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[Federal Register: January 5, 2010 (Volume 75, Number 2)]
[Rules and Regulations]               
[Page 232-235]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja10-7]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2009-0898; FRL-9099-7]

 
Finding of Failure To Submit Certain State Implementation Plans 
Required for the 1-Hour Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking a final action finding that the State of 
California has failed to submit revisions to its State Implementation 
Plans (SIPs) for three ozone nonattainment areas to satisfy certain 
requirements of the Clean Air Act (CAA) for the 1-hour ozone National 
Ambient Air Quality Standards (NAAQS). To accompany this action we are 
issuing additional guidance to states on developing the required SIP 
revisions. Under the CAA and EPA's implementing regulations, states 
with 1-hour ozone nonattainment areas classified as Severe or Extreme 
were required by the provisions of CAA sections 181(b)(4) and 
182(d)(1)(3) to submit by December 31, 2000, SIPs to satisfy CAA 
section 185. By this action, EPA is making a finding of failure to 
submit the required SIPs for the State of California for three 1-hour 
ozone nonattainment areas. With the issuance of additional EPA guidance 
to states on developing section 185 fee program SIPs, California will 
be able to complete development and promulgation of these programs. 
According to the CAA, for each area subject to this finding, EPA must 
affirmatively find that California has submitted the required plan 
revision within 18 months of the effective date of this finding, or the 
offset sanction must apply in that area. Additionally, according to the 
CAA, if EPA has still not affirmatively determined that a state has 
submitted the required plan for an area within 6 additional months, the 
highway funding sanction must apply in that area. Lastly, the CAA 
requires that no later than 2 years after the effective date of this 
finding, EPA must promulgate a Federal Implementation Plan (FIP) if the 
state has not submitted and EPA has not approved the required SIP.

DATES: Effective Date. This action is effective on January 5, 2010.

FOR FURTHER INFORMATION CONTACT: Questions concerning this notice 
should be addressed to: Ms. Denise Gerth, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code: C504-
02, 109 TW Alexander Drive, Research Triangle Park, NC 27709, telephone 
(919) 541-5550, or by E-mail at gerth.denise@epa.gov; or Mr. Andrew 
Steckel, Air Rulemaking Office, EPA Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105, telephone (415) 947-4115, or by e-mail at 
steckel.andrew@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Statutory Requirements
    B. Consequences of Findings of Failure To Submit a SIP
II. This Action: Areas Receiving a Finding of Failure To Submit SIPs
III. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedures Act 
(APA)
    B. Effective Date Under the Administrative Procedures 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. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. National Technology Transfer and Advancement Act
    M. Congressional Review Act
    N. Judicial Review

I. Background

    The CAA requires states with Severe and Extreme ozone nonattainment 
areas to develop a SIP program that provides for collecting fees from 
each major stationary source of volatile organic compounds (VOC) and 
nitrogen oxides (NOX) for each calendar year following a 
failure to attain the ozone standard by the applicable attainment date. 
Section 185 fee program SIPs are required for any area that was 
designated as not attaining the 1997 8-hour ozone NAAQS in June 2004 
and that was also classified as a Severe or Extreme nonattainment area 
for the 1-hour standard at that time. In a decision by the Circuit 
Court of Appeals for the District of Columbia, the Court determined 
that these fee program SIPs were required to prevent backsliding in the 
transition from implementing the revoked 1-hour NAAQS to implementing 
the 1997 8-hour NAAQS (South Coast AQMD v. EPA, December 22, 2006). 
Although EPA has not determined through notice-and-comment rulemaking 
that the areas identified in this notice have failed to attain the 1-
hour ozone NAAQS by their statutory attainment dates, current air 
quality data for these areas indicate they are violating the 1-hour 
NAAQS and the 1997 8-hour NAAQS.\1\
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    \1\ Although EPA has not in all cases completed determinations 
through notice-and-comment rulemaking, current air quality data 
indicate that a number of nonattainment areas classified as Severe 
or Extreme for the 1-hour NAAQS and also designated in June 2004 
nonattainment for the 1997 8-hour NAAQS appear to have attained the 
1-hour NAAQS and/or the 1997 8-hour NAAQS. In this notice EPA is not 
making findings that states failed to submit SIP revisions for these 
areas. These areas are: Chicago-Gary-Lake County, IL-IN; Milwaukee-
Racine, WI; Philadelphia-Trenton-Wilmington, MD-DE-PA-NJ; Ventura 
County, CA; Metropolitan Washington, DC-VA-MD; Baton Rouge, LA; New 
York, NY-NJ-CT; Houston, TX; and Baltimore, MD.
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    EPA has been working with states and other stakeholders on EPA 
guidance for developing required fee program SIPs, including the 
convening of a group of diverse stakeholders through the Clean Air Act 
Advisory Committee (CAAAC). On May 15, 2009, CAAAC submitted its report 
to EPA with suggestions and issues for consideration in creating 
guidance that would provide flexibility to states to develop programs 
that will meet the requirements of section 185 of the CAA. In 
conjunction with this action EPA has issued additional guidance that 
will assist California with development of its section 185 fee SIPs for 
the affected areas.

