[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Rules and Regulations]
[Pages 66603-66607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17328]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2024-0168; FRL-11815-01-OAR]


Findings of Failure To Submit State Implementation Plan Revisions 
for Nonattainment Areas for the 2010 1-Hour Primary Sulfur Dioxide 
National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to find that four States failed to submit State Implementation 
Plan (SIP) revisions required by the Clean Air Act (CAA) in a timely 
manner for certain nonattainment areas for the 2010 1-hour sulfur 
dioxide (SO2) National Ambient Air Quality Standard (NAAQS). 
The States that failed to submit the required SIP revisions are 
Arizona, Louisiana, New York, and Virginia. This action triggers 
certain CAA deadlines for the imposition of sanctions if a State 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 the State's SIP revision addressing the 
outstanding requirements.

DATES: This final action is effective on September 16, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-HQ-OAR-2024-0168. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) 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 electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Angelina Brashear, Office of Air 
Quality Planning and Standards, Air Quality Policy Division (C539-01), 
U.S. Environmental Protection Agency, Research Triangle Park, NC; 
telephone number: (919) 541-4746; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How is this Federal Register document organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. How is this Federal Register document organized?
    B. Notice and Comment Under the Administrative Procedure Act 
(APA)
    C. Where can I get a copy of this document and other related 
information?
    D. Where do I go if I have specific State questions?
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. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review, 
Executive Order 13563: Improving Regulation and Regulatory Review, 
and Executive Order 14094: Modernizing 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 and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All
    K. Congressional Review Act (CRA)
    L. Judicial Review

B. Notice and Comment Under the Administrative Procedure Act (APA)

    Section 553 of the APA, 5 U.S.C. 553(b)(4)(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. 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 have made no submissions to meet the requirement. 
Thus, notice and public procedures are unnecessary to take this action. 
The EPA finds that this constitutes good cause under 5 U.S.C. 
553(b)(4)(B).

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this Federal Register document will be posted at https://www.epa.gov/so2-pollution/2010-sulfur-dioxide-national-ambient-air-quality-standards-implementation-actions.

D. Where do I go if I have specific State questions?

    For questions related to specific States mentioned in this 
document, please contact the appropriate EPA Regional office:

[[Page 66604]]



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               Regional offices                          States
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EPA Region 2: Mr. Kirk Wieber, Manager, Air    New York.
 Program Branch, EPA Region 2, 290 Broadway,
 New York, New York 10007.
 [email protected].
EPA Region 3: Mr. David Talley, Acting Chief,  Virginia.
 Planning and Implementation Branch, EPA
 Region 3, 1600 JFK Boulevard, Philadelphia,
 Pennsylvania 19103. [email protected].
EPA Region 6: Mr. Guy Donaldson, Manager,      Louisiana.
 State Planning and Implementation Branch,
 EPA Region 6, 1201 Elm Street, Suite 500,
 Dallas, Texas 75270. [email protected].
EPA Region 9: Ms. Idalia Perez, Manager, Air   Arizona.
 Planning Section, EPA Region 9, 75 Hawthorne
 Street, San Francisco, California 94105.
 [email protected].
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II. Background

