[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Rules and Regulations]
[Page 2392-2395]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-19]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-8762-7]
Finding of Failure To Submit State Implementation Plans Required
by the 1999 Regional Haze Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking a final action finding that 37 states, the
District of Columbia, and the U.S. Virgin Islands have failed to submit
for EPA review and approval State Implementation Plans (SIPs) for
improving visibility in the nation's national parks and wilderness
areas. Under the Clean Air Act (CAA) and EPA's implementing
regulations, states were required to submit these SIPs to EPA by
December 17, 2007. These SIPs must contain a number of elements,
including importantly: For each mandatory Class I federal area in a
state, reasonable progress goals providing for an improvement in
visibility for the most impaired days and ensuring no degradation in
visibility for the least impaired days; a long-term strategy for
improving visibility, including enforceable emissions limitations, for
meeting the reasonable progress goals; and Best Available Retrofit
Technology (BART) determinations for certain older existing stationary
sources. By this action, the EPA is making a finding of failure to
submit for those states that have not submitted a SIP or have submitted
a SIP that addresses only part of the requirements.
DATES: Effective Date: This action is effective on January 15, 2009.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to Mr. Todd Hawes, Office of Air Quality
Planning and Standards, Air Quality Policy Division, Mail Code: C539-
04, 109 TW Alexander Drive, Research Triangle Park, NC 27709; telephone
(919) 541-5591.
SUPPLEMENTARY INFORMATION: For questions related to a specific state
please contact the appropriate regional office:
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Regional offices States
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Anne Arnold, Manager, Air Quality Connecticut, Maine,
Planning Unit, EPA New England, I Massachusetts, New Hampshire,
Congress Street, Suite 1100 (CAQ), Rhode Island, Vermont.
Boston, MA 02114-2023.
Raymond Werner, Chief, Air Programs New Jersey, New York, Virgin
Branch, EPA Region II, 290 Broadway, Islands.
25th Floor, New York, NY 10007-1866.
Christina Fernandez, Chief, Air Quality District of Columbia, Maryland,
Planning Branch, EPA Region III, 1650 Pennsylvania, Virginia.
Arch Street, Philadelphia, PA 19103-
2187.
Dick A. Schutt, Chief, Air Planning Florida, Georgia.
Branch, EPA Region IV, Sam Nunn
Atlanta Federal Center, 61 Forsyth,
Street, SW., 12th Floor, Atlanta, GA
30303.
Jay Bortzer, Chief, Air Programs Illinois, Indiana, Michigan,
Branch, EPA Region V, 77 West Jackson Minnesota, Ohio, Wisconsin.
Street, Chicago, IL 60604.
Tom Diggs, Associate Director Air Oklahoma, New Mexico, Texas.
Programs, EPA Region VI, 1445 Ross
Avenue, Dallas, TX 75202-2733.
Joshua A. Tapp, Chief, Air Programs Kansas, Nebraska.
Branch, EPA Region VII, 901 North 5th
Street, Kansas City, Kansas 66101-2907.
Monica S. Morales, Unit Chief, Air Colorado, Montana, North
Quality Planning Unit, EPA Region VIII Dakota, South Dakota, Wyoming.
Air Program, 1595 Wynkoop St. (8P-AR),
Denver, CO 80202-1129.
Lisa Hanf, Chief, Air Planning Office, Arizona, California, Hawaii,
EPA Region IX, 75 Hawthorne Street, Nevada.
San Francisco, CA 94105.
Mahbubul Islam, Manager, State and Alaska, Idaho, Oregon,
Tribal Air Programs, EPA Region X, Washington.
Office of Air, Waste, and Toxics, Mail
Code OAQ-107, 1200 Sixth Avenue,
Seattle, WA 98101.
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Table of Contents
I. Background
A. Statutory and Regulatory Requirements
B. Consequences of Findings of Failure To Submit
II. This Action
III. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedure Act
B. Effective Date Under the Administrative Procedure Act
C. Executive Order 12866: Regulatory Planning and Review
D. Paperwork Reduction Act
E. Regulatory Flexibility Act (RFA)
F. Unfunded Mandates Reform Act
G. Executive Order 13132: Federalism
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
J. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
K. National Technology Transfer Advancement Act
L. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
M. Congressional Review Act
N. Judicial Review
I. Background
In CAA section 169A, Congress declared as a national goal the
prevention of any future, and the remedying of any existing, impairment
of visibility in mandatory class I Federal areas (Class I areas) \1\
which impairment results from manmade air pollution. EPA's visibility
regulations, codified at 40 CFR 51.300-51.309, require states to
develop regional haze SIPs with measures necessary to make reasonable
progress towards remedying visibility impairment in Class I areas. The
required SIP elements include: (1) For states with one or more Class I
areas, the
[[Page 2393]]
setting of reasonable progress goals for each Class I area; (2)
calculations of baseline and natural visibility conditions for each
Class I area located in a state; (3) the development of long term
strategies addressing visibility impairment; (4) a monitoring strategy
that is representative of all Class I areas within a state and
reporting requirements; (5) the BART requirements; and (6) a
description of how the state addressed any comments provided by Federal
Land Managers. 40 CFR 51.308. EPA's visibility regulations also provide
certain states with the option to submit regional haze SIPs based on
the recommendations of the Grand Canyon Visibility Transport
Commission. Such SIPs are required to include certain emission
reduction strategies, including a program to reduce emissions of sulfur
dioxide from stationary sources. 40 CFR 51.309.
