[Federal Register Volume 74, Number 227 (Friday, November 27, 2009)]
[Rules and Regulations]
[Pages 62251-62255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28257]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2009-0670; FRL-8985-6]
Finding of Failure To Submit State Implementation Plans Required
for the 1997 Particulate Matter Less Than 2.5 Micrometer
(PM2.5) National Ambient Air Quality Standards (NAAQS)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking a final action in which it finds that three
States, Georgia, Illinois, and Pennsylvania, have failed to submit
State Implementation Plans (SIPs) to satisfy requirements of the Clean
Air Act (CAA) for attaining the 1997 National Ambient Air Quality
Standards (NAAQS) for particulate matter less than 2.5 micrometers
(PM2.5). Under the CAA and EPA's implementing regulations,
States with nonattainment areas were required to submit SIPs by April
5, 2008, demonstrating how each nonattainment area would attain the
1997 PM2.5 standards as expeditiously as practicable. If
within 18 months of the effective date of this notice EPA has not
determined that the State has submitted the required nonattainment
plan, then any new or modified source in the nonattainment area will be
required to obtain emission reduction offsets that exceed its emission
increases on a two-to-one basis. If within 24 months of the effective
date of this notice EPA has not determined that the State has submitted
the required SIP, then the highway funding sanction also will apply in
the nonattainment area. No later than 2 years after EPA makes the
finding, EPA must promulgate a Federal Implementation Plan (FIP) if the
State has not submitted the required nonattainment SIP and EPA has not
approved it.
DATES: Effective Date. This action is effective on November 27, 2009.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to Mr. Butch Stackhouse, Office of Air
Quality Planning and Standards, Air Quality Policy Division, Mail Code:
C504-2, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711;
telephone (919) 541-5208.
[[Page 62252]]
SUPPLEMENTARY INFORMATION: For questions related to a specific State
please contact the appropriate regional office:
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Regional offices States
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Cristina Fernandez, Associate Pennsylvania.
Director, Office of Air Program
Planning (3AP30), Air Protection
Division, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, PA 19103-
2023.
Dick Schutt, Chief, Air Planning Georgia.
Branch, Air, Pesticides and Toxics
Management Division, EPA Region IV,
61 Forsyth Street, SW., Atlanta,
Georgia 30303-8960.
Jay Bortzer, Chief, Air Programs Illinois.
Branch, EPA Region V, 77 West
Jackson Street, Chicago, IL 60604.
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Table of Contents
I. Background.
A. Statutory Requirements.
B. Consequences of Findings of Failure to Submit.
II. This Action.
III. Statutory and Executive Order Reviews.
A. Notice and Comment Under the Administrative Procedures Act.
B. Effective Date Under the Administrative Procedures Act.
C. Executive Order 12866: Regulatory Planning and Review.
D. Paperwork Reduction Act.
E. Regulatory Flexibility Act (RFA).
F. Unfunded Mandates Reform Act.
G. Executive Order 13132: Federalism.
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments.
I . Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks.
J. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use.
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations.
L. National Technology Transfer and Advancement Act.
M. Congressional Review Act.
N. Judicial Review.
I. Background
The CAA requires States with areas that are designated
nonattainment for the 1997 PM2.5 NAAQS to develop a SIP
providing how the State will attain the NAAQS. Section 172 of the CAA
specifies the required elements of a SIP for an area designated
nonattainment for the 1997 PM2.5 NAAQS. These requirements
include, but are not limited to, an attainment demonstration,
reasonably available control measures (RACM) and reasonably available
control technology (RACT), annual emissions reductions to ensure
reasonable further progress (RFP), and contingency measures. Most
States with PM2.5 nonattainment areas designated in 2005
have submitted SIPs addressing these requirements as required under the
CAA and EPA's implementing regulations. However, three States (Georgia,
Illinois, and Pennsylvania) have not yet submitted SIPs to satisfy
these requirements for four PM2.5 nonattainment areas. By
this action, EPA is making a finding that these States have failed to
submit the required SIPs for these areas.
