
[Federal Register Volume 78, Number 10 (Tuesday, January 15, 2013)]
[Rules and Regulations]
[Pages 2882-2892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00566]


=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2012-0943, FRL-9769-4]
RIN 2060


Findings of Failure To Submit a Complete State Implementation 
Plan for Section 110(a) Pertaining to the 2008 Ozone National Ambient 
Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finding that 28 states, the District of Columbia 
and the Commonwealth of Puerto Rico have not made complete state 
implementation plan (SIP) submissions to address certain SIP elements, 
as required by the Clean Air Act (CAA). Specifically, the EPA is 
determining that these states have not submitted complete SIPs that 
provide the basic CAA program elements as necessary to implement the 
2008 8-hour ozone national ambient air quality standards (NAAQS). The 
EPA refers to these SIP submissions as ``infrastructure'' SIPs. By this 
action, the EPA is identifying states that either have not made any 
submission to address the applicable elements or have made a complete 
submission to address some applicable elements but did not make a 
complete submission for other applicable elements. The EPA recognizes 
that its efforts to reconsider the 2008 8-hour ozone NAAQS delayed and 
complicated the efforts of some states to develop and submit these 
infrastructure SIPs, but at this time the EPA is nevertheless required 
by court order to make these findings. These findings of failure to 
submit establish a 24-month deadline for the EPA to promulgate federal 
implementation plans (FIPs) to address the outstanding SIP elements 
unless, prior to that time, the affected states submit and the EPA 
approves, a SIP that corrects the deficiency.

DATES: The effective date of this rule is February 14, 2013.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Dr. Karl Pepple: telephone (919) 541-
2683, email pepple.karl@epa.gov; or Mr. Lynn Dail: telephone (919) 541-
2363, email dail.lynn@epa.gov, Office of Air Quality Planning and 
Standards, Air Quality Policy Division, Mail Code C539-02, 109 TW 
Alexander Drive, Research Triangle Park, NC 27709.

SUPPLEMENTARY INFORMATION: 

I. General Information

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

    Section 553 of the APA, 5 U.S.C. 553(b)(B), provides that, when an 
agency for good cause finds that notice and public procedure are 
impracticable, unnecessary, or contrary to the public interest, the 
agency may issue a rule without providing notice and an opportunity for 
public comment. The EPA has determined that there is good cause for 
making this rule final without prior proposal and opportunity for 
comment 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, or incomplete submissions, 
to meet the requirement. Thus, notice and public procedure are 
unnecessary. The EPA finds that this constitutes good cause under 5 
U.S.C. 553(b)(B).

[[Page 2883]]

B. How can I get copies of this document and other related information?

    The EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2012-0943. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution 
Avenue NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744 and the 
telephone number for the Office of Air and Radiation Docket and 
Information Center is (202) 566-1742.

C. Contact Information

    For questions related to a specific state, the District of Columbia 
or the Commonwealth of Puerto Rico, please contact the appropriate EPA 
Regional Office:

------------------------------------------------------------------------
            Regional offices                          States
------------------------------------------------------------------------
EPA Region I: Dave Conroy, Air Program   Connecticut, Maine,
 Branch Manager, Air Programs Branch,     Massachusetts, New Hampshire,
 EPA New England, 1 Congress Street,      Rhode Island and Vermont.
 Suite 1100, Boston, MA 02203-2211.
EPA Region II: Raymond Werner, Chief,    New Jersey, New York and Puerto
 Air Programs Branch, EPA Region II,      Rico.
 290 Broadway, 21st Floor, New York, NY
 10007-1866.
EPA Region III: Donna Mastro, Air        Delaware, District of Columbia,
 Program Manager, Air Quality Planning    Maryland, Pennsylvania,
 Branch, EPA Region III, 1650 Arch        Virginia and West Virginia.
 Street, Philadelphia, PA 19103-2187.
EPA Region IV: R. Scott Davis, Air       Alabama, Florida, Georgia,
 Program Manager, Regulatory              Kentucky, Mississippi, North
 Development Section, EPA Region IV,      Carolina, South Carolina and
 Sam Nunn, Atlanta Federal Center, 61     Tennessee.
 Forsyth Street SW., 12th Floor,
 Atlanta, GA 30303.
EPA Region V: John Mooney, Air Program   Illinois, Indiana, Michigan,
 Branch Manager, Air Programs Branch,     Minnesota, Ohio and Wisconsin.
 EPA Region V, 77 West Jackson Street,
 Chicago, IL 60604.
EPA Region VI: Guy Donaldson, Chief,     Arkansas, Louisiana, New
 Air Planning Section, EPA Region VI,     Mexico, Oklahoma and Texas.
 1445 Ross Avenue, Dallas, TX 75202-
 2733.
EPA Region VII: Joshua A. Tapp, Branch   Iowa, Kansas, Missouri and
 Chief, Air Planning and Development      Nebraska.
 Branch, EPA Region VII, 11201 Renner
 Blvd., Lenexa, KS 66219.
EPA Region VIII: Monica Morales, Air     Colorado, Montana, North
 Program Manger, Air Quality Planning     Dakota, South Dakota, Utah and
 Unit, EPA Region VIII Air Program,       Wyoming.
 1595 Wynkoop St. (8P-AR), Denver, CO
 80202-1129.
EPA Region IX: Doris Lo, Acting Air      Arizona, California, Hawaii and
 Program Manager, Air Planning Office,    Nevada.
 EPA Region IX, 75 Hawthorne Street,
 San Francisco, CA 94105.
EPA Region X: Debra Suzuki, Air Program  Alaska, Idaho, Oregon and
 Manager, Air Planning Unit, EPA Region   Washington.
 X, Office of Air, Waste, and Toxics,
 Mail Code AWT-107, 1200 Sixth Avenue,
 Seattle, WA 98101.
------------------------------------------------------------------------

