[Federal Register Volume 85, Number 213 (Tuesday, November 3, 2020)]
[Rules and Regulations]
[Pages 69504-69508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22947]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[EPA-HQ-OAR-2020-0377; FRL-10015-79-OAR]


Findings of Failure To Submit State Implementation Plans Required 
for Attainment of the 2010 1-Hour Primary Sulfur Dioxide (SO2) 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 four states and territories (Indiana, Louisiana, 
Guam, and Puerto Rico) 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. This 
action triggers certain CAA deadlines for the EPA to impose sanctions 
if a state or territory does not submit a complete SIP addressing the 
outstanding requirements and for the EPA to promulgate a Federal 
Implementation Plan (FIP) if the EPA does not approve a state's or 
territory's SIP.

DATES: The effective date of this action is December 3, 2020.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Ms. Sydney Lawrence, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mail Code: 
C539-01, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; by 
telephone (919) 541-4768; or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 69505]]

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 or territory 
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. 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 and Low-Income Populations
    L. Congressional Review Act (CRA)
    M. Judicial Review

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 
findings of failure to submit SIPs, or elements of SIPs, required by 
the CAA, where states and territories 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-2020-0377. All documents in the docket are listed on 
http://www.regulations.gov website. 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. Out of an abundance of caution for 
members of the public and our staff, EPA Docket Center and Reading Room 
are closed to the public, with limited exceptions, to reduce the risk 
of transmitting COVID-19. Our Docket Center staff will continue to 
provide remote customer service via email, phone, and webform. 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 on EPA 
Docket Center services and the current status, please visit us online 
at https://www.epa.gov/dockets.

C. Where do I go if I have specific state or territory questions?

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

------------------------------------------------------------------------
 
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EPA Region 2: Mr. Kirk Wieber, Air Programs       Puerto Rico.
 Branch, EPA Region II, 290 Broadway, 25th
 Floor, New York 10007; [email protected].
EPA Region 5: Mr. Douglas Aburano, Chief,         Indiana.
 Attainment Planning and Maintenance Section,
 Air Programs Branch, EPA Region V, 77 West
 Jackson Street, Chicago, Illinois 60604;
 [email protected].
EPA Region 6: Mr. Michael Feldman, Chief, SO2     Louisiana.
 and Regional Haze Section, EPA Region 6, 1201
 Elm Street, Suite 500, Dallas, Texas 75270;
 [email protected].
EPA Region 9: Ms. Anita Lee, Manager, Air         Guam.
 Planning Office, EPA Region 9, 75 Hawthorne
 Street, San Francisco, California 94105;
 [email protected].
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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 daily maximum 1-
hour average concentrations does not exceed 75 ppb, as determined in 
accordance with Appendix T of 40 CFR part 50. See 40 CFR 50.17(a and 
(b). On January 9, 2018, the EPA, as part of the third round of area 
designations for the 2010 SO2 NAAQS, designated five areas 
of the country as nonattainment for the 1-hour primary 2010 
SO2 NAAQS.\1\ See 83 FR 1098, codified at 40 CFR part 81, 
subpart C. These area designations had an effective date of April 9, 
2018.
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    \1\ The EPA completed its first round of initial area 
designations for the 2010 1-hour primary SO2 NAAQS on 
August 5, 2013, with an effective date of October 4, 2013. Under a 
court order issued on March 2, 2015, the EPA has completed two out 
of three additional rounds of designations, required to be completed 
by no later than December 31, 2020. The findings in this document 
apply only to those areas that were designated as a part of the 
third round of designations for the 2010 SO2 NAAQS on 
January 9, 2018, with an effective date of April 9, 2018, and where, 
as of signature of this action, the affected states failed to submit 
required complete implementation plans to address attainment of the 
1-hr primary SO2 NAAQS.
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    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), enforceable emissions limitations and control 
measures, Reasonable Further Progress (RFP) plan, nonattainment New 
Source Review (NNSR) program, 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 effective April 9, 2018, were due on October 9, 2019. 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 April 9, 2023.

[[Page 69506]]

III. Consequences of Findings of Failure To Submit

    If the EPA finds that a state or territory has failed to make the 
required SIP submittal or that a submitted SIP is incomplete, then CAA 
section 179(a) establishes specific consequences, after a period of 
time, including the imposition of mandatory sanctions for the affected 
area. Additionally, such a finding triggers an obligation under CAA 
section 110(c) for the EPA to promulgate a FIP no later than 2 years 
after the finding of failure to submit if the affected state or 
territory has not submitted, and the EPA has not approved, the required 
SIP submittal.
    If the EPA has not affirmatively determined that a state or 
territory 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 or territory 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 effective date of these findings, the 
EPA affirmatively determines that the affected state or territory has 
made a complete SIP submittal addressing the deficiency for which the 
finding was made. Additionally, if the state or territory 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.

