Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 2591 

compounds, and Reporting and 

recordkeeping requirements. 

Dated: January 3, 2011. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42.U.S.C. 7401 et seq. 

Subpart Z—Mississippi 

■ 2. In § 52.1270 (c) the table is 

amended by revising the following entry 

for ‘‘APC–S–5’’ to read as follows: 

§ 52.1270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED MISSISSIPPI REGULATIONS

State citation Title/subject State effective 

date 

EPA approval 

date Explanation 

*******

APC–S–5–Regulations for Prevention of Significant Deterioration for Air Quality 

All .................................. .............................................. 12/1/2010 12/29/2010 

75 FR 81858 

APC–S–5 incorporates by reference the regulations found at 40 CFR 52.21 as of September 13, 2010. This EPA action is approving the incorporation by reference with the 

exception of the phrase ‘‘except ethanol production facilities producing ethanol by natural 

fermentation under the North American Industry Classification System (NAICS) codes 

325193 or 312140,’’ APC–S–5 incorporated 

by reference from 40 CFR 52.21(b)(1)(i)(a) 

and (b)(1(iii)(t) APC–S–5. In addition, this 

EPA action is not incorporating by reference, 

into the Mississippi SIP, the administrative 

regulations that were amended in the Fugitive Emissions Rule (73 FR 77882) and are 

stayed through October 3, 2011. 

* * * * * 

[FR Doc. 2011–377 Filed 1–13–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0107; FRL–9253–2] 

Action To Ensure Authority To Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas 

Emissions: Finding of Failure To 

Submit State Implementation Plan 

Revision Required of Louisville Metro 

Air Pollution Control District for 

Jefferson County, KY 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is making a finding 

that the Louisville Metro Air Pollution 

Control District (LMAPCD) has failed to 

submit a revision to its EPA-approved 

state implementation plan (SIP) for 

Jefferson County, Kentucky, to satisfy 

requirements of the Clean Air Act (CAA) 

to apply Prevention of Significant 

Deterioration (PSD) requirements to 

greenhouse gas (GHG)-emitting sources. 

By notice dated December 13, 2010, 

EPA issued a ‘‘SIP call’’ for 13 states 

(comprising 15 state and local programs, 

including Kentucky’s LMAPCD), 

requiring each state to revise its SIP as 

necessary to correct the SIP’s failure to 

apply PSD to such sources and 

establishing a SIP submittal deadline for 

each state. By this action, EPA is making 

a finding that the LMAPCD has failed to 

submit the required SIP revision by 

January 1, 2011, which is the SIP 

submittal deadline that EPA established 

in the SIP call for LMAPCD. This 

finding requires EPA to promulgate a 

federal implementation plan (FIP) for 

Jefferson County, Kentucky, applying 

PSD to GHG-emitting sources, and EPA 

is taking a separate action to promulgate 

the FIP immediately. 

DATES: This action is effective on 

January 14, 2011. 

ADDRESSES: EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2010–0107. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Air Docket, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

Ave., 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 Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lisa Sutton, Air Quality Policy Division, 

Office of Air Quality Planning and 

Standards (C504–03), Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number: 

(919) 541–3450; fax number: (919) 541– 

5509; e-mail address: 

sutton.lisa@epa.gov. For information 

regarding the Louisville Metro Air 

Pollution Control District permitting 

authority, contact Ms. Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 


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2592 Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 

1 In a final action published on December 29, 

2010, EPA announced that the Agency made a 

separate finding of failure to submit for seven other 

states (comprising eight state and local programs) 

because those states failed to provide required SIP 

revisions to correct their EPA-approved SIP PSD 

programs for applicability to GHG-emitting sources 

by the established deadlines for those states. See 75 

FR 81874. For convenience, we refer to ‘‘states’’ in 

this rulemaking to collectively mean state and local 

permitting authorities. The seven states addressed 

in EPA’s December 29, 2010, rulemaking are 

Arizona, Arkansas, Florida, Idaho, Kansas, Oregon, 

and Wyoming. In Arizona, the finding applies to 

two EPA PSD permit programs—‘‘Pinal County’’ and 

‘‘Rest of State (Excludes Maricopa County, Pima 

County, and Indian County).’’ 