D. How is this preamble organized.

Table of Contents

I. General Information
    A. Notice and Comment Under the Administrative Procedure Act 
(APA)
    B. How can I get copies of this document and other related 
information?
    C. Contact Information
II. Background and Overview
III. Findings of Failure To Submit for States That Failed To Make an 
Infrastructure SIP Submittal in Whole or in Part for the 2008 8-hour 
Ozone NAAQS
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Executive 
Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act of 1995 (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority and Low Income Populations
    K. Congressional Review Act
    L. Judicial Review

II. Background and Overview

    On March 12, 2008, the EPA promulgated new NAAQS for ozone.\1\ The 
agency revised the previous 8-hour primary ozone standard of 0.08 parts 
per million (ppm) to 0.075 ppm. The EPA also revised the secondary 8-
hour standard to the level of 0.075 ppm making it identical to the 
revised primary standard. In September 2009, the EPA announced it would 
reconsider the 2008 8-hour ozone NAAQS and informed the states of this 
plan. On January 19, 2010, the EPA extended by 1 year the deadline for 
promulgating initial area designations for the 2008 ozone NAAQS. 
However, in September 2011, the EPA announced its decision to merge the 
reconsideration of the 2008 NAAQS with the next scheduled 5-year review 
of the ozone NAAQS, and advised the states that the 2008 NAAQS would be 
implemented.
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    \1\ See 73 FR 16436, March 27, 2008, National Ambient Air 
Quality Standards for Ozone, Final Rule.
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    The CAA section 110(a) imposes an obligation upon states to make a 
SIP submission with respect to the 2008 8-hour ozone NAAQS. CAA section 
110(a)(1) requires states to submit SIPs that provide for the 
implementation, maintenance and enforcement of a new or revised NAAQS 
within 3 years following the promulgation of the new or revised NAAQS, 
or within such shorter period as the EPA may prescribe.\2\ Section 
110(a)(2) lists specific requirements that states must meet in these 
SIP submissions, as applicable. The EPA refers to this type of SIP 
submission as the ``infrastructure'' SIP. The requirements for 
infrastructure SIPs include basic SIP

[[Page 2884]]

elements such as requirements for monitoring, basic program 
requirements and legal authority that are designed to assure attainment 
and maintenance of the NAAQS. 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 affect the content of 
the submission. The content of such a SIP submission may also vary 
depending upon what provisions the state's existing SIP already 
contains. Two elements identified in section 110(a)(2) are not governed 
by the 3-year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area requirements are not 
due within 3 years after promulgation of a new or revised NAAQS, but 
rather are due at the time the nonattainment area plan requirements are 
due pursuant to section 182.\3\ These requirements are: (i) Submissions 
required by section 110(a)(2)(C) to the extent that subsection refers 
to a nonattainment area new source review permit program for major 
sources as required in part D of title I of the CAA; and (ii) 
submissions required by section 110(a)(2)(I) which pertains to the 
nonattainment planning requirements of part D of title I of the CAA. 
Therefore, this action does not cover these specific SIP elements in 
section 110(a)(2). This action does cover the requirement that 
infrastructure SIPs provide for a minor source permitting program. In 
the case of the 2008 8-hour ozone NAAQS, the period during which the 
EPA was making efforts to reconsider the 2008 NAAQS with the 
expectation of revising it in the near term extended about 6 months 
beyond March 12, 2011, the normal deadline for submission of 
infrastructure SIPs. The EPA therefore did not prepare and issue timely 
guidance for the states to assist them in preparing their submissions. 
Also, states were given the impression that if the NAAQS were revised 
as a result of the reconsideration, the 3-year deadline would reset. 
However, given that the NAAQS have not been revised, March 12, 2011, 
remains the legally applicable deadline for infrastructure SIPs for the 
2008 8-hour ozone NAAQS.
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    \2\ The EPA has not prescribed a shorter period for the 2008 8-
hour ozone NAAQS.
    \3\ Nonattainment area plans required by part D title I of the 
CAA for the 2008 8-hour ozone NAAQS are due by various dates as 
established throughout subpart 2 of part D, i.e., reasonably 
available control measures are due in 2 years under 182(b)(2), 
reasonable further progress plans are due in 3 years under 
182(b)(1), and attainment demonstrations are due in 4 years under 
182(c)(2). The EPA has interpreted these dates to run from the 
effective dates of the nonattainment designations, see 68 FR 32802, 
32816-817 (June 2, 2003) (``subpart 2 SIP submittals will be due as 
a general matter by the same period of time after designation and 
classification under the 8-hour standard as provided in subpart 2 
for areas designated and classified at the time of enactment of the 
1990 CAA.'') The designations for the 2008 ozone standard were 
effective on July 20, 2012. See 77 FR 30088 (May 21, 2012) and 77 FR 
34221 (June 11, 2012). The EPA notes that it has recently become 
aware that in several actions on ozone infrastructure SIPs the EPA 
incorrectly indicated that nonattainment SIPs would be due according 
to schedules established under section 172. Those statements were 
incorrect and the result of inadvertently using language applicable 
to particulate matter SIPs in ozone SIP actions. Section 172 sets 
SIP submittal dates only for SIPs subject to subpart 1 of part D. 
Section 182 sets the dates for ozone SIPs which are governed by 
subpart 2 of part D.
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    The EPA recognizes that many states would have developed and made 
timely infrastructure SIP submissions for purposes of the 2008 8-hour 
ozone NAAQS but for the uncertainty of the submission date requirement 
as a result of the EPA's efforts to reconsider that NAAQS, the EPA's 
associated interim advice to states regarding implementation of those 
NAAQS, and the lack of guidance from the EPA regarding what such 
infrastructure submissions should include. The EPA believes that many 
states in fact have SIPs in place that meet all or many of the basic 
program elements required in section 110(a)(2), as a result of their 
earlier SIP submissions in connection with previous ozone NAAQS and 
NAAQS for other pollutants. Since the September 2011 announcement that 
the 2008 8-hour NAAQS would be implemented, many states have been 
working to prepare infrastructure SIP submissions documenting that this 
is the case (and supplementing the SIP with new provisions when needed) 
and to complete required public comment opportunity steps. About one-
half of the states have successfully made complete submissions and a 
number of others are less than a month away from doing so. Some states 
are on track to make a submittal somewhat later.
    As of early 2012, which was only a few months after the 
announcement that the deadline for infrastructure SIPs would not reset 
and thus had already passed on March 12, 2011, many states had not yet 
submitted an infrastructure SIP for the 2008 8-hour ozone NAAQS. 
Litigants filed a mandatory duty lawsuit alleging: (i) That the EPA had 
failed to take timely mandatory action under section 110(k) on 
infrastructure SIPs submitted by Kentucky and Tennessee; and (ii) that 
the EPA had failed to make completeness findings or findings of failure 
to submit for many other states that had not yet submitted such 
infrastructure SIP submissions as of that point in time. On October 17, 
2012, the court granted summary judgment to the litigants against the 
EPA and ordered the EPA to take certain actions, including making 
findings of failure to submit for any of the listed states that had not 
yet made an infrastructure SIP submission.\4\ The court ordered the EPA 
to sign a final rule issuing these findings of failure to submit for 
each of the states listed in the order for each of the listed 
infrastructure SIP elements, no later than January 4, 2013. The EPA 
interprets the court's order to require a determination whether or not 
each of the listed states has made a complete infrastructure SIP 
submission for the listed elements of section 110(a)(2), as applicable, 
and if the state in question has not made such a complete submission 
for one or more relevant elements of section 110(a)(2), to make a 
finding of failure to submit with respect to any such element. Whether 
or not a submittal is ``complete'' pertains to the requirements in 
section 110(k)(1)(B) and EPA's regulations at 40 CFR 51 Appendix V. 
Thus, the EPA is making findings of failure to submit, in whole or in 
part, based upon whether the states at issue have made a complete 
infrastructure SIP for the relevant elements of section 110(a)(2).\5\
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    \4\ WildEarth Guardians v. Lisa P. Jackson, U.S. District Court 
for the Northern District of California, Case No.:11-CV-5651 YGR and 
Consolidated Case No.: 11-CV-05694 YGR.
    \5\ The court also ordered the EPA to sign a final rule or rules 
taking action on infrastructure SIP submittals from Tennessee and 
Kentucky. The date for these final actions was subsequently extended 
by the court to March 4, 2013. These actions will be addressed in 
separate Federal Register notices.
---------------------------------------------------------------------------

