Draft version: December January 6, 200917, 2008 - for internal use only	
					xxxx-xx-x	 

			ENVIRONMENTAL PROTECTION AGENCY

	40 CFR PART 52

						[FRL-          ]

Finding of Failure to Submit State Implementation Plans Required by the 

1999 Regional Haze Rule

AGENCY:  Environmental Protection Agency (EPA).				

ACTION:  Final Rule.

SUMMARY:   The EPA is taking a final action finding that {37 states, the
District of Columbia, and the U.S. Virgin Islands} have failed to submit
for EPA review and approval State Implementation Plans (SIPs) for
improving visibility in the nation’s national parks and wilderness
areas.  Under the Clean Air Act (CAA) and EPA’s implementing
regulations, states were required to submit these SIPs to EPA by
December 17, 2007.  These SIPs must include:  (1) provisions for
establishing reasonable progress goals providing for an improvement in
visibility for the most impaired days, and ensuring no degradation in
visibility for the least impaired days; (2) a long-term strategy for
improving visibility, including enforceable emissions limitations, for
meeting the reasonable progress goals; and (3) Best Available Retrofit
Technology (BART) determinations for certain older existing stationary
sources.  By this action, the EPA is making a finding of failure to
submit for those states that have not submitted a SIP or have submitted
a SIP that addresses only part of the requirements.  

EFFECTIVE DATE:  This action is effective on [INSERT DATE OF PUBLICATION
IN THE FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT:  General questions concerning this
notice should be addressed to Mr. Todd Hawes, Office of Air Quality
Planning and Standards, Air Quality Policy Division, Mail Code: C539-04,
109 TW Alexander Drive, Research Triangle Park, N.C. 27709; telephone
(919) 541-5591.

SUPPLEMENTARY INFORMATION:

	For questions related to a specific state please contact the
appropriate regional office:

Regional Offices	States

Anne Arnold, Manager, Air Quality Planning Unit, EPA New England, I
Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023.	Connecticut,
Maine, Massachusetts, New Hampshire, Rhode Island, Vermont.

Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290 Broadway,
25th Floor, New York, NY 10007-1866.	New Jersey, New York, Virgin
Islands.

Christina Fernandez, Chief, Air Quality Planning Branch, EPA Region III,
1650 Arch Street, Philadelphia, PA 19103-2187.	District of Columbia,
Maryland, Pennsylvania, Virginia.

Dick A. Schutt, Chief, Air Planning Branch, EPA Region IV, Sam Nunn
Atlanta Federal Center, 61 Forsyth, Street, SW, 12th Floor, Atlanta, GA
30303.	Florida, Georgia

Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West Jackson
Street, Chicago, IL 60604.	Illinois, Indiana, Michigan, Minnesota, Ohio,
Wisconsin.

Tom Diggs, Associate Director Air Programs, EPA Region VI, 1445 Ross
Avenue, Dallas, TX 75202-2733.	Oklahoma, New Mexico, Texas.

Joshua A. Tapp, Chief, Air Programs Branch, EPA Region VII, 901 North
5th Street, Kansas City, Kansas 66101-2907.	Kansas, Nebraska, 

Monica S. Morales, Unit Chief,  Air Quality Planning Unit, EPA Region
VIII Air Program, 1595 Wynkoop St. (8P-AR),  Denver, CO 80202-1129.
Colorado, Montana, North Dakota, South Dakota, Wyoming

Lisa Hanf, Chief, Air Planning Office, EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105.	Arizona, California, Hawaii, Nevada. 

Mahbubul Islam, Manager, State and Tribal Air Programs, EPA Region X,
Office of Air, Waste, and Toxics, Mail Code OAQ-107, 1200 Sixth Avenue,
Seattle, WA 98101.

	Alaska, Idaho, Oregon, Washington

 

 Table of Contents:

	Background

	A.	Statutory and Regulatory Requirements

	B. 	Consequences of Findings of Failure to Submit 

	This Action

III.	Statutory and Executive Order Reviews

	A.	Notice and Comment Under the Administrative Procedure Act

	B.	Effective Date Under the Administrative Procedure 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 Advancement Act

	M.	Congressional Review Act

	N.  	Judicial Review

I.  Background

 .  40 CFR 51.308.   EPA’s visibility regulations also provide certain
states with the option to submit regional haze SIPs based on the
recommendations of the Grand Canyon Visibility Transport Commission. 
Such SIPs are required to include certain emission reduction strategies,
including a program to reduce emissions of sulfur dioxide from
stationary sources.  40 CFR 51.309.  

	A fewSome states have submitted regional haze SIPS as required under
the CAA and EPA’s implementing regulations, but at present a number of
states have not yet submitted final SIPs to EPA to satisfy these
requirements of the CAA.  The EPA is by this action making a finding of
failure to submit for those states.  