A. Statutory Requirements
On July 18, 1997, EPA promulgated the NAAQS for fine particles
(PM2.5). The 1997 annual standard was set at a level of 15
micrograms per cubic meter, based on the 3-year average of annual mean
PM2.5 concentrations. The 1997 24-hour standard was set at a
level of 65 micrograms per cubic meter, based on the 3-year average of
the 98th percentile of 24-hour concentrations. (62 FR 38652). These
standards remain in effect. See 40 CFR section 50.7.
The designation of PM2.5 nonattainment areas was delayed
due to the need to obtain 3 years of data from an expanded nationwide
air quality monitoring network, as well as due to a series of legal
challenges to the 1997 standards which were resolved in 2002. See
Whitman v. American Trucking Associations, Inc., 121 S.Ct. 903 (2001).
The Transportation Equity Act for the Twenty-first Century revised the
deadline for promulgation of designations to December 31, 2004, in
order to provide additional time to collect air quality monitoring
data, obtain designation recommendations from the States, and finalize
the designation process.
The PM2.5 designations based on 2001-2003 air quality
data were published in the Federal Register on January 5, 2005 (70 FR
943). A total of 47 nonattainment areas were identified. EPA noted that
because 2004 air quality data was just becoming available, it would
consider such data and modify the designations as appropriate prior to
the April 5, 2005, effective date. EPA issued a supplemental notice on
April 5, 2005 (70 FR 19844; published April 14, 2005), indicating that
eight areas changed status to attainment based on consideration of
2002-2004 data, resulting in a final list of 39 areas designated as
nonattainment for the 1997 PM2.5 NAAQS.
On April 25, 2007 (72 FR 20586), EPA published a final rule
describing the requirements for implementation plans designed to meet
the 1997 PM2.5 standards (the ``PM2.5
Implementation Rule''). Section 172 of the CAA requires States with
nonattainment areas to submit nonattainment SIPs within 3 years of the
effective date of the designation. Therefore, the PM2.5
plans were required to be submitted by April 5, 2008.
As explained in further detail in the PM2.5
Implementation Rule, the key required elements of the nonattainment SIP
include the attainment demonstration, RACM and RACT, RFP, and
contingency measures. The attainment demonstration is required to show
how the nonattainment area would attain the 1997 PM2.5
standards as expeditiously as practicable, but no later than April 5,
2010. (Note that for an area with a more severe or complex
nonattainment problem, the State could propose in its plan to have an
extended attainment date of an additional one to 5 years beyond the
initial 5-year period if it meets the statutory and regulatory
requirements.) The attainment demonstration takes into account
projected emission reductions from existing Federal and State measures,
plus any additional RACM/RACT that can be adopted by the State to
attain ``as expeditiously as practicable.'' Air quality modeling of
these projected emissions reductions in future years is an important
element of the attainment demonstration.
Each nonattainment SIP must include RACM and RACT as necessary for
the area to attain the 1997 PM2.5 NAAQS. The CAA requires
the State to demonstrate that it has adopted all RACM, considering
economic and technical feasibility and other factors, that are needed
to show that the area will attain the fine particle standards as
expeditiously as practicable. The PM2.5 Implementation Rule
sets forth more specific requirements and guidance for making RACM and
RACT determinations.
Each plan must also ensure that the area is making RFP in terms of
emission reductions and air quality improvements toward attainment. The
PM2.5 Implementation Rule provides that, for areas with an
attainment date
[[Page 62253]]
within 5 years of designation, the attainment demonstration is
considered to satisfy the RFP requirement. Areas with attainment dates
beyond 2010 are required to submit an RFP plan according to the
requirements in the implementation rule.
SIPs must also include contingency measures, which are emission
reduction measures to be undertaken if the area fails to satisfy the
RFP requirement or fails to attain the standards by the attainment
date. These measures are to take effect without significant further
action by the State or EPA.