    The EPA also is not issuing in this notice any findings of failure 
to submit SIPs addressing section 110(a)(2)(D)(i)(I) of the CAA. The 
EPA has historically interpreted section 110(a)(1) of the CAA as 
establishing the required submittal date for SIPs addressing all of the 
``interstate transport'' requirements in section 110(a)(2)(D) including 
the provisions in section 110(a)(2)(D)(i)(I) regarding significant 
contribution to nonattainment and interference with maintenance. The DC 
Circuit's recent opinion in EME Homer City Generation v. EPA, 696 F.3d 
7, 31 (D.C. Cir. 2012), however, concluded that a SIP cannot be deemed 
to lack a required submission or deemed deficient for failure to meet 
the 110(a)(2)(D)(i)(I) obligation until after the EPA quantifies that 
obligation. This decision is not yet final as the mandate has not been 
issued and the EPA has petitioned for rehearing en banc, asking the 
full court to reconsider that conclusion. Nonetheless, during the 
pendency of the appeal, the EPA intends to act in accordance with the 
holdings in the

[[Page 2885]]

EME Homer City opinion. Therefore, at this time the EPA is not making 
findings that states failed to submit SIPs to comply with section 
110(a)(2)(D)(i)(I).
    After excluding SIP elements required by CAA sections 110(a)(2)(C) 
to the extent that subsection refers to a nonattainment area new source 
review permit program for major sources as required in part D of title 
I of the CAA, 110(a)(2)(I) regarding plans for nonattainment areas, and 
110(a)(2)(D)(i)(I) regarding interstate transport affecting attainment 
and maintenance of the NAAQS, as explained above, the remaining 
elements that are relevant to this action are the requirements of CAA 
sections 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M).
    For those states that have not yet made an infrastructure SIP 
submittal and those states that have made a submittal that was not 
complete with respect to each relevant element of section 110(a)(2), as 
applicable, the EPA is making a finding of failure to submit. For those 
states that have not made any submittal, the EPA is making a finding 
with respect to all of the relevant section 110(a)(2) SIP elements. For 
those states that have made a SIP submittal, but whose submittal is 
incomplete for some or all of the relevant section 110(a)(2) elements, 
as applicable, the EPA is issuing findings of failure to submit only 
with respect to those specific elements which a state has not yet 
submitted a complete SIP submission to meet. For both sets of states, 
these findings reflect submissions received or not received as of 
January 3, 2013.
    These findings establish a 24-month deadline for the promulgation 
by the EPA of a FIP, in accordance with section 110(c)(1). These 
findings of failure to submit do not impose sanctions, or set deadlines 
for imposing sanctions as described in section 179 of the CAA, because 
these findings do not pertain to the elements of a part D, title I plan 
for nonattainment areas as required under section 110(a)(2)(I) and 
because this action is not a SIP call pursuant to section 110(k)(5).
    The EPA is not making any finding in this notice regarding 22 
states that have submitted infrastructure SIPs that have become 
complete by operation of law under CAA section 110(k)(1)(B) or have 
already been determined by the EPA to be complete for all elements 
relevant to this action. These states are Alaska, Alabama, Colorado, 
Connecticut, Florida, Georgia, Idaho, Indiana, Kentucky, Maryland, 
Mississippi, New Hampshire, North Carolina, Ohio, Oregon, Rhode Island, 
South Carolina, Tennessee, Texas, Virginia and West Virginia. Arizona 
and Illinois have made submissions that have been determined by the EPA 
to be complete except for elements related to prevention of significant 
deterioration (PSD). Also, the infrastructure SIP submitted by Delaware 
was determined by the EPA to be incomplete for all elements prior to 
this notice; the EPA is anticipating that Delaware will submit a 
revised SIP soon. Also, New Mexico has submitted an infrastructure SIP 
covering Bernalillo County that has already been approved by the EPA. 
The submission date and completeness status of the infrastructure SIP 
for each of these states are provided in Table 1, for informational 
purposes only.

