BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
SECTION 27 PROPOSED RULES FOR
)
NITROGEN OXI
x
) DE
EMI(NSOSIONS
)
R07-19
FROM STATIONARY RECIPROCATING
)
Air)(Rulemaking –
INTERNAL COMBUSTION ENGINES AND
)
TURBINES: AMENDMENTS TO 35 ILL.
)
ADM. CODE PARTS 211 AND 217
)
NOTICE
TO:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have today filed with the Office of the Pollution Control Board
the attached MOTION FOR EXPEDand AFIFTEDREVthe
IRMA
of
TIIE
OI
NW
llinois
Environmental Protection Agency a copy of which is herewith served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By: ___/s/___________________
Rachel L. Doctors
Assistant Counsel
Division of Legal Counsel
DATED: Mar200ch
9 19,
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782-5544
217.782.9143
TDD)(
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
SECTION 27 PROPOSED RULES FOR
)
NITROGEN OXI
x
) DE
EMI(NSOSIONS
)
R07-19
FROM STATIONARY RECIPROCATING
)
Air)(Rulemaking –
INTERNAL COMBUSTION ENGINES AND
)
TURBINES: AMENDMENTS TO 35 ILL.
)
ADM. CODE PARTS 211 AND 217
)
MOTION FOR EXPEDITED REVIEW
NOW COMES Proponent, the Illinois Environmental Protection Agency I(― llinois
), by one of its attorneys, and pursuant to 35 Ill. Adm. Code 101.512, respectfully submits
this Motion for Expedit
. Inesupport
d ReviewofMot
(― its Motion, the Illinois EPA states
as follows:
1.
On May 9, 2008, the Illinois EPA filed a proposal with the Illinois Pollution
Control Boa) to
rd amend
B(― oa
35 Ill. Adm. Code Parts 211 and 217 to control the emissions
ofnitrogen ox
x
) forides
int
NO
(― ernal combustion engines and turbines. This proposed
rulemaking
is intended to meet in part certain obligations of the State of Illinois under the federal
Clean Air Ac), 42
t C(―U.S.CAA . §
e
7401
t seq
.; specifically, to satisfy in part Illinois’
obligation to submit a Sta) te
to Iaddrmpleementass theti
re
on
quirePlan
ments
S(― IP
under
Sections 172 and 182 of the CAA for
NO
x
in
majorareasts adesigtionarnay
ted
sourc
as es of
nonattainment with respect to Nationa. l
Se
Ambi
e
, 42 ent Air Quality Standards N(― AA
U.S.C
. §§ 7502 and 7511a. The Board held hearings on this proposal on April 9, 2008, and May
7,2008. First Notice was published on October 31, 2008. (32 Ill. Reg. 17035). Comments were
filed
ebon
ruaF ry 5, 6, and 10, 2009.
2.
Under Section 110 of the CAA and related provisions, states are required to
subm
, fitor the United States Environme) ntalapp
rova
Protel, SIPcs
tithat
on Agency’s USEP(―
Electronic Filing - Received, Clerk's Office, March 19, 2009
3
provide for the attainment and maintenance of standards established by USEPA through control
programs directed to sources of the pollutants involved. 42 U.S.C. §7410. The CAA also
provides for the State to address emissions sources on an area-specific basis through such
requirements as reasonably av) aand
ilarble
easonacontrol
bly avameilasureable
s R(―
control technolo).
See
, 42
gyU.S.C
R
(― AC. §§7502 and 7511a. For each nonattainment area,
the CAA requires the State to demonstrate that it has adopted a― ll reasonably available control
measures as expeditiously as possible (including such reductions in emissions from existing
sources in the area as may be obtained through the adoption, at a minimum, of reasonably
available control technology) and shall provide for attainment of the national primary ambient air
qualit
.
y standa42 U.S.C. § 7502(c)(1).
3.
Volatile organic
x
a
creompou
the nds
primarand yNO
precursors to the formation
of ozone. Addit
x
is
ionalla precyur
, NOsor to the formation
PM
2.5
). of fine particulate matter (―
4.
USEPA designated two areas in Illinois as nonattainment for the 8-hour ozone
and
2
P
.5
NA
M AQS, respectively. Such designations triggered requirements under the CAA for
adopting regulations that reduce emissions sufficiently to demonstrate attainment of the
standards.
5.
Under Section 172(c)(1) of the CAA, states with nonattainment areas are required
to submit, in part, SIPs that provide for the adoption of RACM for stationary sources in all
nonattainment areas as expeditiously as possible. 42 U.S.C. § 7502(c)(1).
6.
A subset of RACM is the RACT requirements. RACT is defined as the lowest
emission limitation that a particular source can meet by applying a control technique that is
reasonably available considering
See
te
, 44
Fe
chnolo
d. Reg.
gical and economic feasibility.
53762 (September 17, 1979). Section 182(b)(2) of the CAA requires states to adopt RACT rules
for all areas designated nonattainment for ozone and classified as moderate or above.
4
7.
In Illinois, there are two areas designated as nonattainment (moderate) for the 8-
hour ozone standard. The first is the Chicago-Gary-Lake County, IL-IN designated area, which
includes Cook County, DuPage County, Grundy County (partial—Goose Lake and Aux Sable
Townships), Kane County, Kendall County (partial—Oswego Township), Lake County,
McHenry County, and Will County. The second area is the St. Louis, MO-IL designated area,
which includes Jersey County, Madison County, Monroe County, and St. Clair County. 40 CFR
§81.314.
8.
