
[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43180-43183]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17738]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2011-0338; FRL-9435-7]


Finding of Failure To Submit Section 110 State Implementation 
Plans for Interstate Transport for the 2006 National Ambient Air 
Quality Standards for Fine Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is finding that Tennessee has failed to 
submit a State Implementation Plan (SIP) to satisfy the requirements of 
the Clean Air Act (CAA) with respect to the 2006 24-hour National 
Ambient Air Quality Standards (NAAQS) for fine particulate matter (24-
hour PM2.5). Although Tennessee has submitted a SIP to 
address the requirements, the state subsequently withdrew that portion 
of its SIP submittal because it relied on the Clean Air Interstate Rule 
to address transport. This finding creates a 2-year deadline for the 
promulgation of a Federal Implementation Plan (FIP) by EPA. In a 
separate action, commonly referred to as the Transport Rule, EPA is 
finalizing a FIP for Tennessee to address these requirements.

DATES: The effective date of this rule is August 19, 2011.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
final rule should be addressed to Edgar Mercado, Office of Atmospheric 
Programs, Clean Air Markets Division, 2400 Pennsylvania Avenue, Mail 
Code 6204J, Washington, DC 20460; telephone (202) 343-9440; e-mail 
address: mercado.edgar@epa.gov.

SUPPLEMENTARY INFORMATION: For questions related to Tennessee, please 
contact Richard A. Schutt, Chief, Regulatory Development Section, EPA 
Region IV, Sam Nun Atlanta Federal Center, 61 Forsyth Street, SW., 12th 
Floor, Atlanta, GA 30303.

Table of Contents

I. Background
II. This Action
III. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedures Act 
(APA)
    B. Executive Order 12866: Regulatory Planning and Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132 (Federalism)
    G. Executive Order 13175
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act
    M. Judicial Review

I. Background

    On October 17, 2006, EPA published a final rule revising the 24-
hour standard for fine particulate matter (PM2.5) from 65 
micrograms per cubic meter ([mu]g/m3) to 35[mu]g/m3. Section 110(a)(1) 
of the CAA requires states to submit revised SIPs that provide for the 
implementation, maintenance, and enforcement of a new or revised 
standard within 3 years after promulgation of such standard, or within 
such shorter period as EPA may prescribe. Section 110(a)(2)(D)(i) 
contains four elements that revised SIPs must address. This findings 
notice addresses the first two elements which require each state to 
submit SIPs which contain adequate provisions to prohibit air pollution 
within the state that (1) contributes significantly to another state's 
nonattainment of the NAAQS; or (2) interferes with another state's 
maintenance of the NAAQS. Section 110(a)(1) imposes the obligation upon 
states to make a SIP submission for a new or revised NAAQS, but the 
contents of that submission may vary depending upon the facts and 
circumstances. In particular, the data and analytical tools available 
at the time the state develops and submits the SIP for a new or revised 
NAAQS necessarily affects the content of the submission.
    States were required to have submitted complete SIPs that addressed 
the section 110(a)(2)(D)(i)(I) requirement related to interstate 
transport for the 2006 24-hour PM2.5 NAAQS by September 21, 
2009. On June 9, 2010, in a separate final rulemaking (75 FR 32763), 
EPA found that 29 states and territories had not made a SIP submittal 
that addressed this requirement. Although Tennessee has submitted a SIP 
intended to address the Section 110(a)(2)(D)(i) requirements, the state 
subsequently withdrew the Section 110(a)(2)(D)(i) of its infrastructure 
SIP with respect to the 2006 24-hour PM2.5 NAAQS on December 
2, 2010, because it relied on the Clean Air Interstate Rule. Although 
deficient to address the transport of pollution as highlighted in 
recent EPA air quality modeling to support the final Transport Rule, 
EPA acknowledges the State's efforts in making this SIP submittal. In 
response to Tennessee's withdrawal of the 110(a)(2)(D)(i)(I) portions 
of its SIP because it relied on the Clean Air Interstate Rule, EPA is 
making a finding that Tennessee has failed to submit the required 
infrastructure SIP elements with respect to nonattainment or 
interference with maintenance of the 2006 24-hour PM2.5 
NAAQS. In accordance with Section 110(c)(1), this finding creates a 2-
year deadline for the promulgation of a Federal Implementation Plan 
(FIP) by EPA unless, prior to promulgation of a FIP, the state makes a 
submission to meet and EPA approves such submission as meeting the 
attainment and

[[Page 43181]]

maintenance requirements of section 110(a)(2)(D)(i)(I) for the 2006 24-
hour PM2.5 NAAQS. The State's SIP submittal to address other 
portions of Section 110(a)(2)(D)(i) will be addressed in a separate 
rulemaking.
    This action does not result in sanctions pursuant to CAA section 
179 because this finding of failure to submit does not pertain to a 
part D plan for nonattainment areas, or to a SIP Call pursuant to 
section 110(k)(5).