A. Statutory Requirements

    Section 185 of the CAA requires each Severe and Extreme ozone

[[Page 233]]

nonattainment area to have a plan implementing the program specified in 
that section. The fee program applies if an area fails to attain the 
ozone NAAQS by its applicable attainment date. For each such area, 
section 185 requires each major stationary source of VOC and 
NOX to pay an annual fee for emissions in excess of 80 
percent of the emissions baseline.\2\ The fee is $5,000 (as adjusted 
for inflation) per ton of VOC and NOX emissions that are in 
excess of the baseline. The CAA states that the computation of a 
source's ``baseline amount'' must be the lower of the amount of actual 
or allowable emissions under the permit applicable to the source (or if 
no permit has been issued for the attainment year, the amount of VOC 
and NOX emissions allowed under the applicable 
implementation plan) during the attainment year. No source is required 
to pay any fee for emissions during a year for which the area receives 
an extension of their attainment date under section 181(a)(5).
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    \2\ While section 185 expressly mentions VOC, section 182(f) 
extends the application of this provision to NOX, by 
providing that ``plan provisions required under [subpart D)] for 
major stationary sources of [VOC] shall also apply to major 
stationary sources of [NOX].''
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B. Consequences of Findings of Failure To Submit a SIP

    The CAA establishes specific consequences that apply until an area 
remedies the identified deficiency if EPA finds that a state has failed 
to submit a SIP or, with regard to a submitted SIP, EPA determines it 
is incomplete or disapproves it. See, CAA section 179(a)(1). 
Additionally, any of these findings also triggers an obligation for EPA 
to promulgate a FIP if the state has not submitted and EPA has not 
approved the required SIP within 2 years of the finding. See, CAA 
section 110(c). The first finding, that a state has failed to submit a 
plan or one or more elements of a plan required under the CAA, is the 
finding relevant to this action.
    EPA is finding that the State of California has failed to make 
required section 185 fee program SIP submissions for all or a portion 
of three 1-hour ozone nonattainment areas. We note that the state has 
been working to establish its required fee program SIP revisions, and 
has been awaiting issuance of additional guidance from EPA before 
proceeding. EPA has now issued additional guidance, and we will 
continue to work with the state on developing approvable and 
appropriate fee programs.
    If EPA has not affirmatively determined that the state has made the 
required complete submittal for the three areas within 18 months of the 
effective date of this rulemaking, pursuant to CAA section 179(a) and 
(b) and 40 CFR 52.31, the offset sanction identified in CAA section 
179(b)(2) and 40 CFR 52.31 will apply in each area that remains subject 
to the finding. If EPA has not affirmatively determined that the state 
has made a complete submission for the areas within 6 months after the 
offset sanction is imposed, then the highway funding sanction will 
apply to each area that remains subject to the finding, in accordance 
with CAA section 179(b)(1) and 40 CFR 52.31. The 18- and 24-month 
clocks for any area will stop and the sanctions will not take effect 
if, within 18 or 24 months, respectively, after the date of the 
finding, EPA finds that the state has made a complete submittal. In 
addition, where EPA has made a finding, EPA is required to promulgate a 
FIP for an area if the state has not made the required SIP submittal 
and EPA has not taken final action to approve the submittal as fully 
meeting the section 185 fee obligation for the 1-hour ozone standard 
within 2 years of EPA's finding.
    At approximately the same time as the signing of this action, the 
EPA Regional Administrator is sending a letter to the State of 
California informing the state that EPA is determining that the state 
has failed to submit a SIP addressing the section 185 fee program for 
the 1-hour ozone NAAQS for all or a portion of the three areas 
identified below. This letter has been included in docket number EPA-
HQ-OAR-2009-0898.

