[Federal Register Volume 84, Number 183 (Friday, September 20, 2019)]
[Rules and Regulations]
[Pages 49462-49465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19992]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2019-0452; FRL-9999-85-OAR]


Findings of Failure To Submit State Implementation Plans Required 
for Attainment of the 2010 1-Hour Primary Sulfur Dioxide (SO2) National 
Ambient Air Quality Standard (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to find that two states (Maryland and Michigan) failed to submit 
State Implementation Plans (SIPs) to satisfy certain nonattainment area 
planning requirements of the Clean Air Act (CAA) for the 2010 1-hour 
primary Sulfur Dioxide (SO2) National Ambient Air Quality 
Standard (NAAQS). The purpose for the development and implementation of 
nonattainment area SIPs is to provide for attainment of the NAAQS as 
expeditiously as practicable following the designation of an area as 
nonattainment. This action establishes certain CAA deadlines for the 
EPA to impose sanctions if a state does not submit a complete SIP 
addressing the outstanding requirements and for the EPA to promulgate a 
Federal Implementation Plan (FIP) to address any outstanding SIP 
requirements.

DATES: This action is effective on October 21, 2019.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
document should be addressed to Dr. Larry D. Wallace, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mail Code: 
C539-01, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; by 
telephone (919) 541-0906; or by email at Wallace.larry@epa.gov.

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)(3)(B), provides that, when 
an

[[Page 49463]]

agency for good cause finds that notice and public procedures 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 final agency action without prior proposal and opportunity 
for comment because no significant EPA judgment is involved in making 
findings of failure to submit SIPs, or elements of SIPs, required by 
the CAA, where states have made no submission to meet the requirement. 
Thus, notice and public procedures are unnecessary to take this action. 
The EPA finds that this constitutes good cause under 5 U.S.C. 
553(b)(3)(B).

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-2019-0452. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the EPA Docket Center, EPA/DC, William Jefferson 
Clinton Building, 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. Where do I go if I have a specific state questions?

    For questions related to specific states mentioned in this 
document, please contact the appropriate EPA Regional Office:

------------------------------------------------------------------------
              Regional offices                          States
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EPA Region 3: Ms. Susan Spielberger,         Maryland.
 Associate Director, Office of Air Program
 Planning, EPA Region III, 1650 Arch
 Street, Philadelphia, PA 19103-2187.
EPA Region 5: Mr. Douglas Aburano, Chief,    Michigan.
 Attainment Planning and Maintenance
 Section, Air Programs Branch, EPA Region
 V, 77 West Jackson Street, Chicago, IL
 60604.
------------------------------------------------------------------------

D. How is the 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. Where do I go if I have specific state questions?
    D. How is the preamble organized?
II. Background
III. Consequences of Findings of Failure To Submit
IV. Findings of Failure To Submit for States That Failed To Make a 
Nonattainment Area SIP Submittal
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Executive 
Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act of 1995 (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority and Low Income Populations
    L. Congressional Review Act (CRA)
    M. Judicial Review

II. Background

    In June 2010, the EPA promulgated a new 1-hour primary 
SO2 NAAQS of 75 parts per billion (ppb), which is met when 
the 3-year average of the annual 99th percentile of daily maximum 1-
hour average concentrations does not exceed 75 ppb, as determined in 
accordance with Appendix T of 40 CFR part 50. See 40 CFR 50.17(a)-(b). 
On July 12, 2016, the EPA, as part of the second round of area 
designations for the 2010 SO2 NAAQS, designated four areas 
of the country as nonattainment for the 1-hour primary 2010 
SO2 NAAQS.\1\ See 81 FR 45039, codified at 40 CFR part 81, 
subpart C. These area designations had an effective date of September 
12, 2016.
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    \1\ The EPA completed its first round of initial area 
designations for the 2010 1-hour primary SO2 NAAQS on 
August 5, 2013, with an effective date of October 4, 2013. Under a 
court order issued on March 2, 2015, the EPA is required to complete 
designations related to the remaining undesignated areas of the 
country by no later than December 31, 2020. The findings in this 
document apply only to those areas that were designated on July 12, 
2016, and where, as of signature of this action, the affected states 
failed to submit required complete plans.
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    Areas designated as nonattainment for the SO2 NAAQS are 
subject to the general nonattainment area planning requirements of CAA 
section 172 and to the SO2-specific planning requirements of 
subpart 5 of part D of Title I of the CAA (sections 191 and 192). All 
components of the SO2 part D nonattainment area SIP, 
including the emissions inventory, attainment demonstration, reasonably 
available control measures (RACM) including reasonably available 
control technology (RACT), enforceable emission limitations and control 
measures, reasonable further progress (RFP) plan, nonattainment new 
source review (NNSR), and contingency measures, are due to the EPA 
within 18 months of the effective date of designation of an area under 
CAA section 191. Thus, the nonattainment area SIPs for areas designated 
effective September 12, 2016, were due on March 12, 2018. These SIPs 
were required to demonstrate that their respective areas will attain 
the NAAQS as expeditiously as practicable, but no later than 5 years 
from the effective date of designation, or by September 12, 2021.