In Illinois, there are two areas d
2
e
.5
ssigtandanated
rd, as nonattainment for the PM
the first being the Chicago-Gary-Lake County, IL-IN designated area, which includes Cook
County, DuPage County, Grundy County (partial—Goose Lake and Aux Sable Townships),
Kane County, Kendall County (partial—Oswego Township), Lake County, McHenry County,
and Will County, and second being the St. Louis, MO-IL designated area, which includes
Madison County, Monroe County, Randolph County (partial—Baldwin Village), and St. Clair
County. 40 CFR §81.314.
9.
States, such as Illinois, with nonattainment areas classified as moderate or above
for the 8-hour ozone NAAQS were required to submit by September 15, 2006, a SIP
demonstrating that sources specified unde
Se
r
e,
the CAA were subject to RACT requirements.
Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard; Final Rule
,
70
Fed. Reg
. 71612, 71652 (November 29, 2005).
10.
By letter dated March 17, 2008, the USEPA notified the State of Illinois that it
had failed to make required submissions under the CAA, and that USEPA would be publishing a
rulemaking notice to
Se
ann
e
, attouncacheed
thiLes
ttfindinger from . Mary A. Gade, Regional
Administrator, USEPA, to Douglas P. Scott, Director, Illinois EPA.
5
11 .
On March 24, 2008, USEPA made a finding that Illinois, among other states,
failed to make a RACT submittal required under Part D of Title I of the CAA for its two
moderate nonatt
See
, a73
inm
Fed. Re
e
g.
n15416
t are(Maras. ch 24, 2008). Such finding starts
the 18-month emission offset sanctions clock and 24-month highway funding sanctions clock
under Section 179(a) and (b) of the CAA and the 24-month clock for the promulgation by
USEPA of a Federal Impleme) unde
ntation
r SectiPon
lan
110(cF(―) ofIPthe CAA. 42 U.S.C.
§§ 7509(a) and (b) and 7410(c).
12.
On March 12, 2009, to ensure that the CAA’s requirements are met in a timely
manner and to avoid adverse consequences of failure to do so, the USEPA informed Director
Douglas P. Scott of the Illinois EPA that the State needs to address the findings of failure to
submit the required ozone SIP elements previously identified by the USEPA in the March 17,
2008, letterand in the March 24, 2008,
Fed. Re
f
g
. in15416)al
S
.
e
rule
e
, att(a73
ched letter from
Bharat Mathur, Acting Regional Administrator, USEPA, Region 5, to Douglas P. Scott, Director,
IllinoiMas
rcEPh A
12,
(― 2009, letter).
13.
By this letter, USEPA further reaffirmed that the final rule started a sanctions
clock that, if not terminated or stayed by USEPA, will result in the implementation of several
sanctions in the Chicago and Metro-East St. Louis 8-hour ozone nonattainment areas, as early as
Septembe
Id
r
. US
2009.
EPA sent this letterto
― bre
y the
queIst
llexinoipedits EPeA
d acti
and the Board to
―
complete the ozone SIP development and adoption process for the missing SIP
elements * * * to avoid impleme
.
Id
. ntation of sancti
14.
To date, the Illinois EPA has submitted all of the SIP elements identified in the
March 17, 2008, letter and the March 24, 2008,
x
RACT
finarl
ules
rulef, or
exthe
cept for the NO
Chicago ozone nonattainment area and Metro-East St. Louis ozone nonattainment area.
6
15.
USEPA reiterates in the letter that if, by September 24, 2009, Illinois has not
submitted all of the required SIP elements, pursuant to Section 179(a) of the CAA and 40 CFR
52.31, the new source offset sanction, identified in Section 179(b)(2) of the CAA, will apply in
the Chicago and Metro
Se
-E
e
, aMarst cSh
t. 12,
Louis
letter2009, ar. eThe
as. increased new
source emissions offset ratio (2:1) will make it more difficult for new sources to locate in the
nonattainm. ent areas.
Id
16.
Furthermore, if by six months after imposition of the first sanction, Illinois has
not submitted the required SIP elements, highway sanctions will be implemented in accordance
with 40 CFR
Id
52.31.
. This may adversely affect Federal funding of new highway projects,
including highway project funding under the American Recovery and Reinvestment Act of 2009,
and would restrict the types of highway projects that the State and local governments can
impleme
. nt.
Id
17.
Finally, if by March 24, 2010, Illinois has not submitted the required SIP elements
and USEPA has not approved these SIP revisions, Section 110(c) of the CAA provides for
USEPA to promulgate FIPs to replac
Id
. If it
e the
is necmisesing
ssar
SyIf
Por
elements.
USEPA to promulgate a FIP, USEPA may pay the costs of developing and promulgating this
plan with section 105 funds that would
.
otherwise be given to Illinois.
18.
USEPA is very concerned that the time available to avoid the implementation of
sanctions is
. very short.
Id
19.
The Illinois EPA must ensure that sanctions are not imposed in the two
nonattainment areas in Illinois.
20.
Accordingly, if this proposed rulemaking is not promulgated and a complete
submittal made to USEPA by September 24, 2009, the offset sanction will apply in the two
nonattainment areas. If, by six months after the offset sanction is imposed, USEPA has not
7
affirmatively determined that Illinois has made a complete submission, then the highway funding
sanction will apply in the two nonattainment areas.
21.
For the reasons stated above, and due to the impending date of September 24,
2009, so as to avoid the imposition of sanctions, the regulations need to be adopted in an
expedited manner.
22.
In light of the foregoing, it is necessary to expedite review in this matter.
23.
Therefore, the Illinois EPA requests that the Board proceed to Second Notice
under
Illthe
inois Administrative Proc., as
eedurxpeedit
Act,
iousl5 ILCy
S a
100/1s
-1
possible.
24.
The Illinois EPA believes that the Board possesses the information necessary for
the
oaBrd to proceed to Second Notice in this rulemaking having had two hearings and receiving
detailed comments on this proposal. In the event that more information is needed, the Illinois
EPA wilyl
cfullooperate to expeditiously provide the same to the Board and its hearing officer.
