[Federal Register Volume 87, Number 167 (Tuesday, August 30, 2022)]
[Rules and Regulations]
[Pages 52856-52859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18678]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2022-0320; FRL-9731-01-OAR]


Finding of Failure To Submit Regional Haze State Implementation 
Plans for the Second Planning Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action finding that 15 states have failed to submit State 
Implementation Plans (SIPs) to satisfy the visibility protection 
requirements of the Clean Air Act (CAA), as described in implementing 
regulations, for the regional haze second planning period. These 
findings of failure to submit establish a 2-year deadline for the EPA 
to promulgate Federal Implementation Plans (FIPs) to address these 
requirements for a given state unless, prior to the EPA promulgating a 
FIP, the state submits, and the EPA approves, a SIP that meets these 
requirements.

DATES: Effective date of this action is September 29, 2022.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
document should be addressed to Mr. Joseph Stein, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code C539-04, 
109 TW Alexander Drive, Research Triangle Park, NC 27711; telephone 
number: (919) 541-0195; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Notice and Comment Under the Administrative Procedures 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 procedure 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-2022-0320. All documents in the docket are listed and 
publicly available at http://www.regulations.gov. Publicly available 
docket materials are also available in hard copy at the Air and 
Radiation Docket and Information Center, EPA/DC, William Jefferson 
Clinton West Building, Room 3334, 1301 Constitution Avenue NW, 
Washington, DC. Out of an abundance

[[Page 52857]]

of caution for members of the public and our staff, the EPA Docket 
Center and Reading Room are open to the public by appointment only to 
reduce the risk of transmitting COVID-19. Our Docket Center staff also 
continue to provide remote customer service via email, phone, and 
webform. Hand deliveries and couriers may be received by scheduled 
appointment only. For further information on the EPA Docket Center 
services and the current status, please visit us online at https://www.epa.gov/dockets.

C. How is the preamble organized?

Table of Contents

I. General Information
A. Notice and Comment Under the Administrative Procedures Act (APA)
B. How can I get copies of this document and other related 
information?
C. How is the preamble organized?
D. Where do I go if I have state specific questions?
II. Background and Overview
    A. Regional Haze SIPs
    B. Background on Second Planning Period Regional Haze SIPs and 
Related Matters
III. Findings of Failure To Submit for States That Failed To Make a 
Regional Haze SIP Submission for the Second Planning Period
IV. Environmental Justice Considerations
V. 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 (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority and Low Income Populations
    K. Congressional Review Act (CRA)
    L. Judicial Review

D. Where do I go if I have state-specific questions?

    The following chart shows the states that failed to make a complete 
second planning period regional haze SIP submittal as required by EPA's 
Regional Haze Rule, 40 CFR 51.308, promulgated pursuant to the 
visibility protection provisions of the CAA found at CAA sections 169A 
and 169B. for the regional haze second planning period. For questions 
related to specific states mentioned in this document, please contact 
the appropriate EPA Regional office:

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                    Regional offices                                              States
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EPA Region 1: John Rogan, Chief, Air Quality Branch,     Maine, Rhode Island, Vermont.
 EPA Region I, 5 Post Office Square-Suite 100, Boston,
 Massachusetts 02109-3912.
EPA Region 3: Mike Gordon, Chief, Planning and           Pennsylvania, Virginia.
 Implementation Branch, EPA Region III, 1600 JFK
 Boulevard, Philadelphia, Pennsylvania 19103.
EPA Region 4: Lynorae Benjamin, Chief, Air and           Alabama, Kentucky, Mississippi.
 Radiation Division/Air Planning and Implementation
 Branch, EPA Region IV, 61 Forsyth Street (AIR),
 Atlanta, Georgia 30303.
EPA Region 5: Doug Aburano, Manager, Air & Radiation     Illinois, Minnesota.
 Division, EPA Region V, 77 W Jackson Boulevard (AR-
 18J), Chicago, Illinois 60604-3511.
EPA Region 6: Michael Feldman, Chief, Air and Radiation  Louisiana, New Mexico.
 Division/Regional Haze and SO2 Section, EPA Region VI,
 1201 Elm Street, Suite 500, Dallas, Texas 75270.
EPA Region 7: Andy Hawkins, Air and Radiation Division,  Iowa, Missouri, Nebraska.
 Air Quality Programs Branch, EPA Region VII, 11201
 Renner Boulevard, Lenexa, Kansas 66219.
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II. Background and Overview

