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Finding of Failure To Submit State Implementation Plans Required for the 1997 Particulate Matter Less Than 2.5 Micrometer (PM2.5) National Ambient Air Quality Standards (NAAQS)Nov 27, 2009 (Environmental Protection Agency Documents and Publications/ContentWorks via COMTEX) -- SUMMARY: The EPA is taking a final action in which it finds that three States, Georgia, Illinois, and Pennsylvania, have failed to submit State Implementation Plans (SIPs) to satisfy requirements of the Clean Air Act (CAA) for attaining the 1997 National Ambient Air Quality Standards (NAAQS) for particulate matter less than 2.5 micrometers (PM2.5). Under the CAA and EPA's implementing regulations, States with nonattainment areas were required to submit SIPs by April 5, 2008, demonstrating how each nonattainment area would attain the 1997 PM2.5 standards as expeditiously as practicable. If within 18 months of the effective date of this notice EPA has not determined that the State has submitted the required nonattainment plan, then any new or modified source in the nonattainment area will be required to obtain emission reduction offsets that exceed its emission increases on a two-to-one basis. If within 24 months of the effective date of this notice EPA has not determined that the State has submitted the required SIP, then the highway funding sanction also will apply in the nonattainment area. No later than 2 years after EPA makes the finding, EPA must promulgate a Federal Implementation Plan (FIP) if the State has not submitted the required nonattainment SIP and EPA has not approved it. EFFECTIVE DATE: Effective Date. This action is effective on November 27, 2009. FOR FURTHER INFORMATION CONTACT: General questions concerning this notice should be addressed to Mr. Butch Stackhouse, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code: C504-2, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; telephone (919) 541-5208. SUPPLEMENTARY INFORMATION: For questions related to a specific State please contact the appropriate regional office: Regional offices...................... States Cristina Fernandez, Associate..........Pennsylvania. Director, Office of Air Program Planning (3AP30), Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2023 Dick Schutt, Chief, Air Planning...... Georgia. Branch, Air, Pesticides and Toxics Management Division, EPA Region IV, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960 Jay Bortzer, Chief, Air Programs...... Illinois. Branch, EPA Region V, 77 West Jackson Street, Chicago, IL 60604 Table of Contents I. Background. A. Statutory Requirements. B. Consequences of Findings of Failure to Submit. II. This Action. III. Statutory and Executive Order Reviews. A. Notice and Comment Under the Administrative Procedures Act. 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 areas that are designated nonattainment for the 1997 PM2.5 NAAQS to develop a SIP providing how the State will attain the NAAQS. Section 172 of the CAA specifies the required elements of a SIP for an area designated nonattainment for the 1997 PM2.5 NAAQS. These requirements include, but are not limited to, an attainment demonstration, reasonably available control measures (RACM) and reasonably available control technology (RACT), annual emissions reductions to ensure reasonable further progress (RFP), and contingency measures. Most States with PM2.5 nonattainment areas designated in 2005 have submitted SIPs addressing these requirements as required under the CAA and EPA's implementing regulations. However, three States (Georgia, Illinois, and Pennsylvania) have not yet submitted SIPs to satisfy these requirements for four PM2.5 nonattainment areas. By this action, EPA is making a finding that these States have failed to submit the required SIPs for these areas. A. Statutory Requirements On July 18, 1997, EPA promulgated the NAAQS for fine particles (PM2.5). The 1997 annual standard was set at a level of 15 micrograms per cubic meter, based on the 3-year average of annual mean PM2.5 concentrations. The 1997 24-hour standard was set at a level of 65 micrograms per cubic meter, based on the 3-year average of the 98th percentile of 24-hour concentrations. (62 FR 38652). These standards remain in effect. See 40 CFR section 50.7. The designation of PM2.5 nonattainment areas was delayed due to the need to obtain 3 years of data from an expanded nationwide air quality monitoring network, as well as due to a series of legal challenges to the 1997 standards which were resolved in 2002. See Whitman v. American Trucking Associations, Inc., 121 S.Ct. 903 (2001). The Transportation Equity Act for the Twenty-first Century revised the deadline for promulgation of