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[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Rules and Regulations]
[Pages 47040-47042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17057]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0270; FRL-9949-34-Region 3]

Finding of Failure To Submit a State Implementation Plan; 
Maryland; Interstate Transport Requirements for the 2008 8-Hour 
National Ambient Air Quality Standards for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action finding that Maryland has failed to submit an infrastructure 
state implementation plan (SIP) to satisfy certain interstate transport 
requirements of the Clean Air Act (CAA) with respect to the 2008 8-hour 
ozone national ambient air quality standard (NAAQS). Specifically, 
these requirements pertain to the obligation to prohibit emissions 
which significantly contribute to nonattainment, or interfere with 
maintenance, of the 2008 8-hour ozone NAAQS in other states. This 
finding of failure to submit establishes a 2-year deadline for EPA to 
promulgate a federal implementation plan (FIP) to address the 
interstate transport SIP requirements pertaining to significant 
contribution to nonattainment and interference with maintenance of the 
2008 ozone NAAQS in other states unless, prior to EPA promulgating a 
FIP, the state submits, and EPA approves, a SIP that meets these 
requirements.

DATES: This final rule is effective on August 19, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2016-0270. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., 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 through www.regulations.gov or may be viewed during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
email at powers.marilyn@epa.gov.

SUPPLEMENTARY INFORMATION:

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 procedure are 
impracticable, unnecessary or contrary to the public interest, the 
agency may issue a rule without providing notice and an opportunity for 
public comment. 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 a 
finding of failure to submit SIPs, or elements of SIPs, required by the 
CAA, where states have made no submissions, or incomplete submissions, 
to meet the requirement. Thus, notice and public procedures are 
unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 
553(b)(3)(B).

I. Background and Overview

A. Interstate Transport SIPs

    CAA section 110(a) imposes an obligation upon states to submit SIPs 
that provide for the implementation, maintenance and enforcement of a 
new or revised NAAQS within 3 years following the promulgation of that 
NAAQS. Section 110(a)(2) lists specific requirements that states must 
meet in these SIP submissions, as applicable. EPA refers to this type 
of SIP submission as the ``infrastructure'' SIP because it ensures that 
states can implement, maintain and enforce the air standards. Within 
these requirements, section 110(a)(2)(D)(i) contains requirements to 
address interstate transport of NAAQS pollutants. A SIP revision 
submitted for this sub-section is referred to as an ``interstate 
transport SIP.'' In turn, section 110(a)(2)(D)(i)(I) requires that such 
a plan contain adequate provisions to prohibit emissions from the state 
that will contribute significantly to nonattainment of the NAAQS in any 
other state (prong 1) or interfere with maintenance of the NAAQS in any 
other state (prong 2). Interstate transport prongs 1 and 2, also called 
the ``good neighbor'' provisions, are the requirements relevant to this 
findings document.
    Pursuant to CAA section 110(k)(1)(B), 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 per section 110(k)(1)(A). EPA refers 
to the determination that a state has not submitted a SIP that meets 
the minimum completeness criteria as a ``finding of failure to 
submit.'' If EPA finds a state has failed to submit a SIP to meet its 
statutory obligation to address 110(a)(2)(D)(i)(I), pursuant to section 
110(c)(1) EPA has not only the authority, but the obligation, to 
promulgate a FIP within 2 years to address the CAA requirement. This 
finding therefore starts a 2-year clock for promulgation by EPA of a 
FIP, in accordance with CAA section 110(c)(1), unless prior to such 
promulgation the state submits, and EPA approves, a submittal from the 
state to meet the requirements of CAA section 110(a)(2)(D)(i)(I) for 
the 2008 8-hour ozone NAAQS. EPA notes this action does not start a 
mandatory sanctions clock pursuant to CAA section 179 because this 
finding of failure to submit does not pertain to a part D plan for 
nonattainment areas required under CAA section 110(a)(2)(I) or a SIP 
call pursuant to CAA section 110(k)(5).

B. Finding of Failure To Submit for States That Did Not Submit a SIP

    On March 12, 2008, EPA strengthened the NAAQS for ozone. EPA 
revised the 8-hour primary ozone standard from 0.08 parts per millions 
(ppm) to 0.075 ppm. EPA also revised the secondary 8-hour standard to 
the level of 0.075 ppm making it identical to the revised primary 
standard. Infrastructure SIPs addressing the revised standard, 
including the interstate transport requirements, were due March 12, 
2011.
    On December 27, 2012, Maryland submitted an infrastructure SIP for 
the 2008 ozone NAAQS. EPA determined the December 27, 2012 SIP 
submittal as complete on January 2, 2013. On May 2, 2014, EPA proposed 
approval of Maryland's infrastructure SIP submittal for the 2008 ozone 
NAAQS, but did not propose to take action on the portion of the 
submittal related to section 110(a)(2)(D)(i)(I), stating that EPA would 
take separate action on this part of the submittal. See 79 FR 25054.
    On July 13, 2015, EPA published a rule finding that 24 states 
failed to submit complete SIPs that addressed the ``good neighbor'' 
provision for the 2008 Ozone NAAQS. See 80 FR 39961 (July 13, 2015).\1\ 
The finding action triggered a 2-year clock for the EPA to issue FIPs 
to address the ``good neighbor''

