[Federal Register Volume 87, Number 119 (Wednesday, June 22, 2022)]
[Rules and Regulations]
[Pages 37235-37237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13292]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0506; FRL-9895-01-R4]


Finding of Failure To Submit a Clean Air Act Section 110 State 
Implementation Plan for Interstate Transport for the 2015 Ozone 
National Ambient Air Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action, finding that the State of Alabama failed to submit a complete 
infrastructure State Implementation Plan (SIP) revision to satisfy 
certain interstate transport requirements of the Clean Air Act (CAA or 
Act) with respect to the 2015 8-hour ozone national ambient air quality 
standards (NAAQS). Specifically, these requirements pertain to 
prohibiting significant contribution to nonattainment, or interference 
with maintenance, of the 2015 8-hour ozone NAAQS in other states. This 
finding of failure to submit a complete revision establishes a 2-year 
deadline for EPA to promulgate a Federal Implementation Plan (FIP) to 
address these interstate transport requirements for Alabama unless, 
prior to EPA promulgating a FIP, Alabama submits, and EPA approves, a 
SIP that meets these requirements.

DATES: Effective date of this action is July 22, 2022.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2022-0506. All documents in the docket 
are listed on the www.regulations.gov website. Although listed in the 
index, some information may not be 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 can either 
be retrieved electronically via www.regulations.gov or in hard copy at 
the Air Regulatory Management Section, Air Planning and Implementation 
Branch, Air and Radiation Division, U.S. Environmental Protection 
Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. 
EPA requests that if at all possible, you contact the person listed in 
the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Evan Adams of the Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Adams can be 
reached by telephone at (404) 562-9009, or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. 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. 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. Specifically, and as discussed further in the 
preamble, Alabama has withdrawn a prior submission and has not made a 
complete submission under CAA section 110(a)(2)(D)(i)(I) for the 2015 
ozone NAAQS. Thus, notice and public procedure are unnecessary. EPA 
finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

II. Background and Overview

A. Interstate Transport SIPs

    CAA section 110(a) imposes an obligation upon states to submit SIP 
revisions that provide for the implementation, maintenance, and 
enforcement of a new or revised NAAQS within 3 years following the 
promulgation of that NAAQS. CAA section 110(a)(2) lists specific 
requirements that states must meet in these SIP submissions, as 
applicable. EPA refers to this type of SIP as an

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``infrastructure'' SIP because it ensures that states can implement, 
maintain, and enforce the new or revised air standards. Within these 
requirements, CAA section 110(a)(2)(D)(i) contains requirements to 
address interstate transport of NAAQS pollutants. A SIP for this sub-
section is referred to as an ``interstate transport SIP.'' In turn, CAA 
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 
collectively the ``good neighbor'' provision, are the requirements 
relevant to this action.
    Pursuant to CAA section 110(k)(1)(B), EPA must determine within 60 
days of receipt, but no later than 6 months after the date by which a 
state is required to submit a SIP revision, whether a state has made a 
submission that meets the minimum completeness criteria established 
pursuant to CAA section 110(k)(1)(A). These criteria are set forth at 
40 CFR part 51, appendix V. 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 EPA 
finds a state has failed to submit a SIP revision to meet its statutory 
obligation to address CAA section 110(a)(2)(D)(i)(I), then pursuant to 
CAA section 110(c)(1), 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 EPA of a FIP, in accordance with CAA section 110(c)(1), 
unless prior to such promulgation the state submits, and EPA approves, 
a revision from the state to meet the requirements of CAA section 
110(a)(2)(D)(i)(I). Even where EPA has promulgated a FIP, EPA will 
withdraw that FIP if a state submits, and EPA approves, a SIP 
satisfying the relevant requirements. EPA notes that 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 2015 Ozone NAAQS, Alabama SIP Revisions, and 
Incompleteness Determination