    In June 2010, the EPA (Environmental Protection Agency) 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.\1\ Following promulgation of a new or revised NAAQS, the 
EPA is required to designate all areas of the country as either 
``attainment,'' ``nonattainment,'' or ``unclassifiable'' (CAA section 
107(d)(1)). In multiple separate rules,\2\ the EPA cumulatively 
designated 51 areas within 23 States and territories as nonattainment 
for the 2010 1-hour primary SO2 NAAQS.
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    \1\ On June 2, 2010, the EPA signed the final rule title, 
``Primary National Ambient Air Quality Standard for Sulfur 
Dioxide.'' 75 FR 35520 (June 22, 2010), codified at 40 CFR part 
50.17.
    \2\ A series of rules designated nonattainment areas of the 
country for the 2010 SO2 NAAQS: Round 1 (78 FR 47191) on 
August 5, 2013; Round 2 (81 FR 45039) on July 12, 2016; Round 2 
Supplement (81 FR 89870) on December 13, 2016; Round 3 (83 FR 1098) 
on January 9, 2018; Round 3 Supplement (83 FR 14597) on April 5, 
2018; and Round 4 (86 FR 16055) on March 26, 2021.
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    The CAA directs States containing an area designated nonattainment 
for the 2010 SO2 1-hour primary NAAQS to develop and submit 
a nonattainment area (NAA) SIP to the EPA within 18 months of the 
effective date of an area's designation as nonattainment. The 
nonattainment (NAA) SIP (also referred to as an attainment plan) must 
meet the requirements of subparts l and 5 of part D of Title I of the 
CAA, and provide for attainment of the NAAQS by the applicable 
statutory attainment date. All components of the SO2 part D 
NAA SIP, including the emissions inventory, attainment demonstration, 
reasonably available control measures (RACM) including reasonably 
available control technology (RACT), enforceable emission limitations 
and control measures, reasonable further progress (RFP) plan, 
nonattainment new source review (NNSR), and contingency measures, are 
due under CAA section 191(a) to the EPA within 18 months of the 
effective date of designation of an area. Under CAA section 192(a), 
these NAA SIPs must provide for attainment of the NAAQS as 
expeditiously as practicable, but no later than 3 years from the 
effective date of the nonattainment designation. Responsible State air 
agencies were required to prepare and submit to the EPA a NAA SIP 
revision within 18 months of the effective date of the nonattainment 
designation to bring the NAAs into attainment by the relevant 
attainment date.
    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 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. For those States that have not yet made a submittal that was 
complete with respect to the minimum completeness criteria for the 2010 
1-hour primary SO2 NAAQS, the EPA is making a finding of 
failure to submit a complete SIP.
    On August 5, 2013, the EPA finalized its first-round designation of 
29 areas as nonattainment for the 2010 SO2 NAAQS, effective 
October 4, 2013.\3\ This designation was based on air quality 
monitoring data from 2009-2011 and included the Miami, Arizona and St. 
Bernard Parish, Louisiana NAAs. Pursuant to CAA section 192(a), the 
Miami and St. Bernard Parish NAAs had until October 4, 2018--5 years 
after the effective date of the final action--to demonstrate attainment 
of the 2010 SO2 NAAQS. Both NAAs failed to attain the 
standard by this statutory deadline and as such, under CAA section 
179(c) the EPA issued findings of failure to attain (FFA) for Miami, 
Arizona on January 31, 2022 \4\ and for St. Bernard Parish, Louisiana 
on October 5, 2022.\5\ These FFAs set a deadline for the responsible 
States to submit a revised SIP to the EPA within 1 year, under CAA 
section 179(d). The deadlines for the revised SIPs were January 31, 
2023, for Miami, Arizona and October 5, 2023, for St. Bernard Parish, 
Louisiana. Neither Arizona nor Louisiana submitted a complete revised 
SIP addressing these areas by the appropriate deadline.
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    \3\ 78 FR 47191.
    \4\ 87 FR 4805.
    \5\ 87 FR 60273.
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    On March 26, 2021, the EPA finalized its fourth-round designation 
of 9 areas as nonattainment for the 2010 SO2 NAAQS, 
effective April 30, 2021.\6\ This Round 4 designation included St. 
Lawrence County (part), New York and Giles County (part), Virginia. 
Section 191 of the CAA directs States to submit SIPs for areas 
designated as nonattainment for the SO2 NAAQS to the EPA 
within 18 months of the effective date of the nonattainment 
designation, i.e., by no later than October 30, 2022, in this case. New 
York and Virginia failed to submit complete revised SIPs by this 
deadline.
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    \6\ 86 FR 16055.
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    Based on a review of SIP submittals received and deemed complete as 
of the date of this final action, the EPA is finding that the States 
listed in Table 1 have failed to submit specific required SIP elements.

[[Page 66605]]



     Table 1--Findings of Failure To Submit Certain Required SIP Elements for the 2010 Sulfur Dioxide NAAQS
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                                                                  Required SIP
         Region                State           Area name           elements *          SIP revision due date
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2.......................  NY              St. Lawrence County  Emissions           October 30, 2022.
                                           (part) * *.          Inventory.
                                                               Attainment
                                                                Demonstration..
                                                               RACM/RACT.........
                                                               RFP...............
                                                               NNSR..............
                                                               Contingency
                                                                Measures..
3.......................  VA              Giles County (part)  Emissions           October 30, 2022.
                                           **.                  Inventory.
                                                               Attainment
                                                                Demonstration.***
                                                                *.
                                                               RACM/RACT.........
                                                               RFP...............
                                                               NNSR..............
                                                               Contingency
                                                                Measures..
6.......................  LA              St. Bernard Parish.  Emissions           October 5, 2023.
                                                                Inventory.
                                                               Attainment
                                                                Demonstration..
                                                               RACM/RACT.........
                                                               RFP...............
                                                               NNSR..............
                                                               Contingency
                                                                Measures..
9.......................  AZ              Miami ***..........  Emissions           January 31, 2023.
                                                                Inventory.
                                                               Attainment
                                                                Demonstration..
                                                               RACM/RACT.........
                                                               RFP...............
                                                               NNSR..............
                                                               Contingency
                                                                Measures..
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* Listed SIP elements are requirements of subparts l and 5 of part D, of Title I of the CAA, and provide for
  attainment of the NAAQS. Components of the SO2 part D NAA SIP include the emissions inventory, attainment
  demonstration, reasonably available control measures (RACM) including reasonably available control technology
  (RACT), enforceable emission limitations and control measures, reasonable further progress (RFP) plan,
  nonattainment new source review (NNSR), and contingency measures.
** The term ``part'' is used to indicate that only a portion of the county or counties is designated
  nonattainment. Area boundaries are described in 86 FR 16055 and codified at 40 CFR 81.333, 81.347, and 81.318
  respectively for St. Lawrence County and Giles County
*** Area boundaries are described in 78 FR at 47198 and codified at 40 CFR 81.303.
**** The EPA's State Planning Electronic Collaboration System (SPeCS) incorrectly indicated that Virginia had
  submitted the attainment demonstration component of the attainment plan for the SO2 Giles County NAA. The EPA
  corrected the error on March 12, 2024, and SPeCS now shows that Virginia has not yet submitted any component
  of the attainment plan