2 ‘‘Action To Ensure Authority To Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call— 

Final Rule,’’ 75 FR at 77698, 77700–04 (December 

13, 2010) (final SIP call); ‘‘Action To Ensure 

Authority To Issue Permits Under the Prevention of 

Significant Deterioration Program to Sources of 

Greenhouse Gas Emissions: Finding of Substantial 

Inadequacy and SIP Call—Proposed Rule,’’ 75 FR 

53892, 53896–98 (September 2, 2010) (proposed SIP 

call). 

3Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

31514, 31518–21 (June 3, 2010). 

4 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

5 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

6 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

Branch, Air, Pesticides, and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Ms. 

Benjamin’s telephone number is (404) 

562–9040; e-mail address: 

benjamin.lynorae@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Jefferson County, Kentucky, is the 

only entity affected by this rule.1 By this 

action, EPA is making a finding of 

failure to submit the required SIP for the 

LMAPCD because its EPA-approved SIP 

PSD program does not apply to GHGemitting sources in Jefferson County, 

Kentucky. This action only applies to 

Jefferson County, Kentucky, and does 

not apply to the remainder of the 

Commonwealth of Kentucky. On 

December 13, 2010, the Kentucky 

Division of Air Quality provided EPA 

with the required corrective SIP revision 

to address PSD requirements related to 

GHG-emitting sources for all other areas 

in Kentucky. On December 29, 2010, 

EPA took final action to approve the 

Commonwealth’s December 13, 2010, 

SIP revision. See 75 FR 81868. 

B. How is the preamble organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. How is the preamble organized? 

II. Background 

A. CAA and Regulatory Context 

1. SIP PSD Requirements 

2. SIP Inadequacy and Corrective Action 

B. Recent EPA Regulatory Action 

Concerning PSD Requirements for GHGEmitting Sources 

III. Final Action: Finding of Failure of 

Kentucky’s Louisville Metro Air 

Pollution Control District To Submit a 

Corrective SIP Revision 

IV. Statutory and Executive Order Reviews 

A. Notice and Comment Under the 

Administrative Procedure Act (APA) 

B. Executive Order 12866—Regulatory 

Planning and Review 

C. Paperwork Reduction Act 

D. Regulatory Flexibility Act 

E. Unfunded Mandates Reform 

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 

Risks and Safety Risks 

I. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

J. National Technology Transfer and 

Advancement Act 

K. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and LowIncome Populations 

L. Congressional Review Act 

V. Judicial Review 

VI. Statutory Authority 

II. Background 

A. CAA and Regulatory Context 

EPA described the relevant 

background information in the proposed 

and final rulemaking for what we call 

the GHG PSD SIP call or, simply, the 

SIP call,2 as well as in what we call the 

Tailoring Rule.3 75 FR at 31518–21. 

Knowledge of this background 

information is presumed and will be 

only briefly summarized here. 

1. SIP PSD Requirements 

In general, under the CAA PSD 

program, a stationary source must 

obtain a permit prior to undertaking 

construction or modification projects 

that would result in specified amounts 

of new or increased emissions of air 

pollutants that are subject to regulation 

under other provisions of the CAA. CAA 

sections 165(a)(1), 169(1). As we 

described in the SIP call and elsewhere, 

several CAA provisions, taken together, 

mandate that SIPs include PSD 

programs that are applicable to any air 

pollutant that is subject to regulation 

under the CAA, including, as discussed 

later in this preamble, GHGs on and 

after January 2, 2011. CAA sections 

110(a)(2)(C), 110(a)(2)(J), 161. 

2. SIP Inadequacy and Corrective Action 

The CAA provides a mechanism for 

the correction of SIPs with certain types 

of inadequacies. CAA section 110(k)(5) 

authorizes the Administrator to 

‘‘find [ ] that [a SIP] * * * is 

substantially inadequate to * * * 

comply with any requirement of this 

Act,’’ and, based on that finding, to 

‘‘require the State to revise the [SIP] 

* * * to correct such inadequacies.’’ 

