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Rule2024-17328

Findings of Failure To Submit State Implementation Plan Revisions for Nonattainment Areas for the 2010 1-Hour Primary Sulfur Dioxide National Ambient Air Quality Standard

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Published

August 16, 2024

Effective

September 16, 2024

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA) is taking final action to find that four States failed to submit State Implementation Plan (SIP) revisions required by the Clean Air Act (CAA) in a timely manner for certain nonattainment areas for the 2010 1-hour sulfur dioxide (SO<INF>2</INF>) National Ambient Air Quality Standard (NAAQS). The States that failed to submit the required SIP revisions are Arizona, Louisiana, New York, and Virginia. 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.

Full Text

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<title>Federal Register, Volume 89 Issue 159 (Friday, August 16, 2024)</title>
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[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Rules and Regulations]
[Pages 66603-66607]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17328]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2024-0168; FRL-11815-01-OAR]

Findings of Failure To Submit State Implementation Plan Revisions
for Nonattainment Areas for the 2010 1-Hour Primary Sulfur Dioxide
National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to find that four States failed to submit State Implementation
Plan (SIP) revisions required by the Clean Air Act (CAA) in a timely
manner for certain nonattainment areas for the 2010 1-hour sulfur
dioxide (SO<INF>2</INF>) National Ambient Air Quality Standard (NAAQS).
The States that failed to submit the required SIP revisions are
Arizona, Louisiana, New York, and Virginia. 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 September 16, 2024.

ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-HQ-OAR-2024-0168. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Angelina Brashear, Office of Air
Quality Planning and Standards, Air Quality Policy Division (C539-01),
U.S. Environmental Protection Agency, Research Triangle Park, NC;
telephone number: (919) 541-4746; email address:
<a href="/cdn-cgi/l/email-protection#8defffecfee5e8ecffa3ece3eae8e1e4e3eccde8fdeca3eae2fb">[email&#160;protected]</a>.

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 and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
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)(4)(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)(4)(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 <a href="https://www.epa.gov/so2-pollution/2010-sulfur-dioxide-national-ambient-air-quality-standards-implementation-actions">https://www.epa.gov/so2-pollution/2010-sulfur-dioxide-national-ambient-air-quality-standards-implementation-actions</a>.

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:

[[Page 66604]]

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Regional offices States
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EPA Region 2: Mr. Kirk Wieber, Manager, Air New York.
Program Branch, EPA Region 2, 290 Broadway,
New York, New York 10007.
<a href="/cdn-cgi/l/email-protection#512638343334237f3a38233a113421307f363e27">[email&#160;protected]</a>.
EPA Region 3: Mr. David Talley, Acting Chief, Virginia.
Planning and Implementation Branch, EPA
Region 3, 1600 JFK Boulevard, Philadelphia,
Pennsylvania 19103. <a href="/cdn-cgi/l/email-protection#b9cdd8d5d5dcc097ddd8cfd0ddf9dcc9d897ded6cf">[email&#160;protected]</a>.
EPA Region 6: Mr. Guy Donaldson, Manager, Louisiana.
State Planning and Implementation Branch,
EPA Region 6, 1201 Elm Street, Suite 500,
Dallas, Texas 75270. <a href="/cdn-cgi/l/email-protection#d6b2b9b8b7bab2a5b9b8f8b1a3af96b3a6b7f8b1b9a0">[email&#160;protected]</a>.
EPA Region 9: Ms. Idalia Perez, Manager, Air Arizona.
Planning Section, EPA Region 9, 75 Hawthorne
Street, San Francisco, California 94105.
<a href="/cdn-cgi/l/email-protection#65150017001f4b0c0104090c04250015044b020a13">[email&#160;protected]</a>.
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II. Background