25.
As required by 35 Ill. Adm. Code Section 101.512, this Motion is accompanied
by an Affirmation attesting that the facts cited herein are true.
WHEREFORE, for the reasons set forth above, the Illinois EPA respectfully requests that
the Board grant its Motion and expedite review in this matter.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
___/s/__________________
Rachel L. Doctors
Assistant Counsel
Air Regulatory Unit
Division of Legal Counsel
DATED: March 19, 2009
Electronic Filing - Received, Clerk's Office, March 19, 2009
8
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782.5544
217.782.9143 (TDD)
217.782.9807 (Fax)
Electronic Filing - Received, Clerk's Office, March 19, 2009
9
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
)
CERTIFICATE OF SERVICE
I, the undersigned, an attorney, state that I have served electronically the attached
MOTION FOR EXPEDITaED
nd
AFFREVIRMATIEW of
Ithe
ON Illinois Environmental
Protection Agency upon the following persons:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
SEE ATTACHED SERVICE LIST
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
___/s/__________________
Rachel L. Doctors
Assistant Counsel
Air Regulatory Unit
Division of Legal Counsel
Dated: March 19, 2009
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
217.782.9143 (TDD)
Electronic Filing - Received, Clerk's Office, March 19, 2009
10
R07-19 Service List
Timothy Fox, Hearing Officer
Illinois Pollution Control Board
State of Illinois Center
100 W. Randolph, -S500
uite 11
Chicag60601
o, IL
Katherine D. Hodge
N. LaDonna Driver
Hodge Dwyer Zeman
3150 Roland Ave.
PO Box 5776
Springfie-ld,
5776IL 62705
N. LaDonna Driver
Illinois Environmental Regulatory Group
3150 Roland Ave.
Springfie-ld,
5776IL 62705
Kathleen C. Bassi
Renee Cipriano
Joshua R. More
Stephen J. Bonebrake
Schiff Hardin, LLP
6600 Sears Tower
233 S. Wacker Drive
Chicago, IL-6473
60606
Electronic Filing - Received, Clerk's Office, March 19, 2009
Electronic Filing - Received, Clerk's Office, March 19, 2009
15416
Federal Register
/ Vol. 73, No. 57 / Monday, March 24, 2008 / Rules and Regulations
■
3. Section 52.975, entitled,
‘‘Redesignations and maintenance
plans; ozone’’, is amended by adding a
new paragraph (i) as follows:
§
52.975 Redesignations and maintenance
plans; ozone.
*
*
*
*
*
(i) Approval. The Louisiana
Department of Environmental Quality
(LDEQ) submitted 8-hour ozone
maintenance plans for the Lafayette and
Lafourche Parish areas on October 13,
2006 and December 19, 2006,
respectively. The two areas are
designated unclassifiable/attainment for
the 8-hour ozone standard. EPA
determined these requests for Lafayette
and Lafourche Parishes were complete
on November 30, 2006 and May 2, 2007,
respectively. These maintenance plans
meet the requirements of section
110(a)(1) of the Clean Air Act, and are
consistent with EPA’s maintenance plan
guidance document dated May 20, 2005.
The EPA therefore approved the 8-hour
ozone maintenance plans for the
Lafayette and Lafourche Parish areas on
March 24, 2008
.
[FR Doc. E8–5800 Filed 3–21–08; 8:45 am]
BILLING CODE 6560
–
50
–
P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA
–
HQ
–
OAR
–
2008
–
0072; FRL
–
8545
–
5]
Finding of Failure To Submit State
Implementation Plans Required for the
1997 8-Hour Ozone NAAQS
AGENCY:
Environmental Protection
Agency (EPA).
ACTION:
Final Rule.
SUMMARY:
The EPA is taking a final
action finding that several states have
failed to submit State Implementation
Plans (SIPs) to satisfy certain
requirements of the Clean Air Act (CAA)
for the 1997 8-hour ozone National
Ambient Air Quality Standards
(NAAQS). Under the CAA and EPA’s
implementing regulations, states with
nonattainment areas classified as
moderate, serious, severe or extreme
were required to submit by June 15,
2007, SIPs: Demonstrating how each
nonattainment area would attain the
1997 8-hour ozone standard as
expeditiously as practicable but no later
than the applicable dates established in
the implementing regulations; and
demonstrating reasonable further
progress (RFP). Additionally, states
were required by September 15, 2006, to
submit for these same areas SIPs
demonstrating that sources specified
under the CAA were subject to
reasonably available control technology
requirements (RACT). States that are
part of the Ozone Transport Region
(OTR) were required to submit SIPs to
meet the 1997 8-hour ozone RACT
requirement for the entire state by
September 15, 2006. The RACT
requirement applies to all areas within
the Ozone Transport Region, regardless
of the area’s designation for the 1997
8-hour ozone standard. Some states
have not yet submitted SIPs to satisfy
these requirements. The EPA is by this
action making a finding of failure to
submit for those nonattainment areas
and OTR areas that have not made the
required SIP submission(s). If EPA has
not affirmatively found that the state has
submitted the required plan or plans
within 18 months, the offset sanction
applies in the area. If within 6
additional months EPA has still not
affirmatively determined that the state
has submitted the required plan, the
highway funding sanction applies in an
area if it is designated nonattainment.
No later than 2 years after EPA makes
the finding, EPA must promulgate a
Federal Implementation Plan if the state
has not submitted and EPA has not
approved the required SIP.
DATES:
Effective Date:
This action is
effective on March 24, 2008.
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
TW Alexander Drive, Research Triangle
Park, NC 27709; telephone (919) 541–
5208.