   Table 1--Infrastructure SIPs (and SIP Elements) for the 2008 8-Hour
Ozone NAAQS That Have Become Complete by Operation of Law, Determined To
 Be Complete or Determined To Be Incomplete or Approved Prior to Today's
                                 Action
------------------------------------------------------------------------
                               Date of receipt by
                                the EPA (and date
            State                 shown on the       Completeness status
                                   submittal)
------------------------------------------------------------------------
Alaska......................  Section               Complete by
                               110(a)(2)(D)(i)--Ap   operation of law.
                               ril 4, 2011
                               (submission was
                               dated March 29,
                               2011); other
                               sections--March 8,
                               2012 (submission is
                               dated March 2,
                               2012).
Alabama.....................  August 23, 2012       Determined to be
                               (submission is        complete on
                               dated August 20,      December 14, 2012.
                               2012).
Arizona.....................  December 27, 2012     Determined to be
                               (submission is        complete for
                               dated December 27,    relevant elements
                               2012).                except those
                                                     related to PSD on
                                                     January 4, 2013.
Colorado....................  December 31, 2012     Determined to be
                               (submission is        complete on January
                               dated December 31,    2, 2013.
                               2012).
Connecticut.................  December 28, 2012     Determined to be
                               (submission is        complete on January
                               dated December 28,    3, 2013.
                               2012).
Delaware....................  February 1, 2012      Determined to be
                               (submission is        incomplete on March
                               dated January 17,     29, 2012.
                               2012).
Florida.....................  November 3, 2011      Complete by
                               (submission is        operation of law.
                               dated October 31,
                               2011).
Georgia.....................  March 8, 2012         Complete by
                               (submission is        operation of law.
                               dated March 6,
                               2012).
Idaho.......................  June 28, 2010         Complete by
                               (submission is        operation of law.
                               dated June 25,
                               2010).
Illinois....................  December 31, 2012     Determined to be
                               (submission is        complete for
                               dated December 31,    relevant elements
                               2012).                except those
                                                     related to PSD on
                                                     January 2, 2013.
Indiana.....................  December 15, 2011     Complete by
                               (submission is        operation of law.
                               dated December 12,
                               2011).
Kentucky....................  July 23, 2012         Determined to be
                               (submission is        complete on
                               dated July 17,        December 14, 2012.
                               2012).
Maryland....................  December 31, 2012     Determined to be
                               (submission is        complete on January
                               dated December 27,    2, 2013.
                               2012).
Mississippi.................  August 17, 2012       Determined to be
                               (submission is        complete on
                               dated July 26,        December 18, 2012.
                               2012).

[[Page 2886]]

 
New Hampshire...............  December 31, 2012     Determined to be
                               (submission is        complete on January
                               dated December 31,    3, 2013.
                               2012).
New Mexico (for Bernalillo    August 25, 2010       Final approval (77
 County only).                 (submission is        FR 58032, September
                               dated August 16,      19, 2012).
                               2010).
North Carolina..............  November 9, 2012      Determined to be
                               (submission is        complete on
                               dated November 2,     November 15, 2012.
                               2012).
Ohio........................  December 27, 2012     Determined to be
                               (submission is        complete on January
                               dated December 27,    2, 2013.
                               2012).
Oregon......................  Section               Complete by
                               110(a)(2)(D)(i)--Ju   operation of law.
                               ne 28, 2010
                               (submission is
                               dated June 23,
                               2010); other
                               sections--December
                               28, 2011
                               (submission is
                               dated December 19,
                               2011).
Rhode Island................  January 2, 2013       Determined to be
                               (submission is        complete on January
                               dated January 2,      3, 2013.
                               2013).
South Carolina..............  October 28, 2011      Complete by
                               (submission is        operation of law.
                               dated October 24,
                               2011).
Tennessee...................  October 21, 2009      Complete by
                               (submission is        operation of law.
                               dated October 19,
                               2009).
Texas.......................  December 19, 2012     Determined to be
                               (submission is        complete on
                               dated December 13,    December 20, 2012.
                               2012).
Virginia....................  July 26, 2012         Determined to be
                               (submission is        complete on
                               dated July 23,        December 10, 2012.
                               2012).
West Virginia...............  February 21, 2012     Complete by
                               (submission is        operation of law.
                               dated February 17,
                               2012).
------------------------------------------------------------------------

    The EPA is finding that the 25 states not listed in Table 1, 
Arizona, Illinois, New Mexico, the District of Columbia and the 
Commonwealth of Puerto Rico, as identified in section III of this 
notice, have not made a complete infrastructure submission to meet 
certain requirements of section 110(a)(2) that are relevant to this 
action, as applicable, for the 2008 8-hour ozone NAAQS. The EPA is 
committed to working with these states and areas to expedite the needed 
submissions and to working with all the states to review and act on 
their infrastructure SIP submissions in accordance with the 
requirements of the CAA.