We note that several PM2.5 nonattainment areas currently
have air quality that attains the level of the 1997 PM2.5
NAAQS, but have not yet completed the process for redesignating the
area to attainment. Under EPA's ``Clean Data Policy,'' certain
nonattainment SIP submission requirements may be suspended if the area
is monitoring attainment. See 40 CFR 50.1004(c). EPA identifies these
areas through clean data determinations published in the Federal
Register. Pursuant to 40 CFR 51.1004, the States' obligation to submit
the RACM/RACT, contingency measures, RFP, and attainment demonstrations
are stayed as of the effective date of a final approval of the clean
air determination for these areas. This stay will remain in effect for
so long as the area remains in attainment and will no longer apply if
the area is redesignated to attainment. For this reason, States with
areas that have received final clean data determinations are not
subject to the final action in this notice.
B. Consequences of Findings of Failure To Submit
Section 179(a)(1) of the CAA establishes specific consequences if
EPA finds that a State has failed to submit a SIP or, with regard to a
submitted SIP, if EPA determines it is incomplete or if EPA disapproves
it. Additionally, any of these findings also triggers an obligation for
EPA to promulgate a FIP if the State has not submitted, and EPA has not
approved, the required SIP within 2 years of the finding. CAA section
110(c). The first finding, that a State has failed to submit a plan or
one or more elements of a plan required under the CAA, is the finding
that EPA is making in this action.
EPA is finding that three States have failed to make the required
nonattainment SIP submissions for four nonattainment areas. If EPA has
not affirmatively determined that a State has made the required
complete nonattainment SIP submission within 18 months of the effective
date of this action, 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 area subject to the finding. If EPA has not affirmatively
determined that the State has made a complete submission within 6
months after the emission offset sanction is imposed, then the highway
funding sanction will also apply in areas designated nonattainment, in
accordance with CAA section 179(b)(1) and 40 CFR 52.31. The 18-month
clock will stop and the sanctions will not take effect if, within 18
months after the date of the finding, EPA finds that the State has made
a complete nonattainment SIP submission for each area for which the
finding is made. In addition, EPA is not required to promulgate a FIP
if the State makes the required SIP submittal, and EPA takes final
action to approve the submittal, within 2 years of EPA's finding.
At approximately the same time as the signing of this notice, EPA
Regional Administrators are sending letters to the States of Georgia,
Illinois, and Pennsylvania, informing them that EPA is determining that
they have failed to make one or more of the required SIP submissions
for the specified areas. These letters, and any accompanying
enclosures, have been included in the docket to this rulemaking.
II. This Action
In this action, EPA is making a finding of failure to submit for
three States with regard to the PM2.5 nonattainment areas
listed below. In each case, the State failed to submit one or more of
the required nonattainment SIP elements identified in the CAA and in
the PM2.5 Implementation Rule:
--Attainment demonstration (including emission inventory and modeling;
CAA section 172(c)(1) and (3), and 40 CFR 51.1007 and 1008);
--RACM/RACT (CAA section 172(c)(1) and 40 CFR 51.1010);
--RFP (CAA sections 172(c)(2) and 40 CFR 51.1009); and
--Contingency measures (CAA sections 172(c)(9) and 40 CFR 51.1012).
In accordance with CAA section 179, this finding starts the 18-
month emission offset sanctions clock, the 24-month highway funding
sanctions clock, and a 24-month clock for the promulgation by EPA of a
FIP. This action will be effective on November 27, 2009.
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State Area
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Georgia................................... Atlanta.
Illinois.................................. St. Louis (Illinois portion
only).
Pennsylvania.............................. Liberty-Clairton.
Pennsylvania.............................. Philadelphia-Wilmington (PA
portion only).