II. This Action

    By this action, EPA is making the finding that Tennessee has failed 
to submit a SIP that addresses the requirements of section 
110(a)(2)(D)(i)(I) of the CAA for the revised 2006 24-hour 
PM2.5 NAAQS. This finding creates a 2-year deadline for the 
promulgation of a FIP by EPA for Tennessee unless the State submits a 
SIP to satisfy these section 110(a)(2)(D)(i)(I) requirements, and EPA 
approves such submission prior to promulgation of a FIP.

III. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedures Act (APA)

    This is a final EPA action, which is subject to notice-and-comment 
requirements of the Administrative Procedures Act (APA), 5 U.S.C. 
553(b). However, EPA invokes, consistent with past practice (for 
example, 61 FR 36294), the good cause exception pursuant to APA, 5 
U.S.C. 553(b)(3)(B). Notice and comment are unnecessary because no 
significant EPA judgment is involved in making a finding of failure to 
submit SIPs or elements of SIPs required by the CAA, where states have 
made no submissions to meet the requirement by the statutory deadline.

B. 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 by the Office of Management and 
Budget under the EO.

C. 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 action relates to the 
requirement in the CAA for states to submit SIPs under section 
110(a)(1) that implements the CAA requirements for the revised 24-hour 
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that 
states submit SIPs that implement, maintain, and enforce a new or 
revised NAAQS which satisfies the requirements of section 110(a)(2) 
within 3 years of promulgation of such standard, or shorter period as 
EPA may provide. The present final action does not establish any new 
information collection requirement apart from that required by law.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the APA or any other 
statute unless the EPA certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For the purpose of assessing the impacts of this final action on 
small entities, small entity is defined as: (1) A small business that 
is a small industry entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR, part 121); (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for profit 
enterprise which independently owned and operated is not dominate in 
its field.
    Courts have interpreted the RFA to require a regulatory flexibility 
analysis only when small entities will be subject to the requirements 
of the rule. See, Michigan v. EPA, 213 F.3d 663, 668-69 (DC Cir., 
2000), cert. den., 532 U.S. 903 (2001). This rule would not establish 
requirements applicable to small entities. Instead, it would require 
states to develop, adopt, and submit SIPs to meet the requirements of 
section 110(a)(2)(D)(i), and would leave to the states the task of 
determining how to meet those requirements, including which entities to 
regulate. Moreover, because affected states would have discretion to 
choose the sources to regulate and how much emissions reductions each 
selected source would have to achieve, EPA could not predict the effect 
of the rule on small entities. After considering the economic impacts 
of this final rule on small entities, I certify that this action will 
not have a significant economic impact on a substantial number of small 
entities. In addition, although the action is subject to the 
Administrative Procedures Act, 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.

E. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. The action implements mandate(s) specifically and explicitly 
set forth by the Congress in CAA section 110(a)(2)(D)(i)(I) without the 
exercise of any policy discretion by EPA.
    This action does not create any additional requirements beyond 
those of the 2006 24-hour PM2.5 NAAQS (71 FR 61144, October 
17, 2006). Therefore, no UMRA analysis is needed. This rule responds to 
the requirement in the CAA for states to submit SIPs to satisfy the 
requirements of section 110(a)(2) of the CAA for the 2006 24-hour 
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that 
states submit SIPs that implement, maintain, and enforce a new or 
revised NAAQS within 3 years of promulgation of such standard, or 
shorter period as EPA may provide. This action does not impose any 
requirements beyond those specified in the Act.
    Therefore, this action is not subject to the requirements of 
sections 202 or 205 of the UMRA. This action is also not subject to the 
requirements of section 203 of UMRA because it contains no regulatory 
requirements that might significantly or uniquely affect small 
governments.