III. Consequences of Findings of Failure To Submit

    If the EPA finds that a State 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 also 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 has not 
submitted, and the EPA has not approved, the required SIP submittal.
    If the EPA has not affirmatively determined that a State has made 
the required complete SIP submittal for an area within 18 months of the 
effective date of this action, 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 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 date of 
these findings, the EPA affirmatively determines that the affected 
State has made a complete SIP submittal addressing the deficiency for 
which the finding was made. Additionally, if the State 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

    Based on a review of SIP submittals received and deemed complete as 
of the date of signature of this action, the EPA finds that the States 
listed in Table 1 failed to submit the indicated SIP elements required 
under part D of Title I of the CAA within 18 months of their associated 
effective dates of designation. The EPA is, therefore, issuing a 
finding of failure to submit for the required SIP elements listed in 
Table 1 of this action. The effective date of this finding starts the 
18-month emission offset sanctions clock, the 24-month highway funding 
sanctions clock, and a 24-month clock for the EPA to promulgate a FIP.

V. Statutory and Executive Order Reviews

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

A. Executive Order 12866: Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review, and Executive 
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866, as amended by Executive Order 14094, and was 
therefore not subject to a requirement for Executive Order 12866 
review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). 
This final rule does not establish any new information collection 
requirement

[[Page 66606]]

apart from what is already required by law. This action relates to the 
requirement in the CAA for States to submit SIPs under CAA sections 
172, 191, and 192 that address the requirements that apply to areas 
designated as nonattainment for the SO2 NAAQS.

C. Regulatory Flexibility Act (RFA)

    I certify 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. This action 
is a finding that the named States have not made the necessary SIP 
submissions for certain nonattainment areas to meet the requirements of 
part D of Title I of the CAA.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA (2 U.S.C. 1531-1538) and does not 
significantly or uniquely affect small governments. The action imposes 
no new 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 several States failed to 
submit SIP revisions that satisfy the nonattainment area planning 
requirements under sections 172, 191, and 192 of the CAA. No Tribe is 
subject to the requirement to submit an implementation plan under 
section 172, 191, and 192 of the CAA. Thus, Executive Order 13175 does 
not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks 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 several States failed to submit required 
SIP revisions that satisfy the nonattainment area planning requirements 
under sections 172, 191, and 192 of the CAA and does not concern an 
environmental health risk or safety risk.

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 action does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) directs Federal 
agencies to identify and address ``disproportionately high and adverse 
human health or environmental effects'' of their actions on minority 
populations and low-income populations to the greatest extent 
practicable and permitted by law. Executive Order 14096 (88 FR 25251, 
April 26, 2023) directs the Federal Government to build upon and 
strengthen its commitment to deliver environmental justice to all 
communities across the country through an approach that is informed by 
scientific research, high-quality data, and meaningful Federal 
engagement with communities experiencing environmental justice 
concerns.
    The EPA believes that the human health or environmental conditions 
that exist prior to this action have the potential to result in 
disproportionate and adverse human health or environmental effects on 
communities with environmental justice concerns. The EPA believes that 
this action is not likely to change existing disproportionate and 
adverse effects on communities with environmental justice concerns. The 
areas impacted by this action are designated as nonattainment for the 
2010 1-hour primary SO2 NAAQS and this action is intended to 
comply with the CAA program to ensure attainment and maintenance of the 
NAAQS. From a programmatic perspective, this action is intended to 
ensure that affected air agencies comply with CAA obligations for the 
applicable nonattainment areas.
    The EPA did not perform an EJ analysis and did not consider EJ in 
this action. In this action, the EPA is performing a nondiscretionary 
duty to find that required State submissions were not timely. There is 
not an alternative action that can be taken by the EPA to this action 
and thus, these determinations are not informed by additional EJ 
related analyses. Further, there is no information in the record 
inconsistent with the stated goals of Executive Orders 12898 or 14096 
of achieving environmental justice for people of color, low-income 
populations, and indigenous peoples.

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. Determinations Under CAA Section 307(b)(1)

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. 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 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'' within the meaning 
of CAA section 307(b)(1). This final action consists of findings of 
failure to submit required SIPs for four areas designated nonattainment 
for the 2010 primary 1-hour SO2 NAAQS, which are located in 
four States 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.
    Accordingly, 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 by October 15, 2024.

[[Page 66607]]

List of Subjects in 40 CFR Part 52

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

Joseph Goffman,
Assistant Administrator.
[FR Doc. 2024-17328 Filed 8-15-24; 8:45 am]
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