		

A.  Statutory and Regulatory Requirements

	Sections 169A and 169B of the CAA set forth the goals of the regional
haze program and mandate that states develop SIPs to ensure that
reasonable progress is made towards meeting those goals, including the
requirements for BART.  The regional haze rule issued in 1999 specifies
the requirements and deadlines for state and local SIPs designed to meet
the visibility protection provisions of the CAA.  See 64 FR 35714. EPA
revised certain requirements of the regional haze rule on July 6, 2005
(70 FR 39104) including the deadline for submitting regional haze SIPs,
pursuant to the Consolidated Appropriations Act for Fiscal Year 2004,
Public Law 108-199, January 23, 2004 (codified at 42 U.S.C. §
7407(d)(7), CAA § 107(d)(7)).,  This statutory deadline for SIP
submittals was December 17, 2007.  

B.	  Consequences of Findings of Failure to Submit 

	Under the CAA section 110(c), EPA is required to promulgate a Federal
Implementation Plan (FIP) within two years of the effective date of a
finding that a state has failed to submit a SIP.  The FIP requirement is
void if a state submits a regional haze SIP, and EPA approves that SIP
within the two year period.

	

II.   This Action

	In this action, EPA is finding that {37 states, the District of
Columbia, and the U.S. Virgin Islands} have failed to make all or part
of the required SIP submissions to address regional haze.   This finding
starts the two year clock for the promulgation by EPA of a FIP.  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 two
years of EPA’s finding. 

	     At approximately the same time as the signing of this notice, EPA
Regional

Administrators are sending letters informing each state identified below
that they have failed to make the required regional haze SIP
submissions.  These letters, and any accompanying enclosures, have been
included in the docket to this rulemaking.  This action will be
effective on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].  The
states listed in the tables below failed to submit all or part of the
required SIP elements per section 169A of the CAA.  Arizona, New Mexico,
and Wyoming have opted to develop SIPs based on the recommendations of
the Grand Canyon Visibility Transport Commission under 40 CFR 51.309. 
All three States have failed to submit the plan elements required by 40
CFR 51.309(g), the reasonable progress requirements for areas other than
the 16 Class I areas covered by the Grand Canyon Visibility Transport
Commission Report.  Arizona and New Mexico have also failed to submit
the plan element required by 40 CFR 51.309(g) 51.309(d)(4), the
alternate stationary source program for control of SO2 in 40 CFR
51.309(d)(4).

	Colorado has failed to submit plan elements required by 40 CFR
51.308(d), specifically, reasonable progress goals and long-term
strategy elements addressing reasonable progress.  Colorado has also
failed to submit a plan meeting the BART requirements of 40 CFR
51.308(e), specifically, BART determinations and requirements, for two
sources located in the state, [Colorado Springs Utilities’ Martin
Drake Power Plant in Colorado Springs, Colorado and Cemex, Inc. Lyons
Portland Cement Plant in Lyons, Colorado].

States Failing to Submit SIPs addressing any of the required Regional
Haze SIP Elements of 40 CFR 308

Alaska, California, Connecticut, District of Columbia, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Kansas, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New
Hampshire, New Jersey,  New York, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, U.S. Virgin
Islands, Virginia, Washington, and Wisconsin.

States Failing to Submit  SIPs addressing part of the required Regional
Haze SIP Elements 

Arizona , – 40 CFR 51.309(g) and 40 CFR 51.309(d)(4)

, Colorado, New Mexico – 40 CFR 51.309(g) and 40 CFR 51.309(d)(4)

, and Wyoming – 40 CFR 51.309(g); 

Colorado – 40 CFR 51.308(d) and 2 sources under 40 CFR 51.308(e) for
two sources.

III. Statutory and Executive Order Reviews

  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 finding of failure to submit a SIP or
required elements of

SIP submissions pursuant to 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 SIPs that have
already been submitted.  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 [INSERT DATE OF PUBLICATION IN THE
FEDERAL REGISTER].   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; and EPA previously cautioned the affected states that
the SIP submissions were overdue and that EPA was considering taking
this action.   In addition, this action simply starts a
‘‘clock’’ for EPA to promulgate a FIP within two years.  There
are no mandatory sanctions enacted against the states by this action,
although the Agency may employ discretionary sanctions, and the clock
may be “turned off” through the submission of complete SIPs by the
states followed by approval of the SIPs by 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 (EO) 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the EO.  However, the EPA
submitted this action to the Office of Management and Budget (OMB) for
review on xxxxxx xx, 2008 and any changes made in response to OMB’s
recommendations have been documented in the docket for this action.  The
OMB released it on xxxxxx xx, 2008.

