89 FR 159 pgs. 66603-66607 - Findings of Failure To Submit State Implementation Plan Revisions for Nonattainment Areas for the 2010 1-Hour Primary Sulfur Dioxide National Ambient Air Quality Standard
Type: RULEVolume: 89Number: 159Pages: 66603 - 66607
Pages: 66603, 66604, 66605, 66606, 66607Docket number: [EPA-HQ-OAR-2024-0168; FRL-11815-01-OAR]
FR document: [FR Doc. 2024-17328 Filed 8-15-24; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2024-0168; FRL-11815-01-OAR]
Findings of Failure To Submit State Implementation Plan Revisions for Nonattainment Areas for the 2010 1-Hour Primary Sulfur Dioxide National Ambient Air Quality Standard
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Final action.
SUMMARY:
The Environmental Protection Agency (EPA) is taking final action to find that four States failed to submit State Implementation Plan (SIP) revisions required by the Clean Air Act (CAA) in a timely manner for certain nonattainment areas for the 2010 1-hour sulfur dioxide (SO 2 ) National Ambient Air Quality Standard (NAAQS). The States that failed to submit the required SIP revisions are Arizona, Louisiana, New York, and Virginia. This action triggers certain CAA deadlines for the imposition of 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) if the EPA does not approve the State's SIP revision addressing the outstanding requirements.
DATES:
This final action is effective on September 16, 2024.
ADDRESSES:
The EPA has established a docket for this action under Docket ID Number EPA-HQ-OAR-2024-0168. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Angelina Brashear, Office of Air Quality Planning and Standards, Air Quality Policy Division (C539-01), U.S. Environmental Protection Agency, Research Triangle Park, NC; telephone number: (919) 541-4746; email address: brashear.angelina@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How is this Federal Register document organized?
The information presented in this preamble is organized as follows:
I. General Information
A. How is this Federal Register document organized?
B. Notice and Comment Under the Administrative Procedure Act (APA)
C. Where can I get a copy of this document and other related information?
D. Where do I go if I have specific State questions?
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. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, Executive Order 13563: Improving Regulation and Regulatory Review, and Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
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 (NTTAA)
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority and Low Income Populations and Executive Order 14096: Revitalizing Our Nation's Commitment to Environmental Justice for All
K. Congressional Review Act (CRA)
L. Judicial Review
B. Notice and Comment Under the Administrative Procedure Act (APA)
Section 553 of the APA, 5 U.S.C. 553(b)(4)(B), provides that, when an 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 submissions 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)(4)(B).
C. Where can I get a copy of this document and other related information?
In addition to being available in the docket, an electronic copy of this Federal Register document will be posted at https://www.epa.gov/so2-pollution/2010-sulfur-dioxide-national-ambient-air-quality-standards-implementation-actions.
D. Where do I go if I have specific State questions?
[top] For questions related to specific States mentioned in this document, please contact the appropriate EPA Regional office:
| Regional offices | States |
|---|---|
| EPA Region 2: Mr. Kirk Wieber, Manager, Air Program Branch, EPA Region 2, 290 Broadway, New York, New York 10007. wieber.kirk@epa.gov | New York. |
| EPA Region 3: Mr. David Talley, Acting Chief, Planning and Implementation Branch, EPA Region 3, 1600 JFK Boulevard, Philadelphia, Pennsylvania 19103. talley.david@epa.gov | Virginia. |
| EPA Region 6: Mr. Guy Donaldson, Manager, State Planning and Implementation Branch, EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270. donaldson.guy@epa.gov | Louisiana. |
| EPA Region 9: Ms. Idalia Perez, Manager, Air Planning Section, EPA Region 9, 75 Hawthorne Street, San Francisco, California 94105. perez.idalia@epa.gov | Arizona. |
II. Background
In June 2010, the EPA (Environmental Protection Agency) promulgated a new 1-hour primary SO 2 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. 1 Following promulgation of a new or revised NAAQS, the EPA is required to designate all areas of the country as either "attainment," "nonattainment," or "unclassifiable" (CAA section 107(d)(1)). In multiple separate rules, 2 the EPA cumulatively designated 51 areas within 23 States and territories as nonattainment for the 2010 1-hour primary SO 2 NAAQS.
Footnotes:
1 ?On June 2, 2010, the EPA signed the final rule title, "Primary National Ambient Air Quality Standard for Sulfur Dioxide." 75 FR 35520 (June 22, 2010), codified at 40 CFR part 50.17.
