Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71757 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2023–0442; FRL–11287–01– 

OAR] 

RIN 2060–AW03 

Findings of Failure To Submit State 

Implementation Plan Revisions for 

Reclassified Moderate Nonattainment 

Areas for the 2015 Ozone National 

Ambient Air Quality Standards 

(NAAQS) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final action. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

find that 11 States failed to submit State 

Implementation Plan (SIP) revisions 

required by the Clean Air Act (CAA) in 

a timely manner for certain 

nonattainment areas classified as 

Moderate for the 2015 ozone National 

Ambient Air Quality Standards 

(NAAQS). The States that failed to 

submit the required SIP revisions for 

reclassified Moderate areas are Arizona, 

California, Connecticut, Delaware, 

Illinois, Indiana, Michigan, New Jersey, 

Nevada, Texas, and Wisconsin. 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 

November 17, 2023. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2023–0442. 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: 

Robert Lingard, Office of Air Quality 

Planning and Standards, Air Quality 

Policy Division (C539–01), 

Environmental Protection Agency, 

Research Triangle Park, NC; telephone 

number: (919) 541–5272; email address: 

lingard.robert@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 

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)(3)(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)(3)(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/groundlevel-ozone-pollution/findings-failuresubmit-state-implementation-planrevisions. 

D. Where do I go if I have specific State 

questions? 

For questions related to specific States 

mentioned in this document, please 

contact the appropriate EPA Regional 

office: 

Regional offices States 

EPA Region 1: Mr. John Rogan, Chief, Air Quality Branch, EPA Region 1, 1 Congress Street, Suite 1100, 

Boston, Massachusetts 02203. rogan.john@epa.gov.

Connecticut. 

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 Jersey. 

EPA Region 3: Mr. Mike Gordon, Chief, Planning and Implementation Branch, EPA Region 3, 1600 JFK 

Boulevard, Philadelphia, Pennsylvania 19103. gordon.mike@epa.gov.

Delaware. 

EPA Region 5: Mr. Doug Aburano, Manager, Air Programs Branch, EPA Region 5, 77 West Jackson Boulevard (AR–18J), Chicago, Illinois 60604. aburano.douglas@epa.gov.Illinois, Indiana, Michigan, Wisconsin. 

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.

Texas. 

EPA Region 9: Ms. Idalia Perez, Manager, Air Planning Office, EPA Region 9, 75 Hawthorne Street, San 

Francisco, California 94105. perez.idalia@epa.gov.

Arizona, California, Nevada. 


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71758 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 

1 80 FR 65292 (October 1, 2015). 

2 40 CFR 50.15. 

3CAA sections 107(d)(1) and 181(a)(1). 

4CAA section 181(a)(1). 

5See 40 CFR 51.1303 for the design value 

thresholds for each classification for the 2015 ozone 

NAAQS. 

6 83 FR 10376 (March 9, 2018). 

7 83 FR 25776 (June 4, 2018), effective August 3, 

2018; 83 FR 35136 (July 25, 2018), effective 

September 24, 2018; 86 FR 31438 (June 14, 2021), 

effective July 14, 2021. 

8 87 FR 60897 (October 7, 2022). The applicable 

Marginal area attainment date was August 3, 2021, 

except for the San Antonio, Texas, area, which was 

September 24, 2021. 

9 88 FR 775 (January 5, 2023). The applicable 

Marginal area attainment date was August 3, 2021. 

10See CAA sections 182(b)(2) and 182(f). The 

EPA’s CTGs may be accessed at https://

www.epa.gov/ground-level-ozone-pollution/controltechniques-guidelines-and-alternative-controltechniques. 

11 87 FR 60897, 60907 (October 7, 2022). 

II. Background 

On October 1, 2015, the EPA revised 

the NAAQS for ozone to establish new 

8-hour standards.1 In that action, the 

EPA promulgated identical revised 

primary and secondary ozone standards, 

designed to protect public health and 

welfare, of 0.070 parts per million 

(ppm). Those standards are met when 

the 3-year average of the annual fourth 

highest daily maximum 8-hour average 

ozone concentration is less than or 

equal to 0.070 ppm.2

Promulgation of revised NAAQS 

triggers a requirement for the EPA to 

designate areas of the country as 

nonattainment, attainment, or 

unclassifiable for the standards; for the 

ozone NAAQS, this also involves 

classifying any nonattainment areas at 

the time of initial area designation.3

Ozone nonattainment areas are 

classified based on the severity of their 

ambient ozone levels (as determined 

based on an area’s ‘‘design value,’’ 

which represents air quality in the area 

for the most recent 3 years). The 

possible classifications for ozone 

nonattainment areas are Marginal, 

Moderate, Serious, Severe, and 

Extreme.4 Nonattainment areas with a 

‘‘lower’’ classification (e.g., Marginal) 