SUPPLEMENTARY INFORMATION:
For
questions related to a specific state
please contact the appropriate regional
office:
Regional offices
States
Dave Conroy, Branch Chief, Air Programs Branch, EPA New England,
I Congress Street, Suite 1100, Boston, MA 02203
–
2211.
Maine, New Hampshire, Rhode Island, and Vermont.
Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290
Broadway, 25th Floor, New York, NY 10007
–
1866.
New York.
Christina Fernandez, Acting Branch Chief, Air Quality Planning Branch,
EPA Region III, 1650 Arch Street, Philadelphia, PA 19103
–
2187.
Virginia.
Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West
Jackson Street, Chicago, IL 60604.
Illinois, Indiana, Ohio, and Wisconsin.
Dave Jesson, Air Planning Office, EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105.
California.
Table of Contents
I. Background
A. Statutory Requirements
B. Consequences of Findings of Failure to
Submit
II. This Action
A. Clean Air Determination Areas
Receiving a Finding of Failure to Submit
B. OTR Attainment Areas Receiving a
Finding of Failure to Submit
C. Finding of Failure to Submit RFP Plans
in California
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
Advancement Act
M. Congressional Review Act
VerDate Aug<31>2005 16:13 Mar 21, 2008 Jkt 214001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\24MRR1.SGM 24MRR1
pwalker on PROD1PC71 with RULES
Electronic Filing - Received, Clerk's Office, March 19, 2009
Federal Register
/ Vol. 73, No. 57 / Monday, March 24, 2008 / Rules and Regulations
15417
1
In accordance with section 179(b)(1)(A), the
highway funding sanction only applies in areas
designated nonattainment for the relevant standard
and thus would not apply in the portions of the
OTR subject to RACT, but not designated
nonattainment.
2
This finding is for the attainment demonstration
requirement in section 182(b)(1), 182(c)(2)(A) and
182(d) and 40 CFR 51.908.
3
Except as noted, this finding is for the RACT
SIPs required under CAA section 182(b)(2) for VOC
and section 182(f) for NO
X
. This requirement
applies to moderate areas under 182(b)(2) and
applies to serious, severe and extreme areas as
provided in CAA section 182(c), (d) and (e),
respectively.
4
On February 3, 2006 (71 FR 5791), EPA
approved a NO
X
waiver for Northern Maine
(specifically, Oxford, Franklin, Somerset,
Piscataquis, Penobscot, Washington, Aroostook, and
portions of Hancock and Waldo Counties). This
approval exempts major sources of NO
X
in this area
from the requirements to implement controls
meeting RACT.
N. Judicial Review
I. Background
The CAA requires states with areas
that are designated nonattainment for
the 1997 8-hour ozone NAAQS to
develop a SIP providing how the state
will attain and maintain the NAAQS.
Part D of title I of the CAA specifies the
required elements of a SIP for an area
designated nonattainment. These
requirements include, but are not
limited to, RFP, RACT, and an
attainment demonstration.
See
CAA
sections 172 and 182. In addition, states
that are part of the Ozone Transport
Region (OTR) must submit SIPs meeting
the 1997 8-hour ozone RACT
requirement for the entire state or the
portion of the state in the OTR. A
number of states have submitted RFP,
RACT and attainment demonstration
SIPs as required under the CAA and
EPA’s implementing regulations, but at
present, some states have not yet
submitted SIPs to satisfy these
requirements of the CAA. The EPA is by
this action making a finding of failure to
submit for those areas that have not yet
submitted these required SIPs.
A. Statutory Requirements
On July 18, 1997, EPA issued a
revised ozone standard. At that time, the
ozone standard was 0.12 ppm measured
over a 1-hour period. EPA revised the
NAAQS to rely on an 8-hour averaging
period (versus 1 hour for the previous
NAAQS), and the level of the standard
was changed from 0.12 ppm to 0.08
ppm (62 FR 38856). EPA’s initial
implementation strategy for the 1997 8-
hour standard was vacated and
remanded by the Supreme Court.
Whitman
v.
American Trucking
Associations, Inc.
, 531 U.S. 457 (2001).
On April 30, 2004 (69 FR 23951) and on
November 29, 2005 (70 FR 71612), EPA
published final rules that addressed the
elements related to implementation of
the 1997 8-hour ozone NAAQS (Phase 1
and Phase 2 Implementation Rules). In
an April 30, 2004 rulemaking (69 FR
23858) EPA designated attainment and
nonattainment areas for the 1997 8-hour
ozone standard, and specified the
classification for each nonattainment
area. The 1997 8-hour ozone
designations took effect on June 15,
2004. The November 30, 2005 Phase 2
implementation rule set forth deadlines
for state and local governments to
develop and submit to EPA
implementation plans designed to meet
the 1997 8-hour standard by reducing
air pollutant emissions contributing to
ground-level ozone concentrations. The
Phase 2 Rule required states with
nonattainment areas to submit SIPs by
June 15, 2007 demonstrating how each
nonattainment area would attain the
1997 8-hour ozone standard as
expeditiously as practicable but no later
than specified dates and demonstrating
how the area would make reasonable
further progress toward attainment in
the years prior to the attainment year.
Additionally, the Phase 2 Rule required
states to submit SIPs requiring RACT for
nonattainment areas and for areas
within the OTR by September 15, 2006.
B. Consequences of Findings of Failure
To Submit
The CAA establishes specific
consequences 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. CAA section 179(a)(1).
Additionally, any of these findings also
triggers an obligation for EPA to
promulgate a Federal Implementation
Plan (FIP) if the states have not
submitted and EPA has not approved
the required SIP within 2 years of the
finding. 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 rulemaking.
EPA is finding that 11 states have
failed to make required SIP submissions
for 11 nonattainment areas and 3 states
or portions of states in the Ozone
Transport Region. If EPA has not
affirmatively determined that a state has
made the required complete submittals
for an area 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) will
apply in the area subject to the finding.
