[Federal Register Volume 88, Number 29 (Monday, February 13, 2023)]
[Rules and Regulations]
[Pages 9191-9194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02408]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0506; FRL-9895-02-R4]


Alabama; Rescission of the Finding of Failure To Submit a State 
Implementation Plan for Interstate Transport for the 2015 Ozone 
National Ambient Air Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action; rescission of action.

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SUMMARY: The Environmental Protection Agency (EPA) is rescinding its 
June 22, 2022, final action finding that the State of Alabama failed to 
submit a complete infrastructure State Implementation Plan (SIP) 
revision to satisfy the good neighbor 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 or standards).

DATES: The effective date of these actions is March 15, 2023.

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

[[Page 9192]]

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. 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 three 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 ``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.'' CAA section 110(a)(2)(D)(i)(I) requires 
that such a plan contain adequate provisions prohibiting any source or 
other type of emissions activity within the state from emitting air 
pollutants in amounts that will significantly contribute to 
nonattainment of the NAAQS in any other state or interfere with 
maintenance of the NAAQS in any other state. This action concerns SIP 
submissions from the State of Alabama regarding these requirements, 
also called collectively the ``good neighbor'' provision.
    Pursuant to CAA section 110(k)(1)(B), EPA must determine within 60 
days of receiving a SIP revision, but no later than six 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 Federal 
implementation plan (FIP) within two years to address the CAA 
requirement.

B. Background on the 2015 Ozone NAAQS, Alabama's SIP Revisions, 
Incompleteness Determination, and Finding of Failure To Submit

    On October 1, 2015, EPA promulgated a revision to the 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), states' 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 document, 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. See 87 
FR 9545. On April 21, 2022, Alabama withdrew its August 20, 2018, SIP 
revision.\3\ Additionally, on that same day, Alabama provided EPA a new 
SIP revision to address the CAA good neighbor interstate transport 
requirements for the 2015 8-hour ozone NAAQS.
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    \3\ See the docket for this action for a copy of Alabama's April 
21, 2022, withdrawal letter.
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    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 found it to be an incomplete SIP submission.\4\ On June 14, 
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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    \4\ 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 six 
months after receipt of the State's SIP submission, see CAA section 
110(k)(1)(B).
    \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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    On June 15, 2022, EPA signed a finding of failure to submit for the 
State of Alabama with respect to the April 21, 2022, SIP submission 
addressing interstate transport obligations for the 2015 ozone NAAQS. 
On the same day, EPA notified the State of this finding and posted a 
prepublication version of the finding of failure to submit to its 
website.
    On June 21, 2022, Alabama resubmitted a SIP submission to address 
the CAA good neighbor interstate transport requirements for the 2015 8-
hour ozone NAAQS, which included the April submission, along with 
additional information regarding completeness. On June 22, 2022, the 
Office of the Federal Register published the finding of failure to 
submit. See 87 FR 37235.
    EPA reviewed Alabama's June 21, 2022, SIP submission on the merits 
and, on October 25, 2022, proposed to disapprove the submittal for 
failing to adequately address good neighbor requirements under CAA 
section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS. See 87 FR 64412. 
EPA is finalizing disapproval of the June 21 submission in a concurrent 
action.

II. Rescission of the Finding of Failure To Submit for Alabama's 
Interstate Transport SIP Submission for the 2015 Ozone NAAQS

    The June 21, 2022, submission has been deemed complete by operation 
of law and contains within it the April 21, 2022, version that was 
found incomplete. See CAA section 110(k)(1)(B). EPA acknowledges that 
the bases for incompleteness of the April 21, 2022, submission were 
relatively narrow. Alabama supplied additional information to EPA 
regarding completeness after receipt of the incompleteness letter from 
EPA. In light of this unique posture and the present circumstances 
surrounding the finding of failure to submit and subsequent 
developments, including EPA's decision to take substantive action on 
the June 21, 2022, version of the SIP submission, the Agency is 
rescinding the June 22, 2022, finding of failure to submit

[[Page 9193]]

contemporaneous with its separate final action disapproving Alabama's 
June 21, 2022, version of the SIP submission.\6\
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    \6\ Because the incompleteness letter returned the April 21, 
2022, submission to the State, there is no further action that needs 
to be taken on Alabama's April 21, 2022, submission. See CAA section 
110(k)(1)(C).
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    The Agency makes no determination here that the finding of failure 
to submit was issued in error. EPA also notes that, with respect to the 
CAA obligations at issue here, it remains the Agency's expressed 
intention to finalize FIPs as needed for upwind states \7\--including, 
potentially, Alabama--within the two-year statutory timeframe for EPA 
to promulgate a FIP following either a disapproval of or a finding of 
failure to submit a required SIP.
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    \7\ See 87 FR 20036, 20038 (April 26, 2022), proposing FIPs for 
Alabama and 25 other states, with intention to finalize in time for 
emissions reductions to begin in the 2023 ozone season.
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    This remains true for Alabama whether the two-year FIP deadline 
would have run from the date of the finding of failure to submit or is 
dated from the date of the disapproval action.
    EPA's obligation to promulgate a FIP addressing Alabama's good 
neighbor obligations for the 2015 ozone NAAQS runs from the date of the 
action disapproving the June 21, 2022, version of the submission.

III. Environmental Justice Considerations

    This action rescinds the procedural finding that Alabama 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 environmental justice analysis 
for this action because it will 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.

IV. 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. As discussed above, EPA is concurrently finalizing 
action on Alabama's June 21, 2022, SIP submittal and will be subject to 
the same obligations as it would be under a finding of failure to 
submit (specifically, to promulgate a FIP or approve a SIP). Thus, 
notice and comment are impracticable and unnecessary with respect to 
issuance of this final action, as they were with the original finding 
of failure to submit (FFS). EPA finds that this constitutes good cause 
under 5 U.S.C. 553(b)(3)(B).

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 action rescinds the procedural 
finding that Alabama failed to submit a complete SIP revision 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 notice and comment requirements 
because the Agency has invoked the Administrative Procedure Act (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 rescinds the procedural finding that 
Alabama failed to submit a complete SIP revision 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. 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 environmental 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 rescinds the procedural finding that Alabama failed to 
submit a complete SIP revision 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

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations (people of color) and low-income 
populations.
    EPA believes that this type of action does not concern human health 
or environmental conditions and therefore cannot be evaluated with 
respect to potentially disproportionate and adverse effects on people 
of color, low-income populations and/or Indigenous peoples. This action 
rescinds the procedural finding that Alabama failed to submit a SIP 
revision to address CAA

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section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS and does not have a 
direct connection to levels of air pollutants or controls to address 
air emissions.

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 April 14, 2023. Filing a petition for 
reconsideration by the Administrator of this final action does not 
affect the finality of this action 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements.

    Dated: January 31, 2023.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2023-02408 Filed 2-10-23; 8:45 am]
BILLING CODE 6560-50-P