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III. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedure Act
This is a final EPA action, but is not subject to notice-and-
comment requirements of the Administrative Procedure Act (APA), 5
U.S.C. 553(b). EPA believes that, because of the limited time provided
to make findings of failure to submit regarding SIP submissions,
Congress did not intend such findings to be subject to notice-and-
comment rulemaking. However, to the extent such findings are subject to
notice-and-comment rulemaking, EPA invokes the good cause exception
pursuant to the APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are
unnecessary because no EPA judgment is involved in making a
nonsubstantive finding of failure to submit elements of SIP submissions
required by the CAA. Furthermore, providing notice and comment would be
impracticable because of the limited time provided under the statute
for making such determinations. Finally, notice and comment would be
contrary to the public interest because it would divert agency
resources from the critical substantive review of complete SIPs. See 58
FR 51270, 51272, n.17 (Oct. 1, 1993); 59 FR 39832, 39853 (Aug. 4,
1994).
B. Effective Date Under the Administrative Procedure Act
This action will be effective on November 27, 2009. Under the APA,
5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days
after the date of publication in the Federal Register if the agency has
good cause to specify an earlier effective date. This action concerns
SIP submissions that are already overdue. In addition, this action
simply starts a ``clock'' that will not result in sanctions against the
States for 18 months, and that the States may ``turn off'' by
submitting complete SIPs to EPA. These reasons support an effective
date prior to 30 days after the date of publication.
C. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not
[[Page 62254]]
subject to review by the Office of Management and Budget (OMB) under
the Executive Order.
D. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This rule relates to the
requirement in the CAA for States to submit SIPs under section Part D
of title I of the CAA to satisfy elements required for the 1997
PM2.5 NAAQS. The present final rule does not establish any
new information collection requirement.
E. Regulatory Flexibility Act (RFA)
This final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice-and-comment rulemaking requirements under
the Administrative Procedure Act (APA) or any other statute. This rule
is not subject to notice and comment requirements under the APA or any
other statute because, although the rule is subject to the APA, the
Agency has invoked the ``good cause'' exemption under 5 U.S.C. 553(b),
therefore it is not subject to the notice and comment requirement. Thus
Executive Order 13132 does not apply to this action.
F. Unfunded Mandates Reform Act
This action contains no Federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1998 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. This action imposed no enforceable duty on any State, local, or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 and 205 of the UMRA.
This action is also not subject to the requirements of section 203
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action does
not impose any new obligations or enforceable duties on any small
governments.
G. Executive Order 13132: Federalism
This final rule 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,
as specified in Executive Order 13132. The CAA establishes the scheme
whereby States take the lead in developing plans to meet the NAAQS and
the Federal government acts as a backstop where States fail to take the
required actions. This rule will not modify the relationship of the
States and EPA for purposes of developing programs to implement the
NAAQS. Thus, Executive Order 13132 does not apply to this rule.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule
responds to the requirement in the CAA for States to submit SIPs to
satisfy the nonattainment area requirements of the CAA for the 1997
PM2.5 NAAQS. The CAA requires States with areas that are
designated nonattainment for the NAAQS to develop a SIP describing how
the State will attain and maintain the NAAQS. The rule will not have a
substantial direct effect on one or more Indian Tribes, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian Tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply
to this action.
I. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. This action does not directly affect
the level of protection provided to human health or the environment.
J. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. In this
action, EPA is finding that several States have failed to submit SIPs
to satisfy the nonattainment area requirement of the CAA for the
PM2.5 NAAQS.
K. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impracticable. Voluntary consensus
standards are technical standards (e.g., materials specifications, test
methods, sampling procedures, and business practices) that are
developed or adopted by VCS bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any VCS.
L. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
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 and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
directly affect the level of protection provided to human health or the
environment.
M. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and
[[Page 62255]]
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. A Major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective November 27, 2009.
N. 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 District of Columbia Circuit Court within 60 days from the date
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 this 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 action.
Thus, any petitions for review of this action making findings of
failure to submit PM2.5 SIPs for the nonattainment areas
identified in section II above, must be filed in the Court of Appeals
for the District of Columbia Circuit within 60 days from the date final
action is published in the Federal Register.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: November 19, 2009.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. E9-28257 Filed 11-25-09; 8:45 am]
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