[Federal Register Volume 81, Number 53 (Friday, March 18, 2016)]
[Rules and Regulations]
[Pages 14736-14739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06063]



[[Page 14736]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[EPA-HQ-OAR-2016-0098; FRL-9943-90-OAR]


Findings of Failure To Submit State Implementation Plans Required 
for Attainment of the 2010 1-Hour Primary Sulfur Dioxide National 
Ambient Air Quality Standard (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking a final 
action to find that several states have failed to submit State 
Implementation Plans (SIPs) to satisfy certain nonattainment area 
planning requirements of the Clean Air Act (CAA) for the 2010 1-Hour 
Primary Sulfur Dioxide (SO2) National Ambient Air Quality 
Standard (NAAQS). The purpose of the development and implementation of 
nonattainment area SIPs is to provide for attainment of the NAAQS as 
expeditiously as practicable following the designation of an area as 
nonattainment. These findings of failure to submit establish certain 
CAA deadlines for the EPA to impose sanctions if a state does not 
submit a SIP addressing those requirements and for the EPA to 
promulgate a Federal Implementation Plan (FIP) to address any 
outstanding SIP requirements.

DATES: The effective date of this action is April 18, 2016.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Dr. Larry D. Wallace, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mail Code: 
C504-2, 109 TW Alexander Drive, Research Triangle Park, NC 27709; by 
telephone (919) 541-0906; or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Notice and Comment Under the Administrative Procedure 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 final agency action 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 procedures 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-2016-0098 for this action. All documents in the docket 
are listed on http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or information whose disclosure is 
restricted by statue. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form through http://www.regulations.gov.

C. Where do I go if I have a specific state question?

    For questions related to specific states mentioned in this notice, 
please contact the appropriate EPA Regional office:

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                    Regional offices                                              States
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EPA Region I: Dave Conroy, Chief, Air Program Branch,    New Hampshire.
 Air Programs Branch, EPA New England, 1 Congress
 Street, Suite 1100, Boston, MA 02203-2211.
EPA Region III: Cristina Fernandez, Associate Director,  Pennsylvania, West Virginia.
 Office of Air Program Planning, EPA Region III, 1650
 Arch Street, Philadelphia, PA 19103-2187.
EPA Region IV: R. Scott Davis, Chief, Air Planning       Tennessee, Kentucky.
 Branch, EPA Region IV, Sam Nunn Federal Center, 61
 Forsyth Street, 12th Floor, Atlanta, GA 30303-8960.
EPA Region V: John Mooney, Chief, Air Programs Branch,   Michigan, Ohio.
 EPA Region V, 77 West Jackson Street, Chicago, IL
 60604.
EPA Region VI: Guy Donaldson, Chief, Air Planning        Louisiana.
 Section, EPA Region VI, 1445 Ross Avenue, Dallas, TX
 75202-2733.
EPA Region VII: Michael Jay, Chief, Air Programs         Iowa.
 Branch, EPA Region 7, 11201 Renner Blvd., Lenexa,
 Kansas 66219.
EPA Region VIII: Monica Morales, Chief, Air Program      Montana.
 Manager, Air Quality Planning Unit, EPA Region VIII
 Air Program, 1595 Wynkoop St. (8P-AR), Denver, CO
 80202-1129.
EPA Region IX: Matt Lakin, Air Planning Office, EPA      Arizona.
 Region 9, 75 Hawthorne Street, San Francisco, CA 94105.
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D. How is the preamble organized?

Table of Contents

I. General Information
    A. Notice and Comment Under the Administrative Procedure Act 
(APA)
    B. How can I get copies of this document and other related 
information?
    C. Where do I go if I have specific state questions?
    D. How is the preamble organized?
II. Background
III. Consequences of Findings of Failure To Submit
IV. Findings of Failure To Submit for States That Failed To Make a 
Nonattainment Area SIP Submittal
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Executive 
Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    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 (CRA)
    L. Judicial Review

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II. Background

    In June 2010, the EPA promulgated a new 1-hour primary 
SO2 NAAQS of 75 parts per billion (ppb), which is met when 
the 3-year average of the annual 99th percentile of 1-hour daily 
maximum concentrations does not exceed 75 ppb, as determined in 
accordance with Appendix T of 40 Code of Federal Regulations (CFR) part 
50. See 40 CFR 50.17(a)-(b). On August 5, 2013, the EPA, as part of a 
first round of area designations, initially designated 29 areas in 16 
states as nonattainment for the 2010 SO2 NAAQS. 78 FR 47191, 
codified at 40 CFR part 81, subpart C. These initial area designations 
had an effective date of October 4, 2013.
    Areas designated nonattainment for the SO2 NAAQS are 
subject to the general nonattainment area planning requirements of CAA 
section 172 and to the SO2-specific planning requirements of 
subpart 5 of part D of Title I of the CAA (sections 191 and 192). All 
components of the SO2 part D nonattainment area SIP, 
including the emissions inventory, attainment demonstration, reasonably 
available control measures (RACM) and reasonably available control 
technology (RACT), reasonable further progress (RFP) plan, and 
contingency measures, are due to the EPA within 18 months of the 
effective date of designation of an area under CAA section 191. Thus, 
the nonattainment area SIPs for areas designated as of October 4, 2013, 
were due on April 4, 2015. These SIPs are required to demonstrate that 
their respective areas will attain the NAAQS as expeditiously as 
practicable, but no later than 5 years from the effective date of 
designation, or October 4, 2018.