designations to December 31, 2004, in order to provide additional time to collect air quality monitoring data, obtain designation recommendations from the States, and finalize the designation process. The PM2.5 designations based on 2001-2003 air quality data were published in the Federal Register on January 5, 2005 (70 FR 943). A total of 47 nonattainment areas were identified. EPA noted that because 2004 air quality data was just becoming available, it would consider such data and modify the designations as appropriate prior to the April 5, 2005, effective date. EPA issued a supplemental notice on April 5, 2005 (70 FR 19844; published April 14, 2005), indicating that eight areas changed status to attainment based on consideration of 2002-2004 data, resulting in a final list of 39 areas designated as nonattainment for the 1997 PM2.5 NAAQS. On April 25, 2007 (72 FR 20586), EPA published a final rule describing the requirements for implementation plans designed to meet the 1997 PM2.5 standards (the "PM2.5 Implementation Rule"). Section 172 of the CAA requires States with nonattainment areas to submit nonattainment SIPs within 3 years of the effective date of the designation. Therefore, the PM2.5 plans were required to be submitted by April 5, 2008. As explained in further detail in the PM2.5 Implementation Rule, the key required elements of the nonattainment SIP include the attainment demonstration, RACM and RACT, RFP, and contingency measures. The attainment demonstration is required to show how the nonattainment area would attain the 1997 PM2.5 standards as expeditiously as practicable, but no later than April 5, 2010. (Note that for an area with a more severe or complex nonattainment problem, the State could propose in its plan to have an extended attainment date of an additional one to 5 years beyond the initial 5-year period if it meets the statutory and regulatory requirements.) The attainment demonstration takes into account projected emission reductions from existing Federal and State measures, plus any additional RACM/RACT that can be adopted by the State to attain "as expeditiously as practicable." Air quality modeling of these projected emissions reductions in future years is an important element of the attainment demonstration. Each nonattainment SIP must include RACM and RACT as necessary for the area to attain the 1997 PM2.5 NAAQS. The CAA requires the State to demonstrate that it has adopted all RACM, considering economic and technical feasibility and other factors, that are needed to show that the area will attain the fine particle standards as expeditiously as practicable. The PM2.5 Implementation Rule sets forth more specific requirements and guidance for making RACM and RACT determinations. Each plan must also ensure that the area is making RFP in terms of emission reductions and air quality improvements toward attainment. The PM2.5 Implementation Rule provides that, for areas with an attainment date within 5 years of designation, the attainment demonstration is considered to satisfy the RFP requirement. Areas with attainment dates beyond 2010 are required to submit an RFP plan according to the requirements in the implementation rule. SIPs must also include contingency measures, which are emission reduction measures to be undertaken if the area fails to satisfy the RFP requirement or fails to attain the standards by the attainment date. These measures are to take effect without significant further action by the State or EPA. We note that several PM2.5 nonattainment areas currently have air quality that attains the level of the 1997 PM2.5 NAAQS, but have not yet completed the process for redesignating the area to attainment. Under EPA's "Clean Data Policy," certain nonattainment SIP submission requirements may be suspended if the area is monitoring attainment. See 40 CFR 50.1004(c). EPA identifies these areas through clean data determinations published in the Federal Register Pursuant to 40 CFR 51.1004, the States' obligation to submit the RACM/RACT, contingency measures, RFP, and attainment demonstrations are stayed as of the effective date of a final approval of the clean air determination for these areas. This stay will remain in effect for so long as the area remains in attainment and will no longer apply if the area is redesignated to attainment. For this reason, States with areas that have received final clean data determinations are not subject to the final action in this notice. --This is a summary of a Federal Register article originally published on the page number listed below-- Final rule. CFR Part: "40 CFR Part 52" Citation: "74 FR 62251" Document Number: "EPA-HQ-OAR-2009-0670; FRL-8985-6" Federal Register Page Number: "62251" "Rules and Regulations" |