[Federal Register Volume 84, Number 234 (Thursday, December 5, 2019)]
[Rules and Regulations]
[Pages 66612-66616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26136]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2019-0603; FRL-10002-78-OAR]


Findings of Failure To Submit a Clean Air Act Section 110 State 
Implementation Plan for Interstate Transport for the 2015 Ozone 
National Ambient Air Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action finding that seven states have failed to submit infrastructure 
State Implementation Plans (SIPs) to satisfy certain interstate 
transport requirements of the Clean Air Act (CAA) with respect to the 
2015 8-hour ozone national ambient air quality standards (NAAQS). 
Specifically, these requirements pertain to prohibiting significant 
contribution to nonattainment, or interference with maintenance, of the 
2015 8-hour ozone NAAQS in other states. These findings of failure to 
submit establish a 2-year deadline for the EPA to promulgate Federal 
Implementation Plans (FIPs) to address these interstate transport 
requirements for a given state unless, prior to the EPA promulgating a 
FIP, the state submits, and the EPA approves, a SIP that meets these 
requirements.

DATES: Effective date of this action is January 6, 2020.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
document should be addressed to Mr. Thomas Uher, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code C539-04, 
109 TW Alexander Drive, Research Triangle Park, NC 27711; telephone 
(919) 541-5534; email: uher.thomas@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

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

    Section 553 of the APA, 5 U.S.C. 553(b)(3)(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 final agency action 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)(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-2019-0603. All documents in the docket are listed and 
publicly available at http://www.regulations.gov. Publicly available 
docket materials are also available in hard copy at the Air and 
Radiation Docket and Information

[[Page 66613]]

Center, EPA/DC, William Jefferson Clinton West 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. For 
additional information about the EPA's public docket, visit the EPA 
Docket Center homepage at: http://www.epa.gov/epahome/dockets.htm.

C. How is the preamble organized?

Table of Contents

I. General Information
    A. Notice and Comment Under the Administrative Procedures Act 
(APA)
    B. How can I get copies of this document and other related 
information?
    C. How is the preamble organized?
    D. Where do I go if I have state specific questions?
II. Background and Overview
    A. Interstate Transport SIPs
    B. Background on 2015 Ozone NAAQS and Related Matters
III. Findings of Failure To Submit for States That Failed To Make an 
Interstate Transport SIP Submission for the 2015 Ozone NAAQS
IV. Environmental Justice Considerations
V. 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
    M. Judicial Review

D. Where do I go if I have state specific questions?

    The table below lists the states that failed to make a complete 
interstate transport SIP submittal addressing CAA section 
110(a)(2)(D)(i)(I) requirements for the 2015 ozone NAAQS. For questions 
related to specific states mentioned in this document, please contact 
the appropriate EPA Regional office:

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               Regional offices                          States
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EPA Region 1: Alison Simcox, Manager, Air      Maine, Rhode Island.
 Quality Branch, EPA Region I, 5 Post Office
 Square, Suite 100, Boston, MA 02109-3912.
EPA Region 3: Joseph Schulingkamp, Air         Pennsylvania, Virginia.
 Protection Division, EPA Region III, 1650
 Arch Street, Philadelphia, PA 19103-2187.
EPA Region 6: Mary Stanton, Chief,             New Mexico.
 Infrastructure and Ozone Section, EPA Region
 VI, 1201 Elm Street, Suite 500, Dallas, TX
 75270.
EPA Region 8: Adam Clark, EPA Region VIII,     South Dakota, Utah.
 Air and Radiation Division, 1595 Wynkoop
 St., Denver, CO 80202.
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II. Background and Overview

A. Interstate Transport SIPs

    CAA section 110(a) imposes an obligation upon 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 that 
NAAQS. CAA 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 an ``infrastructure'' SIP because it 
ensures that states can implement, maintain and enforce the new or 
revised air standards. Within these requirements, CAA section 
110(a)(2)(D)(i) contains requirements to address interstate transport 
of NAAQS pollutants. A SIP revision submitted for this sub-section is 
referred to as an ``interstate transport SIP.'' In turn, CAA section 
110(a)(2)(D)(i)(I) requires that such a plan contain adequate 
provisions to prohibit emissions from the state that will contribute 
significantly to nonattainment of the NAAQS in any other state (``prong 
1'') or interfere with maintenance of the NAAQS in any other state 
(``prong 2''). Interstate transport prongs 1 and 2, also called 
collectively the ``good neighbor'' provision, are the requirements 
relevant to this findings document.
    Pursuant to CAA section 110(k)(1)(B), the EPA must determine no 
later than 6 months after the date by which a state is required to 
submit a SIP whether a state has made a submission that meets the 
minimum completeness criteria established pursuant to CAA section 
110(k)(1)(A). These criteria are set forth at 40 CFR part 51, appendix 
V. The EPA refers to the determination that a state has not submitted a 
SIP submission that meets the minimum completeness criteria as a 
``finding of failure to submit.'' If the EPA finds a state has failed 
to submit a SIP to meet its statutory obligation to address CAA section 
110(a)(2)(D)(i)(I), then pursuant to CAA section 110(c)(1), the EPA has 
not only the authority, but the obligation, to promulgate a FIP within 
2 years to address the CAA requirement. This finding, therefore, starts 
a 2-year ``clock'' for promulgation by the EPA of a FIP, in accordance 
with CAA section 110(c)(1), unless prior to such promulgation the state 
submits, and the EPA approves, a submittal from the state to meet the 
requirements of CAA section 110(a)(2)(D)(i)(I). Even where the EPA has 
promulgated a FIP, the EPA will withdraw that FIP if a state submits 
and the EPA approves a SIP satisfying the relevant requirements. The 
EPA notes this action does not start a mandatory sanctions clock 
pursuant to CAA section 179 because this finding of failure to submit 
does not pertain to a part D plan for nonattainment areas required 
under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 
110(k)(5).