This latter action is commonly referred 

to as a ‘‘SIP call.’’ In addition, this 

provision provides that EPA must notify 

the state of the substantial inadequacy 

and authorizes EPA to establish a 

‘‘reasonable deadline[ ] (not to exceed 

18 months after the date of such notice)’’ 

for the submission of the corrective SIP 

revision. 

If EPA does not receive the corrective 

SIP revision by the deadline, CAA 

section 110(c)(1)(A) authorizes EPA to 

‘‘find [ ] that [the] State has failed to 

make a required submission.’’ Once EPA 

makes that finding, CAA section 

110(c)(1) requires EPA to ‘‘promulgate a 

Federal implementation plan at any 

time within 2 years after the [finding] 

* * * unless the State corrects the 

deficiency, and [EPA] approves the plan 

or plan revision, before [EPA] 

promulgates such [FIP].’’ 

B. Recent EPA Regulatory Action 

Concerning PSD Requirements for GHGEmitting Sources 

In recent months, EPA has taken 

several distinct actions related to GHGs 

under the CAA. Some of these, in 

conjunction with the operation of the 

CAA, trigger PSD applicability for GHGemitting sources on and after January 2, 

2011, but focus the scope of PSD on the 

largest GHG-emitting sources. These 

actions include what we call the 

Endangerment Finding,4 the Light-Duty 

Vehicle Rule,5 the Johnson Memo 

Reconsideration,6 and the Tailoring 

Rule. 

Closely related to this action, EPA 

promulgated the PSD GHG SIP call, 

under authority of CAA section 

110(k)(5). In that action, applicable to 13 

states, the Administrator issued a 

finding of substantial inadequacy as 

well as a SIP call and established a 

deadline for submission of the 

corrective SIP revision. The deadline 


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7More detailed discussion about the 13 states is 

included in the Supplemental Information 

Document prepared by EPA in support of the final 

SIP call. The Supplemental Information Document 

can be found in the docket for this rulemaking, at 

Document ID No. EPA–HQ–OAR–2010–0107–0129. 

8Proposed rule, ‘‘Action to Ensure Authority to 

Issue Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Federal Implementation Plan.’’ 75 

FR 53883 (September 2, 2010). The notice can be 

found in the docket for this rulemaking, at 

Document ID No. EPA–HQ–OAR–2010–0107–0045. 

9 In a final action published on December 30, 

2010, EPA promulgated a FIP to apply to seven 

states (comprising eight state and local programs) 

because those states failed to provide required SIP 

revisions to correct their EPA-approved SIP PSD 

programs for applicability to GHG-emitting sources. 

Final rule, ‘‘Action to Ensure Authority to Issue 

Permits under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Federal Implementation Plan.’’ 75 

FR 82246. 

was 12 months after the date of the SIP 

call, unless the state indicated to EPA 

that it did not object to an earlier 

deadline, as early as 3 weeks after the 

date of the SIP call. Twelve of the states 

so indicated and therefore received an 

earlier deadline. The LMAPCD 

requested a SIP submittal deadline of 

January 1, 2011. 75 FR at 77705. 

All 13 states and their deadlines are 

listed in table II–1, ‘‘SIP Call States and 

SIP Submittal Deadlines’’: 

TABLE II–1—SIP CALL STATES AND

SIP SUBMITTAL DEADLINES

State (or area) SIP submittal 

deadline 

Arizona: Pinal County ........... 12/22/10 

Arizona: Rest of State (Excludes Maricopa County, 

Pima County, and Indian 

Country) ............................ 12/22/10 

Arkansas ............................... 12/22/10 

California: Sacramento Metropolitan AQMD ................ 01/31/11 

Connecticut ........................... 03/01/11 

Florida ................................... 12/22/10 

Idaho ..................................... 12/22/10 

Kansas .................................. 12/22/10 

Kentucky (Jefferson County): 