III. Findings of Failure To Submit for States That Failed To Make an 
Infrastructure SIP Submittal in Whole or in Part for the 2008 8-hour 
Ozone NAAQS

    The EPA is making findings that certain states have failed to 
submit a complete infrastructure SIP that provides certain basic 
program elements of section 110(a)(2) necessary to implement the 2008 
8-hour ozone NAAQS, by January 3, 2013, as identified for each below. 
The EPA is by this action starting a 24-month deadline by which time 
the EPA must promulgate a FIP for each affected state to address the 
identified section 110(a)(2) requirements, unless the state submits and 
EPA approves a SIP revision that corrects the deficiency before the EPA 
promulgates a FIP for the state, in accordance with section 110(c)(1). 
This action will be effective 30 days after publication, on February 
14, 2013.
    The following states and territories failed to make a complete 
submittal to satisfy certain of the requirements of section 110(a)(2).

Region I

    Maine did not submit a SIP to address the requirements of section 
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to 
permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M).
    Massachusetts did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II), 
(D)(ii) and (J) (in all four subsections for the PSD-related and 
notification-related requirements only) are already addressed for 
Massachusetts through an existing PSD FIP that remains in place. 
Therefore, this action will not trigger any additional FIP obligations 
with respect to the PSD-related and notification-related requirements 
in these four subsections.
    Vermont did not submit a SIP to address the requirements of 
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to 
permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M).

Region II

    New Jersey did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II), 
(D)(ii) and (J) (in all four subsections for the PSD-related and 
notification-related requirements only) are already addressed for New 
Jersey through an existing PSD FIP that remains in place. Therefore, 
this action will not trigger any additional FIP obligations with 
respect to the PSD-related and notification-related requirements in 
these four subsections. The EPA anticipates that New Jersey will 
propose a SIP for public comment that certifies New Jersey's existing 
EPA-approved SIP, meets all the requirements of the infrastructure SIP 
elements included in today's finding that are not related to PSD or to 
notification.
    New York did not submit a SIP to address the requirements of 
section

[[Page 2887]]

110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to 
permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). A SIP proposed for public comment by New York certifies 
that New York's existing EPA-approved SIP, including its PSD program, 
meets all the requirements of the infrastructure SIP elements included 
in today's finding.
    The Commonwealth of Puerto Rico did not submit a SIP to address the 
requirements of section 110(a)(2)(A), (B), (C) to the extent it refers 
to enforcement, to permitting programs for minor sources and to PSD 
permitting programs required by part C of title I of the CAA, 
(D)(i)(II), (D)(ii), (E)-(H) and (J)-(M). Regarding this finding, 
sections 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in all four 
subsections for the PSD-related and notification-related requirements 
only) are already addressed for the Commonwealth of Puerto Rico through 
an existing PSD FIP that remains in place. Therefore, this action will 
not trigger any additional FIP obligations with respect to the PSD-
related and notification-related requirements in these four 
subsections.

Region III

    The District of Columbia did not submit a SIP to address the 
requirements of section 110(a)(2)(A), (B), (C) to the extent it refers 
to enforcement, to permitting programs for minor sources and to PSD 
permitting programs required by part C of title I of the CAA, 
(D)(i)(II), (D)(ii), (E)-(H) and (J)-(M). Regarding this finding, 
sections 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in all four 
sections for the PSD-related and notification-related requirements 
only) are already addressed for the District of Columbia through an 
existing PSD FIP that remains in place. Therefore, this action will not 
trigger any additional FIP obligations with respect to the PSD-related 
and notification-related requirements in these four subsections.
    Pennsylvania did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II), 
(D)(ii) and (J) (in all four subsections for the PSD-related and 
notification-related requirements only) are already addressed for 
Allegheny County through an existing PSD FIP that remains in place. 
Therefore, this action will not trigger any additional FIP obligations 
with respect to the PSD-related and notification-related requirements 
in these four subsections in Allegheny County.

Region V

    Illinois did not submit a complete SIP to address the requirements 
of section 110(a)(2)(C) and (J) to the extent these refer to PSD 
permitting programs required by part C of title I of the CAA. Illinois 
also failed to submit a complete SIP to address the PSD-related 
requirement of section 110(a)(2)(D)(i)(II) to the extent it refers to 
interference with other states' PSD permitting programs required by 
part C by sources in Illinois. Illinois also failed to submit a 
complete SIP to address the requirement of section 110(a)(2)(D)(ii) to 
the extent it refers to notification to other states. Regarding this 
finding, sections 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in all 
four subsections for the PSD-related and notification-related 
requirements only) are already addressed for Illinois through an 
existing PSD FIP that remains in place. Therefore, this action will not 
trigger any additional FIP obligations with respect to the PSD-related 
and notification-related requirements in these four subsections.
    Michigan did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M).
    Minnesota did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II), 
(D)(ii) and (J) (in all four subsections for the PSD-related and 
notification-related requirements only) are already addressed for 
Minnesota through an existing PSD FIP that remains in place. Therefore, 
this action will not trigger any additional FIP obligations with 
respect to the PSD-related and notification-related requirements in 
these four subsections.
    Wisconsin did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M).

Region VI

    Arkansas did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M).
    Louisiana did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M).
    New Mexico did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M) for all portions of the state other than Bernalillo County.
    Oklahoma did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M).

Region VII

    Iowa did not submit a complete SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). On December 17, 2012, the state by letter submitted a 
document that describes the actions the state has taken to address the 
infrastructure SIP requirements for the 2008 8-hour ozone NAAQS, to 
demonstrate that the state is taking necessary and possible steps 
needed to ensure that its rules and procedures are sufficient to 
implement the new standards. However, while the state provided this 
document to the public for comment on December 6, 2012, that comment 
period does not close until January 8, 2013. In addition, the state has 
scheduled a public hearing on this submission for January 8, 2013, as 
required by CAA section 110(a)(1) and 40 CFR 51.102. The EPA 
anticipates that Iowa will submit a complete SIP soon after conclusion 
of the public comment period.
    Kansas did not submit a SIP to address the requirements of section 
110(a)(2)(A), (B), (C) to the extent it

[[Page 2888]]

refers to enforcement, to permitting programs for minor sources and to 
PSD permitting programs required by part C of title I of the CAA, 
(D)(i)(II), (D)(ii), (E)-(H) and (J)-(M). The EPA anticipates that 
Kansas will submit a SIP to address these requirements after conclusion 
of the public comment period currently underway.
    Missouri did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). The EPA anticipates that Missouri will submit a SIP to 
address these requirements soon.
    Nebraska did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). The EPA anticipates that Nebraska will submit a SIP to 
address these requirements after conclusion of the public comment 
period currently underway.