B. Background on 2015 Ozone NAAQS and Related Matters

    On October 1, 2015, the EPA promulgated a new 8-hour primary and 
secondary ozone NAAQS of 70 parts per billion (ppb), which is met when 
the 3-year average of the annual fourth highest daily maximum 8-hour 
concentration does not exceed 70 ppb.\1\ Pursuant to the 3-year period 
provided in CAA section 110(a)(1), infrastructure SIPs addressing the 
revised standard were due on October 1, 2018.
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    \1\ See Final Rule, National Ambient Air Quality Standards for 
Ozone, 80 FR 65292 (October 26, 2015).
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    On September 5, 2019, the EPA announced via its website its 
intention to make findings that certain states have failed to submit 
complete interstate

[[Page 66614]]

transport SIPs for the 2015 ozone NAAQS by November 22, 2019.\2\
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    \2\ U.S. EPA, Interstate Air Pollution Transport, https://www.epa.gov/airmarkets/interstate-air-pollution-transport.
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    On September 30, 2019, the Sierra Club filed a complaint in the 
United States District Court for the District of Columbia (D.C. 
District Court) alleging that the EPA had not fulfilled its mandatory 
duty to make findings of failure to submit interstate transport SIPs 
pursuant to CAA section 110(a)(2)(D)(i)(I) with respect to the 2015 
ozone NAAQS for twelve states: Arkansas, Hawaii, Louisiana, Maine, 
Maryland, Mississippi, New Mexico, Pennsylvania, Rhode Island, Utah, 
Vermont, and Virginia.\3\ On October 29, 2019, the States of New Jersey 
and Connecticut filed a complaint in the D.C. District Court alleging 
that the EPA had not fulfilled its mandatory duty to make findings of 
failure to submit interstate transport SIPs addressing interstate 
transport in CAA section 110(a)(2)(D)(i)(I) with respect to the 2015 
ozone NAAQS for two states: Virginia and Pennsylvania.\4\
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    \3\ Complaint, Sierra Club v. Wheeler, No. 1:19-cv-02923 (D.D.C. 
filed Sept. 30, 2019).
    \4\ Complaint, State of New Jersey v. Wheeler, No. 1:19-cv-03247 
(D.D.C. filed Oct. 29, 2019).
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    To fulfill its statutory obligations, the EPA is taking this action 
for all states that have failed to submit complete SIPs addressing CAA 
section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS, not just those 
states named in the complaints. As explained below, in total, seven 
states have failed to submit complete SIPs while forty-three states and 
the District of Columbia have submitted complete SIPs addressing CAA 
section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS.
    The EPA has included in the docket for this action its 
correspondence with states regarding the completeness of their SIP 
submissions. SIPs may be considered complete by either of two methods. 
First, the EPA may make a determination that a SIP is complete under 
the ``completeness criteria'' set out at 40 CFR part 51, appendix V. 
See CAA section 110(k)(1). Second, a SIP may be deemed complete by 
operation of law if the EPA has failed to make such a determination by 
6 months after receipt of the SIP submission. See CAA section 
110(k)(1)(B).
    Five states failed to make any SIP submittal addressing interstate 
transport for the 2015 ozone NAAQS: Maine, New Mexico, Pennsylvania, 
Rhode Island, and Virginia. All of these states were identified in the 
Sierra Club complaint.
    The EPA has evaluated the SIP submittals of two states, South 
Dakota and Utah, for completeness pursuant to the criteria in 40 CFR 
part 51, appendix V, and concluded that these are incomplete SIP 
submissions.\5\ On November 21, 2019, the EPA sent letters to these two 
states explaining our incompleteness determination. These letters are 
included in the docket for this action. As explained in those letters, 
the completeness criteria under 40 CFR part 51, appendix V, section 
2.1(g), require a certification that public hearing(s) were held in 
accordance with the information provided in the state's public notice 
and the State's laws and constitution, if applicable and consistent 
with the public hearing requirements in 40 CFR 51.102. Under Sec.  
51.102(a), states must either hold a public hearing or provide the 
public the opportunity to request a public hearing. South Dakota and 
Utah did not provide the necessary certification under section 2.1(g) 
of appendix V that a public hearing was held or that they had provided 
the opportunity for the public to request a public hearing in 
accordance with 40 CFR 51.102(a). As a result, the EPA determined that 
these SIP submissions are incomplete. Where the EPA determines that a 
SIP submission does not meet the appendix V completeness criteria, 
``the State shall be treated as not having made the submission. . . .'' 
CAA section 110(k)(1)(C). Accordingly, the EPA is finding in this 
document that South Dakota and Utah have failed to submit complete SIP 
revisions addressing CAA section 110(a)(2)(D)(i)(I) as to the 2015 
ozone NAAQS. These states may, if they choose, resubmit to the EPA 
complete SIPs, which the EPA will review and act upon at a later date.
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    \5\ Utah was identified in the Sierra Club complaint, but South 
Dakota was not.
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    In all other cases, the EPA has determined that the SIP submittals 
are complete or they have been deemed complete by operation of law. In 
particular, the six remaining states identified in Sierra Club's 
complaint filed in the D.C. District Court have made complete SIP 
submittals addressing the good neighbor provision for the 2015 ozone 
NAAQS: Arkansas, Hawaii, Louisiana, Maryland, Mississippi, and Vermont. 
As a result, there is no longer a basis to make findings of failure to 
submit for these states.
    The EPA is issuing national findings of failure to submit 
interstate transport SIPs addressing the requirements of CAA section 
110(a)(2)(D)(i)(I) as to the 2015 ozone NAAQS, for all states that have 
not made complete submissions as of the date of this document.