Louisville Metro Air Pollution Control District ........... 01/01/11 

Kentucky: Rest of State (Excludes Louisville Metro Air 

Pollution Control District 

(Jefferson County)) ........... 03/31/11 

Nebraska .............................. 03/01/11 

Nevada: Clark County .......... 07/01/11 

Oregon .................................. 12/22/10 

Texas .................................... 12/01/11 

Wyoming ............................... 12/22/10 

The SIP submittal deadlines that the 

final SIP call rule established for the 

states reflect, in almost all instances, a 

recognition by EPA and the states of the 

need to move expeditiously to assure 

the availability of a permitting 

authority. In the SIP call, EPA made 

clear that the purpose of establishing the 

shorter period as the deadline—for any 

state that advised us that it did not 

object to that shorter period—is to 

accommodate states that wish to ensure 

that a FIP is in effect as a backstop to 

avoid any gap in PSD permitting. 75 FR 

at 77710. 

Seven of the 13 SIP-called states 

(including 8 of the 15 affected PSD 

programs) stated that they did not object 

to a SIP submittal deadline of December 

22, 2010 (the earliest possible deadline), 

75 FR at 77705, and those states are the 

subject of a final rule that EPA issued 

on December 29, 2010. See 75 FR 81874. 

The LMAPCD requested a SIP submittal 

deadline of January 1, 2011, has since 

missed that SIP submittal deadline, and 

thus is the subject of this final rule.7

Also closely related to this action, 

EPA proposed a FIP 8 action related to 

GHGs. We stated in the proposed FIP 

that if any of the states for which we 

issued the SIP call did not meet its SIP 

submittal deadline, we would 

immediately issue a finding of failure to 

submit a required SIP revision, under 

CAA section 110(c)(1)(A), and 

immediately thereafter promulgate a FIP 

for the state. We explained that we 

would take these actions immediately in 

order to minimize any period of time 

during which larger-emitting sources 

may be under an obligation to obtain 

PSD permits for their GHGs when they 

construct or modify, but no permitting 

authority is authorized to issue those 

permits. 75 FR at 53889. Seven of the 13 

SIP-called states (including 8 of the 15 

affected PSD programs) stated that they 

did not object to a SIP submittal 

deadline of December 22, 2010 (the 

earliest possible deadline). 

Subsequently, for those seven states, 

EPA made a finding of failure to submit 

a corrective SIP revision (75 FR at 

77705; December 29, 2010) and by 

separate action promulgated a FIP.9

III. Final Action: Finding of Failure of 

Kentucky’s Louisville Metro Air 

Pollution Control District To Submit a 

Corrective SIP Revision 

By this final rule, EPA is making a 

finding under CAA section 110(c) that 

Kentucky’s LMAPCD has failed to 

submit, through the Kentucky Energy 

and Environment Cabinet (KEEC), a 

corrective SIP for Jefferson County by 

January 1, 2011, which was its SIP 

submittal deadline, as established under 

our SIP call. The LMAPCD is the air 

permitting authority that administers 

the Jefferson County portion of 

Kentucky’s SIP. Although two EPAapproved PSD programs in Kentucky— 

‘‘Jefferson County’’ and ‘‘Rest of State’’— 

were included in EPA’s recent SIP call, 

this finding of failure to submit applies 

only to Jefferson County, Kentucky. 

Subsequent to EPA’s SIP call, the 

Commonwealth of Kentucky submitted 

a corrective SIP revision to apply its 

PSD program to GHG-emitting sources 

in the remainder of the Commonwealth 

of Kentucky. On December 29, 2010, 

EPA took final action to approve the 

Commonwealth’s December 13, 2010, 

SIP revision. See 75 FR 81868. 

As we stated in our proposed FIP 

rulemaking (see 75 FR at 53889), if a 

state for which we issue the SIP call 

does not meet its SIP submittal 

deadline, we would immediately issue a 

finding of failure to submit a required 

SIP revision under CAA section 

110(c)(1)(A). Once we make that 

finding, we are required under CAA 

section 110(c) to promulgate a FIP 

(unless first the state corrects the 

deficiency and EPA approves the plan 

or plan revision). By a separate action 

today, we are promulgating the FIP 

immediately. 