have ozone levels that are closer to the 

standards than areas with a ‘‘higher’’ 

classification (e.g., Severe).5

The EPA finalized the air quality 

thresholds corresponding with, and 

attainment dates for, each level of 

nonattainment area classification for the 

2015 ozone NAAQS on March 9, 2018.6

In multiple separate rules, the EPA 

cumulatively designated 53 areas 

throughout the country as 

nonattainment for the 2015 ozone 

NAAQS and established classifications 

for the designated nonattainment areas.7

On October 7, 2022, the EPA 

determined that 22 areas or portions of 

areas classified as Marginal under the 

2015 ozone NAAQS failed to attain the 

standards by the applicable attainment 

date and were reclassified as Moderate, 

effective November 7, 2022.8 Separately, 

on January 5, 2023, the EPA determined 

that the Las Vegas, Nevada, area 

classified as Marginal under the 2015 

ozone NAAQS failed to attain the 

standards by the August 3, 2021, 

attainment date and was reclassified as 

Moderate, effective the same day.9

Responsible State air agencies with 

nonattainment areas classified as 

Moderate for the 2015 ozone NAAQS 

are required to submit a SIP revision 

that satisfies the air quality planning 

requirements for a Moderate area under 

sections 172, 182(b), and 182(f) of the 

CAA. The required SIP elements 

include: nonattainment new source 

review (NNSR); reasonable further 

progress (RFP); ozone attainment 

demonstration (AD); reasonably 

available control measures (RACM); 

reasonably available control technology 

(RACT); contingency measures (CM); 

and Basic motor vehicle inspection and 

maintenance (I/M Basic) where 

required. Included within RACT are 

provisions to require the 

implementation of RACT for each 

category of volatile organic compound 

(VOC) sources in the area covered by 

any control techniques guideline (CTG), 

for major stationary sources of VOC not 

covered by a CTG, and for major 

stationary sources of NOX.10 The SIP 

revisions for the nonattainment areas 

reclassified as Moderate, effective 

November 7, 2022, were due no later 

than January 1, 2023.11

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 applicable minimum 

completeness criteria, the EPA is 

making a finding of failure to submit a 

complete SIP. 

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, which were due no later 

than January 1, 2023. 

TABLE 1—FINDINGS OF FAILURE TO SUBMIT CERTAIN REQUIRED SIP ELEMENTS FOR THE 2015 OZONE NAAQS 

Region State Area name Required Moderate area SIP element * 

1 .................. CT ............... Greater Connecticut .................... RFP, Ozone AD, CM, I/M Basic. 

2 .................. NJ ................ Philadelphia-Wilmington-Atlantic 

City.

NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

3 .................. DE ............... Philadelphia-Wilmington-Atlantic 

City.

RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for major 

sources, NOX RACT for major sources, CM, I/M Basic. 

5 .................. IL ................. Chicago ....................................... NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

5 .................. IL ................. St. Louis ...................................... NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

5 .................. IN ................ Chicago ....................................... NOX RACT for major sources. 

5 .................. MI ................ Allegan County ............................ RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for major 

sources, NOX RACT for major sources, CM. 

5 .................. MI ................ Berrien County ............................ RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for major 

sources, NOX RACT for major sources, CM. 

5 .................. MI ................ Muskegon County ....................... RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for major 

sources, NOX RACT for major sources, CM. 

5 .................. WI ................ Chicago ....................................... NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

5 .................. WI ................ Milwaukee ................................... NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 


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Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71759 

12The EPA proposed but has not yet finalized 

action on a redesignation request for Kentucky’s 

portion of the Louisville area received September 6, 

2022 (88 FR 23598, April 18, 2023). No 

requirements under CAA section 182(b) became due 

prior to Kentucky’s submittal of a complete 

redesignation request and, therefore, none will be 

applicable for purposes of any final redesignation. 

The Indiana portion of the Louisville area was 

redesignated to attainment for the 2015 ozone 

NAAQS effective July 11, 2022 (87 FR 39750, July 

11, 2022). 

13 88 FR 6688 (February 1, 2023). 

14 40 CFR 49.4. 

TABLE 1—FINDINGS OF FAILURE TO SUBMIT CERTAIN REQUIRED SIP ELEMENTS FOR THE 2015 OZONE NAAQS— 

Continued 

Region State Area name Required Moderate area SIP element * 

5 .................. WI ................ Sheboygan County ...................... NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM. 

6 .................. TX ................ Dallas-Fort Worth ........................ NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

6 .................. TX ................ Houston-Galveston-Brazoria ....... NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

6 .................. TX ................ San Antonio ................................. NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

9 .................. AZ ................ Phoenix-Mesa ............................. NNSR, RFP, Ozone AD, RACM, VOC CTG RACT,** Non-CTG VOC RACT 

for major sources,** NOX RACT for major sources,** CM, I/M Basic. 