III. Findings of Failure To Submit for States That Failed To Make an 
Interstate Transport SIP Submission for the 2015 Ozone NAAQS

    The EPA is making findings of failure to submit for seven states. 
The EPA finds the following states have not submitted complete 
interstate transport SIPs to meet the requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS: Maine, New Mexico, 
Pennsylvania, Rhode Island, South Dakota, Utah, and Virginia. 
Notwithstanding these findings, and the associated obligation of the 
EPA to promulgate FIPs for these states within two years of this 
finding, the EPA intends to continue to work with states subject to 
these findings in order to provide assistance as necessary to help them 
develop approvable SIP submittals in a timely manner.

IV. Environmental Justice Considerations

    This document is making a procedural finding that certain states 
have failed to submit a SIP to address CAA section 110(a)(2)(D)(i)(I) 
for the 2015 ozone NAAQS. The EPA did not conduct an environmental 
analysis for this action because it would not directly affect the air 
emissions of particular sources. Because this action will not directly 
affect the air emissions of particular sources, it does not affect the 
level of protection provided to human health or the environment. 
Therefore, this action will not have potential disproportionately high 
and adverse human health or environmental effects on minority, low-
income or indigenous populations.

V. 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 seven states failed to submit a SIP to meet their 
statutory obligation to address CAA section 110(a)(2)(D)(i)(I) for the 
2015 ozone NAAQS.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the

[[Page 66615]]

provisions of the Paperwork Reduction Act. This final action does not 
establish any new information collection requirement apart from what is 
already required by law. This finding relates to the requirement in the 
CAA for states to submit SIPs under section 110(a)(2)(D)(i)(I) of the 
CAA for the 2015 ozone NAAQS.

D. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553 or any other statute. 
This action is not subject to notice and comment requirements because 
the agency has invoked the APA ``good cause'' exemption under 5 U.S.C. 
553(b). I certify that this action 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 action 
is a finding that the named states have not made the necessary SIP 
submission for interstate transport to meet the requirements under 
section 110(a)(2)(D)(i)(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 action finds that seven states have failed 
to complete the requirement in the CAA to submit SIPs under section 
110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS. No tribe is 
subject to the requirement to submit a transport SIP under section 
110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS. 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 interstate transport requirements under 
section 110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS 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

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations 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 interstate transport 
requirements under section 110(a)(2)(D)(i)(I) of the CAA for the 2015 
ozone NAAQS, 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 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 if: (i) The agency action consists of ``nationally 
applicable regulations promulgated, or final action taken, by the 
Administrator,'' or (ii) such action is locally or regionally 
applicable, but ``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 action is nationally applicable. To the extent a court 
finds this final action to be locally or regionally applicable, the EPA 
finds that this action is based on a determination of ``nationwide 
scope or effect'' within the meaning of CAA section 307(b)(1). This 
final action consists of findings of failure to submit required 
interstate transport SIPs for the 2015 ozone NAAQS from seven states 
located in four of the ten EPA Regional offices and five different 
federal judicial circuits. This final action is also based on a common 
core of factual findings concerning the receipt and completeness of the 
relevant SIP submittals. For these reasons, this final action is 
nationally applicable or, alternatively, to the extent a court finds 
this action to be locally or regionally applicable, the Administrator 
has determined that this final action is based on a determination of 
nationwide scope or effect for purposes of CAA section 307(b)(1).
    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, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements.


[[Page 66616]]


    Dated: November 22, 2019.
Anne L. Idsal,
Acting Assistant Administrator.
[FR Doc. 2019-26136 Filed 12-4-19; 8:45 am]
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