[Federal Register Volume 83, Number 67 (Friday, April 6, 2018)]
[Rules and Regulations]
[Pages 14759-14762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06989]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2018-0135; FRL-9976-35-OAR]


Findings of Failure To Submit State Implementation Plan 
Submissions for the 2012 Fine Particulate Matter National Ambient Air 
Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is taking final 
action to find that three states have failed to submit timely revisions 
to their state implementation plans (SIPs) as required to satisfy 
certain requirements under the Clean Air Act (CAA) for implementation 
of the annual 2012 Fine Particulate Matter National Ambient Air Quality 
Standards (2012 PM2.5 NAAQS). These findings of failure to 
submit apply to states with overdue SIP revisions (or attainment plans) 
for certain areas initially designated as nonattainment and classified 
as Moderate for the 2012 PM2.5 NAAQS on April 15, 2015. The 
SIP revisions to address all applicable Moderate area attainment plan 
requirements for these areas were due on October 15, 2016. If a state 
does not make the required complete SIP submission within 18 months of 
the effective date of these findings, the CAA requires the imposition 
of sanctions for the affected area(s). In addition, EPA is obligated to 
promulgate a federal implementation plan (FIP) to address any 
outstanding SIP requirements, if a state does not submit, and EPA does 
not approve, a state's submission within 24 months of the effective 
date of these findings.

DATES: The effective date of this action is May 7, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2018-0135. All documents in the docket are listed and 
publicly available at http://www.regulations.gov. Although listed in 
the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically at http://www.regulations.gov or in 
hard copy at the EPA Docket Center (EPA/DC), EPA WJC 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.

FOR FURTHER INFORMATION CONTACT: Mr. Patrick Lessard, U.S. 
Environmental Protection Agency, Office of Air Quality Planning and 
Standards, Air Quality Policy Division, Mail Code: C539-01, 109 T.W. 
Alexander Drive, Research Triangle Park, NC 27711; by telephone (919) 
541-5383; 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)(e)(B), provides that, when 
an agency for good cause finds that notice and public procedures 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 final agency action without prior proposal and opportunity for 
comment because no significant EPA judgment is involved in making 
findings of failure to submit SIPs, or elements of SIPs. Rather, the 
findings are required by the CAA where states have made no submissions 
to meet the SIP requirements, or where EPA has separately determined 
that they made incomplete submissions. Thus, notice and public comment 
procedures are unnecessary. 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?

    In addition to being available in the docket, an electronic copy of 
this action will be posted at https://www.epa.gov/pm-pollution/implementation-national-ambient-air-quality-standards-naaqs-fine-particulate-matter.

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:

[[Page 14760]]



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               Regional offices                          States
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Susan Spielberger, Associate Director, Office   Pennsylvania.
 of Air Program Planning, Mailcode 3AP30,
 (215) 814-5356 or Gerallyn Duke, Acting
 Associate Director, Office of Permits and
 State Programs, Mailcode 3AP10, Region 3,
 1650 Arch Street, Philadelphia, PA 19103,
 (215) 814-2084.
Doris Lo, Chief, Rulemaking Office, Mailcode    California.
 AIR-4, (415) 972-3959 or Laura Lawrence,
 Acting Chief, Planning Office, Mailcode AIR-
 4, Region 9, 75 Hawthorne Street, San
 Francisco, CA 94105, (415) 972-3407.
Gina Bonifacino, Acting Unit Manager, Air       Idaho.
 Planning Unit, Mailcode AWT-50, Office of Air
 and Waste, 1200 6th Avenue, Suite 900,
 Seattle, WA 98101, (206) 553-2970.
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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 a specific state question?
    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 
Moderate Nonattainment Area SIP Submission
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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act of 1995 (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act (CRA)
    M. Judicial Review