III. Consequences of Findings of Failure To Submit

    If the EPA finds that a state has failed to make the required SIP 
submittal or that a submitted SIP is incomplete, then CAA section 
179(a) establishes specific consequences, including the imposition of 
mandatory sanctions for the affected area, after a period of time. 
Additionally, such a finding also triggers an obligation under CAA 
section 110(c) for the EPA to promulgate a FIP no later than 2 years 
after the finding of failure to submit if the affected state has not 
submitted, and EPA has not approved, the required SIP submittal.
    If the EPA has not affirmatively determined that a state has made 
the required complete SIP submittal for an area within 18 months of the 
effective date of this rulemaking, then, pursuant to CAA section 179(a) 
and (b) and 40 CFR 52.31, the offset sanction identified in CAA section 
179(b)(2) will apply in the affected nonattainment area. If the EPA has 
not affirmatively determined that the state has made a complete 
submission within 6 months after the offset sanction is imposed, then 
the highway funding sanction will apply in the affected nonattainment 
area, in accordance with CAA section 179(b)(1) and 40 CFR 52.31. The 
sanctions will not take effect if, within 18 months after the date of 
these findings, the EPA affirmatively determines that the affected 
state has made a complete SIP submittal addressing the deficiency for 
which the finding was made. Additionally, if the state makes the

[[Page 49464]]

required SIP submittal and the EPA takes final action to approve the 
submittal within 2 years of the effective date of these findings, the 
EPA is not required to promulgate a FIP for the affected nonattainment 
area.

IV. Findings of Failure To Submit for States That Failed To Make a 
Nonattainment Area SIP Submittal

    As of the date of signature of this action, the two states listed 
in Table 1 failed to make complete SIP submittals required under part D 
of Title 1 of the CAA by March 12, 2018, for two areas designated 
nonattainment effective September 12, 2016.\2\ The EPA is, therefore, 
issuing findings of failure to submit for the two states responsible 
for these areas: Anne Arundel County and Baltimore County, Maryland, 
and St. Clair, Michigan.
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    \2\ The EPA is not including in this action findings of failure 
to submit for the two other areas designated nonattainment effective 
September 12, 2016: Alton Township, Illinois, and Williamson County, 
Illinois. With respect to the first area, the state of Illinois 
submitted a SIP for the Alton Township, Illinois, nonattainment area 
on December 3, 2018, which was deemed complete on June 5, 2019. See 
letter from Edward Nam, Director, Air and Radiation Division, to Mr. 
John Kim, Director, Illinois Environmental Protection Agency (June 
5, 2019) (included in the rulemaking docket for this final action). 
With respect to the second area, on September 5, 2019, the EPA 
Administrator signed a notice of final action titled, 
``Reconsideration of the Area Designation for the 2010 1-Hour Sulfur 
Dioxide (SO2) Primary National Ambient Air Quality 
Standard for Williamson County, Illinois; Final Rule.'' This final 
action changes the initial designation of Williamson County, 
Illinois, from nonattainment to attainment/unclassifiable, and will 
be codified at 40 CFR 81.314. The EPA will promptly transmit this 
signed final action to the Office of the Federal Register for 
publication. An unofficial copy of the pre-publication signed final 
action is available at https://www.epa.gov/sulfur-dioxide-designations/reconsideration-nonattainment-designation-williamson-co-illinois. Only the version of the signed final action published 
in the Federal Register will be the official version, and it will 
identify the effective date of the change in designation of 
Williamson County, Illinois.