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\1\ Areas designated as mandatory Class I Federal areas are
those national parks exceeding 6,000 acres, wilderness areas and
national memorial parks exceeding 5,000 acres, and all international
parks which were in existence on August 7, 1977. Visibility has been
identified as an important value in 156 of these areas. See 40 CFR
part 81, subpart D.
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Some states have submitted regional haze SIPs as required under the
CAA and EPA's implementing regulations, but at present a number of
states have not yet submitted final SIPs to EPA to satisfy these
requirements of the CAA. The EPA is by this action making a finding of
failure to submit for those states.
A. Statutory and Regulatory Requirements
Sections 169A and 169B of the CAA set forth the goals of the
regional haze program and mandate that states develop SIPs to ensure
that reasonable progress is made towards meeting those goals, including
the requirements for BART. The regional haze rule issued in 1999
specifies the requirements and deadlines for state and local SIPs
designed to meet the visibility protection provisions of the CAA. See
64 FR 35714. EPA revised certain requirements of the regional haze rule
on July 6, 2005 (70 FR 39104) including the deadline for submitting
regional haze SIPs, pursuant to the Consolidated Appropriations Act for
Fiscal Year 2004, Public Law 108-199, January 23, 2004 (codified at 42
U.S.C. 7407(d)(7), CAA section 107(d)(7)). This statutory deadline for
SIP submittals was December 17, 2007.
B. Consequences of Findings of Failure To Submit
Under the CAA section 110(c), EPA is required to promulgate a
Federal Implementation Plan (FIP) within two years of the effective
date of a finding that a state has failed to submit a SIP. The FIP
requirement is void if a state submits a regional haze SIP, and EPA
approves that SIP within the two year period.
II. This Action
In this action, EPA is finding that 37 states, the District of
Columbia, and the U.S. Virgin Islands have failed to make all or part
of the required SIP submissions to address regional haze. This finding
starts the two year clock for the promulgation by EPA of a FIP. EPA is
not required to promulgate a FIP if the state makes the required SIP
submittal and EPA takes final action to approve the submittal within
two years of EPA's finding.
At approximately the same time as the signing of this notice, EPA
Regional Administrators are sending letters informing each state
identified below that they have failed to make the required regional
haze SIP submissions. These letters, and any accompanying enclosures,
have been included in the docket to this action. This action will be
effective on January 15, 2009. The states listed in the tables below
failed to submit all or part of the required SIP elements per section
169A of the CAA and associated implementing regulations at 40 CFR
51.308 and 40 CFR 51.309.
Arizona, New Mexico, and Wyoming have opted to develop SIPs based
on the recommendations of the Grand Canyon Visibility Transport
Commission under 40 CFR 51.309. All three States have failed to submit
the plan elements required by 40 CFR 51.309(g), the reasonable progress
requirements for areas other than the 16 Class I areas covered by the
Grand Canyon Visibility Transport Commission Report. Arizona and New
Mexico have also failed to submit the plan element required by 40 CFR
51.309(d)(4), the alternate stationary source program for control of
sulfur dioxide (SO2).
Colorado has failed to submit plan elements required by 40 CFR
51.308(d), specifically, reasonable progress goals and long-term
strategy elements addressing reasonable progress. Colorado has also
failed to submit a plan meeting the BART requirements of 40 CFR
51.308(e), specifically, BART determinations and requirements, for two
sources located in the state, Colorado Springs Utilities' Martin Drake
Power Plant in Colorado Springs, Colorado and Cemex, Inc. Lyons
Portland Cement Plant in Lyons, Colorado.
Michigan has also failed to submit plan elements required by 40 CFR
51.308(d), specifically, reasonable progress goals and long-term
strategy elements addressing reasonable progress. In addition, Michigan
has failed to submit a plan meeting the BART requirements of 40 CFR
51.308(e). Specifically, for the following six sources located in the
state, Michigan has failed to submit a plan with BART determinations
and requirements: LaFarge Midwest, Inc. in Alpena, Michigan; St. Mary's
Cement in Charlevoix, Michigan; Smurfit/Stone Container Corporation in
Ontonagon, Michigan; Escanaba Paper Company in Escanaba, Michigan; and
Cleveland Cliffs Corporation Tilden Mining Company and the Empire Iron
Mining, both in Marquette, Michigan.
States and Territories Failing To Submit SIPs Addressing Any of the
Required Regional Haze SIP Elements of 40 CFR 51.308
Alaska, California, Connecticut, District of Columbia, Florida,
Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Maine, Maryland,
Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Rhode Island, South Dakota, Texas, Vermont, U.S. Virgin Islands,
Virginia, Washington, and Wisconsin.