F. 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, as 
specified in EO 13132. The CAA establishes the scheme whereby states 
take the lead in developing plans to meet the NAAQS. This action 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 action.

G. 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 action 
responds to the requirement in the CAA for states to submit SIPs to 
satisfy the requirements of section 110(a)(2) of the CAA for the

[[Page 43182]]

2006 24-hour PM2.5 NAAQS. Section 110(a)(1) of the CAA 
requires that states submit SIPs that implement, maintain, and enforce 
a new or revised NAAQS which satisfies the requirements of section 
110(a)(2) within 3 years of promulgation of such standard, or shorter 
period as EPA may provide. The CAA provides for states and tribes to 
develop plans to regulate emissions of air pollutants within their 
jurisdictions. The regulations clarify the statutory obligations of 
states and tribes that develop plans to implement this rule. The Tribal 
Authority Rule (TAR) gives tribes the opportunity to develop and 
implement CAA programs, but it leaves to the discretion of the tribe 
whether to develop these programs and which programs, or appropriate 
elements of a program, the tribe will adopt.
    This action does not have tribal implications as defined by 
Executive Order 13175. It does not have a substantial direct effect on 
one or more Indian tribes, because no tribe has implemented an air 
quality management program related to the 2006 24-hour PM2.5 
NAAQS at this time. Furthermore, this action does not affect the 
relationship or distribution of power and responsibilities between the 
federal government and Indian tribes. The CAA and the TAR establish the 
relationship of the federal government and Tribes in developing plans 
to attain the NAAQS, and this action does nothing to modify that 
relationship. Because this action does not have tribal implications, 
Executive Order 13175 does not apply.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 
12866, and because the Agency does not believe the environmental health 
or safety risks addressed by this action present a disproportionate 
risk to children. Nonetheless, we have evaluated the environmental 
health or safety effects of the 2006 24-hour PM2.5 NAAQS on 
children. The results of this risk assessment are contained in the 
final rule for 24-hour PM2.5 NAAQS (71 FR 61144, October 17, 
2006).

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. 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 voluntary consensus standards.

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 lacks the discretionary authority to address environmental 
justice in this final action. This action responds to the requirement 
in the CAA for states to submit SIPs to satisfy the requirements of 
section 110(a)(2)(D)(i)(I) of the CAA for the 2006 24-hour 
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that 
states submit SIPs that implement, maintain, and enforce a new or 
revised NAAQS which satisfies the requirements of section 110(a)(2) 
within 3 years of promulgation of such standard, or shorter period as 
EPA may provide. EPA is merely determining whether Tennessee has 
complied with this statutory requirement.

L. Congressional Review Act

    The Congressional Review Act (CRA), 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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefore, and established an effective date of August 19, 
2011. EPA will submit a report containing this action 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 action in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 808(2).

M. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final actions by EPA. This 
section provides, in part, that petitions for review must be filed in 
the Court of Appeals for the District of Columbia Circuit: (i) When the 
EPA action consists of ''nationally applicable regulations promulgated, 
or final actions taken, by the Administrator,'' or (ii) when such 
action is locally or regionally applicable, if ``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.''
    The Administrator is determining that this action making a finding 
of failure to submit SIPs related to the section 110(a)(2)(D)(i)(I) 
requirements for the 2006 24-hour PM2.5 NAAQS is of 
nationwide scope and effect for the purposes of section 307(b)(1). This 
is particularly appropriate because in the report on the 1977 
Amendments that revised section 307(b)(1) of the CAA, Congress noted 
that the Administrator's determination that an action is of 
``nationwide scope or effect'' would be appropriate for any action that 
has ``scope or effect beyond a single judicial circuit.'' H.R. Rep. No. 
95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the 
scope and effect of this rulemaking extends to numerous judicial 
circuits since the finding of failure to submit a SIP applies to a 
rulemaking of national scope and effect. In these circumstances, 
section 307(b)(1)

[[Page 43183]]

and its legislative history call for the Administrator to find the rule 
to be of ``nationwide scope or effect'' and for venue to be in the 
District of Columbia Circuit.
    Thus, any petitions for review of this action related to a finding 
of failure to submit SIPs related to the requirements of section 
110(a)(2)(D)(i)(I) of the CAA 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: July 1, 2011.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2011-17738 Filed 7-19-11; 8:45 am]
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