[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Rules and Regulations]
[Pages 232-235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31173]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2009-0898; FRL-9099-7]
Finding of Failure To Submit Certain State Implementation Plans
Required for the 1-Hour Ozone NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is taking a final action finding that the State of
California has failed to submit revisions to its State Implementation
Plans (SIPs) for three ozone nonattainment areas to satisfy certain
requirements of the Clean Air Act (CAA) for the 1-hour ozone National
Ambient Air Quality Standards (NAAQS). To accompany this action we are
issuing additional guidance to states on developing the required SIP
revisions. Under the CAA and EPA's implementing regulations, states
with 1-hour ozone nonattainment areas classified as Severe or Extreme
were required by the provisions of CAA sections 181(b)(4) and
182(d)(1)(3) to submit by December 31, 2000, SIPs to satisfy CAA
section 185. By this action, EPA is making a finding of failure to
submit the required SIPs for the State of California for three 1-hour
ozone nonattainment areas. With the issuance of additional EPA guidance
to states on developing section 185 fee program SIPs, California will
be able to complete development and promulgation of these programs.
According to the CAA, for each area subject to this finding, EPA must
affirmatively find that California has submitted the required plan
revision within 18 months of the effective date of this finding, or the
offset sanction must apply in that area. Additionally, according to the
CAA, if EPA has still not affirmatively determined that a state has
submitted the required plan for an area within 6 additional months, the
highway funding sanction must apply in that area. Lastly, the CAA
requires that no later than 2 years after the effective date of this
finding, EPA must promulgate a Federal Implementation Plan (FIP) if the
state has not submitted and EPA has not approved the required SIP.
DATES: Effective Date. This action is effective on January 5, 2010.
FOR FURTHER INFORMATION CONTACT: Questions concerning this notice
should be addressed to: Ms. Denise Gerth, Office of Air Quality
Planning and Standards, Air Quality Policy Division, Mail Code: C504-
02, 109 TW Alexander Drive, Research Triangle Park, NC 27709, telephone
(919) 541-5550, or by E-mail at [email protected]; or Mr. Andrew
Steckel, Air Rulemaking Office, EPA Region IX, 75 Hawthorne Street, San
Francisco, CA 94105, telephone (415) 947-4115, or by e-mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Statutory Requirements
B. Consequences of Findings of Failure To Submit a SIP
II. This Action: Areas Receiving a Finding of Failure To Submit SIPs
III. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedures Act
(APA)
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 Severe and Extreme ozone nonattainment
areas to develop a SIP program that provides for collecting fees from
each major stationary source of volatile organic compounds (VOC) and
nitrogen oxides (NOX) for each calendar year following a
failure to attain the ozone standard by the applicable attainment date.
Section 185 fee program SIPs are required for any area that was
designated as not attaining the 1997 8-hour ozone NAAQS in June 2004
and that was also classified as a Severe or Extreme nonattainment area
for the 1-hour standard at that time. In a decision by the Circuit
Court of Appeals for the District of Columbia, the Court determined
that these fee program SIPs were required to prevent backsliding in the
transition from implementing the revoked 1-hour NAAQS to implementing
the 1997 8-hour NAAQS (South Coast AQMD v. EPA, December 22, 2006).
Although EPA has not determined through notice-and-comment rulemaking
that the areas identified in this notice have failed to attain the 1-
hour ozone NAAQS by their statutory attainment dates, current air
quality data for these areas indicate they are violating the 1-hour
NAAQS and the 1997 8-hour NAAQS.\1\
---------------------------------------------------------------------------
\1\ Although EPA has not in all cases completed determinations
through notice-and-comment rulemaking, current air quality data
indicate that a number of nonattainment areas classified as Severe
or Extreme for the 1-hour NAAQS and also designated in June 2004
nonattainment for the 1997 8-hour NAAQS appear to have attained the
1-hour NAAQS and/or the 1997 8-hour NAAQS. In this notice EPA is not
making findings that states failed to submit SIP revisions for these
areas. These areas are: Chicago-Gary-Lake County, IL-IN; Milwaukee-
Racine, WI; Philadelphia-Trenton-Wilmington, MD-DE-PA-NJ; Ventura
County, CA; Metropolitan Washington, DC-VA-MD; Baton Rouge, LA; New
York, NY-NJ-CT; Houston, TX; and Baltimore, MD.
---------------------------------------------------------------------------
EPA has been working with states and other stakeholders on EPA
guidance for developing required fee program SIPs, including the
convening of a group of diverse stakeholders through the Clean Air Act
Advisory Committee (CAAAC). On May 15, 2009, CAAAC submitted its report
to EPA with suggestions and issues for consideration in creating
guidance that would provide flexibility to states to develop programs
that will meet the requirements of section 185 of the CAA. In
conjunction with this action EPA has issued additional guidance that
will assist California with development of its section 185 fee SIPs for
the affected areas.
A. Statutory Requirements
Section 185 of the CAA requires each Severe and Extreme ozone
[[Page 233]]
nonattainment area to have a plan implementing the program specified in
that section. The fee program applies if an area fails to attain the
ozone NAAQS by its applicable attainment date. For each such area,
section 185 requires each major stationary source of VOC and
NOX to pay an annual fee for emissions in excess of 80
percent of the emissions baseline.\2\ The fee is $5,000 (as adjusted
for inflation) per ton of VOC and NOX emissions that are in
excess of the baseline. The CAA states that the computation of a
source's ``baseline amount'' must be the lower of the amount of actual
or allowable emissions under the permit applicable to the source (or if
no permit has been issued for the attainment year, the amount of VOC
and NOX emissions allowed under the applicable
implementation plan) during the attainment year. No source is required
to pay any fee for emissions during a year for which the area receives
an extension of their attainment date under section 181(a)(5).