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, the four states and 
territories listed in Table 1 failed to make complete SIP submittals 
required under part D of Title I of the CAA by October 9, 2019, for the 
five areas designated nonattainment effective April 9, 2018. The 
specific components of the SO2 part D nonattainment area SIP 
that the four states and territories failed to submit include: An 
accurate inventory of current emissions for all sources of 
SO2 in the nonattainment area, an attainment demonstration, 
reasonably available control measures (RACM) and reasonably available 
control technology (RACT), enforceable emissions limitations and 
control measures, reasonable further progress (RFP) plan, nonattainment 
new source review (NNSR) program, and contingency measures. Therefore, 
the EPA is issuing findings of failure to submit SO2 
nonattainment area SIPs for four states and territories responsible for 
these areas.

 Table 1--States or Territories and SO2 Nonattainment Areas Affected by
                   These Findings of Failure To Submit
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                                     State or
      EPA regional office           territory        Nonattainment area
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Region 2......................  Puerto Rico......  Guayama-Salinas:
                                                   --Salinas
                                                    Municipality (p).
Region 2......................  Puerto Rico......  San Juan:
                                                   --Cata[ntilde]o
                                                    Municipality.
                                                   --Toa Baja
                                                    Municipality (p).
                                                   --San Juan
                                                    Municipality (p).
                                                   --Guaynabo
                                                    Municipality (p).
                                                   --Bayam[oacute]n
                                                    Municipality (p).
Region 5......................  Indiana..........  Huntington:
                                                   --Huntington County
                                                    (p).
Region 6......................  Louisiana........  Evangeline Parish:
                                                   --Evangeline Parish
                                                    (p).
Region 9......................  Guam.............  Piti-Cabras:
                                                   --Piti-Cabras (p).
------------------------------------------------------------------------
Note: Partial counties are indicated in the table 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 directly affect the level 
of protection provided to human health or the environment under the 
SO2 NAAQS. The purpose of this rule is to make findings that 
the affected states and territories named failed to submit the required 
SIPs to provide for timely attainment of the 1-hour primary 
SO2 NAAQS. In finding that certain states and territories 
failed to submit a complete SIP that satisfies the nonattainment area 
planning 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. Moreover, it 
is intended that the actions and deadlines resulting from this notice 
will in fact lead to greater protection for U.S. citizens, including 
minority, low-income, or indigenous populations, by ensuring that 
states and territories meet their obligation to develop and submit SIPs 
to ensure that areas make progress toward attaining the 1-hour primary 
SO2 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 was, 
therefore, 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.

[[Page 69507]]

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 and 
territories 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.

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 and territories have not made the 
necessary SIP submission for nonattainment areas to meet the 
requirements of part D, title I of the CAA.

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, 
territorial, 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 named states or territories, on the 
relationship between the national government and named the states or 
territories, or on the distribution of power and responsibilities among 
the various levels of government.

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 the named states and 
territories 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.

H. 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 the named states and territories 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.

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

    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 the named states and 
territories 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.

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)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final 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 if (i) the agency action consists of 
``nationally applicable regulations promulgated, or final actions 
taken, by the Administrator,'' or (ii) such action is locally or 
regionally applicable, but ``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.''
    This final action is nationally applicable. To the extent a court 
finds this final action to be locally or regionally applicable, the EPA 
finds that this action is based on a determination of ``nationwide 
scope or effect'' within the meaning of CAA section 307(b)(1). This 
final action consists of findings of failure to submit required SIPs 
from four states and territories for five named nonattainment areas for 
the 2010 primary 1-hour SO2 NAAQS, located in four of the 10 
EPA Regions, and in four different federal judicial circuits. This 
final action is also based on a common core of factual findings 
concerning the receipt and completeness of the relevant SIP submittals. 
For these reasons, this final action is nationally applicable or, 
alternatively, to the extent a court finds this action to be locally or 
regionally applicable, the Administrator has determined that this final 
action is based on a determination of nationwide scope or effect for 
purposes of CAA section 307(b)(1).
    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 reconsideration 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, Air 
pollution control, Incorporation by reference, Intergovernmental 
relations, and Reporting and recordkeeping requirements.


[[Page 69508]]


    Dated: October 8, 2020.
Anne L. Austin,
Principal Deputy Assistant Administrator.
[FR Doc. 2020-22947 Filed 11-2-20; 8:45 am]
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