In June 2010, the EPA (Environmental Protection Agency) promulgated
a new 1-hour primary SO<INF>2</INF> NAAQS of 75 parts per billion
(ppb), which is met when the 3-year average of the annual 99th
percentile of daily maximum 1-hour average concentrations does not
exceed 75 ppb.\1\ Following promulgation of a new or revised NAAQS, the
EPA is required to designate all areas of the country as either
``attainment,'' ``nonattainment,'' or ``unclassifiable'' (CAA section
107(d)(1)). In multiple separate rules,\2\ the EPA cumulatively
designated 51 areas within 23 States and territories as nonattainment
for the 2010 1-hour primary SO<INF>2</INF> NAAQS.
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\1\ On June 2, 2010, the EPA signed the final rule title,
``Primary National Ambient Air Quality Standard for Sulfur
Dioxide.'' 75 FR 35520 (June 22, 2010), codified at 40 CFR part
50.17.
\2\ A series of rules designated nonattainment areas of the
country for the 2010 SO<INF>2</INF> NAAQS: Round 1 (78 FR 47191) on
August 5, 2013; Round 2 (81 FR 45039) on July 12, 2016; Round 2
Supplement (81 FR 89870) on December 13, 2016; Round 3 (83 FR 1098)
on January 9, 2018; Round 3 Supplement (83 FR 14597) on April 5,
2018; and Round 4 (86 FR 16055) on March 26, 2021.
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The CAA directs States containing an area designated nonattainment
for the 2010 SO<INF>2</INF> 1-hour primary NAAQS to develop and submit
a nonattainment area (NAA) SIP to the EPA within 18 months of the
effective date of an area's designation as nonattainment. The
nonattainment (NAA) SIP (also referred to as an attainment plan) must
meet the requirements of subparts l and 5 of part D of Title I of the
CAA, and provide for attainment of the NAAQS by the applicable
statutory attainment date. All components of the SO<INF>2</INF> part D
NAA SIP, including the emissions inventory, attainment demonstration,
reasonably available control measures (RACM) including reasonably
available control technology (RACT), enforceable emission limitations
and control measures, reasonable further progress (RFP) plan,
nonattainment new source review (NNSR), and contingency measures, are
due under CAA section 191(a) to the EPA within 18 months of the
effective date of designation of an area. Under CAA section 192(a),
these NAA SIPs must provide for attainment of the NAAQS as
expeditiously as practicable, but no later than 3 years from the
effective date of the nonattainment designation. Responsible State air
agencies were required to prepare and submit to the EPA a NAA SIP
revision within 18 months of the effective date of the nonattainment
designation to bring the NAAs into attainment by the relevant
attainment date.
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 minimum completeness criteria for the 2010
1-hour primary SO<INF>2</INF> NAAQS, the EPA is making a finding of
failure to submit a complete SIP.
On August 5, 2013, the EPA finalized its first-round designation of
29 areas as nonattainment for the 2010 SO<INF>2</INF> NAAQS, effective
October 4, 2013.\3\ This designation was based on air quality
monitoring data from 2009-2011 and included the Miami, Arizona and St.
Bernard Parish, Louisiana NAAs. Pursuant to CAA section 192(a), the
Miami and St. Bernard Parish NAAs had until October 4, 2018--5 years
after the effective date of the final action--to demonstrate attainment
of the 2010 SO<INF>2</INF> NAAQS. Both NAAs failed to attain the
standard by this statutory deadline and as such, under CAA section
179(c) the EPA issued findings of failure to attain (FFA) for Miami,
Arizona on January 31, 2022 \4\ and for St. Bernard Parish, Louisiana
on October 5, 2022.\5\ These FFAs set a deadline for the responsible
States to submit a revised SIP to the EPA within 1 year, under CAA
section 179(d). The deadlines for the revised SIPs were January 31,
2023, for Miami, Arizona and October 5, 2023, for St. Bernard Parish,
Louisiana. Neither Arizona nor Louisiana submitted a complete revised
SIP addressing these areas by the appropriate deadline.
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\3\ 78 FR 47191.
\4\ 87 FR 4805.
\5\ 87 FR 60273.
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On March 26, 2021, the EPA finalized its fourth-round designation
of 9 areas as nonattainment for the 2010 SO<INF>2</INF> NAAQS,
effective April 30, 2021.\6\ This Round 4 designation included St.
Lawrence County (part), New York and Giles County (part), Virginia.
Section 191 of the CAA directs States to submit SIPs for areas
designated as nonattainment for the SO<INF>2</INF> NAAQS to the EPA
within 18 months of the effective date of the nonattainment
designation, i.e., by no later than October 30, 2022, in this case. New
York and Virginia failed to submit complete revised SIPs by this
deadline.
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\6\ 86 FR 16055.
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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.

[[Page 66605]]