Region VIII

    Montana did not submit a SIP to address the requirements of section 
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to 
permitting programs for minor sources and to PSD permitting programs 
required by CAA part C title I, (D)(i)(II), (D)(ii), (E)-(H) and (J)-
(M).
    North Dakota did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). The state anticipates undergoing rulemaking and public 
notice early in 2013.
    South Dakota did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). The state anticipates undergoing rulemaking and public 
notice early in 2013.
    Utah did not submit a complete SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). On December 12, 2012, the state by letter submitted 
documents that summarize the state's existing infrastructure SIP 
elements and explain that these elements satisfy the state's obligation 
for the 2008 ozone NAAQS. However, the state had not yet completed a 
public comment process on this submission, although the state has 
provided these documents to the public for a comment period between 
December 18, 2012, and January 18, 2013. As a result, the December 12, 
2012, submittal has not yet satisfied the requirement for public notice 
and opportunity for a public hearing established in CAA section 
110(a)(1) and 40 CFR 51.102. See also CAA section 110(l). The state's 
letter offers its position that because all of the elements in the 
existing infrastructure SIP were previously subject to a public comment 
process, including the opportunity for public hearing(s), when they 
were first submitted for the EPA's approval and incorporation into the 
SIP, no public comment requirements should apply to the December 12, 
2012, submittal. Utah's position is inconsistent with the plain text of 
section 110(a)(1) of the CAA. Section 110(a)(1) first provides that 
``[e]ach State shall, after reasonable notice and public hearings, 
adopt and submit to the Administrator, within 3 years (or such shorter 
period as the Administrator may prescribe) after the promulgation of a 
[primary NAAQS] (or any revision thereof) * * * a plan [i.e., 
infrastructure SIP] which provides for implementation, maintenance, and 
enforcement of such primary standard.'' The clause ``after reasonable 
notice and public hearings'' is most naturally read as imposing that 
procedure on the immediately following phrase, ``adopt and submit,'' 
the direct object of which is the infrastructure SIP itself. Utah's 
position would instead apply the phrase ``after reasonable notice and 
public hearings'' to SIP revisions submitted before the promulgation of 
the new or revised primary NAAQS, despite the complete absence of a 
reference to those earlier SIP revisions in section 110(a)(1). Any 
possible residual ambiguity is removed by the last sentence of section 
110(a)(1), which requires an infrastructure SIP for a secondary NAAQS 
to be considered (unless a separate public hearing is provided) ``at 
the hearing required by the first sentence of this paragraph.'' The 
only possible interpretation of this sentence is that there must be an 
opportunity for public hearing for the infrastructure SIPs for both the 
primary and secondary NAAQS. As explained in an EPA memorandum,\6\ the 
requirement in the CAA and EPA rules for public notice and opportunity 
for a hearing is to inform the public that the SIP is being revised and 
allow for comment as to whether the state regulations satisfy the 
relevant specific obligation under the CAA, in this case the new 
obligation stemming from the promulgation of the revised 2008 ozone 
NAAQS. Finally, draft submittals are not considered plan submittals 
under the CAA because they have not been adopted by the state. 
Consequently, Utah's SIP submittal does not qualify for a finding of 
completeness. Because the requirements for public notice and 
opportunity for a hearing apply to Utah's December 12, 2012, submittal, 
the EPA's determination in this action that the submittal did not 
satisfy those requirements is also a determination that the December 
12, 2012, submittal is incomplete in its entirety under the criteria in 
40 CFR part 51, Appendix V, specifically the criteria in subsections 
2.1(f) and (g). As Utah's submittal did not meet the minimum criteria 
in Appendix V, we are treating the state as not having made the 
required infrastructure SIP submission. See CAA section 110(k)(1)(C).
---------------------------------------------------------------------------

    \6\ See Attachment B, ``Regional Consistency for the 
Administrative Requirements of State Implementation Plan Submittals 
and the Use of `Letter Notices' '', Memorandum from Janet McCabe, 
Deputy Assistant Administrator for the Office of Air & Radiation, to 
EPA Regional Administrators, April 6, 2011.
---------------------------------------------------------------------------

    Wyoming did not submit a SIP to address the requirements of section 
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to 
permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). The state anticipates undergoing rulemaking and public 
notice early in 2013.

Region IX

    Arizona did not submit a complete SIP to address the requirements 
of section 110(a)(2)(C) and (J) to the extent these refer to the 
Prevention of Significant Deterioration (PSD) permitting programs 
required by part C, title I of the CAA for sources in Maricopa County, 
Pima County, and Pinal County. Arizona did not submit a complete SIP to 
address the PSD-related requirements of section 110(a)(2)(D)(i)(II) to 
the extent it refers to interference with other states' PSD permitting 
programs required by part C by sources in these counties. Arizona did 
not submit a complete SIP to address the requirement of section 
110(a)(2)(D)(ii) to the extent it refers to