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.  This
rule relates to the requirement in the CAA for states to submit SIPs
under section Part D of title I of the CAA.  The present final rule does
not establish any new information collection requirement.  Burden means
that total time, effort, or financial resources expended by persons to
generate, maintain, retain, or disclose or provide information to or for
a Federal agency.  This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.  An Agency may not conduct or sponsor, and a
person is not required to respond to a collection of information unless
it displays a currently valid OMB control number.  The OMB control
numbers for EPA’s regulations in the CFR are listed in 40 CFR part 9.

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 USC 553(b),
and  therefore it is not subject to the notice and comment
requirement.”

F.  Unfunded Mandates Reform Act 

	Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public Law
104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on state, local and Tribal
governments and the private sector.  Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with “Federal mandate” that
may result in expenditures to state, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule.  The provisions of section 205 do
not apply when they are inconsistent with applicable law.  Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted.  Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan.  The plan must
provide for notifying potentially affected small governments to have
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small government on compliance with
regulatory requirements.

	This action does not include a Federal mandate within the meaning of
UMRA that may result in expenditures of $100 million or more in any 1
year by either state, local, or Tribal governments in the aggregate or
to the private sector, and therefore, is not subject to the requirements
of sections 202 and 205 of the UMRA.  It does not create any additional
requirements beyond those of the regional haze regulations; 40 CFR
51.300-309, therefore, no UMRA analysis is needed.  EPA has determined
that this action is not a Federal mandate.  The CAA provisions require
states to submit SIPs. This notice merely provides a finding that the
states have not met the requirement to submit certain SIPs and begins a
clock requiring them to do so to meet this statutory obligation or else,
EPA may issue a FIP. This notice does not, by itself, require any
particular action by any state, local, or Tribal government; or by the
private sector.  For the same reasons, EPA has determined that this rule
contains no regulatory requirements that might significantly or uniquely
affect small governments.	

	The EPA believes that any new controls imposed as a result of this
action will not cost in the aggregate $100 million or more annually. 
Thus, this Federal action will not impose mandates that will require
expenditures of $100 million or more in the aggregate in any 1 year. 

G.  Executive Order 13132: Federalism

	Executive Order 13132, entitled “Federalism” (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
“meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.”
“Policies that have federalism implications” is defined in the
Executive Order to include regulations that have “substantial direct
effects on the states, or the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.”

	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
regional haze program.  Thus, Executive Order 13132 does not apply to
this rule.

H.  Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments

	Executive Order 13175, entitled “Consultation and Coordination with
Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires
EPA to develop an accountable process to ensure “meaningful and timely
input by Tribal officials in the development of regulatory policies that
have Tribal implications.” 

	EPA has concluded that this final rule will not have Tribal
implications.  It will neither impose substantial direct compliance
costs on Tribal governments, nor preempt Tribal law.    This rule
responds to the requirement in the CAA for states to submit SIPs to
satisfy the requirements of the 1999 Regional Haze Regulations; Final
Rule.   The CAA requires each state to develop a SIP describing how the
state will minimize the impacts of emissions emanating from within the
state and contributing to visibility impairment in Class I areas. 
Tribes have elected not to submit Regional Haze SIPs and EPA will ensure
air quality protection in Indian country consistent with the provisions
of 40 CFR 49.11(a). 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).	

I.  Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks

	Executive Order 13045: “Protection of Children from Environmental
Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be "economically significant" as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets both
criteria, the Agency must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by the Agency.

	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 is a procedural step
toward reducing visibility impairment, which may also reduce pollution
that may be harmful to children.  

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 making a finding of failure to submit for states that have failed
to make certain required SIP submittals

K.  Executive Order 12898:  Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

	Executive Order (EO) 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 certain states have not met the requirement to submit one or
more SIPs and begins a clock requiring them to do so to 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 states.

L.  National Technology Transfer Advancement Act

	Section 12(d) of the National Technology Transfer Advancement Act of
1995 (NTTAA), Public Law No. 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 when
the Agency decides not to use available and applicable VCS.

	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 rule report, a copy of 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 [INSERT DATE OF PUBLICATION IN THE FEDERAL
REGISTER]

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 this final
action is published in the Federal Register.  Filing a petition for
reconsideration by the 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  regional haze SIPs 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. 

Finding of Failure to Submit State Implementation Plans Required for
the 

1999 Regional Haze Rule - Page 18 of 18

LIST OF SUBJECTS in 40 CFR Part 52

Environmental protection, Administrative practice and procedure, Air
pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements. 

___________________________________

Dated:

____________________________________

Robert J. Meyers,

Principal Deputy Assistant Administrator.

		

 Areas designated as mandatory Class I Federal areas are those national
parks exceeding 6000 acres, wilderness areas and national memorial parks
exceeding 5000 acres, and all international parks which were in
existence on August 7, 1977.  Visibility has been identified as an
important value in 156 of these areas. See 40 CFR part 81, subpart D. 

 PAGE   18 

 PAGE   1 

4 and 5 are  repetitive

I don’t think the SIP needs to include anything about the periodic
revisions