---------------------------------------------------------------------------
\2\ While section 185 expressly mentions VOC, section 182(f)
extends the application of this provision to NOX, by
providing that ``plan provisions required under [subpart D)] for
major stationary sources of [VOC] shall also apply to major
stationary sources of [NOX].''
---------------------------------------------------------------------------
B. Consequences of Findings of Failure To Submit a SIP
The CAA establishes specific consequences that apply until an area
remedies the identified deficiency if EPA finds that a state has failed
to submit a SIP or, with regard to a submitted SIP, EPA determines it
is incomplete or disapproves it. See, CAA section 179(a)(1).
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. See, 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 relevant to this action.
EPA is finding that the State of California has failed to make
required section 185 fee program SIP submissions for all or a portion
of three 1-hour ozone nonattainment areas. We note that the state has
been working to establish its required fee program SIP revisions, and
has been awaiting issuance of additional guidance from EPA before
proceeding. EPA has now issued additional guidance, and we will
continue to work with the state on developing approvable and
appropriate fee programs.
If EPA has not affirmatively determined that the state has made the
required complete submittal for the three areas within 18 months of the
effective date of this rulemaking, pursuant to CAA section 179(a) and
(b) and 40 CFR 52.31, the offset sanction identified in CAA section
179(b)(2) and 40 CFR 52.31 will apply in each area that remains subject
to the finding. If EPA has not affirmatively determined that the state
has made a complete submission for the areas within 6 months after the
offset sanction is imposed, then the highway funding sanction will
apply to each area that remains subject to the finding, in accordance
with CAA section 179(b)(1) and 40 CFR 52.31. The 18- and 24-month
clocks for any area will stop and the sanctions will not take effect
if, within 18 or 24 months, respectively, after the date of the
finding, EPA finds that the state has made a complete submittal. In
addition, where EPA has made a finding, EPA is required to promulgate a
FIP for an area if the state has not made the required SIP submittal
and EPA has not taken final action to approve the submittal as fully
meeting the section 185 fee obligation for the 1-hour ozone standard
within 2 years of EPA's finding.
At approximately the same time as the signing of this action, the
EPA Regional Administrator is sending a letter to the State of
California informing the state that EPA is determining that the state
has failed to submit a SIP addressing the section 185 fee program for
the 1-hour ozone NAAQS for all or a portion of the three areas
identified below. This letter has been included in docket number EPA-
HQ-OAR-2009-0898.
II. This Action: Areas Receiving a Finding of Failure To Submit SIPs
In this action, EPA is making a finding that the State of
California has failed to submit section 185 fee program SIPs for all or
a portion of three 1-hour ozone nonattainment areas. California
submitted a section 185 fee program SIP for the Sacramento Metropolitan
Air Quality Management District (AQMD) portion of the Sacramento Metro
Area and EPA approved that submission on August 26, 2003, at 68 FR
51184. Therefore, the Sacramento Metropolitan AQMD is not subject to
this action. 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 January 5, 2010. EPA is making findings of failure to
submit section 185 fee program SIPs for the nonattainment areas
identified below.
------------------------------------------------------------------------
State Nonattainment area
------------------------------------------------------------------------
California................................ Sacramento Metro Area, CA
(severe 15)--Yolo/Solano
Air Quality Management
District portion; Feather
River Air Quality
Management District
portion; Placer County Air
Pollution Control District
portion; El Dorado County
Air Quality Management
District portion.
California................................ Southeast Desert Modified
Air Quality Management
Association (severe 17)
includes Coachella Valley.
California................................ Los Angeles-South Coast Air
Basin (extreme).
------------------------------------------------------------------------
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
[[Page 234]]
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 January 5, 2010. 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 state may ``turn off'' through the
submission of complete SIP submittals. 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 subject to review by the Office of Management and Budget
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 1-hour ozone
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. 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 (UMAR), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. This action imposes 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 ozone
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. There are tribal governments within
certain nonattainment areas for which this rule initiates a sanctions
clock. However, this rule does not have tribal implications because it
does not impose any compliance costs on tribal governments nor does it
pre-empt tribal law. 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 a state has failed to submit SIPs to
satisfy the section 185 program fee requirement of the CAA for the 1-
hour ozone NAAQS.
K. 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. This notice finds that the state has not met the
requirement to submit section 185 fee program SIPs and begins a clock
that could result in the imposition of sanctions if the state
[[Page 235]]
continues to not meet this statutory obligation. If the state fails to
submit the required SIPs or if they submit SIPs that EPA cannot
approve, then EPA will be required to develop the plans in lieu of the
state.
L. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology and Transfer 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. VCS 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 of
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.
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 rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and 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 January 5, 2010.
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 within 60 days from the date the final
action is published in the Federal Register. Filing a petition for
reconsideration by the EPA Administrator of this final rule does not
affect the finality of this rule for the purposes of judicial review
nor does it extend the time within which a petition for judicial review
must be filed, and shall not postpone the effectiveness of such rule or
action.
Thus, any petitions for review of this action making findings of
failure to submit section 185 fee program 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 that the 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: December 20, 2009.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. E9-31173 Filed 1-4-10; 8:45 am]
BILLING CODE 6560-50-P