The making of a finding of failure in 

this final rule is important because it is 

the prerequisite for the FIP, and the FIP, 

in turn, establishes EPA as the 

permitting authority for GHG-emitting 

sources. Without our acting as that 

authority, large GHG-emitting sources in 

Jefferson County, Kentucky, may be 

unable to obtain a PSD permit for their 

GHG emissions and therefore may face 

delays in undertaking construction or 

modification projects. Sources that emit 

or plan to emit large amounts of GHGs 

are, starting January 2, 2011, required to 

obtain PSD permits before undertaking 

new construction or modification 

projects, but neither the LMAPCD nor, 

absent the FIP, EPA would be 

authorized to issue the permits. With 

the FIP, EPA will have the authority to 

issue PSD permits for Jefferson County, 

Kentucky. 

This rule is effective immediately 

upon publication in the Federal 

Register. Section 553(d) of the 

Administrative Procedure Act (APA), 5 

U.S.C. 553(d), generally provides that 

rules may not take effect earlier than 30 

days after they are published in the 

Federal Register. However, APA section 

553(d)(3) provides an exception when 

the agency finds good cause exists for a 

rule to take effect in less than 30 days. 

We find good cause exists here to 

make this rule effective upon 

publication because implementing a 30- 

day delayed effective date would 

interfere with the Agency’s ability to 

ensure that there is a permitting 

authority authorized to issue the 


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2594 Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 

required PSD permits for GHG 

emissions to certain major stationary 

sources in Jefferson County, Kentucky. 

A 30-day delay in the effective date of 

this rule will impede implementation of 

this rule and create regulatory 

confusion. This rule, establishing that 

the LMAPCD has failed to submit a 

corrective SIP revision by its January 1, 

2011 deadline, is necessary so that EPA 

can promulgate a FIP for Jefferson 

County, Kentucky, soon afterward. This 

timing will allow the FIP to be 

published and become effective as soon 

as possible after the January 2, 2011 date 

that PSD began to apply to GHGemitting sources under the CAA. As of 

January 2, 2011, certain major stationary 

sources in Jefferson County, Kentucky, 

if seeking PSD permits for other 

pollutants, are already required to 

obtain PSD permits for GHG emissions 

where no permitting authority is 

authorized to issue such a permit. 

However, it is impractical to wait 30 

days for this rule to take effect, during 

which time no permitting authority 

would be authorized to issue permits to 

any major stationary sources that apply 

to obtain PSD permits for GHG 

emissions. Moreover, EPA finds that it 

is necessary to make this rule effective 

upon publication to avoid any economic 

harm that the public and the regulated 

industry might incur if there is no 

permitting authority able to issue PSD 

permits for GHG emissions when such 

permits are requested in Jefferson 

County, Kentucky. 

The purpose of the APA’s 30-day 

effective date provision is to give 

affected parties time to adjust their 

behavior before the final rule takes 

effect. The LMAPCD, to which this 

rulemaking applies, indicated in a 

comment letter to EPA that it did not 

object to a SIP submittal deadline of 

January 1, 2011. Both the LMAPCD and 

the public have been aware that we 

would take this approach to this rule for 

some time, that is, that we would 

establish a SIP submittal deadline on a 

date to which the state does not object, 

potentially as early as December 22, 

2010, so that we could make a finding 

of failure to submit and promulgate a 

FIP immediately thereafter, and 

potentially as early as December 23, 

2010, in order that the FIP could be in 

effect on or as soon as possible after the 

January 2, 2011, date that PSD begins to 

apply to GHG-emitting sources. We 

described this approach in the proposed 

SIP call that was signed and made 

available to the public on August 12, 

2010, even before its September 2, 2010 

publication date in the Federal Register. 

Moreover, the public was afforded the 

opportunity to comment on this 

approach in the SIP call proposal. See 

75 FR 53892, 53896. 

In addition, this rule is not a major 

rule under the Congressional Review 

Act (CRA). Thus, the 60-day delay in 

effective date required for major rules 

under the CRA does not apply. 