If 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
areas designated nonattainment, in
accordance with CAA section 179(b)(1)
and 40 CFR 52.31.
1
The 18-month clock
will stop and the sanctions will not take
effect if, within 18 months after the date
of the finding, EPA finds that the state
has made a complete submittal as to
each of the SIPs for which these
findings are made. In addition, EPA is
not required to promulgate a FIP if the
state makes the required SIP submittal
and EPA takes final action to approve
the submittal within 2 years of EPA’s
finding.
At approximately the same time as the
signing of this notice, EPA Regional
Administrators are sending letters to the
states informing each state identified
below that EPA is determining that they
have failed to make one or more of the
required SIP submissions for the
specified areas. These letters, and any
accompanying enclosures, have been
included in the docket to this
rulemaking.
II. This Action
In this action, EPA is making a
finding of failure to submit for states
that have failed to make certain required
SIP submittals. This finding starts the
18-month emission offset sanctions
clock, 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 March
24, 2008. The following states failed to
make an attainment demonstration,
reasonable further progress, or
reasonably available control technology
submittal required under Part D of Title
1 of the CAA for the specific area(s)
identified below.
The areas for which states that did not
submit the RACT SIP, RFP SIP, and/or
the attainment demonstration SIP are as
follows:
Attainment Demonstrations
2
NH, Boston-Manchester-Portsmouth (SE)
Area
NY, Jefferson County Area
RI, Providence (all of RI) Area
IL, Chicago-Gary-Lake County Area
IN, Chicago-Gary-Lake County Area
WI, Milwaukee-Racine Area
WI, Sheboygan Area
RACT SIPs
3
RI, Providence (all of RI) Area
VT, entire state in Ozone Transport Region
ME, entire state of Maine for the OTR VOC
RACT requirement
ME, entire state of Maine for the OTR NO
X
RACT requirement, with the exception of
those areas that received a NO
X
waiver
4
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5
This finding is for the RFP requirement under
CAA sections 172(c)(2) and 182(b)(1).
See
also 40
CFR 51.910.
6
The remaining portion of Virginia that is in the
OTR is also part of the Washington DC-MD-VA
moderate 1997 8-hour ozone nonattainment area.
EPA has received a RACT SIP addressing Virginia’s
OTR and moderate RACT requirements for the
Washington DC-MD-VA moderate 1997 8-hour
ozone nonattainment area.
7
‘‘If the state justifies consideration of precursor
emissions for an area outside the nonattainment
VA, Stafford County
IL, Chicago-Gary-Lake County Area
IL, St. Louis Area for NO
X
RACT requirement
IN, Chicago-Gary-Lake County Area
OH, Cleveland-Akron-Lorain Area for VOC
RACT requirement
RFP SIPs
5
RI, Providence (all of RI) Area
NH, Boston-Manchester-Portsmouth (SE)
Area
NY, Jefferson County Area
IL, Chicago-Gary-Lake County Area
IN, Chicago-Gary-Lake County Area
WI, Milwaukee-Racine Area
WI, Sheboygan Area
CA, Western Mojave Desert
CA, Sacramento Metro Area
CA, Ventura County (part) Area
A. Clean Air Determination Areas
Receiving a Finding of Failure To
Submit
For areas designated as ‘‘moderate
nonattainment’’ areas, the CAA requires
states to develop SIPs describing how
the state will attain and maintain the
ozone standard; such SIPs were to have
been submitted to EPA by June 15, 2007.
The Boston-Manchester-Portsmouth
(SE) area in NH and Jefferson County,
NY are designated ‘‘moderate
nonattainment.’’ EPA has published
proposed determinations that both areas
are in attainment of the 1997 8-hour
ozone NAAQS.
See
73 FR 7234
(February 7, 2008), and 73 FR 8637
(February 14, 2008). These actions were
taken in consideration of several years
of air quality data in these areas
showing attainment of the NAAQS and
in consultation with the states. In the
case of Jefferson County, on June 14,
2007 New York submitted to EPA a
formal clean data request.
EPA is proceeding with rulemaking
on the clean data determinations for
these two areas. A final determination of
attainment would suspend the
attainment demonstration and RFP SIP
requirements of 40 CFR 50.918. EPA
expects to take final action on these
determinations as soon as possible. If
EPA issues a final determination of
attainment, it will stay the sanctions
and FIP clocks. The stay for the 2:1
emission offset sanction, highway
sanction and FIP promulgation clocks
will continue for as long as the area air
quality continues to attain the 1997 8-
hour ozone standard. The clocks will be
permanently turned off if the areas are
redesignated to attainment.
EPA is issuing findings of failure to
submit to New Hampshire for the
Boston-Manchester-Portsmouth (SE)
area and to New York for the Jefferson
County Area. As noted earlier, EPA has
published proposed determinations that
both areas are in attainment of the 1997
8-hour ozone NAAQS. Pursuant to 40
CFR 51.918, the states’ obligation to
submit the reasonable further progress
and attainment demonstrations will be
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.
B. OTR Attainment Areas Receiving a
Finding of Failure To Submit
The states of Maine and Vermont and
Stafford County, VA have 8-hr ozone
RACT requirements because they are
part of the OTR.
6
The EPA is issuing a
finding of failure to submit to Maine,
Vermont and Virginia because they have
not met the requirement (40 CFR
51.916(b)). EPA understands that these
three states are each working on a
certification that the RACT rules the
states adopted and EPA approved under
the 1-hour ozone standard meet the
RACT requirements applicable for the
1997 8-hour ozone standard. The FIP
clocks will be stopped when the states
submit and EPA approves the RACT
SIP. This is a formal SIP submittal and
the states must complete their notice-
and-comment process prior to
submission. Maine, Vermont and
Virginia should be able to complete the
process and submit the SIPs in time for
EPA to take rulemaking action on the
submissions before the 24-month FIP
clock expires. These OTR areas are
subject to nonattainment NSR and,
therefore, would be subject to the 2:1
emission offset sanctions if they fail to
submit RACT rules EPA affirmatively
determines are complete within 18
months of this finding. Because the
areas are in attainment, the highway
funding sanction would not apply (40
CFR 52.31(e)(2)).