III. Consequences of Findings of Failure To Submit

    If the EPA finds that a state has failed to make the required SIP 
submittal or that a submitted SIP is incomplete, then CAA section 
179(a) establishes specific consequences, including the imposition of 
mandatory sanctions for the affected area. Additionally, such a finding 
also triggers an obligation under CAA section 110(c) for the EPA to 
promulgate a FIP no later than 2 years from the finding of failure to 
submit, if the affected state has not submitted, and the EPA has not 
approved, the required SIP submittal. The statutory attainment date of 
October 4, 2018, applies to all areas designated nonattainment 
effective as of October 4, 2013, and not otherwise redesignated to 
attainment, regardless of the status of the SIP or FIP that applies to 
that area.
    If the EPA has not affirmatively determined that a state has made 
the required complete SIP submittal for an area within 18 months of the 
effective date of this rulemaking, then, pursuant to CAA section 179(a) 
and (b) and 40 CFR 52.31, the offset sanction identified in CAA section 
179(b)(2) will apply in the affected nonattainment area. If the EPA has 
not affirmatively determined that the state has made a complete 
submission within 6 months after the offset sanction is imposed, then 
the highway funding sanction will apply in the affected nonattainment 
area, in accordance with CAA section 179(b)(1) and 40 CFR 52.31. The 
sanctions will not take effect, if, within 18 months after the date of 
these findings, the EPA finds that the affected state has made a 
complete SIP submittal addressing the deficiency for which the finding 
was made. Additionally, if the state makes the required SIP submittal 
and the EPA takes final action to approve the submittal within 2 years 
of the effective date of these findings, the EPA is not required to 
promulgate a FIP for the affected nonattainment area, pursuant to CAA 
section 179(a) and 40 CFR 52.31.

IV. Findings of Failure To Submit for States That Failed To Make a 
Nonattainment Area SIP Submittal

    As of the date of signature of this action, six states have made 
complete SIP submittals for 14 SO2 nonattainment areas 
designated effective on October 4, 2013.\1\ In this action, the EPA is 
making a finding of failure to submit SO2 nonattainment area 
SIP submittals for 16 areas in 11 states.\2\ The EPA is finding that 
the states and areas listed in the table below have failed to submit a 
complete SIP submittal required under part D of Title 1 of the CAA.
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    \1\ These six states and 14 areas are: Hillsborough County, FL; 
Nassau County, FL; Lake County, OH; Muskingum River, OH; 
Steubenville, OH-WV (OH portion); Marion County, IN: Morgan County, 
IN: Vigo County, IN; South West Indiana, IN; Rhinelander, WI; 
Jefferson County, MO; Jackson County, MO; Lemont, IL; and, Pekin, 
IL.
    \2\ There are currently 29 nonattainment areas in 16 states. 
However, the sum totals of areas and states with complete SIP 
submittals versus those without complete submittals are 30 and 17, 
respectively. The difference in these totals can be attributed to 
the fact that multiple SIP submittals are required for the two 
multi-state SO2 nonattainment areas. For example, the EPA 
received a complete SIP submittal for the OH portion of the 
Steubenville, OH-WV multi-state nonattainment area, as noted in 
footnote #1. However, because WV has not made a complete SIP 
submittal for the area, WV is included in this findings notice for 
the Steubenville, OH-WV area. The area thus is counted both as an 
area for which a state (OH) made a complete SIP submittal and as an 
area for which a state (WV) still owes a complete SIP submittal.
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    The EPA notes that the Billings, Montana nonattainment area is 
listed in this findings notice because the state has failed to submit a 
complete SIP for the area. However, the EPA has proposed both a clean 
data determination and a redesignation of the area to attainment in a 
separate action (81 FR 11727, March 7, 2016). Should the Billings, 
Montana nonattainment area be redesignated to attainment within the 
timeframes described above, the state will not be required to submit a 
nonattainment SIP for the area and no sanctions will take effect for 
the area. Likewise, the Campbell-Clermont multi-state nonattainment 
area is listed in this findings notice because Ohio and Kentucky have 
failed to submit complete SIPs for the area. However, both states have 
submitted redesignation requests for their respective parts of the 
Campbell-Clermont multi-state nonattainment area, seeking to have that 
area redesignated as attainment. The EPA has not yet acted on these 
requests. Should the EPA propose and then finalize redesignation of the 
area to attainment within the timeframes described above, neither state 
will be required to submit a nonattainment SIP for the area and no 
sanctions will take effect.