  Table 1--States and 2010 1-Hour Primary SO2 NAAQS Nonattainment Areas
             Affected by These Findings of Failure To Submit
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        Regional office               State          Nonattainment Area
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Region III....................  Maryland.........  Anne Arundel County
                                                    and Baltimore
                                                    County.
Region V......................  Michigan.........  St. Clair.
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V. Environmental Justice Considerations

    The EPA believes that the human health or environmental risks 
addressed by this action will not have disproportionately high or 
adverse human health or environmental effects on minority, low-income, 
or indigenous populations because it does not affect the level of 
protection provided to human health or the environment under the 
SO2 NAAQS. The purpose of this rule is to make findings that 
the states named in this final action failed to submit the required 
SIPs to provide for timely attainment of the 1-hour primary 
SO2 NAAQS, which will result in certain CAA-required 
deadlines for actions to provide for such attainment. In finding that 
certain states failed to submit a complete SIP that satisfies the 
nonattainment area plan requirements under section 172 and subpart 5 of 
part D of Title I of the CAA (sections 191 and 192) for the 1-hour 
primary SO2 NAAQS, this action does not adversely affect the 
level of protection provided for human health or the environment. 
Rather, it is intended that the actions and deadlines resulting from 
this notice will in fact lead to greater protection for United States 
citizens, including minority, low-income, or indigenous populations, by 
ensuring that states meet their statutory obligation to develop and 
submit SIPs to ensure that areas make progress toward attaining the 1-
hour primary SO2 NAAQS.

VI. 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 and was, 
therefore, not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because it finds that two states failed to meet the requirement in the 
CAA to submit SIPs under section 172 and subpart 5 of part D of Title I 
of the CAA (sections 191 and 192) for the SO2 NAAQS.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act. This final rule does not 
establish any new information collection requirement apart from what is 
already required by law. This rule relates to the requirement in the 
CAA for states to submit SIPs under section 172 and subpart 5 of part D 
of Title I of the CAA (sections 191 and 192) which address the 
statutory requirements that apply to areas designated as nonattainment 
for the SO2 NAAQS.

D. Regulatory Flexibility Act (RFA)

    I certify that this rule will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The rule is 
a finding that the named states have not made the necessary SIP 
submission for certain nonattainment areas to meet the requirements of 
part D of title I of the CAA.

E. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

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.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. This rule finds that two states have failed to 
complete the requirement in the CAA to submit SIPs

[[Page 49465]]

under section 172 and subpart 5 of part D of Title I of the CAA 
(sections 191 and 192) for the SO2 NAAQS. No tribe is 
subject to the requirement to submit an implementation plan under 
section 172 or under subpart 5 of part D of Title I of the CAA. Thus, 
Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks that the EPA has 
reason to believe may disproportionately affect children, per the 
definition of ``covered regulatory action'' in section 2-202 of the 
Executive Order. This action is not subject to Executive Order 13045 
because it is a finding that certain states have failed to submit a 
complete SIP that satisfies the nonattainment area plan requirements 
under section 172 and subpart 5 of part D of Title I of the CAA and 
does not directly or disproportionately affect children.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income, 
or indigenous populations. In finding that certain states have failed 
to submit a complete SIP that satisfies the nonattainment area planning 
requirements under section 172 and subpart 5 of part D of Title I of 
the CAA, this action does not adversely affect the level of protection 
provided to human health or the environment.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

M. Judicial Review

    Section 307(b)(l) 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.''
    The EPA has determined that this final rule consisting of findings 
of failure to submit certain required SIP provisions for two 
nonattainment areas for the 2010 primary 1-hour SO2 NAAQS is 
``nationally applicable'' and that it is ``of nationwide scope and 
effect'' within the meaning of CAA section 307(b)(1). This final agency 
action affects two nonattainment areas that are located in two states, 
residing in two of the ten EPA Regional Offices and covered by two 
different federal judicial circuits. In addition, 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)(l), 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 the two judicial circuits that include the 
two states affected by this action. In these circumstances, CAA 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 
indicate that venue for challenges lies in the D.C. Circuit. 
Accordingly, the EPA is determining that this is a rule of nationwide 
scope or effect. Under section 307(b)(1) of the CAA, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the District of Columbia Circuit within 60 days from the 
date this final action is published in the Federal Register. Filing a 
petition for reconsideration by the Administrator of this final 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 this final action is published in the 
Federal Register.

List of Subjects in 40 CFR Part 52

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

    Dated: September 9, 2019.
Anne L. Idsal,
Acting Assistant Administrator.
[FR Doc. 2019-19992 Filed 9-19-19; 8:45 am]
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