C. Findings of Failure To Submit RFP
Plans in California
EPA is making findings of failure to
submit RFP plans for the following three
areas in California: Los Angeles-San
Bernardino Counties (Western Mojave
Desert), Ventura, and Sacramento Metro
nonattainment areas. The findings of
failure to submit are being made
because these areas did not submit the
RFP plans that were due on June 15,
2007. On February 14, 2008, the state
submitted a formal request to EPA to
voluntarily reclassify: (1) Western
Mojave Desert from moderate to severe-
17; (2) Ventura from moderate to
serious; and (3) Sacramento Metro from
serious to severe-15. Although EPA
must grant such voluntary
reclassification, a reclassification does
not provide a basis for extending the
submittal deadlines for SIP elements
that were due for these areas’ initial
classifications. Consequently this
finding of failure to submit is based on
the states’ failure to submit the RFP
plans that were due on June 15, 2007 for
the area’s current classification; this
finding does not apply with regard to
any additional RFP obligations that
would be triggered by the
reclassification of these areas. The
February 14, 2008 letter included a
commitment to submit to EPA the RFP
for the current classifications for the
three areas, as well as the RFP and
attainment requirements for the
requested higher classification for the
Western Mojave Desert and Ventura
areas by April 30, 2008. With respect to
the Sacramento Metro area, we note that
the state has submitted an RFP SIP for
the 2008 milestone. Thus the finding
applies only to the RFP component
required for the 2011 milestone.
Both the Ventura and Western Mojave
Desert areas are downwind from the
South Coast Air Basin (metropolitan Los
Angeles), and the state has indicated
that RFP in the areas must depend in
part upon reductions in the South Coast
area. The Phase 2 Rule to implement the
1997 8-hour NAAQS set forth a policy
that emission reductions from outside a
nonattainment area could be credited
toward the 1997 8-hour ozone RFP
requirement. The rule stated that credit
could be taken for VOC and NO
X
emission reductions within 100 km and
200 km respectively outside the
nonattainment area (70 FR 71647;
November 29, 2005). However, if a
regional NO
X
control strategy were in
place in the state, reductions could be
taken from within the state. On July 17,
2007, EPA requested a partial voluntary
remand from the Court of Appeals for
the District of Columbia Circuit on this
policy provision. This provision was
challenged by the Natural Resources
Defense Council (NRDC). EPA’s PM
2.5
Implementation Rule (72 FR 20586,
April 25, 2007) adopted a different
approach for crediting reductions of
precursor pollutants from ‘‘outside’’ the
nonattainment area for ROP/RFP
purposes.
7
Because the PM
2.5
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area, EPA will expect state RFP assessments to
reflect emissions changes from all sources in this
area. The State cannot include only selected sources
providing emission reductions in the analysis.’’ (72
FR at 20636 (4/25/07).)
8
‘‘Partial Voluntary Remand Sought in the Ozone
Phase 2 Rule Concerning Rate of Progress (ROP)
Reductions Obtained From Outside a
Nonattainment Area’’ Memorandum of October 11,
2007.
Implementation Rule significantly
modified the policy regarding which
emissions reductions are eligible to be
credited towards a nonattainment area’s
RFP requirement, EPA asked for a
partial voluntary remand of the Phase 2
Ozone Rule to consider whether it
should be revised for consistency with
the PM
2.5
Implementation Rule. In
response to EPA’s request for a partial
voluntary remand of the Phase 2 Ozone
Rule, NRDC asked the court for a
vacatur, i.e., to nullify this provision.
The Court ultimately granted NRDC’s
petition for vacatur. EPA issued a
memorandum on October 11, 2007
stating that we: (1) Sought a voluntary
remand, (2) would be revising the rule,
and (3) advised the Regional Offices not
to approve ROP/RFP SIPs that obtained
VOC or NO
X
reductions from outside
the nonattainment area until the new
rulemaking was finalized.
8
EPA is currently developing a
proposed rule to address the court’s
vacatur of the provision in the Phase 2
Ozone Implementation Rule that
allowed nonattainment areas to take
credit for emission reductions outside
the nonattainment area from selected
sources which differed from what was
in the PM
2.5
Implementation Rule. Until
we issue that final rule, we could take
rulemaking action on the RFP SIPs on
a case-by-case basis. We plan to issue
the final rule as soon as possible.
However, sanctions clocks will
terminate when states make submittals
that EPA affirmatively determines are
complete and the FIP clocks can be
turned off if we take final action to
approve the RFP plans.
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
public interest because it would divert
agency resources from the critical
substantive review of complete SIPs.
See
58 FR 51270, 51272, n.17 (October
1, 1993); 59 FR 39832, 39853 (August 4,
1994).
B. Effective Date Under the
Administrative Procedure Act
This action will be effective on March
24, 2008. 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; and EPA previously
cautioned the affected states that the SIP
submissions were overdue and that EPA
was considering taking this action. In
addition, this action simply starts a
‘‘clock’’ that will not result in sanctions
against the states for 18 months, and
that the states 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 under the Executive
Order. However, the EPA submitted this
action to the Office of Management and
Budget (OMB) for review on February
12, 2008 and any changes made in
response to OMB’s recommendations
have been documented in the docket for
this action. The OMB released it on
March 14, 2008.
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.