[[Page 2889]]

notification to other states for sources in these counties. Finally, 
did not submit a complete SIP to address the requirement of section 
110(a)(2)(K) for the same counties. In Pinal County, PSD sources are 
subject to a SIP-approved PSD program but the state has not yet 
submitted SIP revisions to address PSD requirements for the 2008 8-hour 
ozone NAAQS. In Maricopa and Pima counties, sections 110(a)(2)(C), 
(D)(i)(II), (D)(ii), (J) and (K) (in all five subsections for the PSD-
related and notification-related requirements only) are currently 
addressed by an existing PSD FIP that remains in place. Therefore, this 
action will not trigger any additional FIP obligations with respect to 
these PSD-related and notification-related requirements in Maricopa and 
Pima counties.
    California did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II), 
(D)(ii) and (J) (in all four subsections for the PSD-related and 
notification-related requirements only) are already addressed for some 
portions of California through an existing PSD FIP that remains in 
place. Therefore, this action will not trigger any additional FIP 
obligations with respect to the PSD-related and notification-related 
requirements in these four subsections in those portions of California.
    Hawaii did not submit a SIP to address the requirements of section 
110(a)(2)(A), (B), (C) to the extent it refers to enforcement, to 
permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II), 
(D)(ii) and (J) (in all four subsections for the PSD-related and 
notification-related requirements only) are already addressed for 
Hawaii through an existing PSD FIP that remains in place. Therefore, 
this action will not trigger any additional FIP obligations with 
respect to the PSD-related and notification-related requirements in 
these four subsections.
    Nevada did not submit a complete SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to PSD permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). On December 20, 2012, the state by letter submitted 
documents that summarize the state's existing infrastructure SIP 
elements. The state's letter offers its position that ``[s]ince no 
revisions for the Nevada infrastructure SIP for the 1997 ozone NAAQS 
are required to meet the infrastructure SIP requirements of the 2008 
ozone NAAQS'', no public notice requirements should apply at this time 
for the revised ozone standard. The state's letter also requested that 
the EPA act on these submittals pursuant to the ``parallel processing'' 
procedures set forth in 40 CFR part 51, Appendix V. The state has not 
yet completed a public comment process on this submission, but the 
state letter provided information on the schedule for public comment 
periods and public hearings for three geographic subdivisions of the 
state indicating that all steps in the public comment processes would 
be finished by the end of February 2013. The state letter maintains 
that the EPA can make a completeness finding on Nevada's submittal 
under section 2.3 of 40 CFR part 51, Appendix V. For the reasons 
explained below, the EPA disagrees with both rationales offered by the 
state and hereby finds that Nevada has failed to submit a complete SIP 
to address the infrastructure SIP requirements of CAA section 110(a)(2) 
for the 2008 8-hour ozone NAAQS. Nevada's first rationale that no 
public comment process is needed because no revisions for the Nevada 
infrastructure SIP for the 1997 ozone NAAQS are required to meet the 
infrastructure SIP requirements of the 2008 ozone NAAQS is inconsistent 
with the plain text of section 110(a)(1) of the CAA. Section 110(a)(1) 
first provides that ``[e]ach State shall, after reasonable notice and 
public hearings, adopt and submit to the Administrator, within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of a [primary NAAQS] (or any revision thereof) * * * a 
plan [i.e., infrastructure SIP] which provides for implementation, 
maintenance, and enforcement of such primary standard.'' The clause 
``after reasonable notice and public hearings'' is most naturally read 
as imposing that procedure on the immediately following phrase, ``adopt 
and submit,'' the direct object of which is the infrastructure SIP 
itself. Nevada's position would instead apply the phrase ``after 
reasonable notice and public hearings'' to SIP revisions submitted 
before the promulgation of the new or revised primary NAAQS, despite 
the complete absence of a reference to those earlier SIP revisions in 
section 110(a)(1). Any possible residual ambiguity is removed by the 
last sentence of section 110(a)(1), which requires an infrastructure 
SIP for a secondary NAAQS to be considered (unless a separate public 
hearing is provided) ``at the hearing required by the first sentence of 
this paragraph.'' The only possible interpretation of this sentence is 
that there must be an opportunity for public hearing for the 
infrastructure SIPs for both the primary and secondary NAAQS. As 
explained in an EPA memorandum,\7\ the requirement in the CAA and EPA 
rules for public notice and opportunity for a hearing is to inform the 
public that the SIP is being revised and allow for comment as to 
whether the state regulations satisfy the relevant specific obligation 
under the CAA, in this case the new obligation stemming from the 
promulgation of the revised 2008 ozone NAAQS. Finally, draft submittals 
are not considered plan submittals under the CAA because they have not 
been adopted by the state. Consequently, Nevada's SIP submittal does 
not qualify for a finding of completeness. Regarding Nevada's second 
rationale based on the parallel processing provisions of section 2.3 of 
40 CFR part 51, Appendix V, the EPA agrees that this section provides 
for EPA to propose an approval action for a draft SIP submittal 
accompanied by a request for parallel processing as a way to reduce the 
time elapsed before final approval can be given after completion of the 
public comment process. However, draft submittals are not considered 
plan submittals under the CAA because they have not been adopted by the 
state. Consequently, a draft SIP submittal accompanied by a request for 
parallel processing under 40 CFR part 51, Appendix V does not qualify 
for a finding of completeness.\8\ Because the requirements for public 
notice and opportunity for a hearing apply to Nevada's December 20, 
2012, submittal, the EPA's determination in this action that the 
submittal did not satisfy those requirements is also a determination 
that the December 20, 2012, submittal is incomplete in its entirety 
under the criteria in Appendix V, Part 51 of Title 40 of the Code of 
Federal Regulations, specifically the criteria in subsections 2.1(f) 
and (g). As Nevada's submittal did not meet the

[[Page 2890]]

minimum criteria in Appendix V, we are treating the state as not having 
made the required infrastructure SIP submission. See CAA section 
110(k)(1)(C).
---------------------------------------------------------------------------

    \7\ See Attachment B, ``Regional Consistency for the 
Administrative Requirements of State Implementation Plan Submittals 
and the Use of `Letter Notices' '', Memorandum from Janet McCabe, 
Deputy Assistant Administrator for the Office of Air & Radiation, to 
EPA Regional Administrators, April 6, 2011.
    \8\ See Memorandum from John Calcagni, Air Quality Management 
Division, OAQPS, to EPA Air Division Directors, Regions I through X, 
``State Implementation Plan (SIP) Actions Submitted in Response to 
Clean Air Act (Act) Deadlines,'' October 28, 1992.
---------------------------------------------------------------------------