2 ?A series of rules designated nonattainment areas of the country for the 2010 SO 2 NAAQS: Round 1 (78 FR 47191) on August 5, 2013; Round 2 (81 FR 45039) on July 12, 2016; Round 2 Supplement (81 FR 89870) on December 13, 2016; Round 3 (83 FR 1098) on January 9, 2018; Round 3 Supplement (83 FR 14597) on April 5, 2018; and Round 4 (86 FR 16055) on March 26, 2021.
The CAA directs States containing an area designated nonattainment for the 2010 SO 2 1-hour primary NAAQS to develop and submit a nonattainment area (NAA) SIP to the EPA within 18 months of the effective date of an area's designation as nonattainment. The nonattainment (NAA) SIP (also referred to as an attainment plan) must meet the requirements of subparts l and 5 of part D of Title I of the CAA, and provide for attainment of the NAAQS by the applicable statutory attainment date. All components of the SO 2 part D NAA 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 under CAA section 191(a) to the EPA within 18 months of the effective date of designation of an area. Under CAA section 192(a), these NAA SIPs must provide for attainment of the NAAQS as expeditiously as practicable, but no later than 3 years from the effective date of the nonattainment designation. Responsible State air agencies were required to prepare and submit to the EPA a NAA SIP revision within 18 months of the effective date of the nonattainment designation to bring the NAAs into attainment by the relevant attainment date.
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. For those States that have not yet made a submittal that was complete with respect to the minimum completeness criteria for the 2010 1-hour primary SO 2 NAAQS, the EPA is making a finding of failure to submit a complete SIP.
On August 5, 2013, the EPA finalized its first-round designation of 29 areas as nonattainment for the 2010 SO 2 NAAQS, effective October 4, 2013. 3 This designation was based on air quality monitoring data from 2009-2011 and included the Miami, Arizona and St. Bernard Parish, Louisiana NAAs. Pursuant to CAA section 192(a), the Miami and St. Bernard Parish NAAs had until October 4, 2018-5 years after the effective date of the final action-to demonstrate attainment of the 2010 SO 2 NAAQS. Both NAAs failed to attain the standard by this statutory deadline and as such, under CAA section 179(c) the EPA issued findings of failure to attain (FFA) for Miami, Arizona on January 31, 2022? 4 and for St. Bernard Parish, Louisiana on October 5, 2022. 5 These FFAs set a deadline for the responsible States to submit a revised SIP to the EPA within 1 year, under CAA section 179(d). The deadlines for the revised SIPs were January 31, 2023, for Miami, Arizona and October 5, 2023, for St. Bernard Parish, Louisiana. Neither Arizona nor Louisiana submitted a complete revised SIP addressing these areas by the appropriate deadline.
Footnotes:
3 ?78 FR 47191.
4 ?87 FR 4805.
5 ?87 FR 60273.
On March 26, 2021, the EPA finalized its fourth-round designation of 9 areas as nonattainment for the 2010 SO 2 NAAQS, effective April 30, 2021. 6 This Round 4 designation included St. Lawrence County (part), New York and Giles County (part), Virginia. Section 191 of the CAA directs States to submit SIPs for areas designated as nonattainment for the SO 2 NAAQS to the EPA within 18 months of the effective date of the nonattainment designation, i.e., by no later than October 30, 2022, in this case. New York and Virginia failed to submit complete revised SIPs by this deadline.
Footnotes:
6 ?86 FR 16055.
[top] Based on a review of SIP submittals received and deemed complete as of the date of this final action, the EPA is finding that the States listed in Table 1 have failed to submit specific required SIP elements.