IV. Statutory and Executive Order 

Reviews 

A. Notice and Comment Under the 

Administrative Procedure Act (APA) 

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 noticeand-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), which excuses the noticeand-comment obligation ‘‘when the 

agency for good cause finds (and 

incorporates the finding and a brief 

statement of reasons therefor in the 

rules issued) that notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest.’’ While the good cause 

exception is to be narrowly construed, 

Utility Solid Waste Activities Group v. 

Environmental Protection Agency, 236 

F.3d 749, 754 (D.C. Cir. 2001), it is also 

‘‘an important safety valve to be used 

where delay would do real harm.’’ U.S. 

Steel Corp. v. U.S. Environmental 

Protection Agency, 595 F.2d 207, 214 

(5th Cir. 1979). Notice and comment is 

impracticable where ‘‘an agency finds 

that due and timely execution of its 

functions would be impeded by the 

notice otherwise required.’’ Utility Solid 

Waste Activities Group, 236 F.3d at 754. 

Notice and comment is contrary to the 

public interest where ‘‘the interest of the 

public would be defeated by any 

requirement of advance notice.’’ Id. at 

755. 

Here, notice and comment are 

unnecessary because no EPA judgment 

is involved in making a nonsubstantive 

finding of failure to submit elements of 

SIP submissions required by the CAA. 

Furthermore, providing notice and 

comment would be impracticable 

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 complete SIPs. 

See 58 FR 51270, 51272, n.17 (October 

1, 1993); 59 FR 39832, 39853 (August 4, 

1994). In addition, in this case, notice 

and comment would be impracticable 

and contrary to the public interest for 

the same reasons, discussed earlier in 

this preamble, why a 30-day effective 

date would be impracticable and 

contrary to the public interest. 

B. 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). This action 

issues a finding that the LMAPCD has 

failed to submit a corrective SIP by the 

deadline established in EPA’s recently 

promulgated SIP call for Jefferson 

County, Kentucky. This type of action is 

exempt from review under EO 12866. 

C. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. 

However, OMB has previously approved 

the information collection requirements 

contained in the existing regulations for 

PSD (see, e.g., 40 CFR 52.21) and title 

V (see 40 CFR parts 70 and 71) under 

the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2060–0003 and OMB control number 

2060–0336 respectively. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act (APA) or 

any other statute. This rule is not 

subject to the notice-and-comment 

requirement of the APA, because the 

Agency has invoked the ‘‘good cause’’ 

exemption under 5 U.S.C. 553(b). Thus, 

this rule is not subject to the RFA. 

E. Unfunded Mandates Reform Act 

This action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for state, local, or tribal 

governments or the private sector. This 

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 or 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of the 

UMRA because it contains no regulatory 


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Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 2595 

requirements that might significantly or 

uniquely affect small governments. This 

action does not impose any new 

obligations or enforceable duties on any 

small governments. 

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, as specified in 

Executive Order 13132. This action 

merely prescribes EPA’s action for states 

that do not meet their existing 

obligation for PSD SIP submittal. Thus, 

Executive Order 13132 does not apply 

to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicited comment on this 

action, as part of the FIP proposal, from 

state and local officials. 

G. 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). In this action, EPA is not 

addressing any tribal implementation 

plans. This action is limited to states 

that do not meet their existing 

obligation for PSD SIP submittal. Thus, 

Executive Order 13175 does not apply 

to this action. 

Although Executive Order 13175 does 

not apply to this final rule, EPA 

specifically solicited additional 

comment on the proposal for this action 

from tribal officials and we received one 

comment from a tribal agency. 

Additionally, EPA participated in a 

conference call on July 29, 2010, with 

the National Tribal Air Association 

(NTAA). 

H. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks 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 it merely prescribes 

EPA’s action for states that do not meet 

their existing obligation for PSD SIP 

submittal. 

I. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211 (66 FR 28355 (May 22, 2001)), 

because it is not a significant regulatory 

action under Executive Order 12866. 

This action merely prescribes EPA’s 

action for states that do not meet their 

existing obligation for PSD SIP 

submittal. 

J. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This rulemaking does not involve 

technical standards. Therefore, EPA is 

not considering the use of any voluntary 

consensus standards. 

K. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the U.S. 

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 affect the level of protection 

provided to human health or the 

environment. This rule merely 

prescribes EPA’s action for states that do 

not meet their existing obligation for 

PSD SIP submittal. 

L. 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. Section 804 

exempts from section 801 the following 

types of rules: (1) Rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

parties. 5 U.S. 804(3). EPA is not 

required to submit a rule report 

regarding this action under section 801 

because this is a rule of agency 

organization, procedure, or practice that 

does not substantially affect the rights or 

obligations of non-agency parties. 

V. Judicial Review 

Section 307(b)(1) of the CAA specifies 

which Federal Courts of Appeal have 

jurisdiction to hear petitions for review 

of which final actions by EPA. This 

section provides, in part, that petitions 

for review must be filed in the Court of 

Appeals for the District of Columbia 

Circuit: (i) When the Agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator,’’ or (ii) 

when such action is locally or regionally 

applicable, if ‘‘such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

This rule is nationally applicable 

under CAA section 307(b)(1). It is 

merely the next step in the suite of rules 

addressing inadequacies in SIPs related 

to 13 states’ failure to apply PSD to 

GHG-emitting sources such as the SIP 

call, the finding of failure to submit 

issued on December 29, 2010, and the 

FIP issued on December 30, 2010. In 

particular, this rule simply follows up 

on the finding of failure to submit 

issued on December 29, 2010, which 

affected seven states that chose the 

earliest possible deadline, and takes the 

next step to make an identical finding 

for Jefferson County, Kentucky, now 

that this area, too, has missed its SIP 

submittal deadline. The circumstances 

that have led to this rulemaking are 

national in scope and are substantially 

the same for the LMAPCD as they were 

for each of the seven affected states in 

the earlier finding of failure to submit 


srobinson on DSKHWCL6B1PROD with RULES
2596 Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 

issued on December 29, 2010. They 

include EPA’s promulgation of 

nationally applicable GHG requirements 

that, in conjunction with the operation 

of the CAA PSD provisions, have 

resulted in GHG-emitting sources’ 

becoming subject to PSD; as well as 

EPA’s finding of substantial SIP 

inadequacy, imposition of a SIP call, 

and establishment of deadlines for SIP 

submittal. Moreover, in this rule, EPA is 

applying the same uniform principles 

for promulgating the finding of failure to 

submit in Jefferson County, Kentucky, 

as it did for each of the seven earlieraffected states. The FIP for Jefferson 

County, Kentucky, accompanying this 

rule has substantially the same, if not 

identical, terms as the FIP for each 

earlier-affected state in the December 

30, 2010, rule. This rulemaking action is 

supported by the same single 

administrative record as the earlier 

December 29, 2010, finding of failure to 

submit rule and does not involve factual 

questions unique to the LMAPCD. In 

addition, as stated earlier in this 

preamble, this rule is part of a single 

approach to correcting certain 

inadequacies in SIPs in multiple states 

across the country and in several 

judicial circuits. 

For similar reasons, this rule is based 

on determinations of nationwide scope 

or effect. For the LMAPCD, EPA is 

determining that it is appropriate to 

make this finding of failure to submit 

effective immediately in order to 

promulgate the FIP immediately and to 

apply the FIP to GHG-emitting sources, 

but not other sources, in the same way 

it made the same determination for the 

seven other states in the December 29, 

2010, finding of failure to submit. These 

determinations are the same for each of 

the states. The provisions of this finding 

of failure to submit are also 

substantially the same, if not identical, 

to those for the seven earlier-affected 

states. Moreover, EPA is making this 

finding and promulgating this action 

within the context of nationwide 

rulemakings and interpretation of the 

applicable CAA provisions, as noted 

earlier in this preamble. 