A. Regional Haze SIPs

    In the 1977 CAA Amendments, Congress created a program for 
protecting visibility in the nation's mandatory Class I Federal areas, 
which include certain national parks and wilderness areas.\1\ CAA 169A. 
The CAA establishes as a national goal the prevention of any future, 
and the remedying of any existing, impairment of visibility in 
mandatory Class I Federal areas (Class I areas) which impairment 
results from manmade air pollution. CAA 169A(a)(1). More specifically, 
CAA section 169A(b)(2)(B) requires SIPs to include long-term strategies 
for making reasonable progress toward meeting Congress' national goal.
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    \1\ Areas statutorily designated as mandatory Class I Federal 
areas consist of national parks exceeding 6,000 acres, wilderness 
areas and national memorial parks exceeding 5,000 acres, and all 
international parks that were in existence on August 7, 1977. CAA 
162(a). There are 156 mandatory Class I areas. The list of areas to 
which the requirements of the visibility protection program apply is 
in 40 CFR part 81, subpart D.
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    In 1990, Congress added section 169B to the CAA to further address 
visibility impairment, specifically, impairment from regional haze. CAA 
169B. The EPA promulgated the Regional Haze Rule (RHR), codified at 40 
CFR 51.308, on July 1, 1999. (64 FR 35714, July 1, 1999). These 
regional haze regulations are a central component of the EPA's 
comprehensive visibility protection program for Class I areas. The RHR 
requires iterative SIP revisions that address the reasonable progress 
requirements for each 10-15 year planning period. Regional haze SIPs 
for the first planning period were due from states in December 2007. 
Much of the focus in the first implementation period of the regional 
haze program, which ran from 2007 through 2018, was on satisfying 
states' statutory requirement that certain older, larger sources of 
visibility impairing pollutants install and operate the Best Available 
Retrofit Technology (BART). CAA 169(b)(2)(A); 40 CFR 51.308(d), (e).
    In 2017, the EPA promulgated revisions to the RHR, (82 FR 3078, 
January 10, 2017), that apply for the second and subsequent 
implementation periods. The 2017 rulemaking made several changes to the 
requirements for regional haze SIPs to clarify states' obligations and 
streamline certain regional haze requirements. The revisions to the 
regional haze program for the second and subsequent implementation 
periods focused on the requirement that states' SIPs contain provisions 
for making reasonable progress towards the national visibility goal. 
The reasonable progress requirements as revised in the 2017 rulemaking 
(referred to here as the 2017 RHR Revisions) are codified at 40 CFR 
51.308(f). Additionally, the 2017 RHR Revisions adjusted the deadline 
for states to submit their second implementation period SIPs from July 
31, 2018, to July 31, 2021. 82 FR 3115.
    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

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state has made a submission that meets the minimum completeness 
criteria established pursuant to CAA section 110(k)(1)(A). Completeness 
criteria are set forth at 40 CFR part 51, appendix V. 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.'' This finding starts a 2-year ``clock'' for promulgation of a 
FIP by the EPA, 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 the RHR and CAA 
sections 169A and 169B. Even where the EPA has promulgated a FIP, the 
EPA will take action to withdraw that FIP if a state submits and the 
EPA approves a SIP satisfying the relevant requirements. These findings 
of failure to submit do not start mandatory sanctions clocks pursuant 
to CAA section 179 because these findings of failure to submit do not 
pertain to part D plans for nonattainment areas.
    Some states have submitted complete second planning period regional 
haze SIPs as required under the CAA and the RHR, but at present 15 
states have not yet submitted complete SIPs to the EPA to satisfy these 
requirements of the CAA and RHR. The EPA is by this action making a 
finding of failure to submit for those states.