| Region | State | Area name | Required SIP elements?* | SIP revision due date |
|---|---|---|---|---|
| 2 | NY | St. Lawrence County (part)?*?* | Emissions Inventory Attainment Demonstration. RACM/RACT. RFP. NNSR. Contingency Measures. | October 30, 2022. |
| 3 | VA | Giles County (part)?** | Emissions Inventory Attainment Demonstration.**** RACM/RACT. RFP. NNSR. Contingency Measures. | October 30, 2022. |
| 6 | LA | St. Bernard Parish | Emissions Inventory Attainment Demonstration. RACM/RACT. RFP. NNSR. Contingency Measures. | October 5, 2023. |
| 9 | AZ | Miami?*** | Emissions Inventory Attainment Demonstration. RACM/RACT. RFP. NNSR. Contingency Measures. | January 31, 2023. |
| *?Listed SIP elements are requirements of subparts l and 5 of part D, of Title I of the CAA, and provide for attainment of the NAAQS. Components of the SO 2 part D NAA SIP include 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. | ||||
| **?The term "part" is used to indicate that only a portion of the county or counties is designated nonattainment. Area boundaries are described in 86 FR 16055 and codified at 40 CFR 81.333, 81.347, and 81.318 respectively for St. Lawrence County and Giles County | ||||
| ***?Area boundaries are described in 78 FR at 47198 and codified at 40 CFR 81.303. | ||||
| ****?The EPA's State Planning Electronic Collaboration System (SPeCS) incorrectly indicated that Virginia had submitted the attainment demonstration component of the attainment plan for the SO 2 Giles County NAA. The EPA corrected the error on March 12, 2024, and SPeCS now shows that Virginia has not yet submitted any component of the attainment plan | ||||
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, after a period of time, including the imposition of mandatory sanctions for the affected area. 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 the 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 action, 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 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
Based on a review of SIP submittals received and deemed complete as of the date of signature of this action, the EPA finds that the States listed in Table 1 failed to submit the indicated SIP elements required under part D of Title I of the CAA within 18 months of their associated effective dates of designation. The EPA is, therefore, issuing a finding of failure to submit for the required SIP elements listed in Table 1 of this action. The effective date of this finding starts the 18-month emission offset sanctions clock, the 24-month highway funding sanctions clock, and a 24-month clock for the EPA to promulgate a FIP.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders ("E.O.") can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, Executive Order 13563: Improving Regulation and Regulatory Review, and Executive Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was therefore not subject to a requirement for Executive Order 12866 review.
B. Paperwork Reduction Act (PRA)
[top] 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
C. Regulatory Flexibility Act (RFA)
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. This action is a finding that the named States have not made the necessary SIP submissions for certain nonattainment areas to meet the requirements of part D of Title I of the CAA.
D. Unfunded Mandates Reform Act of 1995 (UMRA)
This action does not contain an unfunded mandate of $100 million or more as described in UMRA (2 U.S.C. 1531-1538) and does not significantly or uniquely affect small governments. The action imposes no new enforceable duty on any State, local, or Tribal governments or the private sector.
E. 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.
F. 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 several States failed to submit SIP revisions that satisfy the nonattainment area planning requirements under sections 172, 191, and 192 of the CAA. No Tribe is subject to the requirement to submit an implementation plan under section 172, 191, and 192 of the CAA. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental Health Risks 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 several States failed to submit required SIP revisions that satisfy the nonattainment area planning requirements under sections 172, 191, and 192 of the CAA and does not concern an environmental health risk or safety risk.
H. 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.
I. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations and Executive Order 14096: Revitalizing Our Nation's Commitment to Environmental Justice for All
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address "disproportionately high and adverse human health or environmental effects" of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. Executive Order 14096 (88 FR 25251, April 26, 2023) directs the Federal Government to build upon and strengthen its commitment to deliver environmental justice to all communities across the country through an approach that is informed by scientific research, high-quality data, and meaningful Federal engagement with communities experiencing environmental justice concerns.
The EPA believes that the human health or environmental conditions that exist prior to this action have the potential to result in disproportionate and adverse human health or environmental effects on communities with environmental justice concerns. The EPA believes that this action is not likely to change existing disproportionate and adverse effects on communities with environmental justice concerns. The areas impacted by this action are designated as nonattainment for the 2010 1-hour primary SO 2 NAAQS and this action is intended to comply with the CAA program to ensure attainment and maintenance of the NAAQS. From a programmatic perspective, this action is intended to ensure that affected air agencies comply with CAA obligations for the applicable nonattainment areas.
The EPA did not perform an EJ analysis and did not consider EJ in this action. In this action, the EPA is performing a nondiscretionary duty to find that required State submissions were not timely. There is not an alternative action that can be taken by the EPA to this action and thus, these determinations are not informed by additional EJ related analyses. Further, there is no information in the record inconsistent with the stated goals of Executive Orders 12898 or 14096 of achieving environmental justice for people of color, low-income populations, and indigenous peoples.
K. 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).
L. Determinations Under CAA Section 307(b)(1)
Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the United States 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" within the meaning of CAA section 307(b)(1). This final action consists of findings of failure to submit required SIPs for four areas designated nonattainment for the 2010 primary 1-hour SO 2 NAAQS, which are located in four States in four of the 10 EPA Regions and in four 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.
Accordingly, 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 by October 15, 2024.
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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, Reporting and recordkeeping requirements, Sulfur Oxides.
Joseph Goffman,
Assistant Administrator.
[FR Doc. 2024-17328 Filed 8-15-24; 8:45 am]
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