II. This Action: Areas Receiving a Finding of Failure To Submit SIPs

    In this action, EPA is making a finding that the State of 
California has failed to submit section 185 fee program SIPs for all or 
a portion of three 1-hour ozone nonattainment areas. California 
submitted a section 185 fee program SIP for the Sacramento Metropolitan 
Air Quality Management District (AQMD) portion of the Sacramento Metro 
Area and EPA approved that submission on August 26, 2003, at 68 FR 
51184. Therefore, the Sacramento Metropolitan AQMD is not subject to 
this action. This finding starts the 18-month emission offset sanctions 
clock, the 24-month highway funding sanctions clock, and a 24-month 
clock for the promulgation by EPA of a FIP. This action will be 
effective on January 5, 2010. EPA is making findings of failure to 
submit section 185 fee program SIPs for the nonattainment areas 
identified below.


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                   State                         Nonattainment area
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California................................  Sacramento Metro Area, CA
                                             (severe 15)--Yolo/Solano
                                             Air Quality Management
                                             District portion; Feather
                                             River Air Quality
                                             Management District
                                             portion; Placer County Air
                                             Pollution Control District
                                             portion; El Dorado County
                                             Air Quality Management
                                             District portion.
California................................  Southeast Desert Modified
                                             Air Quality Management
                                             Association (severe 17)
                                             includes Coachella Valley.
California................................  Los Angeles-South Coast Air
                                             Basin (extreme).
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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 
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

[[Page 234]]

public interest because it would divert agency resources from the 
critical substantive review of complete SIPs. 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 5, 2010. 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. In addition, this action 
simply starts a ``clock'' that will not result in sanctions against the 
states for 18 months, and that the state may ``turn off'' through the 
submission of complete SIP submittals. 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 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review by the Office of Management and Budget 
under the Executive Order.

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 1320.3(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 to satisfy elements required for the 1-hour ozone 
NAAQS. The present final rule does not establish any new information 
collection requirement.

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. Although 
the rule is subject to the APA, the Agency has invoked the ``good 
cause'' exemption under 5 U.S.C. 553(b); therefore it is not subject to 
the notice-and-comment requirement. Thus Executive Order 13132 does not 
apply to this action.

F. Unfunded Mandates Reform Act

    This action contains no federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1998 (UMAR), 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 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
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

    This final rule 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 NAAQS 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 
NAAQS. 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 nonattainment area requirements of the CAA for the ozone 
NAAQS. The CAA requires states with areas that are designated 
nonattainment for the NAAQS to develop a SIP describing how the state 
will attain and maintain the NAAQS. There are tribal governments within 
certain nonattainment areas for which this rule initiates a sanctions 
clock. However, this rule does not have tribal implications because it 
does not impose any compliance costs on tribal governments nor does it 
pre-empt tribal law. The rule will not have a substantial direct effect 
on one or more Indian Tribes, on the relationship between the federal 
government and Indian Tribes, or on the distribution of power and 
responsibilities between the federal government and Indian Tribes, as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
Thus, Executive Order 13175 does not apply to this action.

I. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This action does not directly affect 
the level of protection provided to human health or the environment.

J. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. In this 
action, EPA is finding that a state has failed to submit SIPs to 
satisfy the section 185 program fee requirement of the CAA for the 1-
hour ozone NAAQS.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 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 the state has not met the 
requirement to submit section 185 fee program SIPs and begins a clock 
that could result in the imposition of sanctions if the state

[[Page 235]]

continues to not 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 
state.

L. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology and Transfer Advancement 
Act of 1995 (NTTAA), Public Law 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 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 of 
when the Agency decides not to use available and applicable voluntary 
consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

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 report containing 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 5, 2010.

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 the final 
action is published in the Federal Register. Filing a petition for 
reconsideration by the EPA 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 section 185 fee program SIPs for the nonattainment 
areas 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 that the 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, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: December 20, 2009.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. E9-31173 Filed 1-4-10; 8:45 am]

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