Table 1--Findings of Failure To Submit Certain Required SIP Elements for the 2010 Sulfur Dioxide NAAQS
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Required SIP
Region State Area name elements * SIP revision due date
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2....................... NY St. Lawrence County Emissions October 30, 2022.
(part) * *. Inventory.
Attainment
Demonstration..
RACM/RACT.........
RFP...............
NNSR..............
Contingency
Measures..
3....................... VA Giles County (part) Emissions October 30, 2022.
**. Inventory.
Attainment
Demonstration.***
*.
RACM/RACT.........
RFP...............
NNSR..............
Contingency
Measures..
6....................... LA St. Bernard Parish. Emissions October 5, 2023.
Inventory.
Attainment
Demonstration..
RACM/RACT.........
RFP...............
NNSR..............
Contingency
Measures..
9....................... AZ Miami ***.......... Emissions January 31, 2023.
Inventory.
Attainment
Demonstration..
RACM/RACT.........
RFP...............
NNSR..............
Contingency
Measures..
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* Listed SIP elements are requirements of subparts l and 5 of part D, of Title I of the CAA, and provide for
attainment of the NAAQS. Components of the SO2 part D NAA SIP include the emissions inventory, attainment
demonstration, reasonably available control measures (RACM) including reasonably available control technology
(RACT), enforceable emission limitations and control measures, reasonable further progress (RFP) plan,
nonattainment new source review (NNSR), and contingency measures.
** The term ``part'' is used to indicate that only a portion of the county or counties is designated
nonattainment. Area boundaries are described in 86 FR 16055 and codified at 40 CFR 81.333, 81.347, and 81.318
respectively for St. Lawrence County and Giles County
*** Area boundaries are described in 78 FR at 47198 and codified at 40 CFR 81.303.
**** The EPA's State Planning Electronic Collaboration System (SPeCS) incorrectly indicated that Virginia had
submitted the attainment demonstration component of the attainment plan for the SO2 Giles County NAA. The EPA
corrected the error on March 12, 2024, and SPeCS now shows that Virginia has not yet submitted any component
of the attainment plan

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 also triggers an obligation under CAA
section 110(c) for the EPA to promulgate a FIP no later than 2 years
after 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 a complete
submission 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 date of
these findings, the EPA affirmatively determines that the affected
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 failed to submit the indicated SIP elements required
under part D of Title I of the CAA within 18 months of their associated
effective dates of designation. The EPA is, therefore, issuing a
finding of failure to submit for the required SIP elements listed in
Table 1 of this action. The effective date of this finding starts the
18-month emission offset sanctions clock, the 24-month highway funding
sanctions clock, and a 24-month clock for the EPA to promulgate a FIP.

V. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders
(``E.O.'') can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.

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 Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
This final rule does not establish any new information collection
requirement

[[Page 66606]]

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, 191, and 192 that address the requirements that apply to areas
designated as nonattainment for the SO<INF>2</INF> 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
submissions for certain nonattainment areas to meet the requirements of
part D of Title I of the CAA.

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 failed to
submit SIP revisions that satisfy the nonattainment area planning
requirements under sections 172, 191, and 192 of the CAA. No Tribe is
subject to the requirement to submit an implementation plan under
section 172, 191, and 192 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 required
SIP revisions that satisfy the nonattainment area planning requirements
under sections 172, 191, and 192 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 and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All

Executive Order 12898 (59 FR 7629, Feb. 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. Executive Order 14096 (88 FR 25251,
April 26, 2023) directs the Federal Government to build upon and
strengthen its commitment to deliver environmental justice to all
communities across the country through an approach that is informed by
scientific research, high-quality data, and meaningful Federal
engagement with communities experiencing environmental justice
concerns.
The EPA believes that the human health or environmental conditions
that exist prior to this action have the potential to result in
disproportionate and adverse human health or environmental effects on
communities with environmental justice concerns. The EPA believes that
this action is not likely to change existing disproportionate and
adverse effects on communities with environmental justice concerns. The
areas impacted by this action are designated as nonattainment for the
2010 1-hour primary SO<INF>2</INF> NAAQS and this action is intended to
comply with the CAA program to ensure attainment and maintenance of the
NAAQS. From a programmatic perspective, this action is intended to
ensure that affected air agencies comply with CAA obligations for the
applicable nonattainment areas.
The EPA did not perform an EJ analysis and did not consider EJ in
this action. In this action, the EPA is performing a nondiscretionary
duty to find that required State submissions were not timely. There is
not an alternative action that can be taken by the EPA to this action
and thus, these determinations are not informed by additional EJ
related analyses. Further, there is no information in the record
inconsistent with the stated goals of Executive Orders 12898 or 14096
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)

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 action 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.''
This final action is ``nationally applicable'' within the meaning
of CAA section 307(b)(1). This final action consists of findings of
failure to submit required SIPs for four areas designated nonattainment
for the 2010 primary 1-hour SO<INF>2</INF> NAAQS, which are located in
four States in four of the 10 EPA Regions and in four different federal
judicial circuits. This final action is also based on a common core of
factual findings concerning the receipt and completeness of the
relevant SIP submittals.
Accordingly, 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 October 15, 2024.

[[Page 66607]]

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, Sulfur Oxides.

Joseph Goffman,
Assistant Administrator.
[FR Doc. 2024-17328 Filed 8-15-24; 8:45 am]
BILLING CODE 6560-50-P

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