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 1997 8-hour
ozone NAAQS. The present final rule
does not establish any new information
collection requirement. Burden means
that total time, effort, or financial
resources expended by persons to
generate, maintain, retain, or disclose or
provide information to or for a Federal
agency. This includes the time needed
to review instructions; develop, acquire,
install, and utilize technology and
systems for the purposes of collecting,
validating, and verifying information,
processing and maintaining
information, and disclosing and
providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information. An Agency
may not conduct or sponsor, and a
person is not required to respond to a
collection of information unless it
displays a currently valid OMB control
number. The OMB control numbers for
EPA’s regulations in the CFR are listed
in 40 CFR part 9.
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. This rule is
not subject to notice and comment
requirements under the APA or any
other statute because 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.
F. Unfunded Mandates Reform Act
Title II of the Unfunded Mandate
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal Agencies to assess the effects of
their regulatory actions on state, local
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandate’’ that may result
in expenditures to state, local, and
Tribal governments, in the aggregate, or
to the private sector, of $100 million or
more in any 1 year. Before promulgating
an EPA rule for which a written
statement is needed, section 205 of the
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UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most cost-
effective or least burdensome alternative
that achieves the objectives of the rule.
The provisions of section 205 do not
apply when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
rule an explanation of why that
alternative was not adopted. Before EPA
establishes any regulatory requirements
that may significantly or uniquely affect
small governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments to have
meaningful and timely input in the
development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small government on compliance with
regulatory requirements.
This action does not include a Federal
mandate within the meaning of UMRA
that may result in expenditures of $100
million or more in any 1 year by either
state, local, or Tribal governments in the
aggregate or to the private sector, and
therefore, is not subject to the
requirements of sections 202 and 205 of
the UMRA. It does not create any
additional requirements beyond those of
the 1997 8-hour ozone NAAQS (62 FR
38652; 62 FR 38856, July 18, 1997),
therefore, no UMRA analysis is needed.
EPA has determined that this action is
not a Federal mandate. The CAA
provisions requires states to submit
SIPs. This notice merely provides a
finding that the states have not met the
requirement to submit certain SIPs and
begins a clock that could result in the
imposition of sanctions if the states
continue to not meet this statutory
obligation. This notice does not, by
itself, require any particular action by
any state, local, or Tribal government; or
by the private sector. For the same
reasons, EPA has determined that this
rule contains no regulatory
requirements that might significantly or
uniquely affect small governments.
The EPA believes that any new
controls imposed as a result of this
action will not cost in the aggregate
$100 million or more annually. Thus,
this Federal action will not impose
mandates that will require expenditures
of $100 million or more in the aggregate
in any 1 year.
G. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by state
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the states, or the relationship
between the national government and
the states, or on the distribution of
power and responsibilities among the
various levels of government.’’
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
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’
EPA has concluded that this final rule
will not have Tribal implications. It will
neither impose substantial direct
compliance costs on Tribal
governments, nor preempt Tribal law.
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 1997 8-
hour 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 turns on 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).
I. Executive Order 13045: Protection of
Children from Environmental Health
and Safety Risks
Executive Order 13045: ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997) applies to any rule that:
(1) Is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
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 should reduce the levels of
harmful pollutants in the air that should
reduce harmful effects on children.
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 several
states have failed to submit SIPs to
satisfy certain nonattainment area
requirements of the Clean Air Act (CAA)
for the 1997 8-hour ozone National
Ambient Air Quality Standards
(NAAQS).
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K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(February 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 certain states have not
met the requirement to submit one or
more SIPs and begins a clock that could
result in the imposition of sanctions if
the states continue to not meet this
statutory obligation. If the states fail 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 states.
L. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104–113,
(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 when the Agency decides
not to use available and applicable VCS.
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 March 24, 2008.
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 Court within 60 days
from the date final action is published
in the
Federal Register
. Filing a petition
for reconsideration by the 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 RACT, RFP, and attainment
demonstration 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 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, Intergovernmental
relations, Reporting and recordkeeping
requirements.
Dated: March 17, 2008.
Robert J. Meyers,
Principal Deputy Assistant Administrator.
[FR Doc. E8–5807 Filed 3–21–08; 8:45 am]
BILLING CODE 6560
–
50
–
P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 59
[EPA
–
HQ
–
OAR
–
2006
–
0971; FRL
–
8544
–
2]
RIN 2060
–
AO86
National Volatile Organic Compound
Emission Standards for Aerosol
Coatings
AGENCY:
Environmental Protection
Agency (EPA).
ACTION:
Direct final rule.
SUMMARY:
EPA is taking direct final
action to amend the National Volatile
Organic Compound Emission Standards
for Aerosol Coatings final rule, which is
a rule that establishes national
reactivity-based emission standards for
the aerosol coatings category (aerosol
spray paints) under the Clean Air Act,
published elsewhere in this
Federal
Register
. This direct final action
clarifies and amends certain explanatory
and regulatory text in the Aerosol
Coatings final rule, as the final rule
contains misstatements and possibly
confusing language on how compounds
are added to the list in Tables 2A, 2B
or 2C—Reactivity Factors, and when
distributors and retailers are regulated
entities responsible for compliance with
the final rule.
DATES:
This direct final rule is effective
on June 23, 2008, without further notice,
unless EPA receives adverse comment
by April 23, 2008, or May 8, 2008, if a
public hearing is held. If EPA receives
adverse comment, we will publish a
timely withdrawal in the
Federal
Register
informing the public that some
or all of the amendments in the final
rule will not take effect.
Comments. Written comments must
be received by April 23, 2008, unless a
public hearing is requested by April 3,
2008. If a hearing is requested, written
comments must be received by May 8,
2008.
