June 25, 2015, letter relies on new 
information and analysis to support the state's conclusion regarding 
its statutory interstate transport obligations that was not contained 
in its November 12, 2012, SIP submission (i.e., the preliminary air 
quality modeling released by the EPA on January 22, 2015), the EPA 
views the June 26, 2015 letter as a new SIP submission. Accordingly, 
the EPA has evaluated the June 26, 2015 letter for completeness as a 
SIP revision pursuant to the criteria in 40 CFR part 51, appendix V, 
and concluded that the June 26, 2015, letter is an incomplete SIP 
submission. The incompleteness letter notes that North Carolina's June 
26, 2015, letter contains new information and analysis upon which North 
Carolina now relies to support its conclusions regarding the state's 
statutory obligations to address interstate transport, in particular 
the EPA's air quality modeling, and that neither the new information 
nor North Carolina's conclusions relying upon that information were 
subject to public notice and comment per criteria 2.1(f)-(h) of 
appendix V. Accordingly, the EPA is finding in this document that North 
Carolina has failed to submit a complete SIP revision addressing CAA 
section 110(a)(2)(D)(i)(I) as to the 2008 ozone NAAQS.
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    \20\ See Letter from Beverly H. Banister, USEPA Region 4, to 
Sheila Holman, NCDENR, ``Response to North Carolina's June 26, 2015 
Letter Seeking to Rescind the September 3, 2014 Withdrawal of the 
2008 Ozone Infrastructure State Implementation Plan Certification 
Regarding Interstate Transport'' (June 30, 2015).
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III. Findings of Failure To Submit for States That Failed To Make a 
Good Neighbor SIP Submission for the 2008 Ozone NAAQS

    Three states (i.e., Connecticut, Rhode Island and Washington) 
addressed by the Northern District of California's order have made 
complete SIP submittals addressing the good neighbor provision for the 
2008 ozone NAAQS. Hawaii was not addressed by the Northern District of 
California's order and the state has submitted a complete SIP submittal 
addressing the good neighbor provision for the 2008 ozone NAAQS. The 
EPA is making findings of failure to submit for 24 states. The EPA is 
finding that the following states have not made a complete good 
neighbor SIP submittal to meet the requirements of CAA section 
110(a)(2)(D)(i)(I): Alabama, Arkansas, California, Florida, Georgia, 
Iowa, Illinois, Kansas, Massachusetts, Maine, Michigan, Minnesota, 
Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, 
Oklahoma, Pennsylvania, South Carolina, Tennessee, Vermont,\21\ 
Virginia and West Virginia.
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    \21\ We are making a finding for the state of Vermont even 
though the state was not addressed by the Northern District of 
California's order. In fairness and to fulfill its statutory 
obligations, the EPA is addressing all states that have not made a 
submittal in this findings document.
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IV. Environmental Justice Considerations

    This document is making a procedural finding that certain states 
have failed to submit a SIP to address CAA section 110(a)(2)(D)(i)(I) 
for the 2008 ozone NAAQS. The EPA did not conduct an environmental 
analysis for this rule because this rule would not directly affect the 
air emissions of particular sources. Because this rule will not 
directly affect the air emissions of particular sources, it does not 
affect the level of protection provided to human health or the 
environment. Therefore, this action will not have potential 
disproportionately high and adverse human health or environmental 
effects on minority, low-income or indigenous populations.

V. 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 and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    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.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
This rule is not subject to notice and comment requirements because the 
agency has invoked the APA ``good cause'' exemption under 5 U.S.C. 
553(b).

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action implements mandates specifically and 
explicitly set forth in the CAA under section 110(a) without the 
exercise of any policy discretion by the EPA.

[[Page 39966]]

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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This rule responds to the requirement in the CAA 
for states to submit SIPs under section 110(a) to address CAA section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. No tribe is subject to the 
requirement to submit an implementation plan under section 110(a) 
within 3 years of promulgation of a new or revised NAAQS. 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 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations because it does not affect the level of 
protection provided to human health or the environment. The EPA's 
evaluation of environmental justice considerations is contained in 
section IV of this document.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. Judicial Review

    Section 307(b)(l) of the CAA indicates which federal Courts of 
Appeal have venue for petitions of review of final agency actions by 
the EPA under the CAA. 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 agency 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 EPA has determined that this final rule consisting of findings 
of failure to submit certain of the required good neighbor SIP 
provisions is ``nationally applicable'' within the meaning of section 
307(b)(1). This rule affects 24 states across the country that are 
located in seven of the ten EPA Regions, 10 different federal circuits, 
and multiple time zones.
    This determination is appropriate because, in the 1977 CAA 
Amendments that revised CAA section 307(b)(l), 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 action extends to the 10 judicial circuits that include the 
states across the country affected by this action. In these 
circumstances, section 307(b)(1) and its legislative history authorize 
the Administrator to find the rule to be of ``nationwide scope or 
effect'' and thus to indicate that venue for challenges lies in the DC 
Circuit. Accordingly, the EPA is determining that this is a rule of 
nationwide scope or effect. 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 within 60 
days from the date this 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 the action for the 
purposes of judicial review nor does it extend the time within which a 
petition for judicial review must be filed, and shall not postpone the 
effectiveness of such rule or action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements.

    Dated: June 30, 2015.
Janet G. McCabe,
Acting Assistant Administrator.
[FR Doc. 2015-16922 Filed 7-10-15; 8:45 am]
 BILLING CODE 6560-50-P