States Failing To Submit SIPs Addressing Part of the Required Regional
Haze SIP Elements
Arizona--40 CFR 51.309(g) and 40 CFR 51.309(d)(4).
Colorado--40 CFR 51.308(d) and 40 CFR 51.308(e) for two sources.
Michigan--40 CFR 51.308(d) and 40 CFR 51.308(e) for six sources.
New Mexico--40 CFR 51.309(g) and 40 CFR 51.309(d)(4).
Wyoming--40 CFR 51.309(g).
III. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedure Act
This is a final EPA action, but is not subject to notice-and-
comment requirements of the Administrative Procedure Act (APA), 5
U.S.C. 553(b). EPA believes that because of the limited time provided
to make findings of failure to submit regarding SIP submissions,
Congress did not intend such findings to be subject to notice-and-
comment rulemaking. However, to the extent such findings are subject to
notice-and-comment rulemaking, EPA invokes the good cause exception
pursuant to the APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are
unnecessary because no EPA judgment is involved in making a finding of
failure to submit a SIP or required elements of SIP submissions
pursuant to the CAA. Furthermore, providing notice and comment would be
impracticable
[[Page 2394]]
because of the limited time provided under the statute for making such
determinations. Finally, notice and comment would be contrary to the
public interest because it would divert agency resources from the
critical substantive review of SIPs that have already been submitted.
See 58 FR 51270, 51272, n.17 (Oct. 1, 1993); 59 FR 39832, 39853 (Aug.
4, 1994).
B. Effective Date Under the Administrative Procedure Act
This action will be effective on January 15, 2009. Under the APA, 5
U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days
after the date of publication in the Federal Register if the agency has
good cause to specify an earlier effective date. This action concerns
SIP submissions that are already overdue; and EPA previously cautioned
the affected states that the SIP submissions were overdue and that EPA
was considering taking this action. In addition, this action simply
starts a ``clock'' for EPA to promulgate a SIP within two years. There
are no mandatory sanctions enacted against the states by this action,
although the Agency may employ discretionary sanctions, and the clock
may be ``turned off'' through the submission of complete SIPs by the
states followed by approval of the SIPs by EPA. These reasons support
an effective date prior to 30 days after the date of publication.
C. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO. However, the EPA
submitted this action to the Office of Management and Budget (OMB) for
review on December 11, 2008, and any changes made in response to OMB's
recommendations have been documented in the docket for this action. The
OMB released it on January 6, 2009.
D. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320(b). This rule relates to the
requirement in the CAA for states to submit SIPs under section Part D
of title I of the CAA.
E. Regulatory Flexibility Act (RFA)
This final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice and comment rulemaking requirements under
the Administrative Procedure Act (APA) or any other statute. This rule
is not subject to notice and comment requirements under the APA or any
other statute because, although the rule is subject to the APA, the
Agency has invoked the ``good cause'' exemption under 5 U.S.C. 553(b),
and therefore it is not subject to the notice and comment requirement.
F. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1998 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. This action imposed no enforceable duty on any state, local, or
tribal governments or 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 sections 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 does
not impose any new obligations or enforceable duties on any small
governments.
G. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires 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
Executive Order 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 action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The CAA establishes the scheme
whereby states take the lead in developing plans to meet the National
Ambient Air Quality Standards and the Federal government acts as a
backstop where states fail to take the required actions. This rule will
not modify the relationship of the states and EPA for purposes of
developing programs to implement the regional haze program. Thus,
Executive Order 13132 does not apply to this rule.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule
responds to the requirement in the CAA for states to submit SIPs to
satisfy the requirements of the 1999 Regional Haze Regulations; Final
Rule. The CAA requires each state to develop a SIP describing how the
state will minimize the impacts of emissions emanating from within the
state and contributing to visibility impairment in Class I areas.
Tribes have elected not to submit Regional Haze SIPs and EPA will
ensure air quality protection in Indian country consistent with the
provisions of 40 CFR 49.11(a). Therefore, Executive Order 13175 does
not apply to this action.
I. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
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 this action is a procedural step toward reducing
visibility impairment, which may also reduce pollution that may be
harmful to children.
J. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
K. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272
note) directs 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
[[Page 2395]]
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.
L. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA 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 finds that certain states have not met the
requirement to submit one or more SIPs and begins a clock requiring
them to do so to meet this statutory obligation. If the state fails to
submit the required SIPs or if they submit SIPs that EPA cannot
approve, then EPA will be required to develop the plans in lieu of the
states.
M. 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 rule report, a copy of 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 January 15, 2009.
N. Judicial Review
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 rule does not
affect the finality of this rule 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 making findings of
failure to submit regional haze SIPs identified in section II above,
must be filed in the Court of Appeals for the District of Columbia
Circuit within 60 days from the date final action is published in the
Federal Register.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: January 9, 2009.
Robert J. Meyers,
Principal Deputy Assistant Administrator.
[FR Doc. E9-779 Filed 1-14-09; 8:45 am]
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