B. Background on Second Planning Period Regional Haze SIPs and Related 
Matters

    As mentioned previously, the 2017 RHR Revisions set the deadline 
for states to submit their second planning period regional haze SIPs by 
July 31, 2021. 40 CFR 51.308(f). In total, 15 states have failed to 
submit complete SIPs while 35 states and the District of Columbia have 
submitted complete SIPs addressing CAA sections 169A and 169B for the 
regional haze second planning period. The EPA has included in the 
docket for this action its correspondence with states regarding the 
completeness of their SIP submissions. SIPs may be considered complete 
by either of two methods. First, the 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). Second, a SIP may be 
deemed complete by operation of law if the EPA has failed to make such 
a determination by 6 months after receipt of the SIP submission. See 
CAA section 110(k)(1)(B). The 15 states that failed to make a complete 
SIP submittal addressing regional haze for the second planning period 
include: Alabama, Illinois, Iowa, Kentucky, Louisiana, Maine, 
Minnesota, Mississippi, Missouri, Nebraska, New Mexico, Pennsylvania, 
Rhode Island, Vermont, and Virginia. In all other cases, the EPA has 
determined that the SIP submittals are complete or they have been 
deemed complete by operation of law. The EPA is issuing national 
findings of failure to submit regional haze SIPs addressing the 
requirements of the RHR and CAA sections 169A and 169B for the regional 
haze second planning period for all states that EPA has not found to 
have made complete submissions as of the date of this document.

III. Findings of Failure To Submit for States That Failed To Make a 
Regional Haze SIP Submission for the Second Planning Period

    The EPA is making findings of failure to submit for 15 states. The 
EPA finds the following states have not submitted complete regional 
haze SIPs that meet the requirements of the RHR and CAA sections 169A 
and 169B for the regional haze second planning period: Alabama, 
Illinois, Iowa, Kentucky, Louisiana, Maine, Minnesota, Mississippi, 
Missouri, Nebraska, New Mexico, Pennsylvania, Rhode Island, Vermont, 
and Virginia. Notwithstanding these findings, and the associated 
obligation of the EPA to promulgate FIPs for these states within 2 
years of these findings, the EPA intends to continue to work with 
states subject to these findings to assist them in developing 
approvable SIP submittals in a timely manner.

IV. Environmental Justice Considerations

    The purpose of this action is to make findings that the named 
states failed to provide the identified SIP submissions to the EPA that 
are required under the RHR and the CAA. As such, this action, in and of 
itself, does not adversely affect the level of protection provided for 
human health or the environment. Moreover, it is intended that the 
actions and deadlines resulting from this document will promote greater 
protection for U.S. citizens, including minority, low-income, or 
indigenous populations, by ensuring that states meet their statutory 
obligation to develop and submit SIPs consistent with visibility 
protection requirements.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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 (PRA)

    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 169A and 
169B of the CAA for the regional haze second planning period.

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). The Agency certifies that this action 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 action is a finding that the named states have not made 
the necessary SIP submission for regional haze to meet the requirements 
under sections 169A and 169B 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

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Order 13175 (65 FR 67249, November 9, 2000). This action responds to 
the requirement in the CAA for states to submit SIPs to satisfy the 
requirements of the RHR and CAA. 82 FR 3078 (Jan. 10, 2017). No tribe 
is identified in this action as failing to submit a required SIP. 
Therefore, 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 certain states have failed to submit a 
complete SIP that satisfies regional haze requirements under sections 
169A and 169B of the CAA for the second planning period 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 (NTTAA)

    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. In finding that certain states have failed 
to submit a complete SIP that satisfies the regional haze requirements 
under sections 169A and 169B of the CAA for the regional haze second 
planning period, 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 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 actions by the EPA 
under the CAA. This section provides, in part, that petitions for 
review must be filed in the Court of Appeals for the District of 
Columbia Circuit if: (i) The agency action consists of ``nationally 
applicable regulations promulgated, or final action 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 regional haze SIPs 
for the second planning period from 15 states located in six of the ten 
EPA Regional offices. 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. Thus, any petitions for review of this action must be filed in 
the 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, Administrative practice and procedures, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, and Reporting and recordkeeping requirements.

Michael S. Regan,
Administrator.
[FR Doc. 2022-18678 Filed 8-29-22; 8:45 am]
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