9 .................. CA ............... Mariposa County ......................... NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

9 .................. NV ............... Las Vegas ................................... NNSR, RFP, Ozone AD, RACM, VOC CTG RACT, Non-CTG VOC RACT for 

major sources, NOX RACT for major sources, CM, I/M Basic. 

* Listed SIP elements are to satisfy the air quality planning requirements for Moderate areas under CAA sections 172, 182(b), and 182(f), 

which were due for the listed areas no later than January 1, 2023. 

** The Arizona Department of Environmental Quality submitted a RACT SIP for the Maricopa County portion of the Phoenix-Mesa Moderate 

area on May 4, 2023, and EPA determined the submittal was complete on September 12, 2023. 

The Kentucky portion of the 

Louisville, Kentucky-Indiana, area is not 

included in this action because the State 

of Kentucky submitted a complete 

request for the EPA to redesignate its 

area portion to attainment for the 2015 

ozone NAAQS, and this request was 

received before the January 1, 2023, SIP 

submittal deadline for reclassified 

Moderate areas.12 The Washington, 

District of Columbia-Maryland-Virginia, 

area is not included in this action 

because the EPA has proposed a clean 

data determination for the area for the 

2015 ozone NAAQS.13 Finally, the 

Pechanga Band of Luisen ̃ o Mission 

Indians of the Pechanga Reservation 

area is not included in this action 

because CAA provisions mandating the 

submission of State implementation 

plans do not apply to tribes.14

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 triggers an 

obligation under CAA section 110(c) for 

the EPA to promulgate a FIP no later 

than 2 years after issuance of 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 the required 

complete SIP submittal 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 effective date of 

these findings, the EPA affirmatively 

determines that the 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 

above failed to submit the indicated SIP 

elements required under sections 172, 

182(b), and 182(f) of the CAA and that 

were due no later than January 1, 2023, 

for the listed nonattainment areas. 

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 

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) 

This action does not impose an 

information collection burden under the 

provisions of the PRA. This final action 

does not establish any new information 

collection requirement apart from what 

is already required by law. This action 

relates to the requirement in the CAA 

for States to submit SIPs under CAA 

sections 172 and 182 that address the 

statutory requirements that apply to 

areas designated as nonattainment for 

the ozone NAAQS. 

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 submission for certain 

nonattainment areas to meet the 

requirements of part D of title I of the 

CAA. 


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15 In the report on the 1977 Amendments that 

revised CAA section 307(b)(1), Congress noted that 

the Administrator’s determination that the 

‘‘nationwide scope or effect’’ exception applies 

would be appropriate for any action that has a 

scope or effect beyond a single judicial circuit. See 

H.R. Rep. No. 95–294 at 323–24, reprinted in 1977 

U.S.C.C.A.N. 1402–03. 

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 have failed to submit SIP 

revisions that satisfy the nonattainment 

area planning requirements under 

sections 172 and 182 of the CAA. No 

Tribe is subject to the requirement to 

submit an implementation plan under 

section 172 or under subpart 2 of part 

D of title I 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 SIP revisions that 

satisfy the nonattainment area planning 

requirements under sections 172 and 

182 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 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 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. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The EPA did not perform an EJ 

analysis and did not consider EJ in this 

action. Due to the nature of the action 

being taken here, this action is expected 

to have a neutral to positive impact on 

the air quality of the affected area. 

Consideration of EJ is not required as 

part of this action, which finds that 

certain States have failed to submit SIP 

revisions that satisfy the nonattainment 

area planning requirements under 

sections 172 and 182 of the CAA, and 

there is no information in the record 

inconsistent with the stated goal of E.O. 

12898 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) and (d) 

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 actions 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.’’ For locally or regionally 

applicable final actions, the CAA 

reserves to the EPA complete discretion 

whether to invoke the exception in (ii). 

This rulemaking is ‘‘nationally 

applicable’’ within the meaning of CAA 

section 307(b)(1). In this final action, the 

EPA is applying a uniform legal 

interpretation with respect to findings of 

failure to submit required SIPs for 

reclassified Moderate areas under the 

2015 ozone NAAQS from 11 States with 

nonattainment areas, located in six of 

the 10 EPA Regions, and in the 2nd, 3rd, 

5th, 6th, 7th, and 9th 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 is 

a ‘‘nationally applicable’’ action within 

the meaning of CAA section 307(b)(1). 