Region X

    Washington did not submit a SIP to address the requirements of 
section 110(a)(2)(A), (B), (C) to the extent it refers to enforcement, 
to permitting programs for minor sources and to permitting programs 
required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)-(H) 
and (J)-(M). Regarding this finding, sections 110(a)(2)(C), (D)(i)(II), 
(D)(ii) and (J) (in all four subsections for the PSD-related and 
notification-related requirements only) are already addressed for 
Washington through an existing PSD FIP that remains in place. 
Therefore, this action will not trigger any additional FIP obligations 
with respect to the PSD-related and notification-related requirements 
in these four subsections.
    As noted earlier, the EPA is committed to working with these states 
and areas to expedite the needed submissions and to review and act on 
their infrastructure SIPs submission in accordance with the requirement 
of the CAA.

IV. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Executive Order 
13563: Improving Regulation and Regulatory 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 EO 12866 and 13563 (76 FR 
3821, January 21, 2011).

B. 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 final rule does not establish any new information collection 
requirement apart from that already required by law. This rule relates 
to the requirement in the CAA for states to submit SIPs under section 
110(a) to satisfy certain infrastructure and general authority-related 
elements required under section 110(a)(2) of the CAA for the 2008 8-
hour ozone NAAQS. Section 110(a)(1) of the CAA requires that states 
submit SIPs that implement, maintain and enforce a new or revised NAAQS 
which satisfy the requirements of section 110(a)(2) within 3 years of 
promulgation of such standard, or such shorter period as the EPA may 
provide.
    Burden means the 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.

C. Regulatory Flexibility Act (RFA)

    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 agency 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 rule 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 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 is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this rule will not have a significant economic 
impact on a substantial number of small entities. This final rule will 
not impose any requirements on small entities. This action relates to 
the requirement in the CAA for states to submit SIPs under section 
110(a) to satisfy certain infrastructure and general authority-related 
elements required under section 110(a)(2) of the CAA for the 2008 ozone 
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 such shorter period as EPA may 
provide.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action contains no federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local and tribal governments and the private sector. 
The 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 section 202 and 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. This action relates 
to the requirement in the CAA for states to submit SIPs under section 
110(a) to satisfy certain infrastructure and general authority-related 
elements required under section 110(a)(2) of the CAA for the 2008 ozone 
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 such shorter period as the EPA may 
provide.

E. Executive Order 13132: Federalism

    EO 13132, titled ``Federalism'' (64 FR 43255, August 10, 1999), 
requires the 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 EO 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 EO 13132. The CAA 
establishes the scheme whereby states take the lead in developing plans 
to meet the NAAQS. This rule will not

[[Page 2891]]

modify the relationship of the states and the EPA for purposes of 
developing programs to implement the NAAQS. Thus, EO 13132 does not 
apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    EO 13175, titled ``Consultation and Coordination with Indian Tribal 
Governments'' (65 FR 67249, November 9, 2000), requires the 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.'' This final rule does not have tribal 
implications, as specified in EO 13175. This rule responds to the 
requirement in the CAA for states to submit SIPs under section 110(a) 
to satisfy certain elements required under section 110(a)(2) of the CAA 
for the 2008 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires 
that states submit SIPs that provide for implementation, maintenance 
and enforcement of a new or revised NAAQS, and which satisfy the 
applicable requirements of section 110(a)(2), within 3 years of 
promulgation-of such standard, or within such shorter period as the EPA 
may provide. No tribe is subject to the requirement to submit an 
implementation plan under section 110(a) within 3 years of promulgation 
of a new or revised NAAQS and the court order requiring this final 
action does not affect any tribe or its implementation plan.

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

    The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the EO 
has the potential to influence the regulation. This action is not 
subject to EO 13045 because it is making findings that certain states 
have failed to submit a complete SIP that provides certain basic 
program elements of section 110(a)(2) necessary to implement the 2008 
8-hour ozone NAAQS.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in EO 
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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) 
directs the 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.

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

    EO 12898 (59 FR 7629, February 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. The 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 is making a finding that certain states have 
failed to submit a complete SIP that provides certain of the basic 
program elements of section 110(a)(2) necessary to implement the 2008 
8-hour ozone NAAQS.

K. 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 February 14, 2013.

L. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final agency actions by 
the EPA under the CAA. 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 agency 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.''
    This final rule consisting of findings of failure to submit certain 
required infrastructure SIP provisions is ``nationally applicable'' 
within the meaning of section 307(b)(1). First, this rule affects many 
states, the District of Columbia and the Commonwealth of Puerto Rico. 
Second, the action affects states across the U.S. that are located in 
nine of the 10 EPA Regions, 10 different federal circuits and multiple 
time zones. Third, the rule addresses a common core of knowledge and 
analysis involved in formulating the decision and a common 
interpretation of the requirements of 40 CFR 51 appendix V applied to 
determining the completeness of SIPs in states across the country.
    This determination is appropriate because in the 1977 CAA 
Amendments that revised CAA section 307(b)(1), 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 action extends to numerous judicial circuits because the action 
affects states throughout the country. In these circumstances, section 
307(b)(1) and its legislative history authorize the Administrator to 
find the rule to be of ``nationwide scope or effect'' and thus to

[[Page 2892]]

indicate that venue for challenges to be in the D.C. Circuit. 
Accordingly, the EPA is determining that this is a rule of nationwide 
scope or effect. In addition, pursuant to CAA section 307(d)(1)(V), the 
EPA is determining that this rulemaking action will be subject to the 
requirements of section 307(d). 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 review by the Administrator of 
this final action does not affect the finality of the 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 such rule or action. Thus, any petitions for review of 
this action 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

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

    Dated: January 4, 2013.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2013-00566 Filed 1-14-13; 8:45 am]
BILLING CODE 6560-50-P