II. Background

    Airborne particulate matter (PM) can be composed of a complex 
mixture of particles in both solid and liquid form. Particulate matter 
can be of different sizes, commonly referred to as ``coarse'' and 
``fine'' particles. Fine particles, in general terms, are PM with an 
aerodynamic diameter less than or equal to a nominal 2.5 micrometers 
([micro]m). For this reason, particles of this size are referred to as 
PM2.5.
    EPA first promulgated annual and 24-hour NAAQS for PM2.5 
in July 1997 \1\ and then revised the 24-hour PM2.5 NAAQS in 
October 2006.\2\ Most recently, on December 14, 2012, EPA revised the 
primary annual PM2.5 standard by lowering the level from 
15.0 to 12.0 micrograms per cubic meter of air ([micro]g/m\3\) to 
provide increased protection against health effects associated with 
long- and short-term PM2.5 exposures. EPA did not revise the 
secondary annual PM2.5 standard, which remains at 15.0 
[micro]g/m\3\.\3\ In addition, EPA retained the level and form of the 
primary and secondary 24-hour PM2.5 standards to continue to 
provide supplemental protection against health and welfare effects 
associated with short-term PM2.5 exposures.
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    \1\ 62 FR 38652 (July 18, 1997).
    \2\ 71 FR 61143 (October 17, 2006).
    \3\ 78 FR 3086 (January 15, 2013).
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    Promulgation of a revised NAAQS triggers a requirement for EPA to 
designate areas of the country as nonattainment, attainment, or 
unclassifiable for the standards. As prescribed by CAA section 188(a), 
areas designated as nonattainment for a PM2.5 NAAQS are 
initially classified as Moderate. Designations and initial 
classifications for 14 areas in six states as Moderate nonattainment 
for the 2012 PM2.5 NAAQS became effective on April 15, 
2015.\4\
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    \4\ 80 FR 2206 (January 15, 2015).
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    Nonattainment areas for PM2.5 are subject to the general 
nonattainment area planning requirements of CAA section 172 and to the 
PM-specific planning requirements of CAA sections 188-189. On August 
24, 2016, EPA established a final implementation rule (PM2.5 
SIP Requirements Rule) \5\ outlining the attainment planning and 
control requirements for current and future PM2.5 NAAQS. 
Accordingly to that rule, Moderate area PM2.5 SIP 
submissions shall include base year emissions inventory requirements, 
an attainment projected emissions inventory, a control strategy 
including reasonably available control measures and reasonably 
available control technology (RACM/RACT), an attainment demonstration 
with air quality modeling, a reasonable further progress (RFP) 
demonstration, quantitative milestones, contingency measures, and a 
nonattainment new source review (NNSR) program.\6\ The PM2.5 
SIP Requirements Rule also established the due date for Moderate area 
PM2.5 SIP submissions as no later than 18 months from the 
effective date of area designations.\7\ Accordingly, the areas 
designated as nonattainment for the 2012 PM2.5 NAAQS (with 
an effective date of April 15, 2015) were required to submit Moderate 
area attainment plans to EPA no later than October 15, 2016.
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    \5\ Fine Particulate Matter National Ambient Air Quality 
Standards: State Implementation Plan Requirements; final rule; 81 FR 
58009 (August 24, 2016).
    \6\ 40 CFR 51.1003(a)(2).
    \7\ 40 CFR 51.1003(a)(1).
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III. Consequences of Findings of Failure To Submit

    For plan requirements under part D, title I of the CAA, such as 
those for PM2.5 nonattainment areas, if EPA finds that a 
state has failed to make the required complete SIP submission, then CAA 
section 179 establishes specific consequences, including the eventual 
imposition of mandatory sanctions for the affected area(s). 
Additionally, such a finding triggers an obligation under CAA section 
110(c) for EPA to promulgate a FIP no later than 2 years from the 
effective date of the finding, if the affected state has not submitted, 
and EPA has not approved, the required SIP submission.
    If EPA has not affirmatively determined that a state has submitted 
a complete SIP addressing the deficiency that is the basis for these 
findings within 18 months of the effective date of this rulemaking, or 
the submission has not become complete by operation of law 6 months 
after submission, then, pursuant to CAA section 179(a) and (b) and 40 
CFR 52.31, the emissions offset sanction identified in CAA section 
179(b)(2) will apply in the affected nonattainment area. If EPA has not 
affirmatively determined that the state has submitted a complete SIP 
addressing the deficiencies that are the basis for these findings 
within 6 months

[[Page 14761]]

after the offset sanction is imposed, or the submission has not become 
complete by operation of law 6 months after submission, 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 state 
must make the required SIP submission and EPA must take final action to 
approve the submission within 2 years of the effective date of these 
findings; otherwise, EPA is required to promulgate a FIP to address the 
relevant requirements. This is required pursuant to CAA section 110(c) 
for the affected nonattainment area.

