[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Rules and Regulations]
[Pages 38963-38965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14180]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[EPA-R02-OAR-2016-0316; FRL-9947-77-Region 2]


Finding of Failure To Submit a State Implementation Plan; New 
Jersey; Interstate Transport Requirements for 2008 8-Hour National 
Ambient Air Quality Standards for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action finding that New Jersey has failed to submit an infrastructure 
State Implementation Plan (SIP) revision 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 the obligation to prohibit 
emissions which significantly contribute to nonattainment, or interfere 
with maintenance, of the 2008 8-hour ozone NAAQS in other states. This 
finding of failure to submit establishes a 2-year deadline for the EPA 
to promulgate a Federal Implementation Plan (FIP) to address the 
interstate transport SIP requirements pertaining to the state's 
significant contribution to nonattainment and interference with 
maintenance of the 2008 ozone NAAQS in other states unless, prior to 
the EPA promulgating a FIP, the state submits, and the EPA approves, a 
SIP that meets these requirements.

DATES: This rule is effective on July 15, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R02-OAR-2016-0316. All documents in the docket are 
listed on the www.regulations.gov Web site.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Environmental 
Protection Agency, 290 Broadway, 25th Floor, New York, NY 10007-1866, 
(212) 637-3702, or by email at [email protected].

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures 
Act, 5 United States Code (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 submittals, or incomplete submittals, to 
meet the requirement by the statutory date. Thus, notice and public 
procedure are unnecessary. The EPA finds that this constitutes good 
cause under 5 U.S.C. 553(b)(3)(B).

Table of Contents

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

I. Background

    Section 110(a) of the CAA 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 the SIP 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 notice.
    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 in CAA 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). The EPA notes this

[[Page 38964]]

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).
    On March 12, 2008, the EPA strengthened the NAAQS for ozone. The 
EPA revised the 8-hour primary ozone standard from 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, 
including the interstate transport requirements, were due March 12, 
2011.
    On October 17, 2014, New Jersey submitted a multi-pollutant 
infrastructure SIP revision for 2008 Ozone, 2010 Sulfur Dioxide, 2010 
Nitrogen Dioxide, 2008 Lead, 2011 Carbon Monoxide, and the 2012 
PM2.5 (Fine Particles) NAAQS. New Jersey addressed the 
``good neighbor'' provision for the 2008 Ozone NAAQS in their 
submission.
    On July 13, 2015, the EPA published a rule \1\ finding that 24 
states failed to submit complete SIPs that addressed the ``good 
neighbor'' provision for the 2008 Ozone NAAQS. See 80 FR 39961, (July 
13, 2015). The finding action triggered a 2-year clock for the EPA to 
issue FIPs to address the ``good neighbor'' requirements for those 
states by August 12, 2017. Prior to issuance of the finding action, New 
Jersey made a submission addressing the ``good neighbor'' provision for 
the 2008 Ozone NAAQS on October 17, 2014; therefore, the state was not 
included in the EPA's July 2015 finding notice. Following New Jersey's 
submittal of their infrastructure SIP and the EPA's July 2015 finding 
notice, the EPA proposed a rule on November 16, 2015 \2\ to address the 
``good neighbor'' requirements for the 2008 Ozone NAAQS. The rule 
proposed to promulgate FIPs in 23 eastern states, including New Jersey, 
to reduce interstate ozone transport as to the 2008 ozone NAAQS. The 
EPA proposed to issue final FIPs only for those states that either 
failed to submit a SIP or for which the EPA disapproved a state's SIP 
addressing the ``good neighbor'' provision by the date the rule was 
finalized. The EPA expects to finalize the rule and respective FIPs, as 
applicable, later this year.
---------------------------------------------------------------------------

    \1\ 80 FR 39961 (July 13, 2015) (effective August 12, 2015).
    \2\ See ``Cross-State Air Pollution Rule Update for the 2008 
Ozone NAAQS; Proposed Rules,'' 80 FR 75706 (December 3, 2015).
---------------------------------------------------------------------------

    In a letter to the EPA dated March 30, 2016, New Jersey withdrew 
from EPA's consideration the ``good neighbor'' portion of its multi-
pollutant infrastructure SIP as it relates to the 2008 ozone NAAQS. New 
Jersey stated that it was withdrawing that portion of its submission 
``in order not to delay the EPA's ability to implement the FIP on those 
upwind states that are significantly contributing to ozone levels in 
New Jersey and the other states within [New Jersey's] shared ozone 
nonattainment area.'' New Jersey stated that its decision to withdraw 
was based on a desire that EPA would ``fully implement the FIP'' 
proposed in 2016, and that it ``reserve[d] the right to resubmit'' the 
language of its original submission. The full letter can be found in 
the docket for this rulemaking.\3\
---------------------------------------------------------------------------

    \3\ Letter from Bob Martin, Commissioner, New Jersey Department 
of Environmental Protection to Judith Enck, Regional Administrator, 
U.S. EPA Region II, March 30, 2016.
---------------------------------------------------------------------------

    On the basis of New Jersey's March 30, 2016 withdrawal letter, New 
Jersey does not have a complete pending submittal addressing the ``good 
neighbor'' provision for the 2008 ozone NAAQS. The EPA is therefore 
making a finding that New Jersey has failed to submit a SIP revision to 
address the requirements of CAA sections 110(a)(2)(D)(i)(I) as to the 
2008 ozone NAAQS.

II. Final Action

    This action reflects the EPA's determination with respect to the 
requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 8-hour 
ozone NAAQS for New Jersey, as discussed in section I of this findings 
notice. The EPA is making a finding of failure to submit for New Jersey 
for the interstate transport requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS. This finding starts 
a 2-year clock for promulgation by the EPA of a FIP after the effective 
date of this final rule, in accordance with section 110(c)(1), unless 
prior to such promulgation that New Jersey submits, and the EPA 
approves, a submittal that meets the requirements of CAA section 
110(a)(2)(D)(i)(I) as to the 2008 ozone NAAQS. This finding of failure 
to submit does not impose sanctions, and does not set deadlines for 
imposing sanctions as described in section 179, 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 and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the Paperwork Reduction Act. This final rule does not establish any new 
information collection requirement apart from that 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.

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,

[[Page 38965]]

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.
    This notice is making a procedural finding that New Jersey has 
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.

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. The CRA allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest (5 U.S.C. 
808(2)). The EPA has made a good cause finding for this rule as 
discussed in the Supplementary Information section of this final rule, 
including the basis for that finding.

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 August 15, 2016.
    Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of this rule for the purposes 
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, Ozone, and Reporting and 
recordkeeping requirements.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: June 2, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016-14180 Filed 6-14-16; 8:45 am]
 BILLING CODE 6560-50-P