Thus, under section 307(b)(1) of the 

Act, judicial review of this final action 

is available by filing of a petition for 

review in the U.S. Court of Appeals for 

the District of Columbia Circuit by 

March 15, 2011. Any such judicial 

review is limited to only those 

objections that were raised with 

reasonable specificity in timely 

comments. Under section 307(b)(2) of 

the Act, the requirements of this final 

action may not be challenged later in 

civil or criminal proceedings brought by 

us to enforce these requirements. 

VI. Statutory Authority 

The statutory authority for this action 

is provided by sections 101, 111, 114, 

116, and 301 of the CAA as amended 

(42 U.S.C. 7401, 7411, 7414, 7416, and 

7601). 

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon dioxide, 

Carbon dioxide equivalents, Carbon 

monoxide, Environmental protection, 

Greenhouse gases, Hydrofluorocarbons, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Methane, Nitrogen dioxide, Nitrous 

oxide, Ozone, Particulate matter, 

Perfluorocarbons, Reporting and 

recordkeeping requirements, Sulfur 

hexafluoride, Sulfur oxides, Volatile 

organic compounds. 

Dated: January 11, 2011. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2011–769 Filed 1–13–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 64 

[Docket ID FEMA–2011–0002; Internal 

Agency Docket No. FEMA–8163] 

Suspension of Community Eligibility 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This rule identifies 

communities, where the sale of flood 

insurance has been authorized under 

the National Flood Insurance Program 

(NFIP), that are scheduled for 

suspension on the effective dates listed 

within this rule because of 

noncompliance with the floodplain 

management requirements of the 

program. If the Federal Emergency 

Management Agency (FEMA) receives 

documentation that the community has 

adopted the required floodplain 

management measures prior to the 

effective suspension date given in this 

rule, the suspension will not occur and 

a notice of this will be provided by 

publication in the Federal Register on a 

subsequent date. 

DATES: Effective Dates: The effective 

date of each community’s scheduled 

suspension is the third date (‘‘Susp.’’) 

listed in the third column of the 

following tables. 

FOR FURTHER INFORMATION CONTACT: If 

you want to determine whether a 

particular community was suspended 

on the suspension date or for further 

information, contact David Stearrett, 

Mitigation Directorate, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–2953. 

SUPPLEMENTARY INFORMATION: The NFIP 

enables property owners to purchase 

flood insurance which is generally not 

otherwise available. In return, 

communities agree to adopt and 

administer local floodplain management 

aimed at protecting lives and new 

construction from future flooding. 

Section 1315 of the National Flood 

Insurance Act of 1968, as amended, 42 

U.S.C. 4022, prohibits flood insurance 

coverage as authorized under the NFIP, 

42 U.S.C. 4001 et seq.; unless an 

appropriate public body adopts 

adequate floodplain management 

measures with effective enforcement 

measures. The communities listed in 

this document no longer meet that 

statutory requirement for compliance 

with program regulations, 44 CFR part 

59. Accordingly, the communities will 

be suspended on the effective date in 

the third column. As of that date, flood 

insurance will no longer be available in 

the community. However, some of these 

communities may adopt and submit the 

required documentation of legally 

enforceable floodplain management 

measures after this rule is published but 

prior to the actual suspension date. 

These communities will not be 

suspended and will continue their 

eligibility for the sale of insurance. A 

notice withdrawing the suspension of 

the communities will be published in 

the Federal Register. 

In addition, FEMA has identified the 

Special Flood Hazard Areas (SFHAs) in 

these communities by publishing a 

Flood Insurance Rate Map (FIRM). The 

date of the FIRM, if one has been 

published, is indicated in the fourth 

column of the table. No direct Federal 

financial assistance (except assistance 

pursuant to the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act not in connection with a 

flood) may legally be provided for 

construction or acquisition of buildings 

in identified SFHAs for communities 

not participating in the NFIP and 

identified for more than a year, on 

FEMA’s initial flood insurance map of 

the community as having flood-prone 

areas (section 202(a) of the Flood 

Disaster Protection Act of 1973, 42 

U.S.C. 4106(a), as amended). This 

prohibition against certain types of 

Federal assistance becomes effective for 


srobinson on DSKHWCL6B1PROD with RULES