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

    In this action, EPA is finding that the states listed in Table 1 
have failed to submit specific Moderate area SIP elements for the 2012 
PM2.5 NAAQS required under subpart 4 of part D of title I of 
the CAA.

                                        Table 1--Findings of Failure To Submit Certain Required SIP Elements for
                                                      2012 PM2.5 NAAQS Moderate Nonattainment Areas
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               Region                          State                    Area name                               Required SIP elements
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3...................................  PA.....................  Allegheny County...........   Emissions inventory;
                                                                                             Control strategy, including RACM/RACT;
                                                                                             Attainment demonstration;
                                                                                             RFP;
                                                                                             Quantitative milestones; and
                                                                                             Contingency measures;
                                                                                             NNSR program.
3...................................  PA.....................  Delaware County............   NNSR program.
3...................................  PA.....................  Lebanon County.............   NNSR program.
9...................................  CA.....................  Imperial County............   Emissions inventory;
                                                                                             Control strategy, including RACM/RACT;
                                                                                             Attainment demonstration;
                                                                                             RFP;
                                                                                             Quantitative milestones; and
                                                                                             Contingency measures.
10..................................  ID.....................  West Silver Valley.........   Control strategy, including RACM/RACT;
                                                                                             Attainment demonstration;
                                                                                             RFP;
                                                                                             Quantitative milestones; and
                                                                                             Contingency measures.
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V. Environmental Justice Considerations

    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. This is because it does not directly affect the level of 
protection provided to human health or environment under the 
PM2.5 NAAQS. The purpose of this rule is to make findings 
that three states have failed to provide EPA with the identified SIP 
submissions, which are required by the CAA for purposes of implementing 
the 2012 PM2.5 NAAQS. As such, this action does not directly 
affect the level of protection provided for human health or the 
environment. Moreover, it is intended that the actions and deadlines 
resulting from this notice will lead to greater protection for United 
States citizens, including minority, low-income, or indigenous 
populations by ensuring that states meet their statutory obligation to 
develop and submit SIPs to ensure that areas make progress toward 
attaining the 2012 PM2.5 NAAQS.

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

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. 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 CAA sections 172, 188 and 189 which address the 
statutory requirements that apply to areas designated as Moderate 
nonattainment for the 2012 PM2.5 NAAQS.

D. 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 
revisions.

E. 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.

F. 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.

[[Page 14762]]

G. 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 three states have failed to 
submit SIP revisions that satisfy the nonattainment area planning 
requirements under sections 172, 188 and 189 of the CAA for the 2012 
PM2.5 NAAQS. No tribe is subject to the requirement to 
submit an implementation plan under section 172, or under subpart 4 of 
part D of Title I of the CAA. Thus, Executive Order 13175 does not 
apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks that 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 three states have failed to submit SIP 
revisions that satisfy the Moderate nonattainment area planning 
requirements under sections 172, 188 and 189 of the CAA for the 2012 
PM2.5 NAAQS and does not directly or disproportionately 
affect children.

I. 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.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    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 three states have failed to 
submit SIP revisions that satisfy the Moderate nonattainment area 
planning requirements under sections 172, 188 and 189 of the CAA for 
the 2012 PM2.5 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 Section V of this 
preamble titled ``Environmental Justice Considerations.''

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and 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).

M. 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 
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.''
    EPA has determined that this final rule consisting of findings of 
failure to submit certain of the required SIP revisions is ``nationally 
applicable'' within the meaning of section 307(b)(1) of the CAA. This 
final agency action affects three states with Moderate nonattainment 
areas located in three of the ten EPA Regional offices, and in two 
different U.S. Federal Circuit Courts (3rd Circuit for Pennsylvania and 
9th Circuit for California and Idaho).
    In addition, EPA has determined that this rule has nationwide scope 
or effect because it addresses a common core of knowledge and analysis 
involved in formulating the decision and a common interpretation of the 
requirements of 40 CFR part 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 two judicial circuits that include the states across the 
country affected by this action. In these circumstances, CAA 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 District of Columbia 
Circuit. Accordingly, 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.

List of Subjects in 40 CFR Part 52

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

    Dated: March 26, 2018.
William L. Wehrum,
Assistant Administrator.
[FR Doc. 2018-06989 Filed 4-5-18; 8:45 am]
 BILLING CODE 6560-50-P