[[Page 47041]]

requirements for those states by August 12, 2017. Prior to issuance of 
the finding action, Maryland made a submission addressing the ``good 
neighbor'' provision for the 2008 ozone NAAQS on December 27, 2012, 
therefore, the state was not included in EPA's July 2015 finding 
notice. Following Maryland's submittal of its infrastructure SIP and 
EPA's July 2015 finding notice, EPA proposed a rule on November 16, 
2015 \2\ to address the ``good neighbor'' requirements for the 2008 
ozone NAAQS. The rule proposed to promulgate FIPs in 23 eastern states, 
including Maryland, to reduce interstate ozone transport for the 2008 
ozone NAAQS. EPA proposed to issue FIPs only for those states that 
either failed to submit a SIP or for which the EPA disapproved the 
state's SIP addressing the ``good neighbor'' provision by the date the 
rule was finalized. EPA expects to finalize the rule and respective 
FIPs, as applicable, later this year.
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    \1\ This finding is included in the docket for this action and 
available online at www.regulations.gov.
    \2\ See ``Cross-State Air Pollution Rule Update for the 2008 
Ozone NAAQS; Proposed Rules,'' 80 FR 75706 (December 3, 2015).
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    On April 20, 2016, EPA received a letter, dated April 12, 2016,\3\ 
from the Maryland Department of the Environment acknowledging that the 
transport component of the December 27, 2012 infrastructure SIP 
submittal needed to be updated with additional control measures and 
withdrawing from EPA's consideration the section 110(a)(2)(D)(i)(I) 
portion of Maryland's infrastructure SIP submittal dated December 27, 
2012. The letter also states that Maryland plans to submit to EPA an 
updated good neighbor SIP in the future.
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    \3\ Maryland's April 12, 2012 letter inadvertently referred to 
an incorrect submittal date of December 31, 2012. The only 
infrastructure SIP submission from Maryland addressing section 
110(a)(2) for the 2008 ozone NAAQS is the December 27, 2012 
submittal.
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II. Final Action

    With the withdrawal of the good neighbor portion of the December 
27, 2012 infrastructure SIP submittal, Maryland has not submitted to 
EPA a SIP to address CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone 
NAAQS. EPA is therefore finding that Maryland has failed to submit a 
complete good neighbor SIP to meet the requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. This finding starts a 2-
year clock for promulgation by EPA of a FIP after the effective date of 
this final rule, in accordance with section 110(c)(1), unless prior to 
such promulgation that Maryland submits, and EPA approves, a submittal 
that meets the requirements of CAA section 110(a)(2)(D)(i)(I). This 
finding of failure to submit does not impose sanctions, and does not 
set deadlines for imposing sanctions as described in section 179, 
because it does not pertain to the elements of a CAA title I, part D 
plan for nonattainment areas as required under section 110(a)(2)(I), 
and because this action is not a SIP call pursuant to section 
110(k)(5).

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This final rule does not establish any new information collection 
requirement apart from what is already required by law.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
This rule is not subject to notice and comment requirements because the 
agency has invoked the APA ``good cause'' exemption under 5 U.S.C. 
553(b).

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action implements mandates specifically and 
explicitly set forth in the CAA under section 110(a) without the 
exercise of any policy discretion by the EPA.

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 rule responds to the requirement in the CAA 
for states to submit SIPs under section 110(a) to address CAA section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. No tribe is subject to the 
requirement to submit an implementation plan under section 110(a) 
within 3 years of promulgation of a new or revised NAAQS. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental 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 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

    This rulemaking does not involve technical standards.

J. Congressional Review Act (CRA)

    This action is subject to the CRA, and 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).

K. Petitions for 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 appropriate circuit by September 19, 2016. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.

[[Page 47042]]

    This action finding that Maryland has failed to submit a CAA 
section 110(a)(2)(D)(I)(I) SIP may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone.

    Dated: July 8, 2016.
Shawn M. Garvin,
Regional Administrator, Region III.
[FR Doc. 2016-17057 Filed 7-19-16; 8:45 am]
 BILLING CODE 6560-50-P
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