    On October 1, 2015, EPA promulgated a new 8-hour primary and 
secondary ozone NAAQS of 70 parts per billion (ppb), which is met when 
the 3-year average of the annual fourth highest daily maximum 8-hour 
concentration does not exceed 70 ppb.\1\ Pursuant to the 3-year period 
provided in CAA section 110(a)(1), infrastructure SIP revisions 
addressing the revised standard were due on October 1, 2018.\2\
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    \1\ See Final Rule, National Ambient Air Quality Standards for 
Ozone, 80 FR 65292 (October 26, 2015).
    \2\ EPA previously made findings of failure to submit with 
respect to interstate transport obligations for the 2015 8-hour 
ozone NAAQS for a number of other states. See 84 FR 66612 (December 
5, 2019). As discussed further in this notice, at the time EPA made 
those findings, Alabama had provided a complete submission, which it 
has subsequently withdrawn.
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    On August 20, 2018, Alabama submitted a SIP revision to address the 
interstate transport requirements for the 2015 8-hour ozone NAAQS. On 
February 22, 2022, EPA proposed to disapprove Alabama's August 20, 
2018, SIP revision because the Agency preliminarily determined, based 
on updated EPA modeling, that Alabama's SIP revision did not meet CAA 
requirements to contain the necessary provisions to eliminate emissions 
that will contribute significantly to nonattainment or interfere with 
maintenance of the 2015 8-hour ozone NAAQS in any other state.\3\ See 
87 FR 9545.
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    \3\ Previously, EPA proposed approval of Alabama's August 20, 
2018, interstate transport SIP submission for the 2015 8-hour ozone 
NAAQS based on modeling released in 2018. See 84 FR 71854 (December 
30, 2019). However, based on new modeling released in 2020, it 
became evident that Alabama was projected to be linked above 1 
percent of the 2015 8-hour ozone NAAQS to downwind nonattainment and 
maintenance receptors (see 87 FR 9553 n.40). As a result, EPA 
deferred acting on Alabama's SIP submission when it published a 
supplemental proposal in 2021 to approve four other southeastern 
states' good neighbor SIP submissions using the updated modeling. 
See 86 FR 37942, 37943 (July 19, 2021). Additional modeling 
confirmed the results of the 2020 modeling. In its February 22, 
2022, notice, EPA announced that the Agency was withdrawing its 2019 
proposed approval and was proposing disapproval of that submission 
instead. See 87 FR 9545 (February 22, 2022).
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    On April 21, 2022, Alabama withdrew its August 20, 2018, SIP 
revision.\4\ Additionally, on that same day, Alabama provided EPA a new 
SIP revision to address the CAA interstate transport requirements for 
the 2015 8-hour ozone NAAQS.
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    \4\ See the docket for this rulemaking for a copy of Alabama's 
April 21, 2022, withdrawal letter.
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    According to the CAA, a SIP revision may be considered ``complete'' 
by either of two methods: (1) EPA may make a determination that a SIP 
is complete under the ``completeness criteria'' set out at 40 CFR part 
51, appendix V, see CAA section 110(k)(1); or (2) a SIP may be deemed 
complete by operation of law if EPA has failed to make a completeness 
determination within 6 months after receipt of the State's SIP 
submission, see CAA section 110(k)(1)(B).
    EPA evaluated the SIP revision that Alabama sent on April 21, 2022, 
for completeness pursuant to the criteria in 40 CFR part 51, appendix 
V, and concluded it is an incomplete SIP submission. On June 15, 2022, 
EPA sent a letter to Alabama explaining the Agency's incompleteness 
determination. This letter is included in the docket for this 
action.\5\
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    \5\ While this letter is included in the docket for this action, 
and explains the deficiencies in the April 21, 2022, document, EPA 
is not reopening its determination of incompleteness in this action.
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    Where EPA determines that a SIP revision does not meet the Appendix 
V completeness criteria, the state shall be treated as not having made 
the submission. See CAA section 110(k)(1)(C). Accordingly, EPA is 
finding that Alabama has failed to submit a complete SIP revision 
addressing the requirements of CAA section 110(a)(2)(D)(i)(I) for the 
2015 8-hour ozone NAAQS. Notwithstanding this finding, and the 
associated obligation of EPA to promulgate a FIP for Alabama within two 
years of this finding, EPA intends to continue to work with Alabama in 
order to provide assistance as necessary to help the State develop an 
approvable SIP revision.\6\
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    \6\ EPA notes that there is no mechanism for the State to 
rescind the prior withdrawal of its August 20, 2018, submission. 
See, e.g., 80 FR 39961, 39964-65 (July 13, 2015); see also 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) (EPA-HQ-OAR-2012-0943-0062) 
(finding rescission of SIP withdrawal to constitute an incomplete 
SIP revision and ``inappropriate'' where the withdrawal was relied 
upon by plaintiffs and EPA in resolving deadline-suit litigation).
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III. Finding of Failure To Submit for Failing To Make an Interstate 
Transport SIP Submission for the 2015 Ozone NAAQS

    As explained in Section II of this preamble, EPA finds the Alabama 
has not submitted a complete interstate transport SIP revision to meet 
the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2015 8-hour 
ozone NAAQS.

IV. Environmental Justice Considerations

    This notice makes a procedural finding that Alabama has failed to 
submit a SIP revision to address CAA section 110(a)(2)(D)(i)(I) for the 
2015 ozone NAAQS. EPA did not conduct an

[[Page 37237]]

environmental analysis for this action because it would not directly 
affect the air emissions of particular sources. Because this action 
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 Orders 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

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act. This final action does 
not establish any new information collection requirement apart from 
what is already required by law. This finding relates to the 
requirement in the CAA for states to submit SIPs under section 
110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS.

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 action 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 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 action finds that Alabama has failed to 
complete the requirement in the CAA to submit a SIP under section 
110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS. No tribe is 
subject to the requirement to submit a transport SIP under section 
110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS. In addition, 
the SIP is not approved to apply on any Indian reservation land or in 
any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. Thus, Executive Order 13175 does not apply to 
this action.

G. 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 Alabama has failed to submit a complete 
SIP that satisfies interstate transport requirements under section 
110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone 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.

J. 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 Alabama has failed to submit a 
complete SIP that satisfies the interstate transport requirements under 
section 110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS, this 
action does not adversely affect the level of protection provided to 
human health or the environment.

K. 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).

L. Judicial Review

    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 appropriate circuit by August 22, 2022. 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 CAA section 307(b)(2)).

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 15, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-13292 Filed 6-21-22; 8:45 am]
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