Public Hearing. If anyone contacts
EPA requesting to speak at a public
hearing concerning the proposed
regulation by April 3, 2008, we will
hold a public hearing on April 8, 2008.
ADDRESSES:
Comments. Submit your
comments, identified under Docket ID
No. EPA–HQ–OAR–2006–0971 by one
of the following methods:
•
www.regulations.gov.
Follow the
online instructions for submitting
comments.
•
E-mail: a-and-r-docket@epa.gov
•
Fax:
(202)–566–9744
•
Mail:
National Volatile Organic
Compound Emission Standards for
Aerosol Coatings, Environmental
Protection Agency, Mail Code: 2822T,
1200 Pennsylvania Avenue, NW.,
Washington, DC 20460. Please include
two copies.
•
Hand Delivery:
EPA Docket Center,
1301 Constitution Avenue, NW., EPA
Headquarters Library, Room 3334, EPA
West Building, Washington, DC 20460.
Such deliveries are only accepted
during the Docket’s normal hours of
operation, and special arrangements
should be made for deliveries of boxed
information.
Instructions:
Direct your comments to
Docket ID No. EPA–HQ–OAR–2006–
VerDate Aug<31>2005 16:13 Mar 21, 2008 Jkt 214001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\24MRR1.SGM 24MRR1
pwalker on PROD1PC71 with RULES
UNITED STATES ENVIRONMEIUTAL BROTECTlON AGENCY
REGION
5
77 WEST JACKSON BOULEVARD
CHICAGO. IL 60604-3590
REPLY TO THE ATTENTION OF:
(R-19J)
Douglas P. Scott, Director
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19726
Springfield, Illinois 62794-9276
Dear Mr. Scott:
I am writing concerning submittals that the State of Illinois
must make to comply with Clean Air Act (the Act) requirements to
meet the 8-hour national ambient air quality standard for ozone.
The Act requires States with areas that are designated
nonattainment for the ozone national ambient air quality
standard to develop a State Implementation Plan (SIP) describing
how the State will attain and maintain the ozone standard.
Part D of title I of the Act outlines all of the required
elements of an approvable SIP for areas designated
nonattainment. The requirements include but are not limited to,
reasonable further progress, Volatile Organic Compounds (VOC)
and Nitrogen Oxides
(NOx) Reasonably Available Control
Technology (RACT), and an attainment demonstration. These
submittals were due on September 15, 2006 (VOC RACT for
existing, pre-2006, Control Technique Guideline (CTG) and major
non-CTG source categories and NOx RACT), and June 15, 2007 (all
other ozone SIP elements).
While we appreciate the work that the Illinois Environmental
Protection Agency has done to meet its obligations under the
Act, not all of the required SIP elements have been submitted.
Based on our discussions with your staff, we believe that
Illinois will complete and submit the required SIP elements
expeditiously and well before any findings discussed here result
in any adverse consequences for the State. In particular, we
note the very good progress the State has made through its
efforts, as a participant in the Lake Michigan Air Directors
Consortium, to complete the ozone attainment demonstration and
reasonable further progress plans for the Chicago area.
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Based Inks on 100% Recycled Paper (50% Postconsumer)
Electronic Filing - Received, Clerk's Office, March 19, 2009
Nonetheless, we consider the required SIP elements to be a high
priority and by today's letter, EPA is notifying Illinois that,
pursuant to section 179 (a)
ofdthe Act, EPA is making findings of
failure to submit for the following areas and SIP requirements:
Chicago Area
-
Reasonable Further Progress Plan
-
Attainment Demonstration
-
VOC RACT for Existing CTG and
Major Non-CTG Sources
-
NOX RACT
Metro-East St. Louis Area
-
NOx RACT
EPA will shortly publish a rulemaking notice in the Federal
Register announcing these findings, which will be effective upon
publication of the notice. In general, findings are being made
in those cases where a State failed to submit all or elements of
a required SIP. Please be assured that we will continue to work
closely with the Illinois Environmental Protection Agency to
undertake all necessary efforts to ensure that the remaining
submittals are made as soon as possible so that we can avoid the
implementation of sanctions and the need to promulgate a Federal
Implementation Plan (FIP)
.
If, within 18 months of EPA's finding, Illinois has not
submitted the missing elements of the SIP, pursuant to section
179(a) of the Act and 40 Code of Federal Regulations (CFR)
section 52.31, the new source offset sanction identified in
section 179(b) of the Act will apply in the affected areas. If
Illinois still has not made a complete submission six months
after the new source offset sanction is imposed, the highway
sanction will apply in the affected areas in accordance with
40 CFR 52.31. In addition, section 110(c) of the Act provides
that EPA promulgate a FIP no later than two years after a
finding under section 179(a) if EPA has not approved the plan
for which the finding was made.
The 18-month clock will stop and the sanctions will not take
effect if, within 18 months after the date of the findings, EPA
finds that the State has made a complete submittal. In
addition, EPA would no longer be obligated to promulgate a FIP
if the State makes the required SIP submittals and EPA takes
final action to approve the submittals within two years of the
findings
.
I also call your attention to the transportation conformity
issues associated with certain aspects of these findings of
failure to submit pursuant to EPA's transportation conformity
rule (40 CFR 93.120(b)). The conformity status of the
transportation plans and transportation improvement programs in
the affected areas would lapse on the date that highway
sanctions under section 179 are imposed, unless the State makes
the required SIP submittals and EPA acknowledges this via a
letter.
We are looking forward to working closely with Illinois to
ensure that the Act's requirements are met in a timely manner
without adverse consequences.
Sincerely,
I
Mary A. Gade
Regional Administrator
Electronic Filing - Received, Clerk's Office, March 19, 2009
Electronic Filing - Received, Clerk's Office, March 19, 2009
Electronic Filing - Received, Clerk's Office, March 19, 2009