               States and SO2 Nonattainment Areas Affected by These Findings of Failure To Submit
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             Regional office                         State                         Nonattainment area
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Region I................................  New Hampshire..............  Central New Hampshire: Hillsborough
                                                                        County (p), Merrimack County (p),
                                                                        Rockingham County (p).
Region III..............................  Pennsylvania...............  Allegheny: Allegheny County (p).
Region III..............................  Pennsylvania...............  Beaver: Beaver County (p).
Region III..............................  Pennsylvania...............  Indiana: Armstrong County (p), Indiana
                                                                        County (p).
Region III..............................  Pennsylvania...............  Warren: Warren County (p).

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Region III..............................  West Virginia..............  Marshall: Marshall County (p).
Region III..............................  West Virginia..............  Steubenville (OH-WV): Brooke County, WV
                                                                        (p).
Region IV...............................  Kentucky...................  Campbell-Clermont (OH-KY): Campbell
                                                                        County, KY (p).
Region IV...............................  Kentucky...................  Jefferson County: Jefferson County (p).
Region IV...............................  Tennessee..................  Sullivan County: Sullivan County (p).
Region V................................  Michigan...................  Detroit: Wayne County (p).
Region V................................  Ohio.......................  Campbell-Clermont (OH-KY): Clermont
                                                                        County, OH (p).
Region VI...............................  Louisiana..................  St. Bernard Parish: St. Bernard Parish.
Region VII..............................  Iowa.......................  Muscatine: Muscatine County (p).
Region VIII.............................  Montana....................  Billings: Yellowstone County (p).
Region IX...............................  Arizona....................  Hayden: Gila County (p), Pinal County
                                                                        (p).
Region IX...............................  Arizona....................  Miami: Gila County (p).
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Note: Partial counties are indicated in the table above as (p).

V. Environmental Justice Considerations

    The EPA believes that the human health or environmental risks 
addressed by this action will not have disproportionately high or 
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 environment under the 
SO2 NAAQS. The purpose of this rule is to make findings that 
the affected states named have failed to submit the required SIPs to 
provide for timely attainment of the 1-hour primary SO2 
NAAQS, which results in certain CAA-required deadlines for actions to 
provide for such attainment. In finding that certain states have failed 
to submit a complete SIP that satisfies the nonattainment area plan 
requirements under section 172 and subpart 5 of part D of Title I of 
the CAA (sections 191 and 192) for the 1-hour primary SO2 
NAAQS, this action does not directly affect the level of protection 
provided for human health or the environment. However, it is intended 
that the required actions and deadlines resulting from this notice will 
lead to greater protection for U.S. citizens, including minority, low-
income, or indigenous populations, by reducing exposure to high ambient 
concentrations of SO2.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning 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 PRA. 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 SIPs under section 172 and subpart 5 of part D of Title I of the 
CAA (sections 191 and 192) which address the statutory requirements 
that apply to areas designated as nonattainment for the SO2 
NAAQS.

C. Regulatory Flexibility Act (RFA)

    I certify that this rule will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The rule is 
a finding that the named states have not submitted the necessary SIP 
requirements for nonattainment areas to meet the requirements of part 
D, title I of the CAA.

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 imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

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 finds that several states failed to 
submit a complete SIP that satisfies the nonattainment area plan 
requirements under section 172 and subpart 5 of part D of Title I of 
the CAA (sections 191 and 192) for the 1-hour primary SO2 
NAAQS. No tribe is subject to the requirement to submit an 
implementation plan under section 172 or under subpart 5 of part D of 
Title I of the CAA. 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 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 is a finding that several states have failed to submit a 
complete SIP that satisfies the nonattainment area plan requirements 
under section 172 and subpart 5 of part D of Title I of the CAA for the 
1-hour primary SO2 NAAQS and does not directly or 
disproportionately affect children.

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.

[[Page 14739]]

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. In finding that several states have failed 
to submit a complete SIP that satisfies the nonattainment area plan 
requirements under section 172 and subpart 5 of part D of Title I of 
the CAA for the 1-hour primary SO2 NAAQS, this action does 
not directly affect the level of protection provided to human health or 
the environment. The results of this evaluation are contained in the 
Section V of this preamble titled ``Environmental Justice 
Considerations.''

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 United States 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 SIP provisions is 
``nationally applicable'' within the meaning of section 307(b)(1). This 
final agency action affects 16 nonattainment areas across the country 
that are located in 11 states, eight of the 10 EPA Regional offices, 
and eight different federal circuits, and multiple time zones. In 
addition, the rule addresses a common core of knowledge and analysis 
involved in formulating the decision and a common interpretation of the 
requirements of 40 CFR 51 appendix V applied to determining the 
completeness of SIPs in states across the country.
    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 five 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 
D.C. Circuit. Accordingly, the EPA is determining that this rule is 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 Circuit 
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. Thus, any petitions for review of 
this action must be filed in the United States Court of Appeals for the 
District of Columbia Circuit within 60 days from the date this final 
action is published in the Federal Register.

List of Subjects in 40 CFR Part 52

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

    Dated: March 10, 2016.
Janet G. McCabe,
Acting Assistant Administrator.
[FR Doc. 2016-06063 Filed 3-17-16; 8:45 am]
 BILLING CODE 6560-50-P