In the alternative, to the extent a court 

finds this action to be locally or 

regionally applicable, the Administrator 

is exercising the complete discretion 

afforded to him under the CAA to make 

and publish a finding that this action is 

based on a determination of 

‘‘nationwide scope or effect’’ within the 

meaning of CAA section 307(b)(1).15 In 

this final action, the EPA is applying a 

uniform legal interpretation with 

respect to findings of failure to submit 

required SIPs for reclassified Moderate 

areas under the 2015 ozone NAAQS, 

based on a common core of factual 

findings concerning the receipt and 

completeness of the relevant SIP 

submittals. In deciding to invoke this 

exception, the Administrator has taken 

into account a number of policy 

considerations, including his judgment 

regarding the benefit of obtaining the 

D.C. Circuit’s authoritative centralized 

review, rather than allowing 

development of the issue in other 

contexts, in order to ensure consistency 

in the Agency’s approach to 

implementation of the 2015 ozone 


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Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71761 

NAAQS in the majority of the 

nonattainment areas nationwide for the 

2015 ozone NAAQS. This final action 

treats all of the identified States with 

reclassified Moderate nonattainment 

areas consistently, in making findings of 

failure to submit required SIPs. 

The Administrator finds that this is a 

matter on which national uniformity is 

desirable to take advantage of the D.C. 

Circuit’s administrative law expertise 

and facilitate the orderly development 

of the basic law under the CAA. The 

Administrator also finds that 

consolidated review of this action in the 

D.C. Circuit will avoid piecemeal 

litigation in the regional circuits, further 

judicial economy, and eliminate the risk 

of inconsistent results for different 

States. The Administrator also finds that 

a nationally consistent approach to the 

CAA’s mandate concerning 

reclassification of areas that fail to attain 

the 2015 ozone NAAQS constitutes the 

best use of agency resources. The 

Administrator is publishing his finding 

that this action is based on a 

determination of nationwide scope or 

effect in the Federal Register as part of 

this final action. 

For these reasons, this final action is 

nationally applicable or, alternatively, 

the Administrator is exercising the 

complete discretion afforded to him by 

the CAA and finds that this final action 

is based on a determination of 

nationwide scope or effect for purposes 

of CAA section 307(b)(1) and is 

publishing that finding in the Federal 

Register. 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 December 18, 

2023. 

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. 

Joseph Goffman, 

Principal Deputy Assistant Administrator. 

[FR Doc. 2023–22987 Filed 10–17–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 241 

[EPA–HQ–OLEM–2020–0550; FRL–7815– 

01–OLEM] 

RIN 2050–AH13 

Non-Hazardous Secondary Material 

Standards; Response to Petition 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency is finalizing its denial of a 

rulemaking petition from American 

Forest and Paper Association et al. 

requesting amendments to the NonHazardous Secondary Materials 

regulations, initially promulgated on 

March 21, 2011, and amended on 

February 7, 2013, February 8, 2016, and 

February 7, 2018, under the Resource 

Conservation and Recovery Act. These 

regulations establish standards and 

procedures for identifying whether nonhazardous secondary materials are solid 

wastes when legitimately used as fuels 

or ingredients in combustion units. The 

petition requested the following 

amendments: Change the legitimacy 

criterion for comparison of 

contaminants in the non-hazardous 

secondary material against those in the 

traditional fuel the unit is designed to 

burn from mandatory to ‘‘should 

consider’’; remove associated designed 

to burn and other limitations for 

creosote-treated railroad ties; and revise 

the definition of ‘‘paper recycling 

residuals’’ to remove the limit on nonfiber materials in paper recycling 

residuals that can be burned as a nonwaste fuel. The Environmental 

Protection Agency proposed to deny the 

petition on January 28, 2022. After 

review of the public comments, the 

Agency is finalizing its denial of the 

requested amendments. In addition to 

denying this rulemaking petition, the 

Agency is revising the definition of 

paper recycling residuals to limit the 

impact non-fiber materials may have on 

the heat value of paper recycling 

residuals in order for them to be 

considered a non-waste fuel. 

DATES: This final rule is effective on 

December 18, 2023. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OLEM–2020–0550. 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 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: 

Patrick Wise, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division (MC 5303P), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue NW, Washington, DC 20460; 

telephone number: 202–566–0520; 

email address: wise.patrick@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

following outline is provided to aid in 

locating information in this preamble. 

I. General Information 

A. List of Abbreviations and Acronyms 

Used in This Proposed Rule 

B. What is the statutory authority for this 

proposed rule? 

C. Does this proposed rule apply to me? 

II. Background 

A. History of Non-Hazardous Secondary 

Materials Rulemaking 

B. Summary of This Action 

C. Summary of the Petitioners’ Requested 

Changes 

D. Background on Creosote-Treated 

Railroad Ties 

III. EPA Response to Petitioners’ Requested 

Changes 

IV. Effect of This Rule on Other Programs 

V. State Authority 

A. Relationship to State Programs 

B. State Adoption of the Rulemaking 

VI. Costs and Benefits 

VII. Children’s Health 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(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 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations 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 Populations and Low-Income 

